EHRM, 20-03-2008, nr. 15339/02, nr. 21166/02, nr. 20058/02, nr. 11673/02, nr. 15343/02

The town of Tyrnauz is situated in the mountain district adjacent to Mount Elbrus, in the central Caucasus. Its population is about 25,000 inhabitants. The general urban plan of the town was developed in the 1950s as part of a large-scale industrial construction project. Two tributaries of the Baksan River passing through Tyrnauz, the Gerhozhansu and the Kamyksu, are known to be prone to causing mudslides.

The first documentary evidence of a mudslide in the Gerhozhansu River dates back to 1937. Subsequently mudslides were registered almost every year; occasionally they hit the town, causing damage. The heaviest mudslides registered prior to 2000 occurred on 1 August 1960, on 11 August 1977 and on 20 August 1999. According to the Government, the series of mudslides of 18–25 July 2000 were the strongest and most destructive of all.

The inhabitants and authorities of Tyrnauz are generally aware of the hazard, and are accustomed to the mudslides which usually occur in the summer and early autumn.

The first technical research into a scheme to protect Tyrnauz from the mudslides was carried out in the 1950s, and by 1959 a number of proposals had been made. The scheme chosen by the authorities following a comparative feasibility study provided for the construction of a feed-through mud retention collector. Construction work began, but in 1960 this was disrupted by an exceptionally strong mudslide, and the project had to be corrected and extended accordingly. The construction of the collector was finished in 1965 and operated successfully for 35 years, apparently providing sufficient defence against the mudslides. In 1977 a technical review was carried out following a particularly strong mudslide which seriously damaged some sections of the collector, and it was considered necessary to carry out repair work. The collector was fully repaired by 1982.

In addition, in early 1999 the local authorities put into operation a mud retention dam in the river gorge of Gerhozhan, upstream from the mud retention collector. The dam was intended to enhance the protection of Tyrnauz from mud and debris flows. It measured 160 m ×38 m ×40 m and was built with 6,000 cubic metres of reinforced concrete and 2,000 tons of metal structures.

On 20 August 1999 a mud and debris flow hit the dam, seriously damaging it.

On 30 August 1999 the director of the Mountain Institute, a state agency whose mandate included monitoring weather hazards in high-altitude areas, called for an independent survey of the damage caused to the dam by the mudslide. He made recommendations to the Minister responsible for Disaster Relief of the KBR concerning the composition of a State Commission for the survey.

On the same day he also sent a letter to the President of the KBR, calling for emergency clean-up and restoration work to the dam and for an early warning system to be set up to raise the alarm in the event of a mudslide (see the full text in Section C ‘Documents submitted by the applicants’).

On 17 January 2000 the acting director of the Mountain Institute sent a letter to the Prime Minister of the KBR, warning about the increased risk of mudslides in the coming season. He stated that the dam was seriously damaged, that its reconstruction appeared unfeasible at that stage and that, consequently, the only way to avoid casualties and mitigate the damage was to establish observation posts to warn civilians in the event of a mudslide, for which he requested a mandate and financial support (see the full text in Section C below).

On 7 March 2000 the Head of the Elbrus District Administration sent a letter to the Prime Minister of the KBR in which he referred to the imminent large-scale mudslide and requested financial aid to carry out certain emergency work on the dam. In his request he invoked possible ‘record losses’ and casualties (see the full text in Section C below).

On 7 July 2000 the assistant director and the head of research of the Mountain Institute attended a session at the Ministry for Disaster Relief of the KBR. At the meeting they reiterated the warning about the risk of mudslides in that period and requested that observation points be set up in the upper sections of the Gerhozhansu River, in order to monitor the river at all times and to issue an emergency warning in the event of a mudslide.

On 10 July 2000 the assistant director of the Mountain Institute reported to the agency director that he had warned the Ministry for Disaster Relief of the KBR of the forthcoming mudslide and requested the setting up of twenty-four hour observation posts.

