CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 février 2012

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margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s299839C6 { width:212.77pt; display:inline-block } .s115C6F62 { width:5.64pt; display:inline-block }     FIRST SECTION           CASE OF KOLYADENKO AND OTHERS v. RUSSIA   (Applications nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05)           JUDGMENT       STRASBOURG   28 February 2012     FINAL   09/07/2012     This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Kolyadenko and Others v. Russia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Peer Lorenzen,   Elisabeth Steiner,   Khanlar Hajiyev,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 7 February 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in six applications (nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Russian nationals, Ms Raisa Grigoryevna Kolyadenko on 21 April 2005, Ms Svetlana Vasilyevna Tkachuk on 11 May 2005, Ms Svetlana Anatolyevna Kulikova on 12 May 2005, Ms Valentina Yakovlevna Kulikova on 12 May 2005, Mr Anatoliy Veniaminovich Bolsunovskiy on 3   June 2005 and Ms Valentina Vasilyevna Zaretskaya on 2 September 2005 (“the applicants”). 2.     The first to fifth applicants were represented by Mr S.   Kruglov, a lawyer practising in Vladivostok. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicants alleged that the State was responsible for having put their lives at risk and for damage done to their homes and property as a result of a sudden large-scale evacuation of water from the Pionerskoye reservoir and the ensuing flooding in the area around the reservoir on 7   August 2001. The applicants also complained that they had no effective remedies in that regard. They relied on Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1. 4.     On 2 July and 8 September 2009 and 26 January 2010 respectively the applications were granted priority under Rule 41 of the Rules of Court. 5.     On 2 July 2009 the Court decided to join the proceedings in the first four applications (Rule 42 § 1) and to give notice of them to the Government. It also decided to rule on their admissibility and merits at the same time (Article 29 § 1). On 8 September 2009 and 26 January 2010 respectively the President of the First Section decided to give notice of the last two applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 §   1). 6.     On 7 February 2012 the Court decided to join the proceedings in all six applications (Rule 42 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicants were born in 1938, 1941, 1973, 1945, 1942 and 1946 respectively and live in Vladivostok. A.     Background to the case 8 .     The city of Vladivostok, an administrative centre of the Primorskiy Region, is in the south-east of Russia on the Pacific coast. Its location explains the city’s monsoon-influenced humid continental climate with warm but humid summers when the annual precipitation reaches its maximum. More specifically, the first half of the summer season (June-July) is rainy and foggy, August and September can be marked by typhoons and August is the rainiest month. 9 .     The area where the applicants live is located in the Sovetskiy District of Vladivostok close to the Pionerskoye (Sedankinskoye) water reservoir ( Пионерское водохранилище ) near the Pionerskaya (Sedanka) river. The reservoir, constructed in 1936, contains supplies of drinking water for the city of Vladivostok. In the Government’s submission, on the basis of long-term observations, the floodplain of the Pionerskaya river was an area subject to periodic flooding during heavy rains when water was released from the Pionerskoye reservoir to avoid structural damage to the reservoir. 10 .     The first applicant lives in a flat which she owns in a low-rise building at 12/3 Semiradskiy Street. 11.     The second applicant is a social tenant of a flat in a low-rise building at 20   Semiradskiy Street. 12.     The third and fourth applicants, who are relatives, live in a flat owned by the fourth applicant in a low-rise building at 18 Semiradskiy Street. 13.     The fifth applicant lives in a house he owns at 14 Semiradskiy Street. 14 .     The sixth applicant is a social tenant of a flat in a low-rise building at 18/3 Semiradskiy Street. 15 .     In a letter of 7 June 1999 Mr L., the head of the authority in charge of the Pionerskoye reservoir – the State-owned enterprise “South Primorskiy Region Water-and-sewage Authority” ( государственное унитарное предприятие «Водопроводно-канализационное хозяйство юга Приморья», “the Water Company”) – warned the acting head of the Vladivostok Administration that the channel of the Pionerskaya river was cluttered with debris and household waste and overgrown with small trees and bushes and that this could have grave consequences given the adverse weather forecast for summer/autumn 1999. In particular, in the event of heavy rain the Water Company would have to release water from the reservoir and, in view of the poor state of the river channel, this might cause flooding over an area with a population of over 5,000 people, as well as a railway, a highway and manufacturing plants. Mr L. requested that appropriate measures be taken to clear the channel. 