ATAYANTS v. RUSSIA

Communicated on 28 January 2015

FIRST SECTION

Application no. 48806/10
Grigoriy Levonovich ATAYANTS
against Russia
lodged on 7 August 2010

STATEMENT OF FACTS

The applicant, Mr Grigoriy Levonovich Atayants, is a Russian national, who was born in 1963 and lives in Rostov-on-Don.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Underlying events

The applicant’s brother, Mr Bykov, born in 1958, lived in Novorossiysk in a rented flat. He was editor in chief of a newspaper, Gazeta Kubani («Газета Кубани»), which during the elections into the State Duma of the Russian Federation had supported one of the candidates from Novorossiysk.

On 16 February 2000 the newspaper staff, including Mr Bykov and Mr U., director general of Gazeta Kubani, were celebrating in the office the receipt of the first salary that year. According to Mr Z., Mr Bykov’s driver, around 1 a.m. on 17 February 2000 Mr Bykov was still in the office and told Mr Z. that he did not need to be taken home that night. However, he asked Mr Z. to pick him up from his flat the next morning.

When in the morning of 17 February 2000 Mr Z. came to Mr Bykov’s flat, nobody opened the door. Mr Z. found it strange as the light in the flat was turned on and Mr U.’s car was parked in front of the building. Mr Z. went to the office. He returned to the flat together with Ms V. and Mr T. from the newspaper staff. They broke the door to Mr Z.’s flat and found his dead body in the hallway. They also found dead bodies of Mr U. and two other persons, Ms M. and Ms K. There was acrid smell in the flat. They closed the door and called the police, emergency services and the newspaper office. Poisoning with carbon monoxide was suspected.

Also on 17 February 2000 a dead body of a woman with similar symptoms was found in the flat on the floor above Mr Bykov’s flat.

2. Criminal proceedings

(a) First cycle of the investigation

On 17 February 2000 criminal proceedings under Article 143 § 2 of the Criminal Code (breach of labour safety rules that resulted in death due to negligence) with regard to the incident were instituted by the Prosecutor’s Office of the Central District of Novorossiysk.

On the same date Mr Bykov’s flat was examined by the police that arrived at the scene of the incident. Everything in the flat seemed to be in place.

According to forensic report no. 157 of 17 February 2000 Mr Bykov died as a result of poisoning with carbon monoxide. According to four other reports made by the expert on 17 and 18 February 2000, the cause of death of the other four persons was the same.

No witnesses were identified among the residents of the building where the flat was situated.

Unidentified substance was found in the ventilation pipe.

According to the report of the forensic examination of 21 March 2000, Mr Bykov’s death was due to poisoning with carbon monoxide. The expert also stated injuries on Mr Bykov’s body such as a bruise of the right elbow and an abrasion on the left knee which could have been caused by hitting against hard blunt objects possibly not long before his death. According to the report, at the time of his death Mr Bykov was sober.

On 17 April 2000 the investigator discontinued the criminal proceedings, having found no elements of a crime in the incident. In his report the investigator stated that the cause of the accident was a violation of the rules of use of the gas boiler.

(b) Second cycle of the investigation

On 29 May 2000 a higher prosecutor quashed the above decision on the ground that the investigation conducted had been incomplete and superficial and remitted the case for additional investigation. The prosecutor ordered to carry out the following investigative actions:

- to examine the gas boiler and the ventilation pipe in the flat;

- to conduct chemical examination so as to establish the composition of the substance found in the ventilation pipe and the time of its dispensing;

- to question directors of the enterprises which provide utilities with respect to maintenance of the gas equipment in the flat;

- to grant victim status to relatives of Mr U. and Ms K.;

- to deliver a well-founded decision in the case.

On 29 June 2000 the investigator in charge of the case again discontinued it for the same reasons.

(c) Third cycle of the investigation

On 15 September 2000 the applicant asked the Prosecutor’s Office of the Central District of Novorossiysk to ensure proper investigation of his brother’s death. The applicant pointed out certain defects of the investigation. He also noted that, in his view, the fact that on the date of Mr Bykov’s death all the windows in his flat had been closed was strange as, being a smoker, he usually kept some windows open even in winter. Furthermore, he noted that on the day in question Mr Bykov had a big sum of money that had disappeared. This incident had not been investigated. Moreover, the applicant’s version of his brother’s death being connected to the latter’s involvement in election campaign of a candidate to the State Duma had not been investigated. Nor had it been established how and when unidentified substance had gotten into the gas boiler’s ventilation pipe.

