EHRM, 18-06-2013, nr. 14326/11

The applicant was born in 1970 and lives in Vilnius.

On 6 June 2005 the applicant's son, E.B., born on 20 August 1991 and then thirteen years of age, was playing with other children outside the applicant's apartment, situated in Naujamiestis district (Naujamiesčio seniūnija) in the city of Vilnius. Whilst the children were standing on the balcony of an ancillary building containing cellars, the balcony broke off the building and collapsed. Part of the balcony fell on E.B., who died at the scene from the injuries he received. Two other children, V.J. and A.B., suffered minor bodily injuries.

On the same day the police opened a pre-trial investigation. On that day and the next investigators surveyed the scene of the accident.

On 7 June 2005 a forensic expert established that E.B. had died because the balcony block had fallen on to him, broken his spine and crushed his internal organs.

By Vilnius city police investigator's decision of 4 July 2005 the applicant was recognised as having victim status.

According to the Government, after the accident the future of the ancillary building containing the cellars was discussed at a meeting of the Vilnius municipal council on 14 June 2005. An expert inspection of 18 July 2005 recommended that the building be fenced off until it could be demolished. [The Vilnius city municipality] Commission on Residential and Non-Residential Houses and Premises on 11 October 2005 approved the demolition of the building. In accordance with a contract signed on 4 October 2005 between the Vilnius city council and Naujamiesčio būstas, the Vilnius municipal enterprise, in December 2005 that enterprise demolished the building.

On 7 September 2006 the applicant lodged, in the criminal proceedings, a civil claim for non-pecuniary damage, in the sum of 3,000,000 Lithuanian litai (LTL), and for litigation costs with the Vilnius City Prosecutor's Office. She submitted that the Vilnius city municipality and its institutions had failed to supervise the buildings and, as a result, her son had died. The loss caused her immense moral suffering and depression. Even though it was not possible to bring her son back, the persons responsible should compensate the non-pecuniary damage. The applicant also referred to Article 6.250 § 2 of the Civil Code (see Relevant domestic law below), arguing that the amount of damage could be assessed according to all the circumstances established in the criminal case and the [criminal] court had such competence.

By a decision of 21 November 2006, the prosecutor recognised the applicant as a civil claimant in the criminal case, on the basis of Articles 109 and 110 of the Code of Criminal Procedure.

On 11 January 2007 A.J., an employee of Naujamiesčio būstas, was charged with the offence of failure to fulfil official duties, under Article 229 of the Criminal Code. The authorities considered that A.J. had failed to inspect the buildings at issue and to inform the municipality of their condition, even though he had been assigned that function by order of the Naujamiesčio būstas director on 28 January 2004. On the same day the authorities imposed a restrictive measure on A.J., namely an obligation not to leave his place of residence.

By a decision of 11 October 2007 the Vilnius City Prosecutor's Office discontinued the pre-trial investigation. The prosecutor referred to Article 7 § 13 of the Law on Local Self-Governance which determined that in the most general sense supervision of the use of construction works was the municipality's responsibility. Similarly, Article 42 of the Law on Construction set out the municipality's duty to supervise the use of residential houses and other constructions. The prosecutor analysed in detail whose responsibility it had been, and when, in respect of Vilnius city municipality and Naujamiesčio būstas, to supervise the buildings, given that there had been changes in the bodies between 1999 and 2005. She noted that in May 2004 the city had made some enquiries of Naujamiesčio būstas about the cellars, but there was no-one in the municipality who had the responsibility of supervising the activities of Naujamiesčio būstas. However, the prosecutor considered that the evidence gathered was contradictory, and that therefore it was not possible to establish which body — the Vilnius city municipality or Naujamiesčio būstas — had been responsible for the proper maintenance of the building, the collapse of which had resulted in the death of the applicant's son. Therefore the prosecutor could not identify any physical person who could be held accountable for failure to act and to ensure that the building was in good condition and not dangerous. The prosecutor thus dropped the criminal charges in respect of A.J. Moreover, under Article 229 of the Criminal Code a corporate person could not be held criminally liable. However, the prosecutor noted that, in accordance with Article 6.266 of the Civil Code, the applicant and the parents of the two injured children could lodge civil proceedings against Vilnius city municipality or Naujamiesčio būstas, and claim that the building had been left unattended.

The applicant appealed against the above decision, arguing that the Vilnius city municipality and Naujamiesčio būstas had been aware for a long time that the building was in a dangerous state (avarinės būklės), but no one had known what to do with it. The father of V.J. also appealed, submitting that the investigation had been going on for a long time, but no person had been found responsible for the building and thus for the accident.

