In the case of Banel v. Lithuania,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 21 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 14326/11)
against the Republic of Lithuania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Lithuanian national, Ms Venata Banel (“the applicant”), on 18
February 2011.
The applicant was represented by Ms M. Bartaševičiūtė,
a lawyer practising in Vilnius. The Lithuanian Government (“the Government”)
were represented by their Agent, Ms E. Baltutytė.
The applicant alleged that the State had failed
to protect her son’s life. She also argued that the investigation of her son’s
death had not been effective.
On 14 June 2011 the application was communicated to
the Government. It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1970 and lives in Vilnius.
On 6 June 2005 the applicant’s son, E.B., born on
20 August 1991 and then thirteen years of age, was playing with other
children outside the applicant’s apartment, situated in Naujamiestis district (Naujamiesčio
seniūnija) in the city of Vilnius. Whilst the children were standing
on the balcony of an ancillary building containing cellars, the balcony broke
off the building and collapsed. Part of the balcony fell on E.B., who died at
the scene from the injuries he received. Two other children, V.J. and A.B.,
suffered minor bodily injuries.
On the same day the police opened a pre-trial
investigation. On that day and the next investigators surveyed the scene of the
accident.
On 7 June 2005 a forensic expert established
that E.B. had died because the balcony block had fallen on to him, broken his
spine and crushed his internal organs.
By Vilnius city police investigator’s decision of
4 July 2005 the applicant was recognised as having victim status.
According to the Government, after the accident
the future of the ancillary building containing the cellars was discussed at a
meeting of the Vilnius municipal council on 14 June 2005. An expert
inspection of 18 July 2005 recommended that the building be fenced
off until it could be demolished. [The Vilnius city municipality] Commission on
Residential and Non-Residential Houses and Premises on 11 October 2005 approved
the demolition of the building. In accordance with a contract signed on 4 October
2005 between the Vilnius city council and Naujamiesčio būstas, the
Vilnius municipal enterprise, in December 2005 that enterprise demolished the
building.
On 7 September 2006 the applicant lodged,
in the criminal proceedings, a civil claim for non-pecuniary damage, in the sum
of 3,000,000 Lithuanian litai (LTL), and for litigation costs with the Vilnius
City Prosecutor’s Office. She submitted that the Vilnius city municipality and its
institutions had failed to supervise the buildings and, as a result, her son
had died. The loss caused her immense moral suffering and depression. Even
though it was not possible to bring her son back, the persons responsible
should compensate the non-pecuniary damage. The applicant also referred to
Article 6.250 § 2 of the Civil Code (see Relevant domestic law below), arguing
that the amount of damage could be assessed according to all the circumstances
established in the criminal case and the [criminal] court had such competence.
By a decision of 21 November 2006, the
prosecutor recognised the applicant as a civil claimant in the criminal case,
on the basis of Articles 109 and 110 of the Code of Criminal Procedure.
On 11 January 2007 A.J., an employee of Naujamiesčio
būstas, was charged with the offence of failure to fulfil official duties,
under Article 229 of the Criminal Code. The authorities considered that A.J.
had failed to inspect the buildings at issue and to inform the municipality of
their condition, even though he had been assigned that function by order of the
Naujamiesčio būstas director on 28 January 2004. On the same day
the authorities imposed a restrictive measure on A.J., namely an obligation not
to leave his place of residence.
By a decision of 11 October 2007 the
Vilnius City Prosecutor’s Office discontinued the pre-trial investigation. The
prosecutor referred to Article 7 § 13 of the Law on Local Self-Governance which
determined that in the most general sense supervision of the use of
construction works was the municipality’s responsibility. Similarly, Article 42
of the Law on Construction set out the municipality’s duty to supervise the use
of residential houses and other constructions. The prosecutor analysed in
detail whose responsibility it had been, and when, in respect of Vilnius city municipality and Naujamiesčio būstas, to supervise the buildings,
given that there had been changes in the bodies between 1999 and 2005. She noted
that in May 2004 the city had made some enquiries of Naujamiesčio
būstas about the cellars, but there was no-one in the municipality who had
the responsibility of supervising the activities of Naujamiesčio
būstas. However, the prosecutor considered that the evidence gathered was
contradictory, and that therefore it was not possible to establish which body - the
Vilnius city municipality or Naujamiesčio būstas - had been
responsible for the proper maintenance of the building, the collapse of which
had resulted in the death of the applicant’s son. Therefore the prosecutor
could not identify any physical person who could be held accountable for
failure to act and to ensure that the building was in good condition and not
dangerous. The prosecutor thus dropped the criminal charges in respect of A.J. Moreover,
under Article 229 of the Criminal Code a corporate person could not be held
criminally liable. However, the prosecutor noted that, in accordance with
Article 6.266 of the Civil Code, the applicant and the parents of the two injured
children could lodge civil proceedings against Vilnius city municipality or Naujamiesčio
būstas, and claim that the building had been left unattended.
The applicant appealed against the above
decision, arguing that the Vilnius city municipality and Naujamiesčio
būstas had been aware for a long time that the building was in a dangerous
state (avarinės būklės), but no one had known what to do
with it. The father of V.J. also appealed, submitting that the investigation
had been going on for a long time, but no person had been found responsible for
the building and thus for the accident.
By a decision of 12 November 2007 a
prosecutor reopened the investigation. She noted that it was imperative to take
measures to identify the person or persons whose responsibility it had been to
take care of the building’s maintenance and to establish why they had not done
so.
On 3 July 2008 another prosecutor at the
Vilnius City Prosecutor’s Office decided to discontinue the pre-trial
investigation. The prosecutor found that the evidence as regards which body owned
the collapsed building was contradictory. However, he considered that the Vilnius city municipality was the de facto owner of the building. On the basis of
documents dated 2004 and 2005, the prosecutor also concluded that the
municipality had known earlier about the poor condition of the building where
the accident had happened. Nonetheless, in 2004-05 an administrative reform had
taken place within the Vilnius city municipality, as a result of which new administrative
units had been created, the responsibilities of those units redistributed and
new people assigned to those administrative units. Consequently, at the time of
the incident there was no one who had the duty to manage derelict and unused
buildings. There was therefore insufficient evidence to find that a crime under
Article 229 of the Criminal Code had been committed.
The prosecutor also suggested that the applicant
lodge a civil claim on the basis of Article 6.266 of the Civil Code.
On 12 August 2008 a higher prosecutor
upheld that decision. The applicant appealed.
On 12 January 2009 the Vilnius City First
District Court found that the pre-trial investigation had not been sufficiently
thorough and effective. As a result, the identity of the owner of the derelict
buildings had not been established. The court drew the prosecutor’s attention
to specific actions to be taken and specific circumstances to be examined,
whilst noting the applicant’s earlier requests to the prosecutor to the same
effect. Having given the prosecutor precise instructions, including to obtain archived
documents from 1970-75, the district court emphasised that without that
specific information it was not possible to establish the identity of persons
who had failed to adopt a timely final decision, in accordance with their official
duties, about the future of the derelict buildings and their proper maintenance.
The prosecutor’s decision was quashed as unfounded.
On 2 March and 22 July 2009 the applicant
wrote to the Attorney General, arguing that the pre-trial investigation had
been superficial and that the prosecutors at the Vilnius City Prosecutor’s
Office had been passive and unwilling to discover the truth, thus stalling the
investigation. For the applicant, the investigation in essence consisted of sending
written questions and answers from one municipal institution to another. It was
clear that neither of the institutions, Vilnius city municipality or Naujamiesčio
būstas, was willing to take responsibility for failing to perform its
duties. The applicant thus asked the Attorney General to take over the
investigation or to transfer it to the Vilnius Regional Prosecutor’s Office. She
also observed that although more than seven months had passed since the court
decision of 12 January 2009, the prosecutors had still not taken all the required
investigative actions.
On 30 July 2009, the Vilnius City District
Prosecutor’s Office again discontinued the pre-trial investigation, in essence
upholding the conclusions of the decision of 3 July 2008 to the effect
that the evidence as to which body was in possession of the building at issue was
contradictory. Accordingly, it was not possible to identify the physical person
whose duty it was to maintain the building, and who was therefore liable for
the death of one child and injury of two others.
On 29 September 2009 the applicant appealed,
arguing that even though four years had passed since the accident, the
prosecutors had not been active enough and had therefore failed to establish
who was responsible for the maintenance of the building. The applicant argued in
addition that the prosecutors had also failed to take all the steps which had
been ordered by the court on 12 January 2009. The correspondence between Vilnius city municipality and Naujamiesčio būstas showed that both bodies had
known the building was derelict, and yet no effort had been made to repair or
demolish it. Immediately after the incident the building had been fenced off
and demolished by the municipality, even though the municipality had earlier
denied that it was within its control and had argued that it did not have the
legal authority to tear down the building. The applicant asked for the
pre-trial investigation to be reopened.
By a higher prosecutor’s decision of 16 October
2009, the investigation was reopened. For the prosecutor, it was possible that
the employees of the Vilnius city municipality or those of Naujamiesčio
būstas had not performed their duties that stemmed from [Article 229 of]
the Criminal Code, Article 42 § 1 (3) of the Law on Construction and other
relevant legal acts. It was therefore indispensable to establish which
particular person had been designated by the municipality to inspect/supervise
the buildings without owners in question (kam pavesta bešeimininkių
pastatų priežiūra) in Naujamiestis district. If such functions
had not been assigned to any particular unit or person at the municipal or district
level, the prosecutor should consider whether the municipality’s or district’s managers
(vadovai) should be held responsible under Article 229 of the Criminal
Code.
On 7 December 2009 K.G., a senior specialist in
Naujamiestis district, was charged with failure to carry out official duties,
under Article 229 of the Criminal Code. By a decision of the Naujamiestis district
director (seniūno) on 3 January 2005 K.G. had been given the
responsibility of monitoring empty buildings belonging to the municipality. The
criminal investigator considered that K.G. had failed to inform the
municipality about the danger posed by the derelict cellars in question, as he
should have done under Article 42 [§ 3 (1)] of the Law on Construction (see
paragraph 33 below).
On 18 May 2010 a prosecutor for the Vilnius
City District discontinued the investigation, as no physical persons criminally
liable for the accident could be identified. The prosecutor noted, however,
that the Vilnius city municipality had learned on 28 February 2005 of the poor
state of the building the collapse of which had caused the death of the
applicant’s son. However, at that time the municipality was going through
structural changes and the duties and responsibilities of the municipality’s
employees were being redistributed, therefore there was no particular person
with the specific duty to take action on derelict and abandoned buildings.
Moreover, taking into account the short period of time that had elapsed between
that date and the accident (three months), it was not possible to conclude that
the municipality’s employees had been stalling the process of finding a
solution to the question of what had to be done with the building. The evidence
collected in the case did not prove that employees of the Vilnius city
municipality, the Naujamiestis district or Naujamiesčio būstas had
failed to carry out any of their clearly prescribed duties and had thus caused
the death of one child and injuries to two others. The prosecutor therefore
dismissed the criminal charges against A.J., an employee of Naujamiesčio
būstas, and against K.G., a Naujamiestis district specialist. The
prosecutor suggested that the applicant and the parents of the two children who
had been injured in the accident bring separate civil proceedings under Article
6.266 of the Civil Code.
The applicant appealed, arguing that the case
should be returned for a fresh pre-trial examination, so that the ownership of
the buildings could be established and the persons (physical and corporate) liable
for the accident thus identified.
By a ruling of 9 August 2010 the Vilnius
City First District Court refused to reopen the pre-trial investigation,
because a criminal action under Article 229 of the Criminal Code had become
time-barred. The pre-trial investigation had been opened on 7 June 2005
and the Code of Criminal Procedure provided a five-year term to prosecute a crime
of a negligent or minor premeditated nature. The court therefore did not
address the applicant’s complaint that the pre-trial investigation had been
flawed.
The applicant appealed, questioning the
effectiveness of the investigation and asking for it to be reopened.
By a final ruling of 15 September 2010 the Vilnius Regional Court upheld the lower court’s decision to discontinue criminal proceedings under
the statute of limitations.
II. RELEVANT DOMESTIC LAW AND PRACTICE
According to Article 19 of the Lithuanian
Constitution, a person’s right to life shall be protected by law.
The Law on Local Self-Government provides that
one of the functions of a municipality is to supervise how buildings are used
and to manage land and other property which belong to it by the right of
ownership (Article 7 §§ 13 and 15).
