Communicated on 18 December 2014
FIFTH SECTION
Application no. 24738/11
Andriy Maryanovych VASYUNETS
against Ukraine
lodged on 7 April 2011
STATEMENT OF FACTS
The applicant, Mr Andriy Maryanovych Vasyunets, is a Ukrainian national, who was born in 1967 and lives in Kalush.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The accident with the applicant’s daughter
On 4 November 2006 the applicant’s daughter, Ms S.V., born in 1997, and two other individuals, Ms L.M. and Ms V.K. stayed overnight at a private house.
In the morning of 5 November 2006 S.V., L.M. and V.K. were found dead in the room where they slept.
On an unspecified date after the incident a committee composed of five employees of the gas company conducted an inquiry into the incident and drew up a report (“internal inquiry report”). According to the report, gas company employees visited the scene on the morning of 5 November 2006 and observed that the room where the accident occurred had a window with a vent sash for ventilation but it was closed at the time of examination. All gas equipment in the house was in good working order and the heater’s flue had adequate draught. The report went on to note that the night of the incident Mrs M.T. had turned on the gas heater in the room where S.V., L.M. and V.K. slept, closed the door and left the room and the gas heater unsupervised. The committee took the view that the incident was caused by strong wind the night of the incident and M.T.’s failure to supervise the working heater.
2. Criminal investigation
On 14 November 2006 an assistant prosecutor of Rozhnyativ District (“the assistant prosecutor”) refused to institute criminal proceedings into the deaths. The investigator noted the conclusions in the internal inquiry report and concluded that the accident had occurred due to the strong wind the night of the accident which caused carbon monoxide to flow into the room instead of being evacuated through the heater’s flue.
On 29 December 2006 the prosecutor of the Rozhnyativ District (“the prosecutor”) quashed the decision of 14 November 2006, finding that the investigation had been incomplete. He noted, in particular, that the assistant prosecutor had not examined whether the gas equipment was installed at the house in compliance with safety regulations, had not obtained formal results of forensic medical examination of the dead bodies, and had not obtained official information about the weather conditions on the night of the incident.
On 10 January 2007, 22 March 2007, and 12 April 2007 the assistant prosecutor refused to institute criminal proceedings. On 12 March 2007, 2 April 2007, and 11 May 2007 the prosecutor quashed those decisions giving essentially the same reasons as in the decision of 29 December 2006.
On 15 May 2007 the prosecutor received a report of a technical specialist concerning the causes of the accident. The specialist concluded that the wind could not have been the reason for the incident and that the poisoning might have occurred due to the clogging of the gas heater’s flue or due to the presence of cold air in the flue which prevented the products of combustion from being evacuated. He noted that the person operating the heater had failed to verify the ventilation in the flue before turning the heater on, and that the working heater should not have been left unsupervised.
On 15 May 2007 the assistant prosecutor refused to institute criminal proceedings for manslaughter, stating in particular that the person who had turned on the heater could not have predicted the consequences of her acts and omissions.
On 16 June 2007 the prosecutor quashed the decision of 15 May 2007 stating in particular that the assistant prosecutor had failed to investigate the actions or omissions of the gas company staff and had still failed to obtain a report of the forensic medical examination, as had been indicated in the prosecutor’s decision of 29 December 2006.
On 26 June 2007 the assistant prosecutor refused to institute criminal proceedings. He concluded that according to the results of a forensic medical examination the deaths of S.V., L.M., and V.K. had occurred due to carbon monoxide poisoning, that the reason for the incident had been possible clogging of the flue or the presence of cold air in the flue. However, because the person turning on the heater could not have predicted the consequences, no offence had occurred.
The applicant appealed against this decision, arguing in particular that the investigation was incomplete since in order to establish the causes of the incident a full expert examination was needed. He also complained that the role of the gas company employees in allowing the operation of unsafe equipment had not been investigated.
On 8 September 2008 the Rozhnyativ District Court (“the District Court”) quashed the decision of 26 June 2007, ordering the prosecutor to fully investigate the applicant’s arguments.
On 25 June 2009 the assistant prosecutor refused to institute criminal proceedings against the employees of the gas company and against M.T., the person who turned on the heater the night of the incident. The assistant prosecutor expressed the same opinion about the causes of the incident and culpability as in the decision of 26 June 2007.
On 27 August 2009 the District Court quashed the decision of 25 June 2009 instructing the prosecutor’s office to investigate the applicant’s arguments, analyse all collected testimony, interview all eye witnesses, verity whether the owner of the house had proper documentation for installation of the heating equipment, and decide whether an expert examination was needed.