By a decision of 12 November 2007 a prosecutor reopened the investigation. She noted that it was imperative to take measures to identify the person or persons whose responsibility it had been to take care of the building's maintenance and to establish why they had not done so.

On 3 July 2008 another prosecutor at the Vilnius City Prosecutor's Office decided to discontinue the pre-trial investigation. The prosecutor found that the evidence as regards which body owned the collapsed building was contradictory. However, he considered that the Vilnius city municipality was the de facto owner of the building. On the basis of documents dated 2004 and 2005, the prosecutor also concluded that the municipality had known earlier about the poor condition of the building where the accident had happened. Nonetheless, in 2004–05 an administrative reform had taken place within the Vilnius city municipality, as a result of which new administrative units had been created, the responsibilities of those units redistributed and new people assigned to those administrative units. Consequently, at the time of the incident there was no one who had the duty to manage derelict and unused buildings. There was therefore insufficient evidence to find that a crime under Article 229 of the Criminal Code had been committed.

The prosecutor also suggested that the applicant lodge a civil claim on the basis of Article 6.266 of the Civil Code.

On 12 August 2008 a higher prosecutor upheld that decision. The applicant appealed.

On 12 January 2009 the Vilnius City First District Court found that the pre-trial investigation had not been sufficiently thorough and effective. As a result, the identity of the owner of the derelict buildings had not been established. The court drew the prosecutor's attention to specific actions to be taken and specific circumstances to be examined, whilst noting the applicant's earlier requests to the prosecutor to the same effect. Having given the prosecutor precise instructions, including to obtain archived documents from 1970–75, the district court emphasised that without that specific information it was not possible to establish the identity of persons who had failed to adopt a timely final decision, in accordance with their official duties, about the future of the derelict buildings and their proper maintenance. The prosecutor's decision was quashed as unfounded.

On 2 March and 22 July 2009 the applicant wrote to the Attorney General, arguing that the pre-trial investigation had been superficial and that the prosecutors at the Vilnius City Prosecutor's Office had been passive and unwilling to discover the truth, thus stalling the investigation. For the applicant, the investigation in essence consisted of sending written questions and answers from one municipal institution to another. It was clear that neither of the institutions, Vilnius city municipality or Naujamiesčio būstas, was willing to take responsibility for failing to perform its duties. The applicant thus asked the Attorney General to take over the investigation or to transfer it to the Vilnius Regional Prosecutor's Office. She also observed that although more than seven months had passed since the court decision of 12 January 2009, the prosecutors had still not taken all the required investigative actions.

On 30 July 2009, the Vilnius City District Prosecutor's Office again discontinued the pre-trial investigation, in essence upholding the conclusions of the decision of 3 July 2008 to the effect that the evidence as to which body was in possession of the building at issue was contradictory. Accordingly, it was not possible to identify the physical person whose duty it was to maintain the building, and who was therefore liable for the death of one child and injury of two others.

On 29 September 2009 the applicant appealed, arguing that even though four years had passed since the accident, the prosecutors had not been active enough and had therefore failed to establish who was responsible for the maintenance of the building. The applicant argued in addition that the prosecutors had also failed to take all the steps which had been ordered by the court on 12 January 2009. The correspondence between Vilnius city municipality and Naujamiesčio būstas showed that both bodies had known the building was derelict, and yet no effort had been made to repair or demolish it. Immediately after the incident the building had been fenced off and demolished by the municipality, even though the municipality had earlier denied that it was within its control and had argued that it did not have the legal authority to tear down the building. The applicant asked for the pre-trial investigation to be reopened.

By a higher prosecutor's decision of 16 October 2009, the investigation was reopened. For the prosecutor, it was possible that the employees of the Vilnius city municipality or those of Naujamiesčio būstas had not performed their duties that stemmed from [Article 229 of] the Criminal Code, Article 42 § 1 (3) of the Law on Construction and other relevant legal acts. It was therefore indispensable to establish which particular person had been designated by the municipality to inspect/supervise the buildings without owners in question (kam pavesta bešeimininkių pastatų priežiūra) in Naujamiestis district. If such functions had not been assigned to any particular unit or person at the municipal or district level, the prosecutor should consider whether the municipality's or district's managers (vadovai) should be held responsible under Article 229 of the Criminal Code.