On 21 November 2000 the decision of 29 June 2000 was quashed by a higher prosecutor. In his decision the prosecutor stated that no investigative actions had been effectively carried out. No instructions given in the prosecutor’s decision of 29 May 2000 had been complied with. He noted, furthermore, that no information had been gathered concerning the personalities of the deceased, and the applicant’s version concerning the connection between Mr Bykov’s death and his involvement in election campaign of a candidate to the State Duma had not been examined.

The investigation was resumed.

On unspecified date apparently in December 2000 Mr Z. was questioned. He submitted, in particular, that in the evening of 16 February 2000 he had been waiting in his car outside the office while the newspaper staff had been celebrating the receipt of the first salary that year. At around 1 a.m. on 17 February 2000 Mr Bykov approached him and said that he did not need a lift home but asked Mr Z. to take home another colleague instead. At the same time he asked Mr Z. to pick him up from his flat the next morning. At around 8.30 a.m. on 17 February 2000 Mr Z. came to pick up Mr Bykov. The latter lived in a flat on the ground floor with windows almost at ground level. Mr Z. noticed Mr U.’s car parked right outside the flat and saw that an electric lamp was on in the kitchen. He came to the door and rang the bell several times. However, nobody opened the door. He then went outside and knocked on the windows. Mr Z. then called the newspaper office, described the situation and said that in his view it looked suspicious and it was necessary to break the door. Subsequently Mr Z. went to the office and, having picked up Ms V. and Mr T., returned to Mr Bykov’s flat. Near the door he felt strange odour that he believed to be gas, but a neighbour said that gas smelled differently. He asked the neighbour for an axe with which he opened the door to the flat. First he felt poignant smell and then saw Mr Bykov’s body on the floor of the hallway. As it was impossible to breath in the flat, Mr Z. went outside and called the ambulance and the police. An ambulance arrived in ten to fifteen minutes. A doctor entered the flat, then he went outside and broke the windows of the flat. The police also arrive shortly and together with the police officers Mr Z. entered the flat and saw that in the flat there were also dead bodies of Mr U. and two girls that he did not know. Mr Z. also submitted that Mr Bykov was a kind, calm and polite person. He never mentioned that he might have received any threats.

On unspecified date apparently also in December 2000 Ms V. was questioned. Her submissions were consistent with those of Mr Z. She added that she had seen drops of liquid on the door to the flat when they had arrived with Mr Z. and Mr T. Ms V. submitted that she had never heard about either Mr Bykov or Mr U. having received any threats in connection with their professional activity.

On 21 December 2000 Mr T. was questioned. His submissions were consistent with those of Mr Z. and Ms V., except that he stated that he had seen all the four dead bodies in the flat when Mr Z. had opened the door with an axe.

Mr P. and Ms B., who had worked in the newspaper at the relevant time, were questioned respectively on 21 December 2000 and on unspecified date apparently also in December 2000. They submitted that on 17 February 2000 they had learned from Z. about what had happened. They did not know that either Mr Bykov or Mr U. had ever received any threats in relation to their professional activity.

On 22 December 2000, Mr Kh., son-in-law of Mr V., the flat’s owner, was questioned. He submitted that the Novorossiysk Town Administration granted the flat to Mr V. in December 1996. Throughout the next year he and Mr V. carried out renovation works in the flat. They also took the gas boiler to the gas provider for service. Then they reinstalled it in the kitchen. After the completion of the works and until the end of August 1998 Mr V. lived in the flat. Then he moved together with Mr Kh.’s family and let the flat. The tenants made no complaints about the gas boiler. Between July and the end of September 1999 Mr V. again lived in the flat. He had no problems with the gas boiler. He let the flat between the end of September and 31 December 1999. The new tenants made no complaints about the gas boiler either. In January 2000 Mr V. again lived in the flat for a short period of time and in the end of January he let it to Mr Bykov. Mr Kh. met Mr Bykov twice after he had moved in. He had never made any complaints concerning the flat. Around 20 February 2000 Mr V. called the house management and he was told that his flat had burned down. Mr Kh. and Mr V. then urgently left for the flat and upon arrival saw that the door was sealed and the window broken. They learned from the neighbours that four days ago four dead bodies had been found in the flat. Mr Kh. did not know how foam insulation could have found its way into the ventilation pipe of the gas boiler. According to Mr Kh., neither he nor Mr V. carried out any works in the flat with the use of the foam insulation. Mr Kh. did not know whether Mr Bykov had made any reparations in the flat.

On 24 December 2000 the investigation was discontinued for lack of elements of a crime in the incident.