The Law on Construction at the relevant time
provided:
Article 42. Supervision of use of construction
works
“1. The following public administration bodies shall
exercise supervision of use of construction works:
1) the regional governor’s office as in the list
approved by the Government, or an institution authorised by it, in respect of
constructions of exceptional significance, those of national significance, and
construction works situated within establishments of likely hazard, with the
exception of the construction works referred to in subparagraph 2 of paragraph
1 of this Article;
2) the Ministry of Communication and Transport and/or
organisations authorised by it as in the list approved by the Government or an
institution authorised by it, in respect of traffic routes and other
engineering constructions related thereto, as well as hydrotechnical construction
works in the Baltic Sea and bodies of inland water, with the exception of
traffic routes which do not belong to the sphere of its management;
3) municipal authorities, in respect of residential dwellings
and other constructions which are not specified in sub-paragraphs 1 and 2 of
paragraph 1 of this Article ...
3. Public authorities which are engaged in supervision
of the use of buildings shall enjoy the following rights:
1) in the event that it becomes clear that the
condition of a building poses a threat to the health or life of people who
reside, work or happen to be for other purposes in the building or near it, or
to the environment, and taking into account the type of threat posed, they may demand
that the operator of the building take measures to protect people and, if
necessary, may insist that the area be evacuated, that the building cease to be
used, or they may prohibit any activity in the building (if necessary also
within the construction site or area);
2) they may set time-limits for taking all the
actions specified in sub-paragraph 1 and immediately inform the owner of the building
(when the user is not the owner of the building or works);
3) they may contact the police in order to
temporarily restrict access to the area or premises, to stop works which are
being carried out there, and to restrict or prohibit traffic, if the
environment, public order, personal safety or the State are endangered;
4) in cases and procedures laid down by the Code of
Administrative Law Offences, they may draw up a record of administrative
offences, consider administrative offences and impose administrative penalties,
or refer administrative offences to the courts.
4. Officers of public administration bodies which are
engaged in supervision of the use of buildings shall have the right to demand
that the operator of a construction site produce mandatory documents relating to
the supervision of the site, as referred to in Article 43 of this Law, indicating
that they have permission to perform such other functions in connection with supervision
of the use of buildings, which have been assigned to them...”
On 4 February 1999 the Vilnius city management
board adopted decision 205V “Approval of order giving power to declare buildings
in poor condition, and identification of buildings in Vilnius which may be
taken into the possession of the local authority”. Paragraphs 3 and 4 of the
order set out the district director’s (seniūno) duty to manage
lists and keep records of derelict buildings, and to periodically provide those
documents to the Vilnius city management board. Companies which have contracts
to manage buildings, district engineers and senior local architects were
responsible for the provision of data for the above-mentioned lists.
On 24 February 1999 the Vilnius city mayor
adopted decision 100 “Derelict Buildings Commission”. The commission was
to meet once a week, to analyse information provided by district directors and
to deal with issues concerning demolition of buildings in poor condition.
The Criminal Code
provides:
Article 229. Failure to Perform Official Duties
“A civil servant or a person equivalent thereto who fails to
perform his duties through negligence or performs them inappropriately, where
this results in significant damage to the State or to a legal or a natural
person, shall be punished by deprivation of the right to be employed in certain
positions or to engage in certain types of activity or by a fine or by arrest
or by imprisonment for a term of up to two years.”
Pursuant to Article 95 of the Criminal Code and
Article 3 § 1 (2) of the Code of Criminal Procedure, as relevant at the
material time, a person who has committed a criminal offence may not be convicted
once five years have lapsed, if for example an offence such as failure to
perform official duties has been committed.
Articles 109 and 110 of the Code of Criminal
Procedure stipulate that a person who has sustained pecuniary or non-pecuniary
damage because of a crime may lodge a civil claim against the suspect within
criminal proceedings. The claim will be examined by the criminal court together
with the criminal case. A civil claimant may submit evidence and requests and
appeal against the decisions of the investigators, prosecutors or a court.
The Civil Code provides:
Article 6.250. Non-pecuniary damage
“1. Non-pecuniary damage shall be deemed to be a
person’s suffering, emotional experiences, inconvenience, mental shock,
emotional depression, humiliation, deterioration of reputation, diminution of
possibilities to associate with others, and so on, evaluated by a court in
terms of money.
2. Non-pecuniary damage shall be compensated for only
in cases provided for by laws. Non-pecuniary damage shall be compensated for in
all cases where it has been incurred due to crime, health impairment or
deprivation of life, as well as in other cases provided for by laws. The courts
shall, when assessing the amount of non-pecuniary damage, take into
consideration the consequences of such damage being sustained, the gravity of
the fault of the person by whom the damage is caused, his financial status, the
amount of pecuniary damage sustained by the aggrieved person, also any other
circumstances of importance for the case, while abiding by the criteria of good
faith, justice and reasonableness.”
Article 6.266. Liability of the owner (manager)
of buildings
“1. If damage has been caused by the collapse of
buildings, construction works, installations or other structures, including
roads, or if the damage has been caused by any defect thereof, the owner (manager)
shall be liable for damages unless he can prove that the situation has occurred
because of circumstances indicated in Paragraph 1 of Article 6.270 of this
Code.
2. It shall be presumed that the owner (manager) of
buildings, construction works, installations or other structures is the person
indicated as their owner (manager) in the Public Register.”
Article 6.271. Liability to compensate for damage
caused by unlawful actions of institutions of public authority
“1. Damage caused by unlawful acts of institutions
of public authority must be compensated for by the State from the State budget,
irrespective of the responsibility of a particular public servant or other
employee of public authority institutions. Damage caused by unlawful actions of
municipal authority bodies must be redressed by the municipality from its own
budget, irrespective of whether an employee is at fault.
2. For the purposes of this Article, “public
authority institution” means any entity of public law (including a State or
municipal institution, official, public servant or any other employee of these
institutions), as well as private individuals executing functions of public
authority.
3. For the purposes of this Article, “action” means
any action (active or passive) of an institution of public authority or its
employees that directly affects the rights, liberties and interests of persons
(including legal acts or individual acts adopted by the institutions of State
and municipal authority, administrative acts, physical acts, with the exception
of court judgments - verdicts in criminal cases, decisions in civil and
administrative cases and orders).
4. Civil liability of the State or municipality,
subject to this Article, shall arise where employees of public authority
institutions fail to act in the manner prescribed by laws for these institutions
and their employees.”