It would appear that none of the above measures were ever implemented.

At about 11 p.m. on 18 July 2000 a flow of mud and debris hit the town of Tyrnauz and flooded some of the residential quarters.

According to the Government, this first wave caused no casualties. However, the applicants alleged that at least one person was killed. In particular, the second applicant claimed to have witnessed the death of her neighbour Ms B, born in 1934, who was trapped in the debris and drowned in the mud before anybody could help her. She also alleged that she had witnessed a Zhiguli vehicle with four men in it being carried away by the mudslide.

According to the Government, following the mudslide of 18 July 2000 the authorities ordered the emergency evacuation of the residents of Tyrnauz. The police and local officials went round people's homes to notify them of the mudslide and to help evacuate the elderly and disabled. In addition, police vehicles equipped with loudspeakers drove round the town, calling on residents to evacuate because of the mud hazard.

The Government did not specify when exactly these measures were taken. The applicants agreed that the alarm was indeed raised through loudspeakers once the mudslide had struck, but no advance warning was given. They claimed that they had been unaware of the order to evacuate and doubted that any had been issued. They also alleged that there had been no rescue forces or other organised on-the-spot assistance at the scene of the disaster, which became a cauldron of chaos and mass panic.

In the morning of 19 July 2000 the mud level lowered and the residents returned to their homes. The Government alleged that they did so in breach of the evacuation order, while the applicants claimed that they were not aware that the mudslide alert was still active, pointing out that there were no barriers or warnings to prevent people from returning to their homes. They did not spot any police or emergency officers near their homes, but could see that their neighbours were all at home and children were playing outside. Water, gas and electricity supplies had been reconnected after being cut off during the night.

At 1 p.m. on the same day a second, more powerful, mudslide hit the dam and destroyed it. Mud and debris instantly descended on the town, sweeping the wreckage of the dam before them. At 17 Otarova Street the mudslide destroyed part of a nine-storey block of flats, with four officially reported casualties. Several other buildings were damaged. It also caused the river to overflow, flooding the residential quarters on the right bank.

The town was hit by a succession of mudslides until 25 July 2000.

Eight people were officially reported dead. According to the applicants, a further 19 persons allegedly went missing.

According to the Government, on 3 August 2000 the Prosecutor's Office of the Elbrus District decided not to launch a criminal investigation into the accident. The applicants claimed that they were unaware of this. No copy of this decision was made available to the Court.

On 12 August 2000 the Government of the KBR adopted a directive on the payment of compensation for loss of housing to the victims of the mudslide. It established the general principles for the provision of new accommodation and the guidelines for calculating compensation for those who wished to settle outside Tyrnauz. The loss of a 1-room flat gave rise to payment of up to 15,000 roubles (RUB), of a 2-room flat — to up to RUB 20,000 and of a 3-room flat — to up to RUB 45,000. Alternately, victims could opt for housing vouchers that would entitle families of more than one person to free housing of at least 18 sq. m per family member, and single-person families — to 33 sq. m.

On 20 December 2000 the Department of Disaster Relief of the Elbrus District issued a written statement, apparently in connection with individual lawsuits, that it had received no advance warning concerning the Tyrnauz mudslide in 2000, either from the Ministry for Disaster Relief of the KBR or from any other authority.

On the same day the Elbrus District Administration also issued a written statement that it had received no warning of a mudslide at any time during the past two years.

On 14 February 2001, apparently following an enquiry from the district administration, the Finance Department of the Elbrus District reported that no funds had been allocated in the district budget for the restoration work required after the 1999 mudslide.

Before the events of July 2000 the first applicant, her husband and their two sons, born in 1987 and 1997, lived at 17 Otarova Street, Tyrnauz, in a 72 sq. m flat they owned on the seventh floor.

On 18 July 2000 she and her family were asleep when the mudslide began. The first applicant claimed that no emergency warning was given, and the mudslide came as a total shock. They had a narrow escape and spent the night in the mountains.