16 .     On 6 September 1999 the Vladivostok Commission for Emergency Situations ( Комиссия по чрезвычайным ситуациям г. Владивостока , “the Vladivostok Emergency Commission”) took a decision concerning, among other things, flood prevention work in the floodplain of the Pionerskaya river. The decision stated that although the question of cleaning up the course of the Pionerskaya river was repeatedly raised every year, no actual measures had yet been taken. It went on to say that outlet channels and the river channel itself were abundantly overgrown with small trees and bushes, cluttered with debris and household waste and blocked by unlawfully built dams and various structures which all created a threat of flooding over an area of 15 square kilometres, with a population of over 5,000 people, in the event of the urgent release of a large quantity of water from the Pionerskoye reservoir. The decision called on the Vladivostok Administration, along with the Administration of the Sovetskiy District, to take measures to clean up and deepen the channel of the Pionerskaya river to ensure that its throughput capacity (пропускная способность ) was no less than 30-40 cubic metres per second. The decision also ordered that the local population be apprised via the media of the possibility of the inundation of the floodplain adjacent to the Pionerskaya river in the event of urgent large-scale evacuation of water from the reservoir, and that the authority in charge of the Pionerskoye reservoir – the Water Company – restore the local early warning system to raise the alarm if there was a risk of a flood. 17 .     According to the Government, the authorities had taken a number of measures to implement the decision of 6 September 1999. In particular, in a letter of 14 September 1999 the Administration of the Sovetskiy District instructed the head of the Vladivostok bridge construction crew immediately to clean the Pionerskaya river channel in the area where one of the bridges was being built and the river channel was full of debris. In the Government’s submission, in the absence of information concerning the clogged-up river channel in subsequent reports, it was reasonable to assume that the Vladivostok bridge construction crew had cleaned it in compliance with the letter of 14 September 1999. 18 .     Also, in a letter of 16 September 1999 the Administration of the Sovetskiy District urged the head of the council of horticultural cooperatives to instruct the cooperatives’ members to engage in an effort to clean up the Pionerskaya river channel and avoid littering the land around the river. The Government further referred to relevant reports attesting that in September-November 1999 and July and October 2000 work had been done to clean up the river channel. They were unable to say whether those measures helped to increase the river’s throughput capacity to 30-40 cubic metres per second as prescribed by the decision of 6 September 1999. 19 .     In a letter of 29 May 2000 the Vladivostok Administration informed the Administration of the Sovetskiy District that the water level in the Pionerskoye reservoir was close to critical and that some of it would have to be evacuated. However, the Pionerskaya river channel was densely overgrown with small trees and bushes and cluttered with debris and household waste, creating a threat of flooding over a large populated area in the event of the urgent evacuation of water from the dam. The letter went on to say that, in accordance with the decision of the Vladivostok Emergency Commission dated 6 September 1999, it was necessary for the Administration of the Sovetskiy District to take urgent steps to clean up the Pionerskaya river channel. 20 .     In a letter of 16 June 2000 the Administration of the Sovetskiy District notified the Vladivostok Emergency Commission that, in accordance with the latter’s decision of 6 September 1999, work had been carried out to clean up the river channel. In particular, from September to November 1999 the bodies of thirty old cars and sundry household waste had been evacuated from the river, and the population living in its floodplain had been told what to do in the event of serious flooding. The letter also stated that work to cut down trees and bushes along the river was scheduled for June-July 2000. 21.     On 3 April 2001 the Vladivostok Administration requested the Administration of the Primorskiy Region to earmark a certain amount from the regional budget for clean-up work on the Pionerskaya river, stating that the work would reduce the area in danger of flooding in the event of the sudden evacuation of water from the reservoir. It does not appear that this request was heeded. 22 .     