The Government provided Lithuanian court
decisions concerning effective remedies in personal injury or destruction of
property cases. They firstly noted the Supreme Court’s ruling of
11 October 2005 in civil case 3K-7-365/2005, in which the Tauragė
city municipality had been held liable for the improper maintenance of the
drainage system. The municipality was held accountable under Article 6.266 of
the Civil Code for the injuries the claimant had sustained and ordered to pay LTL
15,000 for the non-pecuniary damage she had sustained by falling into a sewer
well.
As the second example the Government referred to
the Klaipėda Regional Court’s ruling of 21 July 2010 in civil case 2A-421-253/2010,
in which the claimant claimed damages for a broken clavicle suffered by her
son, who had fallen into an uncovered cellar. The court concluded that the municipality’s
department responsible for maintenance of the buildings had failed to act with
due diligence and, on the basis of Article 6.250 of the Civil Code, awarded the
child’s mother LTL 2,500 in non-pecuniary damages.
Lastly, the Government noted the Supreme Court’s
ruling of 13 November 2005 in civil case 3K-3-584/2005, concerning liability
in tort of the building owners, under Article 6.266 of the Civil Code. The
Supreme Court held that the owner (manager) of the buildings, installations and
other structures had absolute (no-fault) responsibility for damage caused by its
collapse or deficiencies. In that case the Vilnius city municipality was determined
to be the owner of the premises in question and therefore liable for the pecuniary
damage caused by the rupture of a water pipe. The municipality was to
compensate the claimant for destruction of its property in the amount of LTL
7,300.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicant complained under Articles 2 and 6
of the Convention that the State had not protected her son’s right to life. She
further argued that the criminal investigation of the circumstances into her
son’s death had not been effective.
The Court considers that the applicant’s
complaints fall to be examined under Article 2 of the Convention, which reads
as follows:
“1. Everyone’s right to life shall be protected by
law ...”
A. Admissibility
1. The parties’ submissions
The Government submitted firstly that the applicant
had failed to properly exhaust the available domestic remedies. Referring to
the Court’s case-law on the subject of the State’s positive obligations under
Article 2 of the Convention, they argued that the criminal-law avenue was not
the one to be pursued by the applicant. On this point the Government admitted
that within the framework of criminal proceedings the applicant had brought a civil
action, and had been recognised as a civil claimant who had suffered pecuniary
and non-pecuniary damage. However, in each of the subsequent decisions to
discontinue the criminal investigation of the death of the applicant’s son the
prosecutors suggested that she bring a separate civil claim against the Vilnius city municipality under Article 6.266 of the Civil Code. Moreover, by a decision of
3 July 2008 and subsequent decisions the prosecutors established that the Vilnius city municipality had been the de facto owner of the derelict building the
collapse of which had caused the death, and that it thus had absolute liability.
Referring to the practice of the Lithuanian courts (see paragraphs 40-42 above),
the Government thus insisted that Article 6.266 of the Civil Code was an
effective remedy the applicant should have pursued. Whilst noting that the pre-trial
investigation did not establish physical persons liable for the accident, the
Government also argued that the applicant could have alternatively claimed
redress for the damage on the basis of Article 6.271 of the Civil Code, which
sets forth a more general provision, namely liability to compensate for damage
caused by unlawful actions of institutions of public authority. Again, the
applicant could have relied on the prosecutor’s conclusion that the Vilnius city municipality, which had learned about the poor state of the building in
question in 2004, did not act promptly enough to eliminate the threat. Even so, the applicant had never lodged any separate civil claim under the rules of civil
procedure in respect of the damage caused by her son’s death.
The Government also argued that the applicant’s
complaints that the State had failed to protect E.B.’s life, and that the criminal
investigation had been ineffective, were unfounded.
The applicant disputed the Government’s
arguments. She submitted that during the criminal proceedings she had been recognised
as having victim status. In accordance with Article 109 of the Code of Criminal
Procedure she had also introduced a civil action for the compensation of
pecuniary and non-pecuniary damage, and as a result the police, a body of State
authority, had recognised her as a civil claimant. However, the criminal case
had eventually been closed as time-barred.
2. The Court’s assessment
The Court first turns to the Government’s
argument that the applicant had failed to properly exhaust the available
domestic remedies. It reiterates that although the
Convention does not as such guarantee a right to have criminal proceedings
instituted against third parties, the Court has said on a number of occasions
that the effective judicial system required by Article 2 may, and under certain
circumstances must, include recourse to the criminal law (see, among other
authorities, Kılıç v. Turkey, no. 22492/93, § 62,
ECHR 2000-III, and Mahmut Kaya v. Turkey, no. 22535/93, § 85, ECHR 2000-III). However, if the
infringement of the right to life or to personal integrity has not been caused
intentionally, the positive obligation imposed by Article 2 to set up an
effective judicial system does not necessarily require the provision of a
criminal-law remedy in every case. The form of investigation may vary according
to the circumstances. In the sphere of negligence, a civil or disciplinary
remedy may suffice (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002-I, and Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII).
. Turning
to the circumstances of the instant case, the Court observes that the
applicant did not initiate separate civil proceedings, although this had been suggested
to her by the prosecutors (see paragraphs 14 and 18 above). That being so, the
Court nevertheless reiterates that, in the event of there being a number of
domestic remedies which an individual can pursue, that person is entitled to
choose a remedy which addresses his or her essential grievance. In other words,
when one remedy has been pursued, use of another remedy which has essentially
the same objective is not required (see Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010). For the reasons
described below, it is the Court’s view that, in the present case, both sets of
proceedings would have been pursued the same goal, which consisted in finding out
who could be held accountable for the death of the applicant’s son. On this
point the Court firstly refers to the prosecutor’s decision of 12 November
2007 to reopen the pre-trial investigation and to take measures to identify the
person or persons who were responsible for the impugned building’s maintenance
and to establish why those persons had not taken measures to ensure that the
building was properly maintained.
Moreover, having regard to the way the criminal
proceedings continued, in the circumstances of this particular case it can reasonably
be assumed that the applicant could legitimately have expected the criminal-law
remedy to be an effective one, given that Lithuanian prosecutors and courts
repeatedly quashed decisions to discontinue the pre-trial investigation
for failure to proceed with it diligently and thoroughly, and ordered the
prosecutors to be more assiduous (see paragraphs 16, 20 and 24 above). In this
connection the Court also notes the decision of 16 October 2009, in which the
prosecutor emphasised that it was essential to identify the particular person in
Naujamiestis district who was responsible for supervising the building at
issue. If no particular person had been assigned such functions, the prosecutor
supervising the investigation had to examine whether it was the municipality’s
or Naujamiestis district’s managers who should bear the responsibility under
Article 229 of the Criminal Code. Therefore it is not unreasonable to hold that
the applicant could have realistically expected that the criminal proceedings would
end with a positive result.