At about noon on the following day (19 July 2000) they returned to their flat. According to the first applicant, the mudslide appeared to have ended, and since there had been no warning or barriers to stop them, they thought that it must be safe to return home. Exhausted from the events of the previous night, they went straight to bed. However, shortly afterwards the first applicant was woken up by Ms K, a friend of her sister's (see Ms K's testimonies in Section C below), and within minutes they felt the walls shake and heard a loud rumble, glass shattering, cries and people running.

The first applicant and her older son only just managed to escape.

The younger son was carried out by Ms K and rescued from the wreckage, but he sustained serious injuries, including cerebral and spinal contusion, erosion of the cornea, multiple avulsed wounds, abrasions and bruises.

The first applicant's husband, Mr Vladimir Khalimovich Budayev, aged 47, stayed behind to help her parents flee but was killed when the building collapsed after being hit by the mudslide. The first applicant's parents were rescued.

The first applicant's flat and all her possessions were flooded and destroyed by the mudslide.

On 3 August 2000 the Prosecutor's Office of the Elbrus District decided not to launch a criminal investigation into the death of the first applicant's husband. Having found that he died as a result of the collapse of the building, it established that the death was accidental and not attributable to any criminal act.

Following a decision by the Government of the KBR on 12 August 2000, the applicant was issued with a housing voucher on 4 June 2001 entitling her to 54 sq. m of free accommodation to compensate for the loss of her flat. It would appear that the size of the accommodation was reduced pro rata her deceased husband's share, but, after numerous complaints, she was eventually provided with another 40 sq. m flat in Nalchik. She received a grant from the emergency fund of RUB 13,200 to compensate for the loss of her possessions, plus an additional allowance of RUB 2,337.

On an unspecified date the first applicant brought an action in damages against the Government of the KBR, the Ministry for Disaster Relief of the KBR and the Elbrus District Administration. She claimed RUB 259,200 for the loss of movable and immovable property, and RUB 5,000,000 for non-pecuniary damage on account of the death of her husband and the mental and physical suffering she and her children had been caused by the disaster. She claimed that the authorities had persuaded the local population that there was no risk of a mudslide. She also alleged that the authorities had been negligent as they had failed to take measures to mitigate the damage, in particular by establishing an early warning system and clearing the deposits left in the dam and river channel since the 1999 mudslide. In support of her claims she provided the documents set out in Part 2 of Section C (‘Official letters and documents issued before the 2000 mudslide’) and other evidence.

On 9 October 2001 the Baksan District Court of the KBR examined the case and found that the authorities had taken all reasonable measures to mitigate the risk of a mudslide. Noting that the retention capacity of the dam was calculated for a flow of 500 cu. m per second, when the actual flow rate was 2,000 cu. m per second, it concluded that a mudslide of such exceptional force could be neither predicted nor stopped. The court also found that the media had informed civilians of the risk of possible mudslides and it took into account the fact that, following the mudslide, the authorities had carried out infrastructure work, such as repairs to a water pipeline, and had offered the applicant social aid in the form of accommodation and financial compensation.

The court concluded that no fault attached to the authorities for the damage sustained by the applicant and found her claim for pecuniary and non-pecuniary damage unsubstantiated.

On 20 November 2001 the Supreme Court of the KBR upheld the judgment of 9 October 2001.

According to the first applicant, her living conditions have been extremely difficult since the disaster. She claimed that both her own and her children's health has deteriorated substantially as a result of the injuries, stress and devastation caused. Her younger son has developed serious chronic post-traumatic conditions, such as enuresis and the progressive deterioration of his eyesight. Both her sons require regular neurological treatment as a result of their injuries and shock. The flat she bought with the housing voucher had to be sold immediately to cover living expenses and pay for medical treatment. The flat in Nalchik was in an appalling state (it had not been renovated since its construction in 1952) and she had no means of restoring it sufficiently to make it habitable.

