FOURTH SECTION
DECISION
Application no. 23590/06
Valentina Dimitrova ILINOVA and Yordan Yordanov ILINOV
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 9 April 2013 as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 30 May 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms Valentina Dimitrova Ilinova and Mr Yordan Yordanov Ilinov, are Bulgarian nationals who were born in 1961 and 1953 respectively and live in the village of Sinitevo. They were represented before the Court by Mr V. Tabakov, a lawyer practising in Pazardzhik.
2. The Bulgarian Government (“the Government”) were represented by their Agent, first Ms N. Nikolova, and then Ms M. Kotseva, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The incident on 22 April 1995 and the death of the applicants’ son
4. On 22 April 1995 the applicants’ thirteen-year old son, Marin Ilinov, and a friend of his, G.G., entered a building housing an electric power transformer in the vicinity of their village. G.G. left the building first and immediately afterwards heard a blast. On looking inside, he saw Marin sprawled on the ground; he appeared to have been struck by high-voltage electricity. G.G. ran off and returned with the second applicant, Marin’s father. At this point an ambulance arrived and took the boy to hospital. Two days later Marin died.
5. The electric power transformer was situated close to a road and to an animal feed factory owned by a company, M. Until 1993 it had served the needs of the factory; however, due to repeated thefts of equipment, in 1993 the company ceased using it and had abandoned it. Even though the company had dismantled the rest of the equipment, a feeder cable of 20 kV which served other plants and factories in the area had remained in use.
2. Criminal investigation
6. Criminal proceedings were opened on 22 April 1995 against an unknown perpetrator for negligently causing the death of Marin Ilinov by the careless performance of a dangerous activity.
7. An inspection of the site of the incident was carried out on the same day. It was established that the building had a low-voltage and a high-voltage chambers, accessible through separate doors. The main door leading to the high-voltage chamber was closed and locked; there was a warning sign on it. However, the door leading to the low-voltage chamber was missing and there was a hole in one of the chamber’s brick walls measuring 60 by 40 cm. It was through that hole that Marin Ilinov and G.G. had entered the high-voltage chamber.
8. A post-mortem examination of Marin’s body was carried out on 24 April 1995. It found burns and other traces of electric shock and established that the immediate cause of death was severe cerebrocranial trauma, which could have been caused by a fall to the ground after an electric shock.
9. Numerous witnesses were interviewed in the course of the criminal proceedings. Among them were several neighbours who had been nearby at the time of the incident, some of whom had seen the two boys enter the building housing the transformer and G.G. exit in a hurry. They had approached the scene, found Marin lying in a pool of blood and called an ambulance.
10. Several witnesses said that the door leading to the low-voltage chamber had been missing for several months prior to 22 April 1995. They had also seen the hole in the wall of the high-voltage chamber. They had assumed that the transformer was not functioning.
11. In fact, the electricity supply to the transformer was cut, following a request by company M. addressed to the National Company for Electricity (“the NCE”), on 26 April 1995, four days after the incident involving the applicants’ son.
12. In two letters dated 2 July and 19 November 1996, the NCE informed the investigation authorities that the transformer at issue was not its property, but the property of company M. Several NCE employees, when interviewed as witnesses, made statements to the same effect.
13. The investigators collected documentary evidence concerning the nature of the duties of a number of employees at company M. tasked with the maintenance of its electrical installations. It was established that after 1993 the plant’s department responsible for the maintenance of its electric installations had been headed by a Mr V.P.; he was interviewed, as were several other employees of M.
14. An expert report commissioned by the investigation authorities detailed numerous breaches of the relevant safety rules at the factory, such as a lack of regular checks of the installations. It has not been established whether the factory’s installations had ever been inspected by the relevant State bodies. The report found also that Mr V.P., head of the department responsible for the maintenance of the company’s electric installations, had not had the professional qualifications required by law.
15. The investigators worked on the case until 2001, after which they took no further investigative action and the case remained dormant.
16. Until 2000 the applicants were active in the proceedings, filing requests and complaints. In 2000, following a request by the second applicant, a new investigator was appointed to deal with the case, as the previous one had died. It appears that after the appointment of the new investigator the applicants took no further initiative and remained passive.
17. On 10 April 2006 a prosecutor at the Pazardzhik regional public prosecutor’s office discontinued the criminal proceedings as the statutory limitation period had expired. In a final decision of 28 April 2006 the Pazardzhik Regional Court upheld the prosecutor’s decision.
