CEDH · CASELAW;CLIN;ENG — 7 mai 2020

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Georgia - 43881/10 Judgment 7.5.2020 [Section V] Article 2 Positive obligations Death from carbon monoxide poisoning following reconnection of improperly installed gas-operated water heater despite warning from gas company: no violation Facts – In June 2007 gas company technicians discovered, as part of a safety check, that a gas-operated water heater had been improperly installed in the apartment of the applicant’s son. The inspection record indicated that the water heater had been disconnected from the gas pipe and that the resident had been provided with instructions. In April 2008 the applicant’s son was found dead at home. A forensic medical examination concluded that he had died as a result of poisoning by carbon monoxide. The domestic courts upheld the decision of the prosecutor to terminate a preliminary investigation, finding that the water heater had been carelessly reconnected to the gas supply by the applicant’s family, leading to the fatal accident. Law – Article 2 a)   Substantive aspect – The core of the applicant’s complaint concerned the alleged inadequacy of the regulatory framework with respect to the safe use of gas-operated household devices, in the context of the Government’s positive obligations regarding dangerous activities carrying an inherent risk to life. It was undisputed that the applicant’s son had died as a result of poisoning by carbon monoxide emitted from an incorrectly installed gas-operated water heater. By contrast, the parties disagreed as to whether the domestic legislation had contained adequate guarantees to safeguard his life, as to what particular regulations had been in place to prevent accidents related to the use of gas-operated household devices, and as to whose responsibility it had been to ensure compliance with such regulations. While the Court noted the statistical information regarding the high number of incidents relating to carbon monoxide poisoning in the city of Tbilisi, the Court’s task was not to make an abstract assessment of the regulatory framework applicable but to determine whether the manner in which they had been applied to, or had affected, the applicant’s son had given rise to a violation of the Convention. Various regulations had existed at the material time which prohibited the installation of the type of the water heater at the core of the applicant’s case in spaces which had not been equipped with adequate ventilation systems.     Such safety rules were aimed at avoiding the accumulation of exhaust fumes inside dwelling spaces to safeguard life and health of the population, and appeared reasonable. By contrast, as concerned the supervision of compliance with those rules, the legislation in force at the material time did not specify how frequently the gas company was to perform safety checks and it was only subsequently that the relevant amendments had been introduced to address the matter. Furthermore, the domestic legislation did not appear to have required that a written warning be given to a resident of an apartment when a violation of a safety rule had been found. Nevertheless, those deficiencies were not sufficient to hold the respondent Government accountable for failing to avert the death of the applicant’s son. In particular, while the safety regulations did not appear to have been respected, and deficiencies existed in respect of the regularity of safety check-ups and the manner in which a violation of the safety rules was to be communicated to the individuals concerned, the Court drew particular attention to the undisputed fact that the violation of the relevant safety rules had in fact been discovered by the gas company before the death of the applicant’s son, and the water heater had been disconnected and nevertheless reconnected by the applicant’s family. In that context, the positive obligation under Article   2 could not impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct. The applicant’s family having been warned, even if verbally, against using the water heater, their subsequent decision to take the fatal risk by reconnecting the device to the gas supply did not appear reasonable, especially in the face of the widespread knowledge relating to the attendant risks, and could not, in the particular circumstances of the case, give rise to a violation of the State’s obligations under Article   2. b)   Procedural aspect – The principal conclusion of the domestic criminal investigation into the death of the applicant’s son – that his death had been a fatal accident after the water heater had been reconnected against the warning of the gas company – upheld by the domestic courts did not appear arbitrary and, in the circumstances of the case, did not raise an issue under the procedural limb of Article   2. Conclusion : no violation (unanimously). The Court also found that there had been no failure to comply with Article 38 as the Government had provided the documents requested by the applicant.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes