EHRM, 28-02-2012, nr. 17423/05, nr. 20534/05, nr. 20678/05, nr. 23263/05, nr. 24283/05, nr. 35673/05

On 6 August 2001 at 1.45 p.m. a regional meteorological service forwarded a storm warning for 7 August 2001 to the Primorskiy regional and the Vladivostokcity authorities. It stated that heavy rainfall of 100–120 millimetres was expected in the Primorskiy Region and the city of Vladivostok. In particular, for 7 August 2001 the service forecast heavy precipitation of 15–49 millimetres within 12 hours, which would continuethroughout the day on 8 August 2001 and through the night. The warning also stated that there was a risk of floods on rivers in the south of the region.In the Government's submission, the population had been duly forewarned about the heavy rain by the media.

On the same date, on the basis of the aforementioned warning, the Water Company calculated that the water inflow to the Pionerskoye reservoir, which had a maximum storage capacity of 7 million cubic metres and which on 6 August 2001 contained 5.3 million cubic metres, would be 1.65 million cubic metres. Having regard to these calculations, the Water Company started releasing 12 cubic metres of water per second from the reservoir.

On 7 August 2001 it started raining early in the morning. The intensity of the rain proved to be much higher than forecast by the meteorological service the previous day. The amount of rain that fell on that day was the equivalent of a full month's rainfall. In particular, within a 12-hour period the amount of rain that fell in the area of the Pionerskoye reservoir totalled 236 to 276 millimetres. The rain was heaviest between 10 a.m. and 12 noon, when 189 millimetres fell.

Until 9 a.m. on 7 August 2001, water was released from the Pionerskoye reservoir at the rate of 12 cubic metres per second.

At 9 a.m. the Water Company increased the rateto 22.8 cubic metres per second.

At 9.30 a.m. the Water Company increased the release of water to 44.6 cubic metres per second and kept increasing it every half an hour. By 11.30 the evacuation rate was 122 cubic metres per second.

Between 12 noon and 2 p.m. the evacuation of water remained at its maximum rate of 167 cubic metres per second.

At 2 p.m. the Water Company decreased the release rate to 119 cubic metres per second, then at 3 p.m. to 109 cubic metres per second, and at 6.30 p.m. down to 90 cubic metres per second.

According to the applicants, because of the urgentrelease of a large quantity of water from the Pionerskoye reservoiron 7 August 2001, a large area around the reservoir was instantly flooded, including the area where the applicants resided.In the applicants' submission, the water arrived and rose very quickly at some point between 11 a.m. and 12 noon.

According to the applicants, no emergency warning had been given before the flood. The Government referred to a letter of the Main Department of the Russian Ministry for Emergency Situations in the Primorskiy Region, dated 11 September 2009, to the effect that at the relevant time there had been no local emergency warning system in place at the Pionerskoye reservoir.

According to the first applicant, a disabled person, on the date in question she was at home and found out about the flood from her daughter and granddaughter, who came running to her flat to help her out to a safe place. Just as they reached her home, the water started rising rapidly, and by the time her relatives had helped her out onto the roof of the building, the water had reached waist level in the flat and was much deeperin the courtyard. In the first applicant's submission, her home and belongings, land, outhouses and two cars were flooded.

The second applicant was not at home that day as she was at work.Her disabled brother, who was at home during the flood, apparently later told her that at about 12 noon water started rising from the cellar and within 15–20 minutes the house was flooded. According to the second applicant, some of her belongings were washed out of the house and some damaged by the water, which remained in the house for some time.

The third applicant was at home with her 21-month-old son when the flat was instantly flooded. She managed to dress the boy and to escape, wading breast-deep to a nearbymotorway, which at that point had not yet been flooded; from there she took a bus to a safe place. Soon after the third applicant had left, all motorways in the vicinity were submerged and the public transport lines disrupted. In the third applicant's submission, her property was severely damaged by the flood.

The fourth applicant, the third applicant's mother-in-law, was at work when the flood occurred. She returned home in the evening and, according to her, suffered severe distress when she found her daughter-in-law and grandson missing and her home and possessions ruined.

The fifth applicant was at work when the flood occurred. His son, A. B., who had been at home at the time, told him what had happened. According to A. B., at around 11.30 a.m. he heard the sound of seething water in the cellar and then saw water running from the street into the cellar. He looked out into the courtyard and realised that the water level was rising fast. He tried to leave but was unable to open the front door because the water in the street was already about 1.30 metres high. A. B. then jumped through a window into the flooded street, where the water was above shoulderlevel. He swam to a nearby shed, through seething water among household belongings, planks, logs and other litter. He managed to climb onto the roof of the shed and saw the surging water destroy sheds and fences, while people screaming in panic swam to any elevated places they could reach. According to the fifth applicant, when he returned home in the evening the water had already subsided. In his submission, his house and its contents and his land, outhouses and car were all damaged by the water.

