Communicated on 3 May 2017
THIRD SECTION
Application no. 15613/10
Tatyana Nikolayevna VOVK and Marina Vladimirovna BOGDANOVA
against Russia
lodged on 15 February 2010
STATEMENT OF FACTS
1. The applicants, Ms Marina Vladimirovna Bogdanova and Ms Tatyana Nikolayevna Vovk, are Russian nationals, who were born in 1973 and 1977, respectively, and live in Chita.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 21 April 2008 a grenade exploded in the proximity of school no. 30 in microdistrict no. 6 of the Chernovskiy district in Chita. Five children were wounded as a result of the explosion. Ms Bogdanova’s child –Artem Aleksandrovich Bogdanov, born on 9 June 2000, and Ms Vovk’s child – Sergey Sergeyevich Vovk, born on 30 January 1995, were among the victims.
4. Artem Bogdanov sustained a penetrating wound to the stomach with an injury to the intestine with complications, a perforating wound to the chest wall on the left side, a blunt shrapnel wound to the soft tissue of the small pelvis on the right side, a traumatic shock and cardiopathy. He was hospitalised in the Regional Children’s Hospital in Chita where he received emergency treatment and surgery. His hospitalisation lasted until 7 May 2008.
5. Sergey Vovk sustained an open multifragmental displaced fracture of the left shin, a displaced fracture of the right shin, multiple lacerated wounds of both shins, foreign bodies in both shins and a traumatic shock. He was hospitalised to the same hospital where he received emergency treatment and surgery on both legs. His hospitalisation lasted until 2 September 2008. His treatment continued afterwards.
1. Criminal proceedings
6. On 26 April 2008 the investigating unit of the Chernovskiy district police department of Chita instituted criminal proceedings under Article 222 § 1 of the Criminal Code (illegal acquisition, transfer, sale, storage, transportation, or bearing of firearms, ammunition, explosives, or explosive devices) against a non‑identified person, who had acted in violation of the federal law “On Arms” by having acquired, transported and stored explosive assemblies which had been found by Artem Bogdanov near garages in the proximity of school no. 30 in microdistrict no. 6 of the Chernovskiy district in Chita.
7. On 23 August 2008 an investigator suspended the proceedings because all investigative actions possible in the absence of a suspect had been undertaken, and ordered that a search for a person to be charged be carried out. Next day the head of the investigating unit of the Chernovskiy district police department annulled that decision for failure to carry out a thorough inquiry.
8. On 9 October 2008 the acts of an unidentified perpetrator were re‑classified under Article 225 § 1 of the Criminal Code (improper discharge of duties by a person entrusted with the protection of firearms, ammunition, explosives, or explosive devices, if this has entailed their stealing or destruction or other grave consequences) and the case was transferred for investigation to the Chita garrison military prosecutor who forwarded it to the head of the military investigating division of the Chita garrison. However, on 22 October 2008 the latter transferred the case back to the investigating unit of the Chernovskiy district police department.
9. On 24 and 30 October 2008, respectively, an investigator of the Chernovskiy district police department ordered that Artem Bogdanov and Sergey Vovk be acknowledged as victims of the crime who had sustained physical harm and moral suffering. The investigator stated that before 9 April 2008 a non-identified person, entrusted with guarding firearms, ammunition and explosive assemblies, had failed to carry out his duties properly. As a result, a VOG-17 grenade from an AGS‑17 grenade launcher had been lost. The grenade had passed through a grenade launcher tube at the time of firing the grenade launcher. On 9 April 2008 it had been brought together with sand to a construction site in microdistrict no. 6 of the Chernovskiy district in Chita. On 20 April 2008 it had been found by small children. In the evening time on 21 April 2008 it had exploded near block of flats no. 14 (a) in microdistrict no. 6 in the Chernovskiy district of Chita as a result of a careless handling, causing grave damages to the small children’s health.
10. On 9 November and 14 December 2008 the criminal proceedings were again suspended for failure to identify a person to be charged and it was ordered that a search be pursued.
11. On 27 December 2008 the head of the investigating unit of the Chernovskiy district police department resumed the investigation.
12. According to a ballistic expert opinion, the grenade, whose explosion had wounded the applicants’ children, was a 30 mm VOG-17 ammunition for an AGS‑17 automatic grenade launcher. Before the explosion it had already passed through a grenade launcher tube and had been ready for explosion. However, it had not exploded for an unknown reason. It had been found by the children in that condition. According to the applicants, this meant that the grenade had been used during military exercises and that it had not been disposed of properly. Grenades were excluded from civil circulation and were used and stored exclusively at military units of the Ministry of Defence and other competent State organs.