On 7 December 2009 K.G., a senior specialist in Naujamiestis district, was charged with failure to carry out official duties, under Article 229 of the Criminal Code. By a decision of the Naujamiestis district director (seniūno) on 3 January 2005 K.G. had been given the responsibility of monitoring empty buildings belonging to the municipality. The criminal investigator considered that K.G. had failed to inform the municipality about the danger posed by the derelict cellars in question, as he should have done under Article 42 [§ 3 (1)] of the Law on Construction (see paragraph 33 below).

On 18 May 2010 a prosecutor for the Vilnius City District discontinued the investigation, as no physical persons criminally liable for the accident could be identified. The prosecutor noted, however, that the Vilnius city municipality had learned on 28 February 2005 of the poor state of the building the collapse of which had caused the death of the applicant's son. However, at that time the municipality was going through structural changes and the duties and responsibilities of the municipality's employees were being redistributed, therefore there was no particular person with the specific duty to take action on derelict and abandoned buildings. Moreover, taking into account the short period of time that had elapsed between that date and the accident (three months), it was not possible to conclude that the municipality's employees had been stalling the process of finding a solution to the question of what had to be done with the building. The evidence collected in the case did not prove that employees of the Vilnius city municipality, the Naujamiestis district or Naujamiesčio būstas had failed to carry out any of their clearly prescribed duties and had thus caused the death of one child and injuries to two others. The prosecutor therefore dismissed the criminal charges against A.J., an employee of Naujamiesčio būstas, and against K.G., a Naujamiestis district specialist. The prosecutor suggested that the applicant and the parents of the two children who had been injured in the accident bring separate civil proceedings under Article 6.266 of the Civil Code.

The applicant appealed, arguing that the case should be returned for a fresh pre-trial examination, so that the ownership of the buildings could be established and the persons (physical and corporate) liable for the accident thus identified.

By a ruling of 9 August 2010 the Vilnius City First District Court refused to reopen the pre-trial investigation, because a criminal action under Article 229 of the Criminal Code had become time-barred. The pre-trial investigation had been opened on 7 June 2005 and the Code of Criminal Procedure provided a five-year term to prosecute a crime of a negligent or minor premeditated nature. The court therefore did not address the applicant's complaint that the pre-trial investigation had been flawed.

The applicant appealed, questioning the effectiveness of the investigation and asking for it to be reopened.

By a final ruling of 15 September 2010 the Vilnius Regional Court upheld the lower court's decision to discontinue criminal proceedings under the statute of limitations.

According to Article 19 of the Lithuanian Constitution, a person's right to life shall be protected by law.

The Law on Local Self-Government provides that one of the functions of a municipality is to supervise how buildings are used and to manage land and other property which belong to it by the right of ownership (Article 7 §§ 13 and 15).

The Law on Construction at the relevant time provided:

Article 42. Supervision of use of construction works

On 4 February 1999 the Vilnius city management board adopted decision 205V ‘Approval of order giving power to declare buildings in poor condition, and identification of buildings in Vilnius which may be taken into the possession of the local authority’. Paragraphs 3 and 4 of the order set out the district director's (seniūno) duty to manage lists and keep records of derelict buildings, and to periodically provide those documents to the Vilnius city management board. Companies which have contracts to manage buildings, district engineers and senior local architects were responsible for the provision of data for the above-mentioned lists.

On 24 February 1999 the Vilnius city mayor adopted decision 100 ‘Derelict Buildings Commission’. The commission was to meet once a week, to analyse information provided by district directors and to deal with issues concerning demolition of buildings in poor condition.

The Criminal Code provides:

Article 229. Failure to Perform Official Duties

Pursuant to Article 95 of the Criminal Code and Article 3 § 1 (2) of the Code of Criminal Procedure, as relevant at the material time, a person who has committed a criminal offence may not be convicted once five years have lapsed, if for example an offence such as failure to perform official duties has been committed.

Articles 109 and 110 of the Code of Criminal Procedure stipulate that a person who has sustained pecuniary or non-pecuniary damage because of a crime may lodge a civil claim against the suspect within criminal proceedings. The claim will be examined by the criminal court together with the criminal case. A civil claimant may submit evidence and requests and appeal against the decisions of the investigators, prosecutors or a court.

The Civil Code provides:

Article 6.250. Non-pecuniary damage

Article 6.266. Liability of the owner (manager) of buildings

Article 6.271. Liability to compensate for damage caused by unlawful actions of institutions of public authority

The Government provided Lithuanian court decisions concerning effective remedies in personal injury or destruction of property cases. They firstly noted the Supreme Court's ruling of 11 October 2005 in civil case 3K-7-365/2005, in which the Tauragė city municipality had been held liable for the improper maintenance of the drainage system. The municipality was held accountable under Article 6.266 of the Civil Code for the injuries the claimant had sustained and ordered to pay LTL 15,000 for the non-pecuniary damage she had sustained by falling into a sewer well.