The sixth applicant and her 19-year-old son were at home when the flood began. They opened the door to the street and their home was instantly flooded with water. They rushed out into the street, where within 15 minutes the water had risen to breastheight. According to the sixth applicant, she was in a state of shock, as she could not swim. Her son swam away and brought a ladder, which enabled them to climb onto the roof of a garage. In the sixth applicant's submission, her house and belongings, land and outhouses were all flooded.

As far as can be ascertained from the parties' submissions, the water in thefirst four applicants' flats reached a height of 1.20 metres; in the fifth applicant's homethe level was between 1.30 and 1.80 metres and in the sixth applicant's flat, 1.50 metres. According to the applicants, the water remained at those levels for approximately a day.

According to the applicants, no evacuation of the population from the flooded area had been organised following the flood of 7 August 2001. In their submission, they had had to find their own way to safety, and subsequently to cope with the consequences of the flooding on their own.

The documents submitted by the Government indicate that by a decision of 7 August 2001 the Vladivostok Emergency Commission ordered thata number of rescue measures be carried out. A similar decision was taken on 8 August 2001 by the Emergency Commission of the Primorskiy Region.

According to the Government, those affected by the flood had been evacuated and provided with food and accommodation at temporary accommodation centres.Also, staff from various rescue services had been sent to the flooded area.

In a letter of 14 August 2001 the Vladivostok Department for Commerce and Domestic Services reported to the Vladivostok Emergency Commission onthe measures taken in the period from 7 to 13 August 2001 to provide those affected by the flood and the personnel engaged in the rescue operation with food and drinking water.

On 9 August 2001 the Vladivostok prosecutor's office opened a criminal investigation in connection with the flood of 7 August 2001. At some point criminal proceedings were brought against Mr L., the director of the Water Company, on suspicion of his having committed an offence punishable under Article 293 (1) of the Russian Criminal Code (professional negligence). The case was assigned the number 916725.

By two decisions of 21 September 2001 the investigator in charge declared the first applicant both victim and civil claimant in the case. It appears that at some point the second, fourth, fifthand sixth applicants were also granted victim status. The sixth and fifth applicants were informed of the relevant decisions in letters from the Vladivostok Department of the Interior dated 2 July and 27 September 2002 respectively.

On 21 September 2001 the investigator in charge inspected the scene of the incident at the first applicant's domicile and questioned her. The first applicant stated that she had spent the day of 7 August 2001 at home. It had been raining but at first there had been no water in the courtyard. At about 11 a.m. a wave of water had swept in from the direction of the Pionerskoye reservoir and within 15–20 minutes the water level had risen to two metres. The first applicant said that there had been no prior warning of any evacuation of water from the Pionerskoye reservoir. She further stated that she had been living in her flat for 41 years and had never been warned that the flat was located in a flood zone. This was the first time that such large-scale flooding had happened. She also listed the property lost in the flood and indicated its value.

On the same date the investigator in charge inspected the scene of the flooding at the fifth applicant's domicile. The ensuing report attested, in particular, to the presence of traces on the walls at a height of 1.8 metres, left by water which had remained in the premises for a prolonged period. The investigator also questioned the fifth applicant, who stated that he had been away from home when the flooding had occurred and had been informed of the event by his son. That day he had returned home at 6 p.m. and the water had already subsided. The fifth applicant also said that there had been no prior warning of any evacuation of water from the Pionerskoye reservoir. He had lived in the house for 41 years and had never been warned that it was located in a flood zone. The fifth applicant also listed the property lost in the flood and indicated its value.

At some point the investigating authorities questioned the second applicant, who stated that she had been living in her flat for 60 years and that it was only during the last decade that the building in which she lived had been regularly flooded, which she explained by the absence of proper drains along the roads and the fact that the Pionerskaya river was littered and obstructed by unauthorised structures. She explained that on 7 August 2001, at about 12 noon, water had started rising from the cellar of the building in which she lived and filled her flat within 15–20 minutes. There had been no prior warning concerning any evacuation of water from the Pionerskoye reservoir and she had not seen any officials from the district or city authorities on 7 or 8 August 2001. She indicated the amount of the pecuniary damage she had suffered as a result of the flood.

The fourth applicant was also questioned as a witness and made oral statements similar to those of the second applicant.