18. The applicants have not sought damages from company M. in respect of their son’s death.
B. Relevant domestic law and practice
1. Provisions concerning the maintenance and safety of electrical installations
(a) The Electricity Act of 1975 (Закон за електростопанството) and the Regulations on its implementation of 1976 (Правилник за приложение на Закона за електростопанството)
19. The Electricity Act of 1975, in force until 16 July 1999, provided in section 2 that all electricity power stations, electrical installations and networks belonged to the State. Cooperatives and other organisations could acquire such electrical facilities following an authorisation by the Energy Agency (“Асоциация Енергетика”).
20. By section 20 of the same Act and section 64(1) of the Regulations on its implementation (“the Regulations”), in force until 14 April 2000, the good technical repair of electrical installations and equipment was supervised by the Energy Agency. Such supervision could also be exercised by the electricity-supply organisations (section 64(2) of the Regulations) or by other bodies and organisations in the field of their competency (section 22 of the Act).
21. The supervising bodies of the Energy Agency had the right (“имат право”) to carry out inspections and issue binding instructions to the users of electrical installations and equipment (section 65 of the Regulations). In cases of shortcomings or failures in electrical installations which could endanger the lives of personnel or the proper functioning of the whole electrical system, the supervising bodies were to take preventive measures and, if necessary, switch off the installation in question (section 66 of the Regulations).
22. By section 21 of the Act, administrative bodies and other organisations had to ensure the good technical repair and the safety of the electrical installations which they used.
23. Section 17(1) of the Regulations provided that the owners and the users of electrical installations and networks were liable for any damage caused by bad technical repair and inadequate safety; paragraph 2 of section 17 specified that the electricity-supply organisations would not be liable for damage caused by the bad technical repair of consumers’ electrical installations and networks.
(b) Regulations on the state of electrical installations (Правилник за устройството на електрическите уредби)
24. The Regulations on the state of electrical installations, in force until 9 June 2004, provided in section I-1-28 that electrical installations, including electric power transformers and buildings housing them, had to be located so as to prevent unauthorised access, with locked doors and warning signs in place. High voltage areas of electric installations had to be isolated to avoid accidental access or contact (section I-7-32).
(c) Decree no. 9 of 9 June 2004 on the technical exploitation of electrical plants and networks (Наредба № 9 от 9 юни 2004 за техническата експлоатация на електрическите централи и мрежи)
25. Sections 109-120 of that Decree provide for periodic checks of electrical installations and networks, which is to be carried out by bodies appointed by the Minister of Economics and Energy. The same bodies are required to investigate grave incidents and serious breaches of the safety regulations.
2. Causing death by professional negligence
26. Article 123 § 1 of the Criminal Code provides that an individual who has negligently caused the death of another, through lack of knowledge or the careless exercise of a profession or a dangerous activity regulated by law, is to be punished by a term of imprisonment of up to five years.
3. Tort liability for damages caused by objects
27. Under Bulgarian law, tort liability is provided for in the Obligations and Contracts Act of 1950. In particular, section 50 of the Act provides that the owner of and the person supervising an object are jointly liable for any damage caused by that object. In its constant practice the Supreme Court of Cassation has held that liability under section 50 does not require proof of “fault” and covers damages caused by “objectively existing properties, qualities or defects of the object” (see, for example, judgment no. 94 of 27 July 2011, case no. 537/2010).
COMPLAINTS
28. Relying on Articles 2, 6 § 1 and 13 of the Convention, the applicants complained that the authorities had failed to protect the life of their son, Marin Ilinov, and had failed to react adequately to the incident of 22 April 1995.
THE LAW
A. Arguments of the parties
29. The Government considered that the domestic law at the time adequately regulated the safety of electrical installations and provided for appropriate supervisory mechanisms. In addition, the Government pointed out that the authorities had not been aware of the danger posed by the transformer in question and had not thus been obliged by Article 2 of the Convention to take measures preventing the existing risk to life from materialising. The Government pointed out that the building which the applicant’s son had entered had been known to house an electricity transformer and was marked as such. The applicants’ son had been of an age where he was capable of understanding the warning sign on the door leading to the high-voltage chamber and perceiving the danger; in addition, he had been left without sufficient parental supervision.
