KOSTINA v. RUSSIA

Communicated on 23 January 2014

FIRST SECTION

Application no. 42063/08
Tamara Nikolayevna KOSTINA
against Russia
lodged on 31 July 2008

STATEMENT OF FACTS

1. The applicant, Ms Tamara Nikolayevna Kostina, is a Russian national, who was born in 1962 and lives in Novosibirsk. She is the mother of Mr P.G., died on 11 August 2002 as a result of the events described below.

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

A. The accident of 11 August 2002

3. On 11 August 2002, at about 4 pm a group of youth in a minivan drove through the territory of sewage fields in the vicinity of Novossibirsk. Amongst them were P.G., the applicant’s son (aged 16), his friends Mr A.Sh. (aged 18), Mr V. M. (aged 20) and four others, including one girl.

4. The territory of the sewage field is about 100 - 110 ha and belongs to “Gorvodokanal”, a municipal enterprise which runs the canalisation system of the town. In theory, access to the sewage field was reserved to the personnel of Gorvodokanal. However, in practice the field was not fenced and was crossed by several dirt roads easily accessible from the main (asphalted) road. At the time a large part of the territory of the sewage filed was covered by bushes of wild-growing cannabis, which proliferated on the swampy and rich soil.

5. The sewage system comprises a network of underground drains connected to the surface by manholes. Those manholes at times accumulate poisonous gases (such as methane or carbon dioxide) and may be dangerous.

6. As the matter transpires, the applicant and his friends decided to harvest some cannabis. According to a later expert report P.G., A.Sh. and V.M. were drunk; the degree of drunkenness of P.G. was described as “heavy”. When the minivan reached “sector 28” in the midst of the field, they stopped the car and P.G. stepped out and went to the field.

7. Few minutes later his friend, V.M., worried by P.G.’s absence, left the car and discovered the applicant inside a manhole at about 3 m behind the car. P.G. was lying on the floor unconscious and did not respond.

8. The authorities and the applicant disagreed as to how P.G. had been caught in the manhole. The applicant claims that the manhole had no cover and that P.G. fell there by accident. The authorities maintained that P.G. descended to the manhole by himself.

9. Another point of disagreement is whether the manhole was easily discernible from the road. The manhole is located at about 1 – 1,5 metres away from the road, close to a small path which led from the road to the area where the cannabis grew. The manhole went about 3.3 meters deep; the opening of the manhole was about 60-70 cm in diameter. The applicant claimed that the manhole had been screened by high grass, whereas the authorities insisted that it could have been seen from the road and from the path. According to the authorities (see below) the upper part (the opening) of the manhole was at about 50 cm above the ground, but the video footage provided by the applicant shows that the opening was located virtually at the ground level. The video also shows that the space around the manhole was covered by dense grass, although it is difficult to say how high the grass was since when the video footage was made the grass had already been trampled down. The bushes of cannabis which grew near the manhole were about 2 m high.

10. V.M., in order to help P.G., descended to the bottom of the manhole using a metal ladder fixed to its inner wall. However, after having spent about 3 minutes at the bottom V.M. was also suffocated by the gas and lost consciousness. Then A.Sh. went down the manhole to help his friends but was suffocated as well. The fourth friend, who stayed at the surface, realised that it was dangerous to go down and returned to the dirt road, where he stopped a lorry passing by. That lorry was driven by Mr V.Dl., an employee of Gorvodokanal, who was transporting dregs. V.Dl. had a mobile phone; at 4:23 pm he called rescue service.

11. When the rescue team arrived, all three boys had been already dead. A television crew from a local news channel arrived soon after the rescue team and filmed the process of extraction of the bodies from the manhole. Rescue workers had to hold their breath while working in the manhole and tried to minimise the time spent at the bottom. Three bodies were extracted with the ropes and transported to the morgue.

12. At about 17:00 the accident was made known to the police. A group of police investigators arrived at the place and examined it; following their visit they drew a short “report of the discovery of the appearance of a crime” and submitted it to the head of the police department.