Before the events of July 2000 the second applicant, her husband and their daughter lived at 42 Otarova Street in a 44.6 sq. m flat (no. 33) which they owned. She owned another flat (no. 1) in the same block under a social tenancy agreement.

In 1999 a mudslide caused damage to the second applicant's property and she lost some of her livestock. She said that she requested the local authorities to carry out emergency maintenance to the dam and clear away the wreckage. However, despite numerous requests by the residents, nothing was done.

On 18 July 2000 the second applicant and her family were at home when the mudslide began at about 11 p.m. She claimed that no emergency warning was given, and they had to flee their home in their pyjamas. As they attempted to escape, the applicant and her daughter were caught in the flow of mud and debris, which dragged them for some distance before passers-by came to their rescue. Both were injured and suffering from severe shock, in particular the second applicant's daughter, who suffered severe friction burns caused by the debris.

On the following day, 19 July 2000, the second applicant's brother-in-law (the first applicant's husband Vladimir Budayev) died while helping the first and second applicants' parents to flee when a new mudslide hit the town.

Both of the second applicant's flats and all of her possessions were destroyed by the mudslide.

Following the decision of the Government of the KBR of 12 August 2000, the second applicant received a housing voucher on 29 August 2001 to compensate for the loss of flat no. 1. It entitled her to 33 sq. m of free accommodation. She also received a grant from the emergency fund of RUB 13,200 to compensate for the loss of her possessions, plus an additional allowance of RUB 1,168. She has not received any compensation in respect of flat no. 33.

The second applicant brought an action in damages against the Government of the KBR, the Ministry for Disaster Relief of the KBR and the Elbrus District Administration. She claimed RUB 360,000 for the loss of movable and immovable property, and RUB 1,000,000 for non-pecuniary damage for the mental and physical suffering she and her daughter had been caused by the disaster. Her allegations, arguments and other submissions were essentially the same as those of the first applicant.

On 9 October 2001 the Baksan District Court of the KBR examined her claim together with that of the first applicant and rejected it on the same grounds.

On 20 November 2001 the Supreme Court of the KBR upheld the judgment of 9 October 2001.

According to the second applicant, her living conditions after the disaster were, and remain, very poor. Both her own and her daughter's health deteriorated substantially as a result of the injuries, stress and devastation caused and they had to receive neurological treatment for their injuries and shock.

Before the events of July 2000 the third applicant lived at 17 Otarova Street, Tyrnauz, in a 54.2 sq. m flat which she owned.

On 18–24 July 2000 her flat was flooded and destroyed by the mudslide, together with her possessions. The third applicant claimed that no emergency warning was given and that she only just managed to escape the mudslide.

Following the decision of the Government of the KBR of 12 August 2000 the third applicant received a subsidy of RUB 30,000 for the loss of her flat and a grant from the emergency fund of RUB 13,200 to compensate for the loss of her possessions, plus an additional allowance of RUB 584.

She brought an action in damages against the Government of the KBR, the Ministry for Disaster Relief of the KBR and the Elbrus District Administration. She claimed RUB 730,662 for the loss of movable and immovable property, as well as RUB 250,000 for non-pecuniary damage for the mental and physical suffering she was caused by the disaster. Her allegations, arguments and other submissions were essentially the same as those of the first and the second applicants.

On 27 August 2001 the Nalchik Town Court of the KBR examined the case and rejected her claims. Its judgment was based on essentially the same reasons as the subsequent judgment of the Baksan District Court of the KBR, dated 9 October 2001, in the case brought by the first and second applicants. In its judgment, the court referred to certain media records of 1999–2000 which had been submitted by the Ministry for Disaster Relief of the KBR. On the basis of these records, taken together with the weather reports for the relevant period, it concluded that the local population had been adequately forewarned about the possible mudslides. The court took into account the fact that, following the mudslide, the authorities had offered the applicant welfare aid, namely the subsidy for a flat and the monetary compensation. It also noted, inter alia, that the third applicant was entitled to exchange the RUB 30,000 subsidy for 33 sq. m of social housing.