On 4 September 2009 the assistant prosecutor refused to institute criminal proceedings against M.T. and the employees of the gas company who connected the house to the gas supply, permitted the installation of the gas heater and conducted its maintenance. The assistant prosecutor found established, in particular, that the house was connected to gas supply in 2004 in accordance with duly approved project documentation. On 9 June 2011 the District Court quashed this decision finding that the pre-investigative inquiry had been incomplete.
On 20 October 2011 the assistant prosecutor again refused to institute criminal proceedings. He relied in particular on an interview with Mrs. T.D., a gas company employee, who had stated that she had the house connected to the gas supply and in this connection formalised on 3 August 2004 the contract for gas supply with the owner of the house. She had stated that at the time all equipment had been in good working order and had complied with regulations and that she had instructed all residents in safety rules. She had also explained that the gas company had conducted annual maintenance review of the gas heating equipment at the house. On 23 January 2012 the District Court quashed this decision.
On 21 February 2012 the assistant prosecutor again refused to institute criminal proceedings. On 20 March 2012 the prosecutor quashed this decision.
On 29 March 2012 the assistant prosecutor refused to institute criminal proceedings, stating in particular that the owner of the house where the death occurred had the required documentation for the installation of the gas heater and that the ventilation of the room where the heater was installed complied with regulations, in particular because there was a window with a vent sash in the room, allowing for ventilation. On 14 May 2012 the prosecutor quashed this decision.
On 23 May 2012 an investigator of the Rozhnyativ District Prosecutor’s Office requested an opinion from the Karpaty Technical Expertise Centre of the State Mining Supervision and Industrial Safety Authority as to the causes of the accident. On 6 December 2012 the Centre replied that it was not possible to reconstruct the situation as it had existed at the time of the incident since by the time the specialists of the Centre visited the site the gas heater and its flue had been rebuilt and the gas supply had been disconnected.
On 24 May 2012 the investigator again refused to institute criminal proceedings. On 24 December 2012 the District Court quashed this decision finding that it was based on incomplete inquiries and did not comply with previous instructions from the prosecutor.
On an unspecified date criminal proceedings were instituted against the employees of the gas company on suspicion of neglect of official duty.
On 21 December 2013 an investigator of the Rozhnyativ District Police Department discontinued the criminal proceedings for lack of corpus delicti in the gas company employees’ actions.
3. The applicant’s correspondence with the State Mining Supervision and Industrial Safety Authority concerning a technical inquiry
On 29 April 2011 the applicant wrote to the Head of the State Mining Supervision and Industrial Safety Authority (“the Authority”) asking the Authority to conduct a technical inquiry into the circumstances leading to the death of his daughter.
On 3 June 2011 the Deputy Head of the Authority responded that at the time of the incident the Authority had no jurisdiction to investigate the accidents related to the use of gas at home. According to the rules in force at the time investigations into such accidents had to be conducted by the police or prosecutor’s office. He noted that in fact the prosecutor’s office had investigated the accident and had finally decided not to institute criminal proceedings on 25 June 2009. He stated that the Authority had been only authorised to conduct technical inquiries into gas-related accidents by a directive of the Cabinet of Ministers of 15 October 2007.
On 8 June 2011 the applicant wrote to the Head of the Authority arguing that at the time the new rules had come into effect the investigation had not been completed and therefore a technical inquiry had to be conducted.
On 29 June 2011 the Head of the Authority responded that the legislation in question had no retroactive effect. Since at the time of the incident the prosecutor’s office had been authorised to conduct such an investigation and had indeed conducted the investigation it was up to the prosecutor’s office to review the results of the investigation.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure of 1960 can be found in the judgment in the case of Kaverzin v. Ukraine (no. 23893/03, § 45, 15 May 2012).
Resolution of the Cabinet of Ministers no. 270 of 22 March 2001 approved the Procedure for Inquiries into and Recording of Accidents not Related to Industrial Activities (“the Procedure”). According to Section 8 of the Procedure lethal accidents had to be investigated by the police or the prosecutor’s office.
Directive of the Cabinet of Ministers no 871-p of 15 October 2007 authorized the Authority to conduct technical inquiries into the accidents related to the use of gas at home.
Resolution of the Cabinet of Ministers no. 1356 of 21 November 2007 added a new Section 10-1 to the Procedure providing that accidents related to the use of gas at home were to be investigated by technical expertise centres according to the procedure approved by the Authority.
COMPLAINT
The applicant complains under Article 2 of the Convention that the State failed to investigate effectively the circumstances which led to the death of his daughter.
QUESTION TO THE PARTIES
Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, 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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