On 25 January 2003 the investigating authorities ordered that the criminal proceedings against Mr L. be discontinued owing to the absence of the constituent elements of a criminal offence in his actions. According to the decision, the preliminary investigation had established that because of exceptionally heavy rains on 7 August 2001 the water level in the Pionerskoye reservoir had been close to critical, with the result that there was a real risk of a dam breaking, which could have claimed numerous lives and caused extensive pecuniary damage, and that in ordering the evacuation of water from the reservoir Mr L. had acted within his competence and in full compliance with the relevant regulations and had thus prevented more extensive damage to the residents of Vladivostok. At the same time, according to an expert report of 24 January 2003 (see paragraphs 72–80 below), the main reason for the flood of 7 August 2001 had been the poor state of the channel of the Pionerskaya river, and in particular the fact that it had been overgrown with trees and bushes and obstructed by various structures. On 24 January 2003 the investigating authorities accordingly ordered that separate criminal proceedings be brought under Article 286 (1) of the Russian Criminal Code (abuse of power) against officials of the Vladivostok municipal and the Primorskiy regional authorities in that connection.

In the Government's submission, this report stated that because of the exceptional meteorological conditions on 7 August 2001, when the actual rainfall exceeded severaltimes the amount forecast, it had not been possible to avoid a sudden large-scale evacuation of water from the Pionerskoye reservoir. According to the Government, the report further stated that the actions of the Water Company on the date in question had been in compliance with relevant regulations and correct, and in particular the water release regime chosen by the Water Company on that day had been close to optimal. According to the report, on 7 August 2001 between 12 noon and 2 p.m. the evacuation of water remained at its maximum rate of 167 cubic metres per second. In the Government's submission, if the Pionerskoye reservoir had not existed, rainwaterwould have floodedto the mouth of the Pionerskaya river at a maximum rate of 440 cubic metres per second.

An expert examination of the area flooded on 7 August 2001 was carried out between 21 May 2002 and 24 January 2003.

The resulting report, dated 24 January 2003, was entitled ‘On the flooding of non-residential and residential objects in the area downstream of[the Pionerskoye reservoir] … as a result of the evacuation of rainwater by the reservoir on [7 August 2001]’. Itdescribed the system for evacuatingexcess waterfrom the Pionerskoye reservoir as comprising an open spillway with a floodgate situated below the normal water level, and a siphon spillway. The maximum throughput capacity of each of the two spillways was equal to 200 cubic metres per second. According to the technical documentation of the Pionerskoye reservoir, excess water should normally be evacuated through the open spillway by operating the floodgate. The siphon spillway was to be activated automatically only if the water level was still rising when thefloodgate was fully open.

The report explained the sudden increase in the water level in the reservoir on 7 August 2001 by the exceptionally heavy rain on that day, which had been much heavier than forecast, making it necessary to evacuate water.It confirmed that the type of flooding that occurred on that day was thought to occur only once a century.

The report also noted the extensive damage caused by the flood, listing in particular the residential buildings which had been flooded near the Pionerskaya river, including those in which the applicants lived, and indicated that over much of the flooded area the water had been 1.5 to 2 metres deep.

The report further confirmed that the river bed was overgrown with vegetation and littered with household waste, that its course had been significantly altered by human activity and that a number of unauthorised constructions, including road bridges and footbridges, had been built, reducing its throughput capacity.

The report concluded that the staff of the Water Company had done well in evacuating the water from the Pionerskoye reservoir on 7 August 2001. In particular, after partially openingthe floodgate of the open spillway for a short time, the staff had then opened the gate completely. However, the water evacuated had flowed down the river in the form of a wave, which had magnified its destructive effect, and the presence of debris and constructions in the floodplain had considerably contributed to raising the water level during the flood. In particular, the presence of bridges and service pipelines at some points on the Pionerskaya river had increased the water level by up to 1.5 metres, which had been the main reason for the destruction of a road and railway bridgesat the mouth of the river.

The report also stated that under the relevant planning and development rules and regulations governing urban and rural settlements, territories where residential and non-residential buildings had been constructed or were to be constructed should be protected from floods of once-a-century proportions like the one on 7 August 2001. The same regulations prohibited the construction of various buildings in catastrophic flood hazard zones.

The report went on to note that the instruction for the exploitation of the Pionerskoye reservoir made it clear that no constructions should be allowed in the area downstreamof the reservoir without measures being taken to protect that area from floods. According to the city of Vladivostok's general development plan, there should be no building development in the area downstream of the Pionerskoye reservoir; any individual housing as well as recreational and industrial facilities located in that area should therefore be demolished or transferred.

The report further concluded that all building development in the area downstream of the reservoir from its very beginning had been, and was being, carried out in breach of the relevant technical standards and the city of Vladivostok's general development plan. It added that the constant increase in the density of constructions in the area downstream of the reservoir in the absence of any measures to protect the area from floods led to increased losses when floods occurred.

In two judgments of 27 October 2004, a judgment of 28 October 2004 and a judgment of 14 December 2004, all very similar, the Sovetskiy District Court of Vladivostok (‘the District Court’) dismissed the claims brought respectively by the first, second, fifth and sixth applicants. It noted, in particular, that according to the expert report of 24 January 2003 the action taken by the Water Company in a situation of extremely heavy rainfall had been correct. The court further referred to an expert report of 29 September 2002 which had found that the flood had been caused by the fact that the river channel had been narrowed by various structures and overgrown with vegetation, whereas the action taken by the Water Company in the circumstances had been correct. The court concluded that both expert reports suggested that the heavy rainfall had been the main cause of the flood.