The Court also finds it of great significance
that within the criminal proceedings the applicant was recognised as a victim,
lodged a civil claim for compensation of non-pecuniary damage, which is clearly
allowed under the domestic law (see paragraph 38 above) and by the prosecutor’s
decision of 21 November 2006 was granted the status of a civil claimant
(see paragraphs 9, 11 and 12 above). These facts have been recognised by the
Government. That being so, the Court does not see how a separate civil action
would have helped to identify the person or persons liable for the accident which
had cost her son his life. On this point the Court also considers that the
prosecutors had all the measures at their disposal to disclose the truth, or at
least the Government have not argued that some particular methods of
investigation were not available to them but would have been available to
courts of civil jurisdiction. On the contrary, the Government have asserted
that the criminal investigation was effective (see paragraphs 57-59 below). It
may also be noted that none of the three examples of domestic case-law provided
by the Government deals with the issue of loss of life. Accordingly, the Court
considers that by joining the criminal proceedings and lodging a civil claim for
compensation within them in compliance with the provisions of domestic law the applicant
did everything possible as a civil claimant. It thus finds that, also taking into account the long duration and consequences of the criminal investigation and specific circumstances of that case, the applicant was not required to start new civil
proceedings once the criminal inquiry was terminated as time-barred.
The Government’s objection as to non-exhaustion of domestic remedies must therefore
be dismissed.
The Court further finds that the applicant’s complaints
are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant argued that the Lithuanian
authorities had a duty to inspect buildings to ensure that they would be in a
safe state, which they had failed to discharge. She also alleged that the authorities’
failure to act was based on the absence of legal norms requiring them to be proactive
and to take control of the state of standing buildings.
The applicant further maintained that the
investigation fell foul of the requirements of Article 2, for the criminal
investigation had been excessively long and, as a result, it had been
terminated as prosecution became time-barred. She also observed that the
prosecutors’ decisions to terminate the proceedings had been quashed three
times by prosecutors and courts as not sufficiently thorough.
The Government maintained that the State had
fulfilled its positive obligation to protect the right to life by law, as the legal
framework regulating care and maintenance of buildings at the relevant time had
been complied with (paragraphs 31-35 above). Moreover, the duty of the Vilnius city municipality to maintain derelict buildings in compliance with those
regulations, namely Article 7 § 13 of the Law on Local Self-Governance and
Article 42 of the Law on Construction, had been established by the prosecutor
in his decision of 11 October 2007.
The Government also submitted that the pre-trial
investigation showed that the Vilnius city municipality was aware of its duty
to take care of derelict buildings. Moreover, it had apparently known of the derelict
state of the cellars in question, had taken some steps to avert the danger, but
had not taken the necessary ones by the time of the accident.
The Government argued that the procedural
requirements as regards the State’s obligations under Article 2 of the
Convention had been respected in the present case. The authorities had acted of
their own motion, the investigation conducted had been independent, all
possible methods had been used, the evidence concerning the incident had been
secured, the investigation had been conducted promptly, and the applicant, who
had been recognised as the victim, had been sufficiently involved in the
investigation.
As regards the speediness and effectiveness of
the investigation, the Government observed that, contrary to the facts in Ciechońska
v. Poland (no. 19776/04, 14 June 2011), where the pre-trial investigation in
general lasted ten years, and the investigation was opened following the death
of the applicant’s husband and discontinued five days later, the pre-trial
investigation in the instant case lasted for two years and four months. It had
been reopened three times on the basis of complaints submitted by the
applicant, so that all important factual and legal circumstances relevant to
the applicant’s case could be elucidated. The prosecutors had assessed the legal
framework regulating the control of buildings from 1999 to the day of the accident.
They also analysed the documents in order to determine the duties and
responsibilities of the then and former employees of three institutions (the Vilnius city municipality, the Naujamiestis district and Naujamiesčio būstas), to
establish the persons at fault. With the aim of ascertaining the status of the building
at issue, the prosecutors also examined archival documents dated as early as
1970-1975. That and the unclear factual context caused some delay in the pre-trial
investigation.
The Government also submitted that during the
pre-trial investigation the prosecutors had questioned all possible witnesses: users
of the building, employees of the Vilnius city municipality and Naujamiesčio
būstas, the children who had been at the scene of the accident, and other
persons relevant to the case, as well as the applicant herself, thirty-seven
people in total. Numerous requests were issued, examinations were carried out,
documents analysed and other necessary investigative measures taken for
collection of evidence. No inactivity on the part of State institutions could
be detected in the case at issue.
Lastly, the Government argued that the repeated
reopening of the pre-trial investigation could have been determined, on the one
hand, by the applicant’s complaints, where presumably her intention was
expressed to identify those who were guilty and to ensure their criminal
liability, and, on the other hand, by the goodwill of the institutions, which,
in the light of that intention, had tried their best to establish all the
relevant legal and factual details. However, each time the pre-trial
investigation was discontinued, the prosecutors’ conclusions were in essence
the same - that it was impossible to establish the identity of physical persons
criminally liable for the incident. Each time, it was suggested to the
applicant that she defend her rights by bringing civil proceedings. On this point
the Government also referred to the Court’s case-law to the effect that Article
2 does not entail the right for an applicant to have
third parties prosecuted or sentenced for a criminal offence, nor is there an
absolute obligation for all prosecutions to result in conviction, or indeed in
a particular sentence (see Öneryıldız v. Turkey
[GC], no. 48939/99, § 96, ECHR 2004-XII).
. In
sum, the investigation of the circumstances of the death of the applicant’s son
was effective, as it was capable of leading, as early as the very first
decision to terminate criminal proceedings on 11 October 2007, to the
conclusion that, under the rules of civil procedure, the Vilnius city
municipality had absolute (no-fault) liability for the damage caused by the collapse
of the building.
2. The Court’s assessment
(a) General principles
. The
Court recalls that Article 2 of the Convention, which safeguards the right to
life, ranks as one of the most fundamental provisions in the Convention.