As the second example the Government referred to the Klaipėda Regional Court's ruling of 21 July 2010 in civil case 2A-421-253/2010, in which the claimant claimed damages for a broken clavicle suffered by her son, who had fallen into an uncovered cellar. The court concluded that the municipality's department responsible for maintenance of the buildings had failed to act with due diligence and, on the basis of Article 6.250 of the Civil Code, awarded the child's mother LTL 2,500 in non-pecuniary damages.

Lastly, the Government noted the Supreme Court's ruling of 13 November 2005 in civil case 3K-3-584/2005, concerning liability in tort of the building owners, under Article 6.266 of the Civil Code. The Supreme Court held that the owner (manager) of the buildings, installations and other structures had absolute (no-fault) responsibility for damage caused by its collapse or deficiencies. In that case the Vilnius city municipality was determined to be the owner of the premises in question and therefore liable for the pecuniary damage caused by the rupture of a water pipe. The municipality was to compensate the claimant for destruction of its property in the amount of LTL 7,300.

The applicant complained under Articles 2 and 6 of the Convention that the State had not protected her son's right to life. She further argued that the criminal investigation of the circumstances into her son's death had not been effective.

The Court considers that the applicant's complaints fall to be examined under Article 2 of the Convention, which reads as follows:

Article 41 of the Convention provides:

I agree with my colleagues that the case is admissible, but I base my finding on slightly different grounds. In cases of unintentional death, the Court is not required to consider the merits of a complaint regarding a criminal remedy where the applicant, in choosing to forgo a civil remedy, has ‘denied [herself] access to the best means — and one that, in the special circumstances of the instant case, would have satisfied the positive obligations arising under Article 2 — of elucidating the extent’ of the responsibility for her child's death (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 55, ECHR 2002-I). The applicant need not, however, exhaust remedies that exist only in theory; rather, she is required only to exhaust remedies that ‘operate effectively in practice’ (see Calvelli and Ciglio, cited above, § 53).

In this case, the Government has not demonstrated that a separate civil action, without a criminal judgment, would have been reasonably likely to provide an effective remedy for the applicant. Under Article 6.271 of the Lithuanian Civil Code, the Government are liable for damages where State or municipal authorities ‘fail to act in the manner prescribed by laws for these institutions,’ but it is not clear that a civil suit filed pursuant to this Article would be effective without a criminal judgment indicating a violation of the law. Article 6.250 similarly provides for non-pecuniary damages ‘incurred due to crime, health impairment or deprivation of life,’ but, again, it is not clear that the applicant could have recovered damages without a prior criminal judgment. Although the Government have argued that Article 6.266 provides a potential civil remedy that does not depend on evidence of fault, in this case the applicant would probably be unable to establish ownership of the building (see paragraphs 17 and 69 of the judgment), since ownership was established only de facto, and even then it was established only by a prosecution service which was clearly unwilling to proceed with the case. The Government failed to prove that de facto owners are liable under Article 6.266 of the Civil Code. Moreover, strict liability in civil law may not be sufficient to satisfy the Calvelli and Ciglio criteria, in the sense that it does not elucidate who was responsible for the child's death. Since the Government have not demonstrated that a separate civil action would have been an ‘effective’ remedy that the applicant was obliged to exhaust, I find that the applicant has victim status and the complaint is admissible.

While I agree that States have a positive obligation to protect the lives of individuals from certain foreseeable risks, I am unable to agree with the majority's characterisation of the State's responsibility to safeguard citizens from the dangers of derelict buildings. The majority opinion correctly notes that the State has violated the positive obligation to protect life. ‘For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’ (see Keenan v. the United Kingdom, no. 27229/95, §§ 90, ECHR 2001-III).