The court also referred to the investigating authorities' decision of 25 January 2003 to discontinue criminal proceedings against Mr L., the director of the Water Company, owing to the absence of any constituent elements of a crime in his actions, and the decision of 5 March 2004 to discontinue criminal proceedings against officials of the city of Vladivostok and the Primorskiy Region for lack of evidence of a crime.

It further noted that under the relevant legislation waterways like the Pionerskaya river could not be municipally owned, so there had been no obligation on the Vladivostok Administration to assign funds from the local budget for clean-up work on the river. The Vladivostok authorities had requested the Administration of the Primorskiy Region to assign money for the work from the regional budget.

The court thus concluded that no fault could be attached to any of the defendants for the damage sustained by the relevant applicants, which had been the result of force majeur. In the court's opinion that conclusion was corroborated by the fact that following the flood, in the period between 7 and 11 August 2001, the authorities had declared an emergency situation throughout the city of Vladivostok and not only in the flooded area near the Pionerskaya river.

On 29 November 2004 the Primorskiy Regional Court (‘the Regional Court’) upheld on appeal the judgmentdelivered in the second applicant's case. It confirmed that the Vladivostok city authorities had had no obligation to clear the Pionerskaya river as it was not municipal property, and that any clean-up work should have been carried out by the Water Company. The court went on to say that it followed from the two expert reports relied on by the first-instance court that even if the Pionerskaya river channel and floodplain had been cleared it could not be excluded that the residential buildings near the river, including the one in which the second applicant lived, would nevertheless have been flooded, taking into account the exceptional intensity of the rains on the date in question. The court also noted that the defendants had offered welfare aid to the victims of the flood, including the second applicant, within the amount assigned for that purpose, and that her claim regarding pecuniary damage had not been supported by any documentary evidence and was therefore unsubstantiated.

On 16 December 2004 and 9 March 2005 the Regional Court also upheld on appeal the judgmentsgiven in the first, fifth and sixth applicants' cases, adhering to the reasoning of the first-instance court.

The applicants insisted that responsibility for the flood damage on 7 August 2001 laywith the State-owned Water Company and the Primorskiy regional and the Vladivostokcity authorities.

The applicants pointed out that the authorities had already been aware of the poor state of the channel of the Pionerskaya river two years prior to the events of 7 August 2001, andof the increased risk of large-scale floodingof the area in the event of evacuation of water from the Pionerskoye reservoir. They argued that the authorities at various levels — district, municipal or regional — had consistently ignored warnings, applications and complaints, whether from individual residents of the area in question or from State bodies.They referred to the results of an inspection of the channel of the Pionerskaya river carried out shortly before the flood of 7 August 2001 (see paragraph 22 above) which indicated that the river channel was still in an unsatisfactory condition despite numerous decisions by various authorities that it should be cleaned up.

The applicants submitted that the authorities should have been under an obligation to carry out the necessary clean-up work in the riverchannel to ensure that its throughput capacity could cope withthe maximum possible release of water from the Pionerskoye reservoir, which, according to the report of 24 January 2003, was 200 cubic metres per second if an open spillway was used and could be increased by 200 cubic metres per second if a siphon spillway wasalso opened (see paragraph 73 above).

The applicants argued that the Water Company had neglected its duty, imposedon it by section 9 of the Hydraulic Structures Safety Act(see paragraph 129 above), to ensure the safety of the Pionerskoye reservoir, including monitoring the state of the Pionerskaya river channel andkeeping it in a proper condition. Moreover, in breach of section 6 of the Protection from Emergencies Act(see paragraph 125 above), the Water Company had failed to set in place an emergency warning system and to give to the residents of the area along the Pionerskaya river an emergency warning of the sudden evacuation of water on 7 August 2001.

The applicants further argued that, as established inrelevant expert reports, the presence of various constructions in the floodplain of the Pionerskaya river had contributed significantly to raising the water level during the flood, which had magnified its destructive effect. They argued that under national lawtown planning, and in particular the regulation of construction activities in Vladivostok, was the responsibility of the Vladivostok Administration. However, for many years the city authorities had turned a blind eye to spontaneous and unauthorised building around the Pionerskaya river and weretherefore responsible for the dramatic consequences of the flood.

The applicants added that at the material time the Pionerskaya river was the property of the Primorskiy Region, and that under section 5 of the Hydraulic Structures Safety Act(see paragraph 127 above) the regional authorities had been under an obligation to ensure the safety of the Pionerskoye reservoir and to inform the population of any risk of accidents at such constructions which could create emergency situations. The allocation of funds for clean-up work in river channels and measures aimed at securing the safety of reservoirs also fell within the competence of the Primorskiy Region, but the authorities had failed to earmark the necessary amounts for that purpose.