On 4 July 2001 a committee of officials from the Vladivostok Administration drew up a report presenting the results of the examination of the Pionerskaya river bed. The report stated that the part of the river that fell within the 300-metre zone under the responsibility of the Water Company was being kept clear, whereas the river channel and floodplain outside that zone were overgrown with bushes and trees and littered with household waste and bodies of old cars. The report also noted that owners of private houses on the river banks had narrowed the channel by piling earth into the river in an attempt to enlarge the size of their plots of land. Moreover, earth was regularly excavated and removed from the river banks, with the result that the banks crumbled and were washed away. The committee recommended that the municipal authorities clear the bushes and trees from the floodplain, deepen the channel, clear the river bed and banks of household waste and car bodies and restore the banks to their natural state. 23 .     In a decision of 27 July 2001 the Vladivostok Emergency Commission instructed the city authorities to take a number of measures to prevent emergency situations in connection with the possible flooding of rivers during the summer period. It indicated, in particular, that it was necessary to verify the condition of water evacuation systems, bridges and river beds and channels, to check and activate the early warning system, to check whether rescue services were prepared for flood situations and to equip them with means of communication. It is unclear whether any such measures were taken. B.     Events in August 2001 1.     Weather forecast for 7 August 2001 24.     On 6 August 2001 at 1.45 p.m. a regional meteorological service forwarded a storm warning for 7 August 2001 to the Primorskiy regional and the Vladivostok city authorities. It stated that heavy rainfall of 100 ‑ 120   millimetres was expected in the Primorskiy Region and the city of Vladivostok. In particular, for 7 August 2001 the service forecast heavy precipitation of 15-49 millimetres within 12 hours, which would continue throughout the day on 8 August 2001 and through the night. The warning also stated that there was a risk of floods on rivers in the south of the region. In the Government’s submission, the population had been duly forewarned about the heavy rain by the media. 25 .     On the same date, on the basis of the aforementioned warning, the Water Company calculated that the water inflow to the Pionerskoye reservoir, which had a maximum storage capacity of 7 million cubic metres and which on 6 August 2001 contained 5.3 million cubic metres, would be 1.65 million cubic metres. Having regard to these calculations, the Water Company started releasing 12 cubic metres of water per second from the reservoir. 2.     Meteorological conditions on 7 August 2001 and the situation at the Pionerskoye reservoir 26.     On 7 August 2001 it started raining early in the morning. The intensity of the rain proved to be much higher than forecast by the meteorological service the previous day. The amount of rain that fell on that day was the equivalent of a full month’s rainfall. In particular, within a 12 ‑ hour period the amount of rain that fell in the area of the Pionerskoye reservoir totalled 236 to 276 millimetres. The rain was heaviest between 10   a.m. and 12 noon, when 189 millimetres fell. 27.     Until 9 a.m. on 7 August 2001, water was released from the Pionerskoye reservoir at the rate of 12 cubic metres per second. 28.     At 9 a.m. the Water Company increased the rate to 22.8 cubic metres per second. 29.     At 9.30 a.m. the Water Company increased the release of water to 44.6 cubic metres per second and kept increasing it every half an hour. By 11.30 the evacuation rate was 122 cubic metres per second. 30.     Between 12 noon and 2 p.m. the evacuation of water remained at its maximum rate of 167 cubic metres per second . 31.     At 2 p.m. the Water Company decreased the release rate to 119 cubic metres per second, then at 3 p.m. to 109 cubic metres per second, and at 6.30 p.m. down to 90 cubic metres per second. 3.     Flood of 7 August 2001 32 .     According to the applicants, because of the urgent release of a large quantity of water from the Pionerskoye reservoir on 7 August 2001, a large area around the reservoir was instantly flooded, including the area where the applicants resided. In the applicants’ submission, the water arrived and rose very quickly at some point between 11 a.m. and 12 noon. 33.     According to the applicants, no emergency warning had been given before the flood. The Government referred to a letter of the Main Department of the Russian Ministry for Emergency Situations in the Primorskiy Region, dated 11 September 2009, to the effect that at the relevant time there had been no local emergency warning system in place at the Pionerskoye reservoir. 34 .     According to the first applicant, a disabled person, on the date in question she was at home and found out about the flood from her daughter and granddaughter, who came running to her flat to help her out to a safe place. Just as they reached her home, the water started rising rapidly, and by the time her relatives had helped her out onto the roof of the building, the water had reached waist level in the flat and was much deeper in the courtyard. In the first applicant’s submission, her home and belongings, land, outhouses and two cars were flooded. 