13. On 12 August 2002 the police examined the place of the accident anew and analysed with special tools the air inside the manhole. The analysis of air did not reveal presence of any toxic gases inside the manhole. As a result of the visual examination the police discovered in the manhole the following objects: an enamel cup, two bottlenecks from plastic bottles with caps, one of which contained truss of cannabis, a shoe, a rubber overshoe, trusses of cannabis, and a “strap” hanging from to the metal ladder. According to the report of the police, they saw no warning sign on the territory of sector 28, territory of sector 28 was covered with 2 metres’ high bushes of orache, absinth and other grass, which started immediately at the edge of the road from both sides. By contrast, the gates on the main road had a warning sign: “Sanitary zone; no driving through”. A similar warning sign was discovered on the road in the south-eastern part of the field.

B. Inquiries and investigations into the accident

1. The preliminary inquiry

14. On an unspecified date the investigator of the prosecutor’s office of the Novosibirsk District instituted a “preliminary inquiry” into the death of three boys. The inquiry was supposed to verify whether the workers of Gorvodokanal, namely Mr A. Bl. and Mr A.Schm., had acted negligently in the performance of their duties.

15. On 18 (?) August 2002 the investigator of the prosecutor’s office wrote a letter to the Regional Labour Inspectorate, a body responsible inter alia for industrial safety monitoring. According to the letter, the cover of the manhole had a handle and had no lock. There had been no warning signs on the territory of sector 28; the sewage field was not fenced and had gates only on the main road. Territory of sector 28 was covered by 2 metres’ high bushes of orache, absinth and cannabis, which started immediately at the edge of the road from both sides.

16. On 22 August 2002, as a result of the inquiry, the investigator decided not to start criminal investigation into the actions of Mr A.Bl. and Mr A. Schm. The investigator established that fencing of the territory was not provided for by the safety rules, that there was no requirement to eliminate grass on the field, that the covers did not have locks. The decision of the investigator noted inter alia that the exact cause of death of the three boys has not yet been established.

2. The first complaint under Article 125 of the CCrP to the court

17. On an unspecified date the applicant lodged a complaint under Article 125 of the Code of Criminal Procedure asking the court to quash the decision of the investigator not to proceed with the case and not to open an investigation.

18. On 29 December 2003, following two rounds of court proceedings, the Novossibirskiy District Court found that the inquiry had been incomplete and failed to address certain important questions. In particular, the inquiry failed to establish the exact cause of the death of the applicant’s son, verify whether the manhole had been visible from the road, check to what extent it had been screened by grass, whether it had been closed with a cover, etc. It remained unclear why the grass around the manholes had been cut in April, when there is no grass, and in September, where the grass decays. The investigation failed to determine whether the accumulation of the gas was possible in an open manhole. The court ordered to reopen the case.

3. The first round of investigation

19. Following a new investigation the case was closed again. The applicant did not submit a copy of the relevant decision.

4. Letter of the Federal Labour Service

20. On 11 July 2006 the Federal Labour Service (FLS) sent the applicant a letter. The letter informed the applicant that Mr A.Sr., a labour inspector, had analysed the accident and had submitted his opinion to the prosecution and to the court. According to the letter, the Building Regulations of 1985 (SNiP 2.04.03-85) permitted not to enclose the sewage fields (point 8.2). By contrast, the Regulations on industrial safety issued by the Ministry of Land, Construction and Communal Services (Decree No. 93 of 22 September 1998) provided that “the territory of the installations of ... canalisation systems” must be enclosed and marked with warning signs. “All dangerous places on the territory of the installations ... must be safely covered or enclosed; ... the manholes must be covered or fenced around”.

21. The FLS concluded that the industrial safety rules had been applicable, and, hence, the territory of the sewage field of Gorvodokanal must have been enclosed, and that by failing to do so Gorvodokanal breached Decree No. 93.