The applicants thus argued that the authorities' negligent attitude towards their responsibilities, thelack of monitoring and the failure to comply with their own decisions had significantly increased the risk to the lives of residents in the area round the Pionerskaya river, including the applicants.

The applicants further argued that during and after the flood they had been left to their own devices, that no evacuation had been organised and that they had had to make their way to safety and to deal with the consequences of the flood on their own.

They pointed out that even today the authorities had not taken any measures to eliminate the danger of a flood — the state of the Pionerskaya river channel remained unsatisfactory and the area where they lived was regularly flooded. In support of their assertions they referred to a working report of 23 November 2004 (see paragraph 89 above).

Lastly, the applicants contended that none of the two sets of criminal proceedings instituted in connection with the events of 7 August 2001 had brought any tangible results, and that they had therefore received no adequate judicial response in respect of the alleged infringement of their right to life.

The applicants accordingly insisted that there had been a breach of Article 2 of the Convention in their case.

The Government contended that Article 2 of the Convention was inapplicable in the present case. They pointed out, first of all, that the second, fourth and fifth applicants had not been at home during the flood and that there was no evidence that their lives had been put at riskat any time. The Government then argued that the first, third and sixth applicants, who had been at home when the flood had occurred, had never claimed in the civil proceedings brought by them that their lives had been in danger. In particular, the third applicant had been able to leave home with her child and make her way to a safe place. The Government contended that the circumstances of the present case weredifferent from those in Budayeva and Others v. Russia (nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008) or Murillo Saldias and Others v. Spain ((dec.), no. 76973/01, 28 November 2006), where the applicants' relatives had died and a number of the applicants had been injured as a result of the natural disasters concerned — a mudslide and a flood respectively — whereas in the present case none of the applicants had lost any relatives or sustained any injuries during the flood of 7 August 2001.

As to the merits of the applicants' relevant complaint, and in so far as the Court's question about the legislative and administrative framework for dealing with floods in the area where the applicants lived, and its implementation at the material time was concerned, the Government referred to a large number of federal laws and legal acts and other instruments adopted by various authorities in the Primorskiy Region, without, however, explaining how they were relevant in the circumstances, or referring to any particular relevant provisions.

The Government further submitted that the authorities had taken a number of measures to comply with the decision of the Vladivostok Emergency Commission of 6 September 1999 (see paragraph 16 above), including clean-up work in the channel of the Pionerskaya river. In the Government's submission, they had no information as to whether those measures had ensured that the overall throughput capacity of the Pionerskaya river channel was no less than 30–40 cubic metres per second as prescribed by the aforementioned decision. The Government argued, however, that even if such a throughput capacity had been ensured, it would have been impossible to avoid the flood, or even to mitigate its consequences, given that in the period between 12 noon and 2 p.m. the release of water from the Pionerskoye reservoir had been at its maximum of 167 cubic metres per second.

The Government also argued that the amount of rain that fell on 7 August 2007 in the vicinity of Vladivostok had exceeded several times the amount forecast. In fact, such heavy rain had never been seen in the region before. Therefore, according to the Government, there was no way the authorities could have foreseenthe drastic consequences of that rain. In particular, with reference to the relevant expert reports (see paragraphs 71 80 above), the Government argued that it had been impossible to avoid theurgent large-scale evacuation of water from the Pionerskoye reservoir, and that the rate of the release of water from the reservoir on 7 August 2001 had been close to optimal. If the Pionerskoye reservoir had not existed, on the date in question the rain floodingto the mouth of the Pionerskaya river would have reacheda maximum volume of 440 cubic metres per second.The Government also contended that prior to the heavy rain on 7 August 2001 the Pionerskoye reservoir had had sufficient water storage capacity to hold the rainwater if the amount that fell had corresponded to the amount forecast, and therefore before 7 August 2001 there had been no need to evacuate water in smaller quantities over a longer period in an attempt to avoid the flood. Indeed, as pointed out by the Government, the Pionerskoye reservoir, which supplied drinking water to the city of Vladivostok, was usually only refilled over a limited period during the rainy season.

The Government admitted that at the time of the flood of 7 August 2001 there had been no operational emergency warning system in the Pionerskoye reservoir to raise the alarmin the event of a sudden large-scale evacuation of water, as prescribed by the decision of the Vladivostok Emergency Commission of 6 September 1999. They insisted, however, that the population of Vladivostok had been informed about forthcoming heavy rain by the media. They also stated that the lack of an emergency warning system had not prevented the third applicant from leaving her apartment when the water began to rise and going to a safe place.

They further argued that immediately after the flood the evacuation of the affected population had been organised in accordance with the decision of the Vladivostok Emergency Commission of 7 August 2001. In particular, those residents who found themselves in a flooded area had been moved to temporary accommodation centres and provided with meals and drinking water.