35 .     The second applicant was not at home that day as she was at work. Her disabled brother, who was at home during the flood, apparently later told her that at about 12 noon water started rising from the cellar and within 15-20 minutes the house was flooded. According to the second applicant, some of her belongings were washed out of the house and some damaged by the water, which remained in the house for some time. 36 .     The third applicant was at home with her 21-month-old son when the flat was instantly flooded. She managed to dress the boy and to escape, wading breast-deep to a nearby motorway, which at that point had not yet been flooded; from there she took a bus to a safe place. Soon after the third applicant had left, all motorways in the vicinity were submerged and the public transport lines disrupted. In the third applicant’s submission, her property was severely damaged by the flood. 37 .     The fourth applicant, the third applicant’s mother-in-law, was at work when the flood occurred. She returned home in the evening and, according to her, suffered severe distress when she found her daughter-in-law and grandson missing and her home and possessions ruined. 38 .     The fifth applicant was at work when the flood occurred. His son, A.   B., who had been at home at the time, told him what had happened. According to A. B., at around 11.30 a.m. he heard the sound of seething water in the cellar and then saw water running from the street into the cellar. He looked out into the courtyard and realised that the water level was rising fast. He tried to leave but was unable to open the front door because the water in the street was already about 1.30 metres high. A. B. then jumped through a window into the flooded street, where the water was above shoulder level. He swam to a nearby shed, through seething water among household belongings, planks, logs and other litter. He managed to climb onto the roof of the shed and saw the surging water destroy sheds and fences, while people screaming in panic swam to any elevated places they could reach. According to the fifth applicant, when he returned home in the evening the water had already subsided. In his submission, his house and its contents and his land, outhouses and car were all damaged by the water. 39 .     The sixth applicant and her 19-year-old son were at home when the flood began. They opened the door to the street and their home was instantly flooded with water. They rushed out into the street, where within 15   minutes the water had risen to breast height. According to the sixth applicant, she was in a state of shock, as she could not swim. Her son swam away and brought a ladder, which enabled them to climb onto the roof of a garage. In the sixth applicant’s submission, her house and belongings, land and outhouses were all flooded. 40 .     As far as can be ascertained from the parties’ submissions, the water in the first four applicants’ flats reached a height of 1.20 metres; in the fifth applicant’s home the level was between 1.30 and 1.80 metres and in the sixth applicant’s flat, 1.50 metres. According to the applicants, the water remained at those levels for approximately a day. 4.     Rescue operation 41.     According to the applicants, no evacuation of the population from the flooded area had been organised following the flood of 7 August 2001. In their submission, they had had to find their own way to safety, and subsequently to cope with the consequences of the flooding on their own. 42.     The documents submitted by the Government indicate that by a decision of 7 August 2001 the Vladivostok Emergency Commission ordered that a number of rescue measures be carried out. A similar decision was taken on 8 August 2001 by the Emergency Commission of the Primorskiy Region. 43.     According to the Government, those affected by the flood had been evacuated and provided with food and accommodation at temporary accommodation centres. Also, staff from various rescue services had been sent to the flooded area. 44.     In a letter of 14 August 2001 the Vladivostok Department for Commerce and Domestic Services reported to the Vladivostok Emergency Commission on the measures taken in the period from 7 to 13 August 2001 to provide those affected by the flood and the personnel engaged in the rescue operation with food and drinking water. C.     Criminal investigation into the incident of 7 August 2001 1.     Investigation in case no. 916725 45.     On 9 August 2001 the Vladivostok prosecutor’s office opened a criminal investigation in connection with the flood of 7 August 2001. At some point criminal proceedings were brought against Mr L., the director of the Water Company, on suspicion of his having committed an offence punishable under Article 293 (1) of the Russian Criminal Code (professional negligence). The case was assigned the number 916725. 