On 25 September 2001 the Supreme Court of the KBR upheld the judgment of 27 August 2001. This decision was served on the third applicant on 25 October 2001.

On 5 June 2004 the third applicant exchanged her housing subsidy for a housing voucher which entitled her to 33 sq. m of free accommodation. She used this voucher to purchase a flat in the Moscow Region, which she resold shortly afterwards.

According to the third applicant, her health and living conditions deteriorated as a result of the above events and she was not adequately compensated for the losses sustained in the accident.

Before the events of July 2000 the fourth applicant lived at 46 Elbrusskiy Prospekt, Tyrnauz, in a 33 sq. m flat which she owned.

On 18–24 July 2000 her flat and possessions were flooded and destroyed by the mudslide. She claimed that no emergency warning had been given prior to the mudslide, but she managed to make her way to safety.

The fourth applicant brought an action in damages against the Government of the KBR, the Ministry for Disaster Relief of the KBR and the Elbrus District Administration. She claimed RUB 248,942 in compensation for the loss of movable and immovable property and RUB 1,266 for medical treatment; she also claimed RUB 100,000 for non-pecuniary damage for mental and physical suffering. Her allegations, arguments and other submissions were essentially the same as those of the other applicants referred to above.

On 25 April 2001 the Elbrus District Court of the KBR examined the fourth applicant's claim and rejected it.

On 22 May 2001 the Supreme Court of the KBR reversed the judgment of 25 April 2001 on the grounds that one of the parties had not attended the trial. The case was remitted for re-examination by a first-instance court.

On 9 October 2001 the Baksan District Court of the KBR examined her claim and rejected it on the same grounds as those of the other applicants referred to above. It noted, inter alia, that the fourth applicant was still entitled to apply for compensation of RUB 30,000 from an emergency fund or, alternatively, for 33 sq. m of free housing, but held that any further claims were unsubstantiated.

On 20 November 2001 the Supreme Court of the KBR upheld the judgment of 9 October 2001.

On 7 December 2001 the fourth applicant was issued a housing voucher entitling her to 33 sq. m of free accommodation to compensate for the loss of her flat and received a grant of RUB 13,200 from the emergency fund to compensate for the loss of her possessions, plus an additional allowance of RUB 584.

According to the fourth applicant, her living conditions after the above events were extremely difficult and her health deteriorated substantially as a result of the stress and devastation they had caused. Following the disaster she suffered from psychological disorientation and depression, for which she had to undergo psychiatric treatment. According to her medical records her condition has been further aggravated by the litigation over the compensation.

Before the events of July 2000 the applicants and their two daughters lived in a 72 sq. m flat, which they owned.

On 18–24 July 2000 their flat and possessions were flooded and destroyed by the mudslide. They claimed that no emergency warning was given and that they and their family had only just managed to escape the mudslide.

The fifth and sixth applicants brought an action in damages against the Government of the KBR, the Ministry for Disaster Relief of the KBR and the Elbrus District Administration. They claimed RUB 498,368 for the loss of their movable and immovable property as well as RUB 200,000 for non-pecuniary damage for mental and physical suffering. Their allegations, arguments and other submissions were essentially the same as those of the other applicants referred to above.

On 25 April 2001 the Elbrus District Court of the KBR examined the fifth and sixth applicants' claim and rejected it.

On 22 May 2001 the Supreme Court of the KBR reversed the judgment of 25 April 2001 on the grounds that one of the parties had not attended the trial. The case was remitted for re-examination by a first-instance court.

On 9 October 2001 the Baksan District Court of the KBR examined their claim and rejected it on the same grounds as those of the other applicants referred to above. It noted, inter alia, that the fifth and sixth applicants were still entitled to apply for compensation from an emergency fund in the sum of RUB 13,200 for the loss of movable property and RUB 45,000 for the loss of the flat or, alternatively, for 33 sq. m of free housing per person, but held that further any claims were unsubstantiated.