Lastly, the Government submitted that on 9 August 2001 a criminal investigation in case no. 916725 had been opened in connection with the incident of 7 August 2001, and the applicants had been granted the status of victims and civil claimants. The proceedings were discontinued on 25 January 2003 owing to the absence of the constituent elements of a criminal offence in the actions of Mr L., the director of the Water Company. The Government said they had been unable to submit the materials of that investigation to the Court because, as stated in a letter of 4 September 2009 from a representative of the Department of the Interior of the Primorskiy Region, the materials had been destroyed upon expiry of the period for their storage. Also, on 24 January 2003 a separate set of criminal proceedings had been disjoined from the aforementioned investigation. The Government refused to submit the materials from this latter investigation, stating that they were being studied by the Prosecutor General's Office.

Overall, the Government insisted that, apart from setting in place an emergency warning system at the Pionerskoye reservoir, they had taken all possible measures to prevent the risk to the applicants' lives. However, the rain on 7 August 2001 had been of such intensity that the authorities could not possibly haveforeseen and prevented the flood and its consequences.

The Court notes at the outset that the Government contested the applicability of Article 2 of the Convention in the present case, stating that the second, fourth and fifth applicants had been absent from their flats when they were flooded, and that the first, third and sixth applicants, although they had been at home during the flood, had not sustained any injuries, or lost any of their relatives as a result of the flood. According to the Government, therefore, at no moment had there been any risk to the physical integrity of any of the applicants.

The Court reiterates in the above connection that Article 2 of the Convention does not solely concern deaths resulting from the use of force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, among other authorities, Öneryıldız v. Turkey[GC], no. 48939/99, § 71, ECHR 2004-XII, and Budayeva and Others, cited above, § 128). Moreover, this Article, read as a whole, covers not only situations where certain action or omission on the part of the State led to a death complained of, but also situations where, although an applicant survived, there clearly existed a risk to his or her life (see, mutatis mutandis, Makaratzis v. Greece[GC], no. 50385/99, §§ 49–55, ECHR 2004-XI, and Budayeva and Others, cited above, § 146). It is therefore essential to determine in the present case whether the applicants' lives were endangered as a result of the events complained of.

The Court observes that, as the parties agreed, the second, fourth and fifth applicants were away from their homes during the flood on 7 August 2001. Moreover, it appears that by the time they returned homein the evening there was already no water left in their flats (see paragraphs 37–38 above).Also, the aforementioned applicants never alleged that they had been caught by the flood in the places where they had spent the day in question. In such circumstances, the Court accepts the Government's argument that there was no evidence that any threat to the lives of the second, fourth and fifth applicants had ever existed as a result of the flood of 7 August 2001. Article 2 of the Convention is therefore inapplicable.It follows that the complaintbrought by the second, fourth and fifth applicants under that Article is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4 thereof.

On the other hand, the Court is unable to reach the same conclusion as regards the relevant complaint lodged by the first, third and sixth applicants. It notes in this connection that, as the parties agreed, these applicantswere at home during the flood. The Court further takes into account these applicants' submission — undisputed by the Government — that the water arrived and rose very quickly (see paragraphs 32, 34, 36 and 39 above). Nor is it in dispute between the parties that the water reached a level of 1.20 metres in the first and third applicants' flats, and up to 1.50 metres in the sixth applicant's dwelling (see paragraph 40above). In the Court's opinion, even a level of 1.20 metres can be regarded as sufficiently high to have put these applicants' lives at risk, given, in particular, that the first applicant was a disabled 63-year-old at the time, and the then 55-year-old sixth applicant, in her own submission, could not swim.

As regards the third applicant, the Court is unable to agree with the Government that her life was not endangered because she managed to leave the flooded area on her own. The Court considers a situation where the third applicant had to wade, with her 21-month-old child in her arms, in seething, breast-deep, turbid water full offloating debris, as being dangerous to her life.The Court also takes into account the applicants' submission that the level of water in the street was even higher than inside their homes (see paragraphs 34 and 38above), which matches the finding of the expert report of 24 January 2003 that over much of the flooded area the water had been 1.5–2 metres deep (see paragraph 75above).

Overall, in the Court's opinion, these circumstances leave no doubt as to the existence of an imminent risk to the lives of the first, third and sixth applicants, which brings their complaint on that account within the scope of Article 2 of the Convention. The fact that they survived and sustained no injuries has no bearing on this conclusion.