2. Civil proceedings
13. The applicants brought civil proceedings in the interests of their children against the town police department of Chita and the Ministry of Finance of the Russian Federation seeking non-pecuniary damages, in the amount of 2,000,000 roubles each, sustained as a result of the crime. They argued that the State was responsible for its failure to ensure the safety of the explosive assembly and to identify and prosecute persons who had been involved in the unlawful circulation of the explosive device.
14. At an open hearing held on 17 June 2009 the Tsentralniy District Court of Chita heard the applicants and their representative, who maintained their claims, and representatives of the respondents and a prosecutor from the Tsentralniy district prosecutor’s office of Chita, who requested that the claims be dismissed. The court dismissed the claims, holding that by virtue of Articles 151 and 1064 § 1 of the Civil Code non‑pecuniary damage, including physical and mental suffering, was to be compensated in full by a person who inflicted it, save for cases provided for by law. The law did not provide for the State’s obligation to compensate non-pecuniary damage sustained as a result of a crime. The court rejected the applicant’s arguments based on the Constitution and international agreements. It noted that Article 52 of the Constitution provided that rights of victims of crime and abuse of power were protected by the law, and that the State should provide the victims with access to justice and compensation for the damage caused. It considered, however, that that provision did not imply the State’s obligation to provide compensation to victims of a crime if the State had failed to prevent or solve that crime. The court further noted that the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 29 November 1985 stipulated that when compensation was not fully available from the offender States should endeavour to provide financial compensation to victims who had sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes. The court also noted that the European Convention on the Compensation of Victims of Violent Crimes of 24 November 1983 concerned the necessity to introduce or develop schemes for the compensation of victims of intentional crimes of violence by the State in whose territory such crimes were committed, in particular when the offender had not been identified or was without resources. The court stated that, even though generally recognised principles and rules of international law and international agreements of the Russian Federation formed part of the domestic legal system by virtue of Article 15 § 4 of the Constitution, the norms of the above UN Declaration and the European Convention could not be applied directly, without a mechanism of compensation of victims of crime by the State, such as envisaged by those international instruments. A law for setting up such a mechanism had not been adopted.
15. The applicants appealed against the judgment. At an open hearing held on 9 September 2009 the Zabaykalskiy Regional Court heard the applicants, a representative of the town police department of Chita, and a prosecutor from the Zabaykalskiy regional prosecutor’s office who requested that the applicants’ appeal be dismissed. The court fully endorsed the findings of the first instance court. It rejected as hypothetical the applicants’ argument that the grenade should have been stored at the premises of the Ministry of Defence and that the State should be held responsible for the Ministry’s failure to ensure its proper storage. It stated that there was no evidence that the grenade had been the State property or that it had not been properly stored.
16. The applicants lodged an application for supervisory review of the judgments of the Tsentralniy District Court of Chita and the Zabaykalskiy Regional Court, seeking their quashing. On 28 December 2009 judge B. of the Zabaykalskiy Regional Court dismissed the application. She stated that, while in case of collisions international agreements prevailed over domestic laws by virtue of Article 15 § 4 of the Constitution, this could only work at the stage of law enforcement. She reiterated that in the Russian Federation the law did not provide for the State’s obligation to compensate damage caused by an unsolved crime. Therefore, there was no basis in domestic law for awarding the applicants compensation for non‑pecuniary damage.
COMPLAINTS
The applicants complain under Articles 6 and 13 of the Convention that the State refused to pay compensation for the damage sustained by their sons as a result of the explosion of the grenade. They also complain that the State failed to carry out a proper investigation into the incident.
QUESTIONS TO THE PARTIES
1. Has the applicants’ sons’ right to life, ensured by Article 2 of the Convention, been violated in the present case?
In particular, has the State had in place an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victims? Was the manner in which the legal mechanisms were applied in the present case by the domestic authorities in breach of Article 2 of the Convention?
2. Did the applicants’ sons have at their disposal an effective domestic remedy for their complaints under Article 2, as required by Article 13 of the Convention?
3. Assuming that there was a specific legal regime of arms and ammunition (in particular, their exclusion from civil circulation, special rules for their storage, use and disposal by military units and other authorised State organs and institutions), was the State’s liability as an owner of dangerous goods and/or employer of persons at fault applicable in this case?
The Government are invited to submit the entire criminal case-file documents, the entire civil case-file documents, and any other relevant documents including military inquiries.
Full & Egal Universal Law Academy