Nevertheless, between 28 December 2000 and 16 January 2001 a chemical examination was conducted which established that the yellow‑green substance found in the ventilation pipe was a copolymer of organic nature. However, it appeared impossible to establish its type.

(d) Fourth cycle of the investigation

On 17 August 2001 the above decision was quashed by a higher prosecutor as unlawful and the case was remitted for additional inquiry. The prosecutor pointed out the following flaws of the investigation:

- nobody from the staff of the utilities’ providers responsible for the safety of gas equipment had been questioned;

- technical documentation related to the use of gas equipment had been neither obtained nor included in the case file;

- forensic technical examination with a view to establish the cause of the gas leak had not been conducted;

- the applicant, who had been granted victim status in the proceedings, had not been questioned.

On 20 August 2001 the flat was examined another time. Photographs were taken and parts of the ventilation pipe were seized.

On 11 September 2001 the gas boiler and the ventilation pipe were examined once again.

According to a report of the forensic technical examination of the gas boiler and parts of the ventilation pipe of the same date the gas boiler had no defects which could have led to a gas leak. However, the presence of the yellow-green organic substance (copolymer) found in a part of the ventilation pipe which fully blocked the opening of the pipe could have led to a gas leak.

On 6 September 2001 Mr M., a senior engineer of the enterprise carrying out maintenance of gas equipment was questioned. He stated that emergency service of the enterprise received a request concerning the flat on 17 February 2000. When the repair crew arrived, they found that the ventilation pipe of the gas boiler was filled with foam concrete which prevented discharge of the combustion gas.

It appears that several other employees of the enterprise carrying out maintenance of gas equipment were also questioned on unspecified dates. They did not provide any specific information about the flat.

It appears that the applicant was questioned on unspecified date as well.

On 12 September 2001 the investigator re-qualified the offence under Article 216 § 2 of the Criminal Code (breach of safety rules for construction works which resulted in death due to negligence).

On 16 September 2001 Mr K., director of the enterprise responsible, inter alia, for maintenance of smoke and ventilating ducts in residential buildings, was questioned. He submitted that the enterprise usually conducted maintenance upon the residents’ requests. However, it also conducted regular maintenance according to the schedule agreed upon with the town authorities. Normally it was conducted once a year. The last maintenance in the building where the flat was situated was conducted on 9 March 1999. Therefore, the smoke and ventilating ducts were deemed to be in proper condition for use until 9 March 2000. Mr K. learned about the incident of 17 February 2000 on either 19 or 20 February 2000. Mr K. went to the flat but by that time both the gas boiler and the ventilation pipe had been removed. He checked the draught in the smoke duct which corresponded to the norm. Mr K. concluded that the accident had been caused by the lack of draught in the delivery pipe that connected the gas boiler to the smoke duct.

On 17 September 2001 Mr V-v, employee of the same enterprise, was questioned. His submissions were consistent with those of Mr K.

On 17 September 2001 the investigation was suspended for failure to identify the culprit.

(e) Fifth cycle of the investigation

On 23 January 2003 the decision of 17 September 2001 was quashed by a higher prosecutor on account of the investigation having been incomplete. He remitted the case for additional investigation and ordered to conduct the following investigative actions:

- to question residents of the upper floors of the building and find out whether any works had been conducted in the previous six months that might have affected the ventilating duct;

- to examine the entire length of the ventilating duct with participation of an expert with respect to possible presence of the copolymer;

- if found, to conduct expert examination of the substance;

- to question relatives of all the victims, Mr Bykov’s wife in particular, and grant them victim status in the proceedings;

- to identify the social circle of each victim and question their friends and acquaintances with regard to their life style and, in particular, with regard to their involvement in any election campaigns;

- to attach to the case file objects that had been seized but not still included in the materials of the case.

On 10 February 2003 the investigation was suspended for failure to identify the culprit.

(f) Sixth cycle of the investigation

On 11 March 2003 the above decision was quashed by a higher prosecutor as being premature. He remitted the case for additional investigation and ordered to conduct the following investigative actions:

- to question residents of the upper floors of the building;

- to establish the whereabouts of Mr Bykov’s wife and question her.

On 19 March 2003 a number of residents of the building where the flat was situated were questioned with regard to repair works that they might have conducted with respect to gas and ventilation equipment in their flats. The repair works they mentioned had taken place in 1994-97.

On 11 April 2003 the investigation was again suspended for failure to identify the culprit.