5. The second round of investigation. Report of 13 October 2004

22. On 13 July 2004 the prosecutor ordered to start the criminal investigation. The case was assigned no. 86194.

23. On 14 July 2004 the applicant was given the status of an “injured party” in the proceedings.

24. On 13 October 2004 the investigator closed the case having concluded that A.Bl. and A. Schm. acted with requisite care.

25. The investigator’s report summarised evidence collected during the inquiry and investigation.

26. First, it referred to the information received from the friends of the deceased boys who had been in the minivan with him (this information is mostly reflected in Section A above), in particular Mr V. Sd. Further, the investigator summarised the testimony of the witnesses who arrived at the place of the incident shortly after it.

(a) A.Zm. (the rescue worker)

27. Mr A.Zm., a rescue worker, described the rescue operation of 11 August 2002 in which he had taken part. According to A.Z., to get to the sewage field their car went through metallic gate. The grass aground the manhole was 50-70 cm high but had already been trampled down. In A.Zm.’s opinion, it was possible to see the manhole from the path despite the grass. A.Zm. discovered three dead bodies inside the manhole; none of them had any visible injuries. Judging on the reddish colour of their skin, A.Zm. concluded that they had been suffocated by carbon oxide. A.Zm. also testified that some of the youth from the minivan had been seemingly intoxicated by drugs.

(b) Mr A. Bl (the chief engineer)

28. Mr A. Bl. (one of the suspects) was the chief engineer of Gorvodokanal. He testified that decomposition of faeces on the sewage field might generate methane which occasionally accumulated in the manholes. Manholes were inspected and maintained according to a plan approved in 1989 (the “1989 plan”). According to p. 6.11 of the 1989 plan, inspection and maintenance of the manholes was supposed to take place every six months. To conduct the inspections and maintenance, Gorvodokanal regularly issued a “duty roster”; however, a copy of that “duty roster” was kept in the archives only for one year. According to the usual practice, the last maintenance before the accident took place on 10 April 2002, when two workers, Mr V.Nkr. and Mr A.Plkh., verified the manholes, including those located in sector 28 of the sewage field. They reported about the work done to the supervisor of the sewage field, Mr A.Schm. (the second suspect), who made a corresponding record in the maintenance book.

29. According to A.Bl., inspection of the manhole at issue consisted of its visual examination. At the moment the manhole was covered with a cover. Covers used in the sewage filed were designed in the 1970s and did not have locks. However, covers were often stolen so the workers had to replace them. A.Bl. testified that it was impossible to eliminate all herbs on the sewage fields since the fields are very swampy. During the maintenance works the grass around the manholes was cut.

30. According to A.Bl., in 1995 warning signs have been installed at places where the roads entered the sewage field, in particular the dirt road which led to sector 28. Those warning signs read as follows:

“Beware of the gaz. Entry or driving through are prohibited. Dangerous for life”.

However, otherwise the territory of the sewage field was not fenced or delimited in any other manner since it was not provided by the original project of the field.

31. A.Bl. arrived to the place of the accident at about 5:45 pm. He noticed that none of the dead boys had visible injuries on them. A.Bl. inferred that the boys descended to the manhole rather than fell there. Some of their friends were visibly intoxicated by drugs. The manhole was visible from the road. According to A.Bl., at 7:30 pm on the same day two engineers of Gorvodokanal, Mr Kind. and Mr Osin. inspected the place, found a cover in grass in the vicinity and put it back on the manhole.

(c) Mr A.Schm. (the supervisor of the sewage field)

32. Mr A.Schm. (the second suspect) was the supervisor of the sewage field, responsible inter alia for the maintenance of the manholes. He accepted the work of the two workers who had inspected the manholes on 11 April 2002 and made an entry in the maintenance book. In addition, in 11 and 12 April 2002 he personally inspected all the manholes at issue. All manholes were covered by metal covers. Sector 28 had only one manhole, and it was covered as well. For the past seven years sector 28 was not in use and it was drying up in order to be cleaned in the future. Consequently, there was no need to examine and maintain the locks inside the manholes which connected them to the drains. He confirmed that gases of decomposition (primarily methane) sometimes accumulated in the manholes.

33. According to A.Schm., applicable regulations did not require to put warning signs around the field. Similarly, the field was not fenced since it had not been provided by the original plan and, in addition, the territory of the field was in constant growth. However, he had ordered a warning sign be installed on a road connecting industrial buildings and the field, and two or three more around the field. The warning signs read: “Beware of the gaz. No driving through.” The road leading to Sector 28 also had such a warning sign. The sign was fixed near the road to an embedded metallic tube. However, on 12 August 2002 Mr R.Osin. (the employee of Gorvodokanal) informed him that the sign was missing. Probably, the sign had been stolen. It was not unusual that warning signs and covers of the manholes were stolen. The grass around the manholes was cut twice during the summer, between May and September. A. Schm. supposed that the youth came to the sewage field to harvest cannabis and that they all descended to the manhole by themselves.

(d) Mr V.Nekr. and Mr A.Plkh. (the workers)

34. Mr V.Nekr. and Mr A.Plkh were two workers who examined the manhole on 10 April 2002. They testified that since sector 28 had not been in use for many years, their only task had been to examine the manhole visually. They testified that some of the covers used to close the manholes were made of cast-iron; but cast-iron covers were often stolen, so they were occasionally replaced with ordinary iron covers. The manhole at issue was covered with ordinary iron cover. The warning signs at the entry points did exist in 2002, but they were broken on many occasions and needed to be replaced. According to them, the manhole could have been seen from the road. The workers supposed that the boys wanted to harvest the cannabis.

(e) Mr Kind. and Mr Osin. (the workers)

35. Mr S. Kind. and Mr R.Osin. were the workers of Gorvodokanal who examined the scene of the accident on the evening of 11 August 2002. They arrived to the place at about 7.30 pm at the request of the chief engineer, A. Bl., who told them that they had to find the cover and shut the manhole because the police might have left it open. Indeed, the manhole was open; S.Kind. and R.Osin. searched for the cover, found it in the grass at about three metres from the manhole, and put it back. The grass under the cover was still green which indicated that the cover was probably put there shortly before the accident.

(f) Mr V.Dlzh. (the lorry driver)

36. Mr V.Dlzh was the driver of the lorry who called the rescue service. The rescue service arrived at the place in about 10 minutes after the call; when he called the rescue service one of the boys at the bottom of the manhole was still alive. V.Dlzh. did not notice whether there had been a warning sign, although normally such signs had existed. At about 1.5 metres from the manhole he saw a tree-pod metallic stand, one of those which are placed on the top of a manhole in order to make it visible. V.Dlzh. thought that the manhole could have been seen from the road, since the opening of the manhole was above ground level in order to avoid spring floodwaters coming in. V.Dlzh. testified that sewage field had always attracted drug users because of the cannabis growing there. He supposed that the boys had descended to the bottom of the manhole in order to process the cannabis.

(g) Mr A.Dn. (head of the shift)

37. Mr A.Dn. worked as a head of the shift on the day of the accident. He arrived there after the rescue workers had already extracted the bodies of the three boys from the manhole. A.Dn. testified that the warning signs were placed on the main road. The main road had metallic gates which could be closed, however, there were other roads going through the field. The warning signs had existed in theory, but A.Dn. was not sure whether they had been still in place on 11 August 2002; he did not exclude that they might have been broken, or hit by a car. The grass aground the manhole was 50-70 cm high but had already been trampled down. A.Dn. testified that probably he had seen a cover at about 1,5 meters from the manhole, but he was not sure.

(h) Other evidence analysed in the report

38. The report reproduced the results of the post-mortem examination of the bodies of the three boys (reports no. 4306, 4307, and 4308, the latter concerning the body of the applicant’s son), which concluded that the boys died as a result of asphyxia (lack of oxygen) and had no physical injuries which might have been explained by them falling from the height of 3,3 m to the bottom of the manhole. Report no. 4308 which concerned the body of P.G. measured, inter alia, the level of alcohol in his blood and concluded that P.G. was “heavily drunk”. The reports referred to the carbon dioxide as a possible toxic agent in the air of the manhole.

39. The report also described the results of the visual examination of the inside of the manhole on the day after the accident.

(i) Conclusive paragraphs of the report

40. Having described the evidence, the investigator outlined applicable legal provisions. In particular, the investigator found that according to the Rules on regular maintenance of sanitary installations of 1989, inspections of the sewage files must be conducted every six months. According to the maintenance book of Gorvodokanal, on 10 April 2002 Mr A.Pl. and V. Nekr. inspected sector 28. The investigator concluded that the actions of Mr A. Bl. and Mr A. Schm. do not disclose any evidence of negligence.

6. The subsequent rounds of investigation and the second complaint under Article 125 of the CCrP

41. On an unspecified date in 2004 the applicant filed a complaint under Article 125 of the Criminal Procedure Code complaining of the decision of the investigator to close the case. Before the District Court the applicant maintained that the investigator had failed to address certain crucial points which had been raised in the earlier decision of the same court of 29 December 2003. In particular, the investigator had not conducted new expert examinations and had used those which had been obtained in 2002. The investigator had disregarded the opinion of the labour inspector who had concluded that Gorvodokanal had failed to implement the applicable industrial safety regulations.

42. In the opinion of the applicant, it was clear that the victims and in particular Mr P.G. had been physically incapable of removing the cover and carrying it several meters away since the cover weighted over 100 kilos. It appears that before the court the investigator in charge of the case, Ms Gs., did not contest that the manhole was open. However, in the opinion of the investigator, that fact was immaterial for her conclusions that the suspects had not been guilty of negligence. The applicant, in contrast, insisted on including that fact in the official report of the investigator. The applicant also claimed that the investigator had failed to reflect in her conclusions the fact that Gorvodokanal had not followed the industrial safety regulations and had not enclosed the dangerous place.

43. On 14 February 2005 the Novossibirskiy District Court dismissed the applicants’ complaint, having repeated the content of the report of 13 October 2004. The court noted, in particular, that the industrial safety regulations concerned “sanitary installations of settlements”. Since the sewage field was located outside the settlement, the regulations were inapplicable. The court also found that according to the Rules on regular maintenance of sanitary installations of 1989 inspection of manholes had to be conducted twice a year, and that in the case that it had been properly done, that the grass had been cut, that the covers had not had locks, and that the employees of the Gorvodokanal had not been guilty of negligence.

44. On 11 April 2005 the Novosibirsk Regional Court upheld the decision of the lower court.

45. On 26 August 2005 the Presidium of the Novosibirsk Regional Court quashed the lower court’s decisions and remitted the case for fresh examination.

46. On 30 March 2006 the Novossibirsk District Court re-examined the prosecutor’s decision of 13 October 2004. At the hearing the applicant asked the court to stay the proceedings; she claimed that the she had not received access to the materials of the criminal case and was, consequently, not prepared for the hearing. However, the court observed that the applicant had been well aware of the subject-matter of the case, that she lodged numerous complaints and that the courts on many occasions explained her how to get access to the documents she needed. Consequently, the court concluded that her alleged “unpreparedness” was a procrastination tactic, and interpreted it as a withdrawal of the complaint. The case was therefore discontinued.

47. On 15 May 2006 the Novossibirsk Regional Court quashed the decision of 30 March 2006 and ordered to examine the applicant’s complaint on the merits.

7. Report of 16 February 2007

48. In the meantime the office of the prosecutor of the Novossibirsk region ordered to reopen the investigation. The case was closed again on 16 February 2007.

49. The text of the report of 16 February 2007 repeated, with minor variations, witness testimony relied on by the previous report (that of 13 October 2004). In addition, the report summarised the testimony of the labour inspector, Mr A.Sar., who had earlier prepared a written opinion on the compliance of Gorvodokanal with the industrial safety regulations. According to A.Sar., Gorvodokanal had to follow the Regulations on industrial safety. According to him, although the territory of the sewage filed had been equipped with warning signs and the lighting (at least there were “poles”), the territory had not been fenced around. On the other hand, the fencing was not provided by the original plan of the organisation of the sewage field.

50. Having summarised evidence in the case-file, the investigator concluded, on the basis of that evidence, that the actions of the employees of Gorvodokanal – A.Bl. and A.Shm. – did not disclose any appearance of a crime.

8. Report of 26 July 2007

51. On 23 April 2007 the supervising prosecutor ordered to open the case again.

52. Following a new round of the investigation, the case was closed on 26 July 2007. The report of the investigator was quasi identical to the previous two reports (of 13 October 2004 and of 16 February 2007). In addition to the evidence summarised in the two above reports, the report of 26 July 2007 summarised evidence given by Mr A. Bl. and A.Schm. (the suspects) during “additional questionings”, and evidence by several new witnesses.

(a) Mr A. Bl. (the chief engineer)

53. Mr A. Bl testified that the manholes on the territory of the sewage field “had always been closed”. He never heard that the gas might have accumulated in the manholes; if it happened, he would certainly know about it. Before entering the manholes for maintenance the workers always tested the quality of the air inside it. The plan of the sewage field did not provide for fencing; however, Gorvodokanal fenced a part of the territory to protect it from the intruders who “quite often” penetrated the territory of “sanitary installations” (from the testimony it is unclear whether the “sanitary installations” included the sewage field or not). The sewage field was not fenced since it was not provided by the plan. As a result, intruders still had access to the field attracted by wild-growing cannabis. There was no need to put a fence around manholes. A.Bl. was persuaded that the boys had removed the cover and descended to the bottom by themselves. The manhole had since been destroyed.

(b) Mr A. Schm. (the supervisor of the sewage field)

54. Mr A.Schm. explained the manhole had been recently destroyed in the process of rearrangement of the territory of the sewage fields. He also supposed that the boys entered the manhole by themselves, since it was easy for one person to remove the cover. Mr A.Schm. was sure that the cover had been on its place before the accident, since “the manholes had always been closed” and it had been verified in April 2002. He also confirmed that, according to his knowledge, there had been no previous cases of poisonings and the gas had not previously accumulated in the manholes. The rescue worker who had extracted the boys from the manhole had not been wearing a gas mask. After the accident all the manholes on the territory of the sewage field were checked, and the workers discovered there traces of human presence – traces of bonfires, spoons, bottles. In 2002 there were warning signs “Beware of the gas!” on the field.

(c) Mr V.Prokh. (the expert)

55. Mr V.Prokh. was an expert in gases who prepared a written opinion in 2002 on the request of the applicant. He described the process of accumulation of toxic gases in the manhole; according to him, it was possible that toxic gases remained in high concentration even where the manhole was not closed by a cover. In his opinion, most likely the boys were suffocated as a result of high concentration of carbon dioxide, but it was difficult to say it for sure for want of samples of the air from the bottom of the manhole.

(d) Mr A.Sar. ( labour inspector)

56. Mr A.Sar. testified that, in his opinion, the manhole had been visible from the road, and that the industrial safety rules had not required Gorvodokanal to fence around the manhole. He testified that his inspection had not revealed any breach of safety regulations by the workers of Gorvodokanal.

(e) Ms L.Chir (labour inspector)

57. Ms L.Chir. participated in the examination of the place of the accident on 26 July 2007 together with the investigator of the prosecutor’s office. She confirmed that she had seen a warning sign at the entry to the sewage field.

(f) The conclusions of the report

58. Unlike previous reports, the report of 26 July 2007 contained conclusions of the investigator as to the facts of the case. The investigator observed that nobody had seen the moment of the “fall” of P.G. (the applicant’s son) into the manhole – it was only Mr V.M.’s assumption. It was improbable that after having fallen from 3.3 m P.G. would not have any injuries. Thus, it was highly probably that P.G., who was heavily drunk, descended to the manhole by himself. It was irrelevant whether the manhole was closed with a cover or open. The accident took place in the daytime; the metallic tubes embedded in the ground near the manhole indicated its position. The manhole should have been visible from the road. The manhole was not in active use, and, therefore, was closed. The last time it was inspected in April 2002 and it was closed at that time. The body of P.G. had no injuries; it was positioned not directly under the opening but slightly aside which indicated that P.G. had probably been moving inside the manhole before he had collapsed. P.G. was under influence of alcohol and acted irrationally. The objects found on the bottom of the manhole indicated that somebody had been there shorty before the accident. Most probably, the boys had arrived to the field in order to harvest cannabis. The gases accumulated at the bottom were the product of decomposition of faeces; the gases could have remained there even if the manhole was open. The fact that the grass under the cover was still green indicated that it had been removed shortly before the accident. However, the employees of Gorvodokanal did not breach any rules or regulations. The plan of the sewage field did not provide for fencing around the whole territory or around the manholes. At the relevant time the territory of the filed was marked with the warning signs.

59. The investigator concluded, as previously, that the actions of the employees of Gorvodokanal – A.Bl. and A.Shm. – did not disclose any appearance of a crime.

9. The third complaint under Article 125 of the CCrP

60. The applicant challenged the decision of 26 July 2007, as confirmed on 8 February 2008, to the court. Before the first instance court the applicant also challenged Judge Kh. who sat in the single-judge formation, but it was refused.

61. On 11 September 2009 the Novossibirsk District Court refused to order the reopening of the case. The District Court noted that the investigator questioned several employees of Gorvodokanal, including Mr A.Bl and Mr A.Schm., and workers of other organisations. In the opinion of the court, those persons “did not have their interest in the outcome of the proceedings”. The court repeated the findings of the expert examinations and stressed that none of the three boys had had injuries which might have been caused by them falling in the manhole. The court referred to the testimony of the witnesses who all confirmed that the manhole could have been seen from the road and that the grass around the manhole had been cut twice a year, including in April 2002. The court also referred to three witnesses who had testified that warning signs had existed. The court did not examine the video recording of the place of the accident made by the TV companies, but attached to the materials a “protocol of examination of video-recording made by the investigator”. The court concluded that Gorvodokanal respected the applicable rules, that the grass had been cut twice a year, and that even if the territory of the sewage fields was fenced, it would not stop the trespassers and would not prevent them from opening the covers and getting inside the manholes. The deceased boys could not have ignored the fact that they were on the territory of the sewage field; nevertheless, they penetrated there unlawfully, and carelessly descended to the manhole. In such circumstances their death was a result of an accident.

62. On 11 November 2009 the Novossibirskiy Regional Court confirmed on appeal the lower court’s judgment.

COMPLAINT

The applicant complains under Article 2 of the Convention that the death of her son resulted from careless actions of those responsible for the sewage field and that the ensuing investigation was not effective. She also invokes Article 13 in respect of the ineffective investigation into the accident of 11 August 2002.

QUESTIONS TO THE PARTIES

A. General questions

1. A follows from the results of the domestic investigation, the applicant’s son was suffocated by a gas in a manhole, situated on a sewage field operated by Gorvodokanal, a municipal enterprise. Has the applicant’s son’s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, was the State under a positive obligation under Article 2 of the Convention to prevent such accident, and, if so, did it comply with such obligation?

2. What sort of a remedy would be sufficient, in the circumstances, to comply with the “procedural positive obligation of the State” under Article 2 of the Convention? Did inquiry or the criminal investigation in the present case satisfy the procedural requirements of Article 2? Did the authorities put in place any other (non-criminal) remedy capable of holding individuals or legal persons accountable for negligent acts resulting in the loss of human life? In other words, did the applicant have any possibility of establishing the circumstances of the case and obtaining redress for the death of her son, other than through a criminal investigation? If so, what sort of a remedy it could be and did it have any prospect of success in absence of any positive finding of the criminal investigation? The Government are invited to refer to the examples of other cases where a person successfully used such a remedy despite the fact that the criminal investigation into the same events had been discontinued.

3. Did the applicant’s mother have an “effective remedy” to complain about the death of her son, as required by Article 13 of the Convention?

B. Questions related to certain particular aspects of the case

4. Was the cover of the manhole ever examined? According to S. Kind. and R. Osin., in the evening of 11 August 2002 they found the cover in the grass at about 3 metres from the manhole and put it back. How was it possible that other people who were at the scene did not notice that cover? How heavy was the cover, and was P.G. physically capable of removing it and throwing 3 meters away? Was the cover ever examined in order to find fingerprints or any other evidence that P.G. had ever touched it?

5. When did the police (or any other investigative body) arrive at the place of the accident? From the materials of the file it appears that workers of Gorvodokanal (Mr A.Bl., Mr Kind., Mr Osin.) arrived to the place of the accident and manipulated the cover at 7:30 pm in the evening of the incident (put it on the manhole) before the arrival of the police, or that the police did not prevent them from doing it. Was the place of the accident photographed or video-recorded by the police immediately after the accident and was the perimeter secured anyhow?

6. Did the investigator or experts conduct any tests in the nearby manholes or at least examine them visually, and, if so, when have it been done?

7. Did the investigator found any “warning sign” on the road to Sector 28 or at the entry to the sewage field and, if so, where and when? Was that sign (those signs) photographed and examined? In particular, did the investigator establish whether those signs were there on the day of the accident, and whether they were visible behind the grass? Was it possible to enter the sewage field not via the main road but by other entry points were no warning signs have been installed?

8. Why was the investigation limited to the question of criminal liability of Messrs A. Bl. and A. Schm.? Did the fact that A. Bl. and A. Schm. had not acted negligently excluded any further criminal investigation into the accident? Was it possible to broaden the scope of the investigation and verify the possible contribution of other persons, organisations etc. in the accident?

9. The investigator and the courts repeatedly concluded that the Gorvodokanal respected applicable safety rules, in particular by cutting grass around the manholes twice a year. According to the materials of the case, the last inspection before the accident took place on 10 – 12 April 2002. According to the Russian Wikipedia, the average temperature in Novossibirsk in April varies around the freezing point. Did the authorities conclude that the grass around the manhole was cut (see § 43, for example), when was it done, and if it was done during the last maintenance in April 2002, was there any sense in “cutting the grass” around the manhole while, most probably, the grass at that moment was still covered by the snow (see § 18 of the Facts)?

10. Would it be correct to say, on the basis of the domestic court’s findings, that the applicable rules did not require Gorvodokanal to fence the sewage field or the manholes and to lock the covers of the manholes? As to the warning signs, did the applicable rule establish their number, content of the message and the places where they should be placed? Would it be correct to say that the only precaution provided by the regulations was that the workers of Gorvodokanal had to verify once every six months that the cover was on its place?

11. The employees of Gorvodokanal testified that the covers on the manholes have often been stolen, and had to be replaced, and that the warning signs (if any) have also been repeatedly stolen or vandalised. It also appears that the employees of Gorvodokoanal were aware of the risk of accumulation of dangerous gases in the manholes. As transpires from their testimony, they knew that the cannabis growing on the sewage field attracted drug users and that access to the field was possible from several points, and not only from the main road. In the circumstances, weren’t they under an obligation to restrict access to the field by fencing it (or at least fencing around the manholes), putting more warning signs and locking the covers on the manholes so that they cannot be easily removed, eliminating cannabis regularly or at least eliminating the grass around the manholes?

12. In answering the above questions the Government are invited to refer to the relevant materials of the case-file. The Government are specifically requested to examine the video-material submitted by the applicant that depicts the actions of the rescue workers on 11 August 2002.

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