Together with Article 3, it enshrines one of the basic values of the democratic
societies making up the Council of Europe. The object and purpose of the
Convention as an instrument for the protection of individual human beings also
requires that Article 2 be interpreted and applied so as to make its safeguards
practical and effective (see, among many other authorities, Anguelova
v. Bulgaria, no. 38361/97, § 109, ECHR 2002-IV).
. The
Court reiterates that the first sentence of Article 2 § 1 enjoins the State not
only to refrain from the intentional and unlawful taking of life, but also to
take appropriate steps to safeguard the lives of those within its jurisdiction
(see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports
of Judgments and Decisions 1998-III; Osman
v. the United Kingdom, 28 October 1998, § 115, Reports of Judgments
and Decisions 1998-VIII; and Paul and
Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II).
. Such
a positive obligation has been found to arise in a range of different contexts
examined so far by the Court. Thus, for example, the State’s positive
obligation under Article 2 has also been found to be engaged in the health care
sector, be it public or private, as regards acts or omissions on the part of
health professionals (see Dodov v. Bulgaria, no. 59548/00, §§ 70, 79-83 and 87, 17 January 2008; Byrzykowski v. Poland, no. 11562/05, §§ 104 and 106, 27 June 2006; and Vo v. France [GC], no.
53924/00, §§ 89-90, ECHR 2004-VIII, with further references), as well as
in respect of the management of dangerous activities (see Öneryıldız, cited
above, § 71) and ensuring safety on board a ship (see Leray and Others v. France
(dec.), no. 44617/98, 16 January 2008) or on building sites (see Pereira Henriques and Others v. Luxembourg (dec.), no. 60255/00, 26 August 2003). In addition, the
extent of the State’s positive obligation under Article 2 has been addressed by
the Court in the context of road safety (see, for example, Rajkowska v. Poland (dec.),
no. 37393/02, 27 November 2007).
. The
above list of sectors is not exhaustive. Indeed, in its Oneryildiz judgment cited above (§ 71), the Grand Chamber observed that
the Article 2 positive obligation must be construed as applying in the context
of any activity, whether public or not, in which the right to life may be at stake.
That being so, the Court has also held that the positive obligation is to be
interpreted in such a way as not to impose an excessive burden on the
authorities, bearing in mind, in particular, the unpredictability of human
conduct and the operational choices which must be made in terms of priorities
and resources (see Ciechońska, cited above, §§ 63 and
64). Accordingly, not every risk to life can entail for
the authorities a Convention requirement to take operational measures to
prevent that risk from materialising. For a positive obligation to arise, it
must be established that the authorities knew or ought to have known at the
time of the existence of a real and immediate risk to the life of an identified
individual and that, if so, they failed to take measures within the scope of
their powers which, judged reasonably, might have been expected to avoid that
risk (see, amongst other authorities, Keenan v. the United Kingdom,
no. 27229/95, § 90, ECHR 2001-III).
. For
the Court, the State’s duty to safeguard the right to life must also be
considered to involve the taking of reasonable measures to ensure the safety of
individuals in public places and, in the event of serious injury or death, must
also be considered to require an effective independent judicial system to be
set up so as to secure legal means capable of establishing the facts, holding
accountable those at fault and providing appropriate redress to the victim (see Dodov, cited above, § 83,
and Byrzykowski, cited above, §§ 104-118). The Court reiterates that this
procedural obligation is not an obligation of result but of means only (see Šilih
v. Slovenia [GC], no. 71463/01, § 193, 9 April 2009). However, Article 2 of the
Convention will not be satisfied if the protection afforded by domestic law
exists only in theory: above all, it must also operate effectively in practice
(see Calvelli and Ciglio, cited above, § 53).
(b) Application of those principles to the present
case
. In
the light of the importance of the protection afforded by Article 2, the Court
must subject complaints of loss of life to the most careful scrutiny, taking
into consideration all relevant circumstances. In the present case the
applicant’s son died in 2005 when struck by the balcony of a derelict building
that had fallen on him. Following his death an investigation was opened, in the
course of which two municipal officials were indicted for failure to perform
their duties, resulting in the tragic accident.
. Having
regard to the approach adopted in previous cases involving non-intentional
infringements of the right to life, the Court reiterates that the
aforementioned positive obligations require States to adopt in this context
regulations for the protection of people’s safety in public spaces, and to
ensure the effective functioning of that regulatory framework (see Ciechońska,
cited above, § 69).
. The
Court firstly notes that there existed a legal framework regarding care and
maintenance of buildings and constructions in towns, including derelict
buildings on municipal land. Furthermore, the responsibility of the Vilnius city municipality, or its enterprise, Naujamiesčio būstas, for the
maintenance thereof in Naujamiestis district, had been implied by the
Government and in essence confirmed by Lithuanian prosecutors. To this end the
Court finds it of particular importance that the prosecutor had established
that in 2005 the municipality had already known about the derelict building in
question, but had not been carrying out its duty to care for the derelict
buildings correctly, although it was legally obliged to do so. It also notes
the prosecutor’s conclusion that at the Vilnius city municipality no one had
been assigned to supervise the activities of Naujamiesčio
būstas (see paragraphs 14, 17, 24 and 26
above). For the Court, reasons such as ongoing administrative reform cannot
justify inaction on the part of the authorities. Even though the prosecutors
could not establish personal liability on the part of employees of the
municipality or Naujamiesčio būstas with
regard to their duty to inspect the building, as the ownership of the building in
respect of either institution appeared to be opaque and open to ambiguity, the
Court considers that this did not justify the authorities’ failure to take effective
measures to prevent that risk from materialising. Accordingly, the Court finds
that the regulatory framework as concerns the State’s duty to ensure the safety
of individuals in public places was not functioning effectively in practice.
. The
Court would also state that an issue of State responsibility under Article 2 of
the Convention might arise in the event of inability on the part of the
domestic legal system to secure accountability for negligent acts endangering
or resulting in loss of human life. The State’s positive obligation under
Article 2 also requires the setting up of an effective functioning legal system
(see Furdik v. Slovakia (dec.), no. 42994/05, 2 December 2008).
Turning to the circumstances of the instant case,
the Court notes that the Lithuanian authorities promptly opened a criminal
investigation into the events which had led to the death of the applicant’s son,
doing so on the very day he died. Be that as it may, it cannot overlook the
fact that there were certain flaws in the way the investigation was conducted.
