CEDH · CASELAW;COMMUNICATEDCASES;ENG — 8 septembre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s63D113AA { margin-top:0pt; margin-bottom:0pt; text-indent:35.45pt } .s944BDE53 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt }   Communicated on 8 September 2017   THIRD SECTION Application no 10551/10 Aysylu Murtazovna ZINATULLINA against Russia lodged on 5 January 2010 STATEMENT OF FACTS The applicant, Ms Aysylu Murtazovna Zinatullina, is a Russian national who was born in 1953 and lives in Tolyatti, the Samara region. She is represented before the Court by Mr A.D. Begzi, a lawyer practising in Tolyatti. The facts of the case, as submitted by the applicant, may be summarised as follows. On 1 June 2008 the applicant’s son, Ramazan Rashitovich Zinatullin, who was born on 19 December 1993, was the victim of an accident at a construction site near his school in Tolyatti. He fell through a hole from the third to the second floor of an unfinished building onto a heap of broken bricks, thereby sustaining, amongst other damage, serious injuries to his head and his brain, resulting in a disability that will continue to require treatment. The investigating authority of the Avtozavodskoy district of Tolyatti carried out a pre-investigation inquiry and established that the construction site had not been guarded, had not been entirely closed off, and had been freely accessible from the side of the school. The construction work – which had been commissioned by the Tolyatti town mayor’s office – had been on hold for lack of funding. The investigating authority found that the accident had happened through the victim’s own negligence. It therefore refused to institute criminal proceedings into the accident for lack of the elements of a crime. Its refusal was countermanded several times as unlawful and unfounded, and an additional pre ‑ investigation inquiry was ordered. The most recent decision not to institute criminal proceedings was taken by an investigator from the investigative сommittee of the Avtozavodskoy district of Tolyatti at the Samara regional prosecutor’s office on 6 July 2009. The applicant brought civil proceedings for damages on her own behalf and on behalf of her son. She claimed 1,000,000 roubles (RUB) and RUB   500,000, respectively, by way of compensation for the non-pecuniary damage sustained by her son and herself. On 14 October 2010 the Tsentralniy District Court of Tolyatti granted her claims partially. It established that the accident happened in an unfinished building which had been the municipal property of the Tolyatti mayor’s office since 1997. However, the right of possession thereof had been transferred to the municipal enterprise Invest-Proyekt in 2007 for the purposes of completing the construction. Both parties were therefore responsible for any non ‑ pecuniary damage sustained by third parties on the construction site. The Tolyatti mayor’s office denied its responsibility and argued at a hearing before the District Court that in the absence of ongoing construction work there had been no need for any protective measures. The District Court rejected those arguments, holding that the mayor’s office, as owner of the unfinished building, was responsible for taking all measures necessary to exclude all threats to people’s life or health, even whilst the construction work was on hold. However, no measures for the protection of the building or the restriction of access to it had been undertaken. Hence there was a cause-and-effect connection between the failure to act – both by the mayor’s office and by Invest ‑ proyekt – and the damage to the applicant’s son’s health. The court heard witnesses and established that after the accident the applicant’s son had spent 70 days in a coma, with doctors estimating his chances of survival at 50%. He had been declared disabled, had been repeatedly hospitalised afterwards, and ongoing treatment and rehabilitation was recommended. The court also took into account the applicant’s son’s own negligence (his entering a dangerous place and not being careful after a warning from a friend about the hole in the floor) and the applicant’s parental responsibility, which should have entailed more control over her minor son’s activities, his visits to the construction site – of which she had been aware before the accident – and her failure to prevent his visit to the construction site on the day of the accident, which was at the weekend. The applicant argued that immediately before his fall, her son had been listening to music on headphones and had therefore not heard his friend’s warning about the hole in the floor. The court dismissed in their entirety the claims made by the applicant on her own behalf but ordered the Tolyatti mayor’s office to pay her son RUB   25,000 and the municipal enterprise Invest-Proyekt to pay him RUB   15,000 in respect of non-pecuniary damage. The applicant appealed against the judgment, arguing that the amount of the compensation was inadequate. On 9 December 2010 the Samara Regional Court rejected her appeal and upheld the judgment. It agreed with the first-instance court that those responsible for providing compensation in respect of non ‑ pecuniary damage were the mayor’s office, as the owner of an unfinished building which was a source of increased danger ( источник повышенной опасности ), and the municipal enterprise Invest-Proyekt as its occupier. The judgment was enforced in the part concerning the payment by the mayor’s office. The remaining part has not been enforced because of the municipal enterprise’s insolvency. The applicant lodged an application for supervisory review of the judgments in the case. On 28   April 2011 a judge of the Supreme Court of the Russian Federation dismissed her application, finding no grounds for a review of the case by the Supreme Court. According to the applicant, even before the accident a violation of the relevant regulations by the mayor’s office – namely failure to undertake measures to ensure security at a construction site – had been found in proceedings brought against it by the construction supervisory authority before the Samara Regional Commercial Court. However, the mayor’s office had failed to take any measures to comply with that court’s judgment. COMPLAINTS The applicant complains on behalf of her son under Articles   2 and 13 of the Convention about the State authorities’ failure to act, which had resulted in the dangerous unfinished building being freely accessible to children and had led to her son’s injury and eventual disability. The authorities had failed to institute criminal proceedings regarding the accident and the compensation awarded in the civil proceedings had been inadequate. The applicant’s son continues to support the complaints lodged by his mother when he was still a minor. QUESTIONS 1.     Taking into consideration the domestic courts’ findings in the civil proceedings concerning the local authorities’ lack of action in ensuring safety measures in relation to the unfinished building, has there been a violation of the State’s positive obligations under Article 2 of the Convention? Were the authorities aware – or should they have been aware – of the risks pertaining to the safety of the unfinished building? In particular, were there any warnings, requests or legal proceedings concerning such risks before the accident? Bearing in mind the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the manner in which the legal mechanisms were applied by the domestic authorities in breach of Article 2 of the Convention?   2.     Was there an effective domestic remedy for complaints about the alleged violation of the applicant’s son’s right under Article   2, as required by Article   13 of the Convention?   The Government are invited to submit the entire contents of the criminal case file, including all the investigating authorities’ refusals to institute criminal proceedings and other decisions and any other relevant documents.