Subsequent cases have reaffirmed the Keenan standard. In the case of A.A. and Others v. Turkey, for example, the Court stressed the importance of interpreting States' positive obligation to protect life ‘de manière à ne pas imposer aux autorités un fardeau insupportable ou excessif’1., bearing in mind ‘les choix opérationnels à faire en matière de priorités et de ressources’2.. (no. 30015/96, § 45, 27 July 2004). In Furdík v. Slovakia ((dec.), no. 42994/05, 2 December 2008) the applicant claimed that Slovakia had violated Article 2 by failing to implement a regulatory framework specifying a time-limit within which emergency workers had to respond to a call. The Court held that ‘the positive obligations under Article 2 [do not] stretch as far as to require the incorporation in the relevant regulations of an obligation of result… Various limiting factors inherent to the operation of airborne medical assistance (…) would render such a general obligation difficult to fulfil and impose a disproportionate burden on the authorities of Contracting States’ (see Furdík v. Slovakia, cited above, LAW 1(b)(ii)). States do have an (additional) obligation to protect the safety of individuals in public places (see Ciechońska v. Poland (no. 19776/04, §§ 64–67, 14 June 2011), and also a duty ‘to adopt in this context regulations for the protection of people's safety in public spaces, and to ensure the effective functioning of that regulatory framework’ (see Ciechońska, cited above, § 69). However, this does not mean that in the specific case before us the Keenan criteria are not to be examined in order to establish State responsibility. In Ciechońska the issue was whether ‘the legal system as a whole dealt adequately with the case at hand’ (ibid., § 70, emphasis added), taking into account the remedies available to the victim for redress. This is not the same as attributing strict liability to the State under the Article 2 positive obligations, as the present case seems to suggest. In contrast to the present case, the Court in the Ciechońska case did not examine the issue of whether the Government's failure to remove the diseased tree in itself violated Article 2 and thus did not expand the States' positive obligations to protect life. The only issue the Court found itself obliged to examine concerned remedies (‘whether the available legal remedies, taken together, as provided in law and applied in practice, could be said to have amounted to legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim’). In fact the only ground for the finding of a violation was that the State had failed to provide an adequate and timely response to the negligent death. The judgment reaffirmed the proposition, expressed in both Keenan and A.A. and Others, that ‘the positive obligation is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind (…) operational choices which must be made in terms of priorities and resources’ (ibid., § 64).

In Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, (no. 19986/06, §§ 32–41, 10 April 2012) it was of great importance that the State had specific duties vis-à-vis a vulnerable child under the exclusive control of the public authorities (see, mutatis mutandis, Molie v. Romania (dec.), no. 13754/02). Actual foreseeability (a matter that was not even discussed, far less established in the present case) was shown in that case. The specific conditions of the Kemaloğlu case are absent in Banel.

Applying the Keenan standard, since it has not been demonstrated that the authorities ought to have known of the existence of a risk, and in particular that any such risk had been shown to be immediate, I do not find that the actions of the Government in this case violated the substantive limb of Article 2 of the Convention. Although municipalities must take reasonable steps to avert foreseeable dangers to residents, they retain a measure of discretion in prioritising their obligations. In this case the authorities learned about the poor condition of the building at issue on 28 February 2005, some three months prior to the building's collapse on 6 June 2005 (see paragraphs 6 and 26 of the judgment). There is no evidence in this case that the municipality was aware that the building was in imminent danger of collapsing or that it posed a foreseeable risk to the life of the applicant's son. Even if some risk was foreseeable, I do not find the authority's failure to take action within a three-month time-period to be unreasonable, given the other obligations that municipal governments must fulfil and the absence of strong evidence that the authorities knew that the building posed a serious and immediate danger to residents' lives.

I am troubled by what I see as an expansion of the State's positive obligations in the majority judgment, which finds that in addition to the Keenan standard ‘the State's duty to safeguard the right to life must also be considered to involve the taking of reasonable measures to ensure the safety of individuals in public places’ (paragraph 66, emphasis added). In my view, the Court's application of the idea that ‘the State's duty to safeguard the right to life must also be considered to involve the taking of reasonable measures to ensure the safety of individuals in public places’ is overly broad. First, by focusing only on the obligation to take ‘reasonable measures’ to protect individuals, and without limiting these measures to addressing foreseeable risks, the Court is signalling a stark departure from our previous case-law (see Keenan v. the United Kingdom, §§ 90–99, cited above). Moreover, requiring frequent monitoring and repair or demolition of derelict buildings is a heavy burden to place on State and municipal governments, which must meet many other obligations with limited staff and funds.

Substantive liability for lack of prevention should not be confused with the State's failure to adequately prosecute those responsible for the negligent maintenance of the building (see 66–71 of the judgment). The need to provide effective legal remedies should not affect the scope of the risks that States have an obligation to address.

Since the death of the applicant's son was not clearly foreseeable and because the failure of the municipal government to act within three months of learning of the poor condition of the building was not manifestly unreasonable, I find that there has been no substantive violation of Article 2 of the Convention.

I agree with my colleagues that the State violated Article 2 in failing to conduct a criminal investigation into the death of the applicant's son within a reasonable period of time. I thus find that the respondent State has violated Article 2 of the Convention and concur with the Court's judgment on this point.