The Court observes that the criminal investigation was
characterised by three remittals of the case for re-examination and collection
of additional materials because the State authorities could not
establish who was responsible for the accident (see paragraphs 14, 17 and 22
above). Each time the applicant appealed, a prosecutor or a court would quash
those decisions. The Government have implied that, taking into account the
tragic events at issue, the decisions to resume the criminal inquiry were based
on the applicant’s wish to ensure the criminal liability of those responsible, and
therefore goodwill on the part of State institutions. However, whilst being
mindful of its case-law to the effect that Article 2 of the Convention does not
entail a right to have third parties prosecuted or an absolute obligation for
all prosecutions to result in conviction, the Court is not ready to share the
Government’s view. It appears from the prosecutors’ and courts’ decisions to
reopen the criminal inquiry that the domestic authorities
themselves acknowledged that the investigating officers had acted without due
diligence when collecting evidence, and had ignored possibilities of
identifying those accountable, including bringing charges against the managers of
the Vilnius municipality or Naujamiestis district (see paragraphs 16, 20 and 24
above). Therefore, the Court considers that the criminal investigation lacked
thoroughness. The investigation was thus prolonged to the extent that the
criminal inquiry incorporating the applicant’s civil claim for damages, which the
Court had found in theory to be an effective remedy as regards the applicant’s
complaint that the State had failed to protect her son’s right to life, had to
be terminated because of the statute of limitations (see paragraphs 28 and 30
above). To this end the Court also considers that the course of the criminal
proceedings had made it clear that, because of the overall confusion as to
which body and/or person had been responsible for the tragic incident, the
applicant would have faced serious difficulties in her attempts to have her
civil claim for compensation granted, even if she had opened separate civil
proceedings after the criminal case was over.
In the light of the foregoing
considerations, the Court concludes that the domestic authorities did not
display due diligence in protecting the right to life of the applicant’s
thirteen-year-old son. Moreover, the legal system as a whole, faced with an
arguable case of negligence causing death, failed to provide an adequate and
timely response consonant with Lithuania’s obligations under Article 2 of the
Convention.
. Accordingly,
the Court holds that there has been a violation of Article 2 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 10,000 euros (EUR) in
respect of pecuniary damage, that sum mainly consisting of funeral-related
expenses, and EUR 1,250,000 in respect of non-pecuniary damage.
The Government considered above sums to be
unsubstantiated and excessive.
The Court observes that it
has found a particularly grievous violation in the present case. In these
circumstances, it considers that the applicant’s suffering and frustration
cannot be compensated for by a mere finding of a violation. Nevertheless, the
particular amount claimed appears excessive. Making its assessment on an
equitable basis, it awards the applicant EUR 20,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that amount.
Moreover, on the basis of the documents in its possession, the Court considers
it appropriate to award the applicant EUR 8,135 for the pecuniary damage
she has sustained.
B. Costs and expenses
The applicant made no claims for costs and
expenses incurred before the domestic courts or before the Court. Accordingly,
the Court makes no award under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has
been a violation of Article 2 of the Convention;
3. Holds
(a) that the respondent
State is to pay the applicant, within three months from the date on which the
judgment becomes final according to Article 44 § 2 of the Convention,
the following amounts, to be converted into Lithuanian litai at the rate applicable
at the date of settlement:
(i) EUR 20,000 (twenty thousand euros), plus
any tax that may be chargeable to the applicant, in respect of non-pecuniary
damage;
(ii) EUR 8,135 (eight thousand one hundred and
thirty-five euros), in respect of pecuniary damage;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points.
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Sajó is
annexed to this judgment.
G.R.A.
S.H.N
.
PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE SAJÓ
I voted with the majority in declaring the complaint
admissible and in finding a violation of Article 2 of the Convention. However,
I cannot subscribe to my colleagues’ reasoning regarding the admissibility of
the complaint or the substantive violation of Article 2 of the Convention. In
my view, the majority’s broad conception of the State’s positive obligations to
protect life is a marked departure from our prior case-law, which requires
States only to take reasonable measures to protect individuals from foreseeable
risks.
I. ADMISSIBILITY
I agree with my colleagues that the case is admissible, but I
base my finding on slightly different grounds. In cases of unintentional death,
the Court is not required to consider the merits of a complaint regarding a
criminal remedy where the applicant, in choosing to forgo a civil remedy, has
“denied [herself] access to the best means - and one that, in the special
circumstances of the instant case, would have satisfied the positive
obligations arising under Article 2 - of elucidating the extent” of the
responsibility for her child’s death (see Calvelli and Ciglio v. Italy
[GC], no. 32967/96, § 55, ECHR 2002-I). The applicant need not, however,
exhaust remedies that exist only in theory; rather, she is required only to
exhaust remedies that “operate effectively in practice” (see Calvelli and
Ciglio, cited above, § 53).
In this case, the Government has not demonstrated that a
separate civil action, without a criminal judgment, would have been reasonably
likely to provide an effective remedy for the applicant. Under Article 6.271 of
the Lithuanian Civil Code, the Government are liable for damages where State or
municipal authorities “fail to act in the manner prescribed by laws for these
institutions,” but it is not clear that a civil suit filed pursuant to this
Article would be effective without a criminal judgment indicating a violation
of the law. Article 6.250 similarly provides for non-pecuniary damages
“incurred due to crime, health impairment or deprivation of life,” but, again,
it is not clear that the applicant could have recovered damages without a prior
criminal judgment. Although the Government have argued that Article 6.266 provides
a potential civil remedy that does not depend on evidence of fault, in this
case the applicant would probably be unable to establish ownership of the
building (see paragraphs 17 and 69 of the judgment), since ownership was
established only de facto, and even then it was established only by a
prosecution service which was clearly unwilling to proceed with the case. The
Government failed to prove that de facto owners are liable under Article
6.266 of the Civil Code. Moreover, strict liability in civil law may not be
sufficient to satisfy the Calvelli and Ciglio criteria, in the sense
that it does not elucidate who was responsible for the child’s death. Since the
Government have not demonstrated that a separate civil action would have been
an “effective” remedy that the applicant was obliged to exhaust, I find that
the applicant has victim status and the complaint is admissible.