The Court notes therefore that this part of the application, in so far as it was brought by the first, third and sixth applicants (‘the relevant applicants’), is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Court reiterates at the outset that whilst at times there may be a significant overlap between the concept of ‘home’ under Article 8 of the Convention and that of ‘property’ under Article 1 of Protocol No. 1, a home may be found to exist even where the applicant has no right or interest in real property (see, mutatis mutandis, Prokopovich v. Russia, no. 58255/00, §§ 35–39, 18 November 2004, and Khamidov v. Russia, no. 72118/01, § 128, 15 November 2007). Conversely, an individual may have a property right in a particular building or land, within the meaning of Article 1 of Protocol No. 1, without having sufficient ties with it for it to constitute a home under Article 8 (see Loizidou v. Turkey (merits), 18 December 1996, § 66, Reports of Judgments and Decisions 1996-VI). In the present case, the applicants'complaints concerned damage done by the flood to their homes — of which the first, fourth and fifth applicants were owners and the second and sixth applicants were social tenants, and which the third applicant shared with the fourth applicant, her relative (see paragraphs 10–14 above) — and to their possessions in and around those homes. The Courtconsiders it appropriate to examine the applicants'relevant complaints under both Article 8 of the Convention and Article 1 of Protocol No. 1.

The Court further observes that the applicants received certain extra-judicial compensation in respect of pecuniary losses they sustained as a result of the flood of 7 August 2001. In particular, the first applicant received a lumpsum of RUB 14,000 (approximately EUR 350) and the remaining applicants each received RUB 1,000 (approximately EUR 25) in financial support. The question therefore arises whether, for the purposes of Article 34 of the Convention, the applicants can still claim to be ‘victims’ of the alleged violation of their rights secured by Article 8 of the Convention and Article 1 of Protocol No. 1. In this connection, the Court reiterates that an applicant is deprived of his or her status as a victimif the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for, a breach of the Convention (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§178–93, ECHR 2006-V).

In the present case, there is no evidence that the authorities at any point acknowledged the violations alleged by the applicants. Indeed, it is clear from the Government's submissions on the issue that the compensation in question was accorded to all the victims of the flood of 7 August 2001 as financial aid and not in acknowledgment of the authorities' responsibility for the events in question. Moreover, no such acknowledgement was made in the criminal proceedings instituted in connection with the events of 7 August 2001, or in the civil proceedings which the applicants brought seeking compensation for their pecuniary losses.Also, even if the Court were prepared to regardthe compensation in the amount of RUB 14,000 paid to the first applicant as an appropriate and sufficient redress, it clearly could not reach the same conclusion as regards the compensation in the amount of RUB 1,000 paid to the remaining applicants.

The Court is therefore satisfied that the applicants retain their victim status, within the meaning of Article 34 of the Convention, in so far as their complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 are concerned.

The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Court has held on many occasions that the State has a positive duty to take reasonable and appropriate measures to secure an applicant's rights under Article 8 of the Convention (see López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303-C, Powell and Rayner v. the United Kingdom, 21 February 1990, § 41, Series A no. 172, and many other authorities). It has also recognised that in the context of dangerous activities the scope of the positive obligations under Articles 2 and 8 of the Convention largely overlap (see Budayeva and Others, cited above, § 133).

The Court also reiterates that genuine, effective exercise of the right protected by Article 1 of Protocol No. 1 to the Convention does not depend merely on the State's duty not to interfere, but may require positive measures of protection, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his effective enjoyment of his possessions (see Bielectric S.r.l. v. Italy (dec.), no. 36811/97, 4 May 2000, and Öneryıldız, cited above, § 134). Allegations of a failure on the part of the State to take positive action in order to protect private property should be examined in the light of the general rule in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention, which lays down the right to the peaceful enjoyment of possessions (see Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000-I;Öneryıldız, cited above, § 133; and Budayeva and Others, cited above, § 172).

Turning to the present case, the Court observes first of all that the Government did not dispute that the dwellings to which each of the applicants' referred were their ‘homes’ within the meaning of Article 8. Nor did they dispute the existence of the applicants'‘possessions’ within the meaning of Article 1 of Protocol No. 1, or that the above homes and possessions were damaged as a result of the flood of 7 August 2001. The Court will therefore proceed to examine to what extent the authorities were under obligation to take measures to protect the applicants' homes and possessions, and whether this obligation was complied with in the present case.

The Court further notes that the Government seem to have argued, with reference to the findings of the domestic courts in the applicants' civil cases, that the alleged infringements of their rights under Article 8 and Article 1 of Protocol No. 1 were the result of a natural disaster, in the form of exceptionally heavy rain, which couldnot have been foreseen, and could therefore not be imputed to the State. The Court cannot accept this argument. It reiterates in this connection that, being sensitive to the subsidiary nature of its role and cautious about taking on the role of a first-instance tribunal of fact, the Court nevertheless is not bound by the findings of domestic courts and may depart from them where this is rendered unavoidable by the circumstances of a particular case (see, for example, Matyar v. Turkey, no. 23423/94, § 108, 21 February 2002).In the present case, the Court has established in paragraphs 162–165 above that the flooding of 7 August 2001 occurred after the urgent large-scale evacuation of water from the Pionerskoye reservoir, the likelihood and potential consequences of which the authorities should have foreseen. The Court has furthermore established thatthe main reasonfor the flood, as confirmed by the expert reports, was the poor state of repair of the Pionerskaya riverchannel because of the authorities' manifest failure to take measures to keep it clear and in particular to make sure its throughput capacity was adequate in the event of the release of water from the Pionerskoye reservoir. The Court has concluded that this failure as well as the authorities' failure to apply town planning restrictions corresponding to the technical requirements of the exploitation of the reservoir put the lives of those living near it at risk (see paragraphs 168–180 and 185 above).