(g) Seventh cycle of the investigation

On 29 October 2003 the above decision was quashed by a higher prosecutor on the ground that the previously given instructions to take certain investigative measures had still not been complied with. In particular, no information about the victims’ personalities had been gathered; the time of blockage of the ventilation pipe had not been established; the applicant’s version about the connection between his brother’s death and the latter’s involvement in election campaign to the State Duma had not been investigated.

On 12 November 2003 Mr K-a was questioned. He submitted that he had been living in the flat with his family between 19 August and 29 December 1999 as a tenant. According to Mr K-a, before they moved in Mr V. had told them that in the flat there had been problems with a gas leak and had advised them to close the faucet on the gas pipe. While they were living in the flat Mr K-a’s wife often had headaches which, they thought, might have been caused by the gas leak. For this reason they always closed the faucet on the gas pipe after having used the gas equipment. However, they did not carry out any repair works in the flat.

On 29 November 2003 the investigation was another time suspended for failure to identify the culprit.

(h) Eighth cycle of the investigation

On 13 January 2004 the above decision was quashed by a higher prosecutor on the ground that the previously given instructions to take certain investigative measures had still not been complied with. In particular, no information about the victims’ personalities had been gathered; the time of blockage of the ventilation pipe had not been established; the applicant’s version about the connection between his brother’s death and the latter’s involvement in election campaign to the State Duma had not been investigated.

On 15 January 2004 Mr K-a was again questioned. He confirmed his pervious statement and added that his wife had told Mr V. about the problems with the gas leak and had asked him to repair the gas boiler. According to Mr K-a, when his wife cooked she could not keep the gas boiler turned on for more than an hour as otherwise her head would begin to ache and she would feel sick.

On 17 January 2004 Ms K-a, Mr K-a’s wife, was questioned. Her submissions were consistent with those of Mr K-a.

On 19 January 2004 several other residents of the building where the flat was situated were questioned with regard to repair works that they might have conducted with respect to gas and ventilation equipment in their flats and the events of 17 February 2000. The repair works some of them mentioned had taken place in the summer of 1999. On 17 February 2000 some of them felt the smell of gas in the building.

On 23 January 2004 the investigation was suspended.

(i) Ninth cycle of the investigation

On 2 June 2004 the above decision was quashed by a higher prosecutor and the criminal proceedings were resumed.

On 3 June 2004 Ms Kh., Mr Kh.’s wife and Mr V.’s daughter, was questioned. She submitted that in May 1997 she and Mr Kh. had made renovation works in the flat. At the same time they repaired the gas boiler which had had a slight water leak before. However, they did not touch the ventilation pipe. Ms Kh. stated that they had never received any complaints concerning the gas boiler from the tenants as otherwise they would have called the utility services for maintenance. Ms Kh. was sure that the draught in the ventilation pipe had been good because the gas burner functioned properly. She did not know how the copolymer had gotten into the ventilation pipe.

On 7 June 2003 Mr Kh. was again questioned. He confirmed his earlier statement.

On 2 July 2004 the investigator discontinued the criminal proceedings for lack of elements of a crime in the incident.

(j) Tenth cycle of the investigation

On 20 December 2004 the above decision was quashed by a higher prosecutor.

On 20 January 2005 the investigator again discontinued the criminal proceedings for lack of elements of a crime in the incident.

(k) Eleventh cycle of the investigation

On unspecified date the above decision was also quashed by a higher prosecutor.

On 23 June 2005 the criminal proceedings were suspended for failure to identify the culprit.

On 23 December 2005 Mr V. died.

(l) Twelfth cycle of the investigation

On 16 February 2006 the above decision was quashed by a higher prosecutor on account of the investigation having been incomplete.

On 16 March 2006 the criminal proceedings were another time suspended by the investigator.

(m) Thirteenth cycle of the investigation

On 7 April 2006 the above decision was quashed by a higher prosecutor.

On 19 April 2006 Mr Kh. was again questioned. He confirmed his earlier statement and added that although sometimes he had had to communicate with the tenants who had been living in the flat, it was Mr V. who had been ensuring the maintenance of the flat as its owner. When the K-ka were moving out on 29 December 1999, they told Mr Kh. about problems with the gas boiler. He in turn told about it Mr V. However, the latter said that in his view the gas boiler functioned properly. Mr V. died on 23 December 2005.

On 20 April 2006 the investigator charged Mr V., the owner of the flat, with accidental manslaughter under Article 109 (3) of the Criminal Code. The proceedings under Articles 143 and 216 of the Criminal Code were discontinued.

On 27 April 2006 the criminal proceedings again Mr V. were discontinued on account of his death.