46 .     By two decisions of 21 September 2001 the investigator in charge declared the first applicant both victim and civil claimant in the case. It appears that at some point the second, fourth, fifth and sixth applicants were also granted victim status. The sixth and fifth applicants were informed of the relevant decisions in letters from the Vladivostok Department of the Interior dated 2 July and 27 September 2002 respectively. 47 .     On 21 September 2001 the investigator in charge inspected the scene of the incident at the first applicant’s domicile and questioned her. The first applicant stated that she had spent the day of 7 August 2001 at home. It had been raining but at first there had been no water in the courtyard. At about 11 a.m. a wave of water had swept in from the direction of the Pionerskoye reservoir and within 15-20 minutes the water level had risen to two metres. The first applicant said that there had been no prior warning of any evacuation of water from the Pionerskoye reservoir. She further stated that she had been living in her flat for 41 years and had never been warned that the flat was located in a flood zone. This was the first time that such large-scale flooding had happened. She also listed the property lost in the flood and indicated its value. 48.     On the same date the investigator in charge inspected the scene of the flooding at the fifth applicant’s domicile. The ensuing report attested, in particular, to the presence of traces on the walls at a height of 1.8 metres, left by water which had remained in the premises for a prolonged period. The investigator also questioned the fifth applicant, who stated that he had been away from home when the flooding had occurred and had been informed of the event by his son. That day he had returned home at 6 p.m. and the water had already subsided. The fifth applicant also said that there had been no prior warning of any evacuation of water from the Pionerskoye reservoir. He had lived in the house for 41 years and had never been warned that it was located in a flood zone. The fifth applicant also listed the property lost in the flood and indicated its value. 49 .     At some point the investigating authorities questioned the second applicant, who stated that she had been living in her flat for 60 years and that it was only during the last decade that the building in which she lived had been regularly flooded, which she explained by the absence of proper drains along the roads and the fact that the Pionerskaya river was littered and obstructed by unauthorised structures. She explained that on 7 August 2001, at about 12 noon, water had started rising from the cellar of the building in which she lived and filled her flat within 15-20 minutes. There had been no prior warning concerning any evacuation of water from the Pionerskoye reservoir and she had not seen any officials from the district or city authorities on 7 or 8 August 2001. She indicated the amount of the pecuniary damage she had suffered as a result of the flood. 50.     The fourth applicant was also questioned as a witness and made oral statements similar to those of the second applicant. 51 .     On 25 January 2003 the investigating authorities ordered that the criminal proceedings against Mr L. be discontinued owing to the absence of the constituent elements of a criminal offence in his actions. According to the decision, the preliminary investigation had established that because of exceptionally heavy rains on 7 August 2001 the water level in the Pionerskoye reservoir had been close to critical, with the result that there was a real risk of a dam breaking, which could have claimed numerous lives and caused extensive pecuniary damage, and that in ordering the evacuation of water from the reservoir Mr L. had acted within his competence and in full compliance with the relevant regulations and had thus prevented more extensive damage to the residents of Vladivostok. At the same time, according to an expert report of 24 January 2003 (see paragraphs 72-80 below), the main reason for the flood of 7 August 2001 had been the poor state of the channel of the Pionerskaya river, and in particular the fact that it had been overgrown with trees and bushes and obstructed by various structures. On 24 January 2003 the investigating authorities accordingly ordered that separate criminal proceedings be brought under Article 286 (1) of the Russian Criminal Code (abuse of power) against officials of the Vladivostok municipal and the Primorskiy regional authorities in that connection. 2.     Investigation in case no. 292025 (a)     Investigation in 2003-2004 52 .     On 28 January 2003 the district prosecutor’s office of the Leninskiy District of Vladivostok (“the district prosecutor’s office”) brought criminal proceedings in case no.   292025 against officials of the Vladivostok municipal and Primorskiy regional authorities under Article 286   (1) of the Russian Criminal Code (abuse of power) on suspicion on them having, in excess of their power, allocated plots of land for individual housing construction within a water protection zone of the Pionerskaya river. The case file was given the number 292025. 