II. ALLEGED SUBSTANTIVE VIOLATION OF ARTICLE 2 OF
THE CONVENTION BY LITHUANIA BECAUSE OF THE FAILURE TO MONITOR BUILDINGS ADEQUATELY
While I agree that States have a positive obligation to
protect the lives of individuals from certain foreseeable risks, I am unable to
agree with the majority’s characterisation of the State’s responsibility to
safeguard citizens from the dangers of derelict buildings. The majority opinion
correctly notes that the State has violated the positive obligation to protect
life. “For a positive obligation to arise, it must be established that the authorities
knew or ought to have known at the time of the existence of a real and
immediate risk to the life of an identified individual from the criminal acts
of a third party and that they failed to take measures within the scope of
their powers which, judged reasonably, might have been expected to avoid that
risk” (see Keenan v. the United Kingdom, no. 27229/95, §§ 90, ECHR
2001-III).
Subsequent cases have reaffirmed the Keenan standard. In
the case of A.A. and Others v. Turkey, for example, the Court stressed
the importance of interpreting States’ positive obligation to protect life “de
manière à ne pas imposer aux autorités un fardeau insupportable ou excessif”,
bearing in mind “les choix opérationnels à faire en matière de priorités et
de ressources”
(no. 30015/96, § 45, 27 July 2004). In Furdík v. Slovakia ((dec.),
no. 42994/05, 2 December 2008) the applicant claimed that Slovakia had
violated Article 2 by failing to implement a regulatory framework specifying a
time-limit within which emergency workers had to respond to a call. The Court
held that “the positive obligations under Article 2 [do not] stretch as far as
to require the incorporation in the relevant regulations of an obligation of
result... Various limiting factors inherent to the operation of airborne
medical assistance (...) would render such a general obligation difficult to
fulfil and impose a disproportionate burden on the authorities of Contracting
States” (see Furdík v. Slovakia, cited above, LAW 1(b)(ii)). States do
have an (additional) obligation to protect the safety of individuals in public
places (see Ciechońska v. Poland (no. 19776/04, §§ 64-67,
14 June 2011), and also a duty “to adopt in this context regulations for
the protection of people’s safety in public spaces, and to ensure the effective
functioning of that regulatory framework” (see Ciechońska, cited
above, § 69). However, this does not mean that in the specific case before
us the Keenan criteria are not to be examined in order to establish
State responsibility. In Ciechońska the issue was whether “the
legal system as a whole dealt adequately with the case at hand” (ibid.,
§ 70, emphasis added), taking into account the remedies available to the victim
for redress. This is not the same as attributing strict liability to the State
under the Article 2 positive obligations, as the present case seems to suggest.
In contrast to the present case, the Court in the Ciechońska case
did not examine the issue of whether the Government’s failure to remove the
diseased tree in itself violated Article 2 and thus did not expand the States’
positive obligations to protect life. The only issue the Court found itself
obliged to examine concerned remedies (“whether the available legal remedies,
taken together, as provided in law and applied in practice, could be said to
have amounted to legal means capable of establishing the facts, holding
accountable those at fault and providing appropriate redress to the victim”).
In fact the only ground for the finding of a violation was that the State had failed
to provide an adequate and timely response to the negligent death. The judgment
reaffirmed the proposition, expressed in both Keenan and A.A. and
Others, that “the positive obligation is to be interpreted in such a way as
not to impose an excessive burden on the authorities, bearing in mind (...)
operational choices which must be made in terms of priorities and resources”
(ibid., § 64).
In Ilbeyi Kemaloğlu and Meriye Kemaloğlu v.
Turkey, (no. 19986/06, §§ 32-41, 10 April 2012) it was of great
importance that the State had specific duties vis-à-vis a vulnerable
child under the exclusive control of the public authorities (see, mutatis
mutandis, Molie v. Romania (dec.), no. 13754/02). Actual
foreseeability (a matter that was not even discussed, far less established in
the present case) was shown in that case. The specific conditions of the Kemaloğlu
case are absent in Banel.
Applying the Keenan standard, since it has not been
demonstrated that the authorities ought to have known of the existence of a
risk, and in particular that any such risk had been shown to be immediate, I do
not find that the actions of the Government in this case violated the
substantive limb of Article 2 of the Convention. Although municipalities must
take reasonable steps to avert foreseeable dangers to residents, they retain a
measure of discretion in prioritising their obligations. In this case the
authorities learned about the poor condition of the building at issue on
28 February 2005, some three months prior to the building’s collapse on
6 June 2005 (see paragraphs 6 and 26 of the judgment). There is no
evidence in this case that the municipality was aware that the building was in
imminent danger of collapsing or that it posed a foreseeable risk to the life
of the applicant’s son. Even if some risk was foreseeable, I do not find the
authority’s failure to take action within a three-month time-period to be
unreasonable, given the other obligations that municipal governments must
fulfil and the absence of strong evidence that the authorities knew that the
building posed a serious and immediate danger to residents’ lives.
I am troubled by what I see as an expansion of the State’s
positive obligations in the majority judgment, which finds that in addition to
the Keenan standard “the State’s duty to safeguard the right to life must also
be considered to involve the taking of reasonable measures to ensure the safety
of individuals in public places” (paragraph 66, emphasis added). In my view,
the Court’s application of the idea that “the State’s duty to safeguard the
right to life must also be considered to involve the taking of reasonable
measures to ensure the safety of individuals in public places” is overly broad.
First, by focusing only on the obligation to take “reasonable measures” to
protect individuals, and without limiting these measures to addressing
foreseeable risks, the Court is signalling a stark departure from our previous
case-law (see Keenan v. the United Kingdom, §§ 90-99, cited above).
Moreover, requiring frequent monitoring and repair or demolition of derelict
buildings is a heavy burden to place on State and municipal governments, which
must meet many other obligations with limited staff and funds.
Substantive liability for lack of prevention should not be
confused with the State’s failure to adequately prosecute those responsible for
the negligent maintenance of the building (see 66-71 of the judgment). The need
to provide effective legal remedies should not affect the scope of the risks
that States have an obligation to address.
Since the death of the applicant’s son was not clearly
foreseeable and because the failure of the municipal government to act within
three months of learning of the poor condition of the building was not
manifestly unreasonable, I find that there has been no substantive violation of
Article 2 of the Convention.
III. ALLEGED PROCEDURAL VIOLATION OF ARTICLE 2 OF
THE CONVENTION BY LITHUANIA BECAUSE OF THE LENGTH OF THE CRIMINAL INVESTIGATION
INTO THE DEATH OF THE APPLICANT’S SON
I agree with my colleagues that the State violated Article 2
in failing to conduct a criminal investigation into the death of the applicant’s
son within a reasonable period of time. I thus find that the respondent State
has violated Article 2 of the Convention and concur with the Court’s judgment
on this point.