(n) Fourteenth cycle of the investigation

On 28 August 2006 the above decision was quashed by a higher prosecutor on account of investigation having been incomplete. He noted, in particular, (i) that it had not been established how the copolymer had found its way into the ventilation pipe; (ii) it had not been clarified why, when letting Mr V.’s flat to Mr Bykov, Mr Kh. had not told the latter about the gas leak; and (iii) that there had been insufficient information to corroborate Mr V.’s responsibility for the incident.

On 2 October 2006 Mr V-v, employee of the enterprise responsible for maintenance of smoke and ventilating ducts in residential buildings, was again questioned. As regards the presence of the yellow-green organic substance that blocked the ventilation pipe, Mr V-v stated that this must have been due to the negligence of the person who had sealed the pipe. Foam insulation should not be used to seal such pipes as it is self-ignitable. Furthermore, it spontaneously dilates before taking a particular form. However, it was impossible to tell when this substance had appeared in the pipe.

On the same date the investigator discontinued the criminal proceedings on account of Mr V.’s death. He stated that the death of Mr Bykov and four others had been a result of criminal negligence of the owner of the flat, who had known about the malfunction of the gas boiler and had had to repair it, but had failed to do so.

3. Subsequent complaints before prosecuting authorities

On 19 August and 30 September 2008 the applicant sent requests to the prosecutor’s office asking for permission to study the materials of the case. The requests were granted in October 2008.

On 2 December 2008 the applicant lodged a complaint before the Prosecutor’s Office of the Krasnodar Region. He argued that the investigation conducted had been ineffective, asked to quash the decision of 2 October 2006 and to conduct a proper investigation of the incident. The applicant pointed out some elements that, in his view, had not been addressed by the investigation. In particular the position of the bodies in the flat was untypical for poisoning with carbon monoxide: Mr Bykov’s body was found in the hallway. The origin of the injuries found on Mr Bykov’s body was not established, and the nature of the drops of liquid found the door to the flat was not established either.

Having received no response, on 9 March 2009 the applicant complained to the Prosecutor General, who forwarded the complaint to the Prosecutor’s Office of the Krasnodar Region.

On 15 May 2009 the Prosecutor’s Office of the Krasnodar Region replied to the applicant that his complaint of 2 December 2008 had been forwarded by mistake to the Prosecutor’s Office of Novorossiysk. Those responsible were reprimanded for the mistake.

In the course of the following years the applicant lodged complaints to prosecutors of different levels, including the Prosecutor General, asking to conduct an adequate investigation.

4. Complaints before courts

(a) Appeal against the discontinuation of the criminal proceedings

On 9 January 2010 the applicant lodged a complaint under Article 125 of the Code of Criminal Procedure before the Oktyabrskiy District Court of Novorossiysk concerning the investigator’s decision of 2 October 2006.

On 19 January 2010 the Oktyabrskiy District Court of Novorossiysk dismissed the complaint having found the investigator’s decision lawful and well-founded.

The applicant appealed.

On 3 March 2010 the Krasnodarskiy Regional Court upheld the decision on appeal. It held that the first-instance court had rightly endorsed the investigator’s findings and that the decision to discontinue the criminal proceedings had been lawful.

(b) Challenging the prosecuting authorities’ alleged failure to properly deal with the applicant’s complaints

On 9 January 2010 the applicant complained to the Oktyabrskiy District Court of Krasnodar about the prosecuting authorities’ alleged failure to properly deal with his complaint of 2 December 2008 and sought to have it recognized unlawful.

By the decision of 27 January 2010 the Oktyabrskiy District Court of Krasnodar dismissed the complaint. It found that the prosecutor’s office had acted lawfully and had informed the applicant about its decisions of 23 April and 18 May 2009, whereby the complaint had been dismissed, in due time and in accordance with the procedure established by law.

The applicant appealed.

On 17 March 2010 the Krasnodarskiy Regional Court upheld the decision.

The applicant’s request for supervisory review was dismissed.

B. Relevant domestic law

Article 125 of the 2001 Code of Criminal Procedure sets out the procedure for the judicial examination of complaints. The orders of an investigator or prosecutor refusing to institute criminal proceedings or terminating a case, and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to hinder citizens’ access to justice, may be appealed against to a local district court, which is competent to check the lawfulness and grounds of the impugned decisions.

COMPLAINTS

Relying on Articles 6 and 13 of the Convention, the applicant complains that the investigation into his brother’s death was ineffective.

QUESTION TO THE PARTIES

Having regard to the procedural protection of the right to life (Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

 

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