53.     In letters of 11 June and 9 August 2004 respectively the prosecutor’s office of the Primorskiy Region (“the regional prosecutor’s office”) informed the second and fourth applicants that the investigation in case no.   292025 had been repeatedly suspended owing to the lack of any evidence of a crime and then reopened, and that on the two most recent occasions it had been suspended and resumed on 5 March and 11 June 2004 respectively. (b)     Decision of 20 July 2004 54 .     On 20 July 2004 the investigating authorities discontinued the proceedings in case no. 292025, referring to the absence of evidence that a crime had been committed. 55 .     The decision stated that, in accordance with an applicable governmental regulation, a water protection zone should be delimited in a city’s general development plan or, in the absence of such a plan, should be established by a regional administrative authority. Moreover, in accordance with the relevant construction rules and regulations, construction of residential and non-residential buildings and, in particular, the allocation of plots of land for individual house building, was prohibited in water protection zones ( водоохранные зоны ) as well as in catastrophic flood hazard zones ( зоны возможного катастрофического затопления ). These latter zones were defined as areas where water levels during a flood could reach 1.5 metres and where flooding could cause death, destroy residential and non-residential buildings and disable industrial equipment. 56.     The decision noted, with reference to the findings of the investigation, that when the Pionerskoye reservoir had been built in 1936, no severe flood hazard zone had been delimited in the adjacent area as no methods existed in Russia for identifying such zones until the 1990s. It was stated in the decision that an attempt to identify such zones in the city of Vladivostok had been made at some point in the 1990s, when an expert agency was commissioned to prepare a feasibility study on the “Protection of the City of Vladivostok from Floods”, in the context of the federal programme for the protection of territories from typhoons and floods. However, the resulting document had not been duly registered with the competent State authority and had thus remained ineffective and could not be taken into account in elaborating town planning restrictions. As a result, no potential flood zones or catastrophic flood hazard zones, including the Pionerskaya river valley, had ever been delimited in the city of Vladivostok’s general development plan. 57 .     The decision also stated that no water protection zones had ever been marked in the city’s general development plan either. The Administration of the Primorskiy Region, which by virtue of the aforementioned governmental regulation (see paragraph 55 above) had been under obligation to establish such zones, had repeatedly failed to do so despite requests from the competent State agencies, with the result that regulations imposing town planning restrictions, particularly those restricting construction of individual houses within such zones, had remained inoperative. Not until 4 September 2000 had the Governor of the Primorskiy Region finally adopted a decree establishing a water protection zone that included the Pionerskaya river valley. The decree required the Vladivostok authorities to delimit water protection zones in the city’s general development plan, but the instruction was not followed as it would have meant updating that plan, which in turn would have meant conducting an ecological impact assessment of the plan. According to the decision of 20   July 2004, the Vladivostok Administration had not yet submitted the city’s general development plan with water protection zones marked on it to the Administration of the Primorskiy Region for impact assessment. 58 .     In the light of the above findings, the decision concluded that prior to 4 September 2000, when no water protection zones had been established by the Primorskiy regional authorities, any town planning restrictions concerning construction activities in such zones had been inoperative, officials of the Vladivostok Adminsitration could not be said to have exceeded their powers when allocating plots of land on the banks of the Pionerskaya river at that time. After that date, no plots of land had been allocated within that zone. The decision thus confirmed that all the properties on the banks of the Pionerskaya river that had been flooded on 7   August 2001, including the buildings in which the applicants lived, had been built before 4 September 2000, that is, lawfully. 59 .     It also stated that construction activities along the Pionerskaya river in the area downstream of the reservoir at present were allowed within the limits of the site where buildings already existed, that no zones where new construction was prohibited were delimited in the city of Vladivostok’s general development plan, that no demolition or transfer of previously constructed buildings was planned, and that the owners and leaseholders of those buildings and plots of land were entitled to use and dispose of them, and in particular to construct new buildings in the place of old ones. 60.     The decision also stated that there were no legal instruments or documents governing clean-up operations in the downstream area of the Pionerskaya river channel. Also, according to the decision, since 2001 the Main Department for the Administration of Natural Resources and Environmental Protection in the Primorskiy Region (“the Natural Resources Authority”) had been making yearly inspections of the Pionerskaya river channel. The results revealed that the Water Company had cleared the part of the river channel near the Pionerskoye reservoir; but the area downstream of that zone was only cleared sporadically by the people living there. The decision further stated that in view of the need to keep the channel of the Pionerskaya river clear the Natural Resources Authority had submitted suggestions to the Administration of the Primorskiy Region concerning measures to be taken with respect to the Pionerskaya river in 2002, 2003 and 2004, including clean-up work. It did not indicate whether those suggestions had been accepted and implemented. 61 .     The decision went on to note that the Pionerskoye reservoir belonged to the regional authorities and was operated by the Water Company. Under domestic law, the owner of the reservoir and the body operating it were responsible for ensuring its safe exploitation. Accordingly, the authorities of the Primorskiy Region and the Water Company were under obligation to secure the safe evacuation of water from the reservoir, which meant ensuring the necessary throughput capacity of the river channel below the dam. The decision further stated that, according to the relevant governmental decree, the proper technical and sanitary maintenance of reservoirs and use of water resources obeyed rules of exploitation of reservoirs to be elaborated by the owners of the reservoirs or the bodies operating them. It was the owner of the Pionerskoye reservoir and the body operating it who were responsible for planning and carrying out measures to ensure its proper functioning. (c)     Investigation in 2009-2010 62.     Following the decision of 20 July 2004, the investigation remained suspended until late 2009. 63.     By a decision of 23 September 2009 the regional prosecutor’s office ordered that the materials of criminal case no. 292025 be sent to the investigation department of the Leninskiy District of Vladivostok (“the district investigation department”) for examination, with a view to setting aside the decision of 20 July 2004 by which the criminal proceedings in the case had been discontinued. The decision of 23 September 2009 stated, in particular, that the decision of 20 July 2004 had been unfounded, as the investigation had not made any assessment of the Vladivostok authorities’ failure to clear and clean up the Pionerskaya river channel, or the failure of the Vladivostok city and the Primorskiy regional authorities to delimit water protection and riverside zones in the city of Vladivostok’s general development plan, to determine the legal status of the land adjacent to the Pionerskaya river, to comply with the regulations governing the exploitation of that land and to make the necessary changes to the feasibility study on the “Protection of the City of Vladivostok from Floods” so that it finally became operative. 64.     In a decision of 5 October 2009 the district investigation department refused to set aside the decision of 20 July 2004. 65.     On 28 October 2009 the regional prosecutor’s office sent a similar request to the investigation department of the Primorskiy Region. It appears that the latter instructed the district investigation department to re-open the investigation in case no. 292025. 66.     On 2 December 2009 the district investigation department resumed the proceedings in the case. 67.     By a decision of 9 February 2010 the district investigation department discontinued the proceedings owing to the absence of evidence of a crime. A copy of this decision has not been submitted to the Court. 68.     On 12 March 2010 the district prosecutor’s office invited the district investigation department to set aside the decision of 9 February 2010 as unlawful. On the date of the submission by the Government of their latest observations in the present case in October 2010, the request of 12 March 2010 seems to have still been pending. 69.     The Government did not submit a copy of the investigation file in case no. 292025 despite the Court’s specific request for them to do so. They stated that the case in question was in the hands of the regional prosecutor’s office and the Prosecutor General’s Office. D.     Expert inquiries 70 .     