30. In addition, the Government argued that the applicants could have brought an action for damages against company M., the owner of the transformer. In support of that argument they presented several domestic court judgments concerning claims under section 50 of the Obligations and Contracts Act (see paragraph 27 above). In one of those judgments, given on 29 June 2010 (case no. 419/2009, the judgment’s number is not communicated), which is not final, the Kyustendil Regional Court ordered the owner of a high-voltage pylon to pay damages to a claimant who had suffered serious injuries as a result of an electric shock. The domestic court found that the owner had not taken sufficient measures to guarantee the installation’s security, which had been the direct cause of the claimant’s injuries. In another judgment of 29 February 1984 (case no. 3693/1983, judgment no. 247), the former Supreme Court of Bulgaria upheld the lower courts’ findings that an industrial plant was liable to compensate the damage suffered by the heirs of one of its employees, who had died as a result of a machine’s malfunctioning.
31. The applicants contested these arguments. They were of the view that their son’s accident had been due to the absence of any supervision of the transformer on the part of the State. In addition, the building housing the transformer had been easily accessible, and there had been no warning signs in place. It had not been unusual that the building, seemingly abandoned, had aroused the curiosity of children.
32. The applicants next contested the Government’s statement that they could have brought civil proceedings. They considered that any such proceedings would have been stayed in order to await the outcome of the criminal proceedings and would have become time-barred. As to the option to bring civil proceedings against the individuals responsible for the transformer’s maintenance, they argued that it was impossible for them to identify those individuals – a task which could be properly performed only by the prosecution authorities. The applicants pointed out, in addition, that they had been unable to bring a civil claim for damages within the framework of the criminal proceedings, because the proceedings never reached the stage of identification of the suspect. In addition, a criminal-law remedy was the most appropriate remedy in their case, because the burden of establishing the relevant circumstances and collecting the necessary evidence was first and foremost for the authorities.
B. The Court’s assessment
33. The Court observes that the applicants’ son was fatally injured in an accident caused by an unsafe electricity transformer. The applicants complained that the authorities had failed to protect their son’s life and to investigate the accident. They relied on Articles 2, 6 § 1 and 13 of the Convention.
34. The Court is of the opinion that the complaints fall to be examined solely under Article 2 of the Convention, which, in so far as relevant, reads:
“1. Everyone’s right to life shall be protected by law. ...”
35. The Court notes that following the applicants’ son’s death the authorities opened criminal proceedings, which, for reasons not explained to the Court, ground to a halt in 2001. It appears that no further investigative measures were taken thereafter. Nor were any such measures requested by the applicants, who remained passive (see paragraphs 15-16 above).
36. At the same time, the Court observes that there were no other relevant developments in the case. In particular, the applicants have not sought to pursue other avenues of redress, such as bringing a tort action against the State, given their complaint that the relevant State bodies had not exercised effective supervision (see paragraph 31 above), or against company M., the owner of the deficient transformer. In fact, the applicants considered that a tort action did not represent an effective remedy in their case (see paragraph 32 above) and it would appear that they never intended to pursue such a remedy.
37. The Court notes that it has doubts as to whether, in the circumstances of the case, the authorities’ positive duties under Article 2 of the Convention entailed an obligation for them to respond by means of a criminal investigation.
38. Nevertheless, seeing that such an investigation was carried out in the case, the Court recalls that in numerous cases concerning investigations where a death has occurred, it has held that applicant relatives are expected to keep track of the progress of the proceedings and lodge their applications with due expedition once they are, or should have become, aware of the lack of any progress (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002‑III; and Deari and Others v. “the Former Yugoslav Republic of Macedonia” (dec.), no. 54415/09, 6 March 2012). Thus, as concerns the criminal proceedings in the case, the Court is of the view that, having regard to the authorities’ total inactivity after 2001, the applicants should have become aware, within a reasonable time after 2001, that these proceedings would not provide them with any effective redress.
39. Seeing that there were no other relevant developments in the case and that the applicants had no intention of pursuing any other remedy, the Court considers that the applicants should have lodged their application on an earlier date, and within a reasonable time of the last relevant developments in 2001. However, the present application was lodged on 30 May 2006. The applicants have not presented any justification for their failure to act with all due expedition.
40. It follows that the present application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıIneta Ziemele
Deputy RegistrarPresident
Full & Egal Universal Law Academy