The Court has no doubt that the causal link established between the negligence attributable to the State and the endangering of the lives of those living in the vicinity of the Pionerskoye reservoir also applies to the damage caused to the applicants' homes and property by the flood. Similarly, the resulting infringement amounts not to ‘interference’ but to the breach of a positive obligation, since the State officials and authorities failed to do everything in their power to protect the applicants' rights secured by Article 8 of the Convention and Article 1 of Protocol No. 1 (see Öneryıldız, cited above, § 135). Indeed, the positive obligation under Article 8 and Article 1 of Protocol No. 1 required the national authorities to take the same practical measures as those expected of them in the context of their positive obligation under Article 2 of the Convention (see, mutatis mutandis, Öneryıldız, cited above, § 136). Since it is clear that no such measures were taken, the Court concludes that the Russian authorities failed in their positive obligation to protect the applicants' homes and property.

There has, accordingly, been a violation of Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention in the present case.

The Court reiterates that, according to its case-law, Article 13 applies only where an individual has an ‘arguableclaim’ to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). In the present case, the Court has found a violation on account of the State's failure to take measures to protect the right to life of the first, third and sixth applicants as well as all the applicants' homes and property. On the other hand, the Court has held that the complaints lodged under Article 2 of the Conventionby the second, fourth and fifth applicants, are incompatible ratione personae with the provisions of the Convention.

Against this background, the Court is satisfied that the first, third and sixth applicants have an arguable claim under Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1 for the purpose of Article 13, and that the remaining applicants have an arguable claim under Article 8 of the Convention and Article 1 of Protocol No. 1 for the purpose of Article 13, but no such claim under Article 2 to bring Article 13 of the Convention into play.

Accordingly, the Court finds that the first, third and sixth applicants' complaints under Article 13, in conjunction with Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1, and the remaining applicants' complaints under Article 13, in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1, are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

The Court further finds that the second, fourth and fifth applicants' complaint under Article 13 in conjunction with Article 2 of the Convention is inadmissible as being incompatible ratione personae with the provisions of the Convention, and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an ‘arguable complaint’ under the Convention and to grant appropriate relief, although ContractingStates are afforded some discretion as to the manner in which they comply with their Convention obligations under this provision. Nevertheless, the remedy required by Article 13 must be ‘effective’ in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by acts or omissions of the authorities of the respondent State (see, among recent authorities, Esmukhambetov and Others v. Russia, no. 23445/03, § 158, 29 March 2011).

In the present case, the Government argued that the applicants had been able to bring civil proceedings seeking compensation for damage to their homes and property as well as compensation for non-pecuniary damage for the anguish and distress they suffered during the flood of 7 August 2001 (see paragraph 94above). The Court will proceed, in the light of the aforementioned principles, to assess the effectiveness of this remedy for the purpose of Article 13, taken in conjunction with Article 2 as well as in conjunction with Article 8 and Article 1 of Protocol No. 1 in respect of those complaints which the Court has found admissible (see paragraph 223 above).

The third, fourthand sixth applicantseach claimed RUB 5,000,000 (approximately EUR 120,000), and the first and fifth applicantseach claimed RUB 500,000 (approximately EUR 12,000) in respect of non-pecuniary damage they sustained as a result of the events of 7 August 2001. The second applicant submitted no claim under this head.

The Government contested these claims as wholly excessive and unreasonable. They also argued that no award should be made to the second applicant in the absence of any claim on her part under this head.

The Court accepts the Government's argument that no award in respect of non-pecuniary damage should be made to the second applicant, as she did not submit any claim under this head.

As regards the remaining applicants, the Court observes that it has found a violation of Article 2, in its substantive and procedural aspects, on account of the State's failure in its positive obligation to protect the right to life of the first, third and sixth applicants and to provide adequate judicial response in connection with the events which put their lives at risk. It has also found a violation of Article 8 and Article 1 of Protocol No. 1 on account of the State's failure to take steps to protect the applicants' homes and property. The applicants must have suffered anguish and distress as a result of all these circumstances.Having regard to these considerations, the Court awards, on an equitable basis, EUR 20,000 each to the first, third and sixth applicants, and EUR 10,000 each to the fourth and fifth applicants, plus any tax that may be chargeable on these amounts.