It appears that at least three expert examinations were carried out in the context of the investigation in case no. 916725. The results were reflected in reports dated 15 May and 29 September 2002 and 24 January 2003 respectively. The Court has not been provided with a copy of the report of 15 May 2002 and is unaware of its contents. Nor has the Court received a copy of the report of 29 September 2002, although the Government largely relied on that report in their submissions. The applicants have submitted a copy of the report of 24 January 2003. 1.     Expert report of 29 September 2002 71 .     In the Government’s submission, this report stated that because of the exceptional meteorological conditions on 7 August 2001, when the actual rainfall exceeded several times the amount forecast, it had not been possible to avoid a sudden large-scale evacuation of water from the Pionerskoye reservoir. According to the Government, the report further stated that the actions of the Water Company on the date in question had been in compliance with relevant regulations and correct, and in particular the water release regime chosen by the Water Company on that day had been close to optimal. According to the report, on 7 August 2001 between 12 noon and 2 p.m. the evacuation of water remained at its maximum rate of 167 cubic metres per second. In the Government’s submission, if the Pionerskoye reservoir had not existed, rainwater would have flooded to the mouth of the Pionerskaya river at a maximum rate of 440 cubic metres per second. 2.     Expert report of 24 January 2003 72 .     An expert examination of the area flooded on 7 August 2001 was carried out between 21 May 2002 and 24 January 2003. 73 .     The resulting report, dated 24 January 2003, was entitled “On the flooding of non-residential and residential objects in the area downstream of [the Pionerskoye reservoir] ... as a result of the evacuation of rainwater by the reservoir on [7 August 2001]”. It described the system for evacuating excess water from the Pionerskoye reservoir as comprising an open spillway with a floodgate situated below the normal water level, and a siphon spillway. The maximum throughput capacity of each of the two spillways was equal to 200 cubic metres per second. According to the technical documentation of the Pionerskoye reservoir, excess water should normally be evacuated through the open spillway by operating the floodgate. The siphon spillway was to be activated automatically only if the water level was still rising when the floodgate was fully open. 74.     The report explained the sudden increase in the water level in the reservoir on 7 August 2001 by the exceptionally heavy rain on that day, which had been much heavier than forecast, making it necessary to evacuate water. It confirmed that the type of flooding that occurred on that day was thought to occur only once a century. 75 .     The report also noted the extensive damage caused by the flood, listing in particular the residential buildings which had been flooded near the Pionerskaya river, including those in which the applicants lived, and indicated that over much of the flooded area the water had been 1.5 to 2   metres deep. 76.     The report further confirmed that the river bed was overgrown with vegetation and littered with household waste, that its course had been significantly altered by human activity and that a number of unauthorised constructions, including road bridges and footbridges, had been built, reducing its throughput capacity. 77 .     The report concluded that the staff of the Water Company had done well in evacuating the water from the Pionerskoye reservoir on 7   August 2001. In particular, after partially opening the floodgate of the open spillway for a short time, the staff had then opened the gate completely. However, the water evacuated had flowed down the river in the form of a wave, which had magnified its destructive effect, and the presence of debris and constructions in the floodplain had considerably contributed to raising the water level during the flood . In particular, the presence of bridges and service pipelines at some points on the Pionerskaya river had increased the water level by up to 1.5 metres, which had been the main reason for the destruction of a road and railway bridges at the mouth of the river. 78 .     The report also stated that under the relevant planning and development rules and regulations governing urban and rural settlements, territories where residential and non-residential buildings had been constructed or were to be constructed should be protected from floods of once-a-century proportions like the one on 7   August 2001. The same regulations prohibited the construction of various buildings in catastrophic flood hazard zones. 79 .     The report went on to note that the instruction for the exploitation of the Pionerskoye reservoir made it clear that no constructions should be allowed in the area downstream of the reservoir without measures being taken to protect that area from floods. According to the city of Vladivostok’s general development plan, there should be no building development in the area do