On 20 November 2001 the Supreme Court of the KBR upheld the judgment of 9 October 2001.

On 8 December 2001 the fifth and sixth applicants were issued with a housing voucher entitling them to 72 sq. m of free accommodation to compensate for the loss of the flat and received a grant from the emergency fund of RUB 13,200 to compensate for the loss of their possessions, plus an additional allowance of RUB 2,337.

According to the fifth and sixth applicants, their health deteriorated substantially as a result of the stress and devastation. In particular, the sixth applicant had to receive extensive psychiatric and neurological treatment following a nervous breakdown caused by living through the disaster and its consequences.

Official letter of 30 August 1999 from the director of the Mountain Institute, Mr M. Zalikhanov, to the President of the KBR:

Official letter of 17 January 2000 from the acting director of the Mountain Institute, Mr Kh. Kalov, to the Prime Minister of the KBR:

Official letter of 7 March 2000 from the Head of the Elbrus District Administration to the Prime Minister of the KBR:

Interview with Mr M. Zalikhanov, published in the national newspaper Rossiyskaya Gazeta on 26 July 2000.

Interview with Mr O. Baydayev, the first Deputy Head of the Elbrus District Administration, published in the local newspaper Gazeta Yuga on 3 August 2000:

Research note by Ms I. Seinova, holder of a research degree in geography, dated 26 August 1999. The text below is based on the text published in one of the KBR local newspapers after the mudslide of 2000 (the exact publication reference is not available):

Interview with Mr V. Bolov, Director of the Centre for Disaster Monitoring and Forecasting of the Ministry of Disaster Relief, published on 28 July 2001 in the newspaper Gazeta Yuga following the Centre's field investigation into the 2000 mudslide:

Statement by Ms K, a friend of the first applicant:

Statement by Ms T.K. who lived at 17 Otarova Street, Tyrnauz:

Statement by Mr B, father of the first and the second applicants:

Statement by Ms Zh. who lived at 42 Otarova Street, Tyrnauz:

The Government claimed that the first applicant had not lodged a complaint under the Code of Criminal Procedure against the prosecutor's decision to dispense with criminal proceedings into the circumstances of her husband's death. While it is clear that the State was under an obligation to take the initiative and investigate the death, the Government argued that the applicant did not challenge the authorities' failure to do so, although this remedy, if successful, would have provided all the advantages of a criminal investigation to ascertain the circumstances. However, the applicant preferred another avenue and brought a civil action in damages.

The Court firstly notes that where the applicant has a choice of remedies and their comparative effectiveness is not obvious the Court tends to interpret the requirement of exhaustion of domestic remedies in the applicant's favour (see, among numerous examples, Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 115–25 and 156–66, 24 February 2005; Manoussakis and Others v. Greece, judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1359–60, § 33; and Aquilina v. Malta[GC], § 39, ECHR 1999-III).

Moreover, in the specific context of establishing State liability for the damage caused by a natural disaster, it has previously found that successful administrative proceedings were sufficient to deprive the applicant of his victim status (see Murillo Saldias and Others v. Spain (dec.), no. 76973/01, 28 November 2006).

The Court further notes that the events complained of in the present case were of such a vast scale that bringing the matter to the attention of the authorities did not depend on the applicant's diligence. Moreover, the advantage to be gained by the applicant in instituting criminal proceedings was not obvious, given that the civil court had competence to engage the responsibility of a particular State authority, and such institutional liability could have provided a basis for reparation to the victims. This consideration is essential given that disasters of this kind are more likely to result from a combined failure of a number of officials, whose individual liability does not necessarily attain the gravity required for a criminal conviction. For this reason and also due to lower standards of proof in civil proceedings, the Court does not find it unreasonable on the part of the first applicant to choose a civil action as means of seeking redress.

The Court therefore considers that for the purpose of exhausting domestic remedies in the present case it was sufficient for the first applicant to bring civil proceedings, as she did.

The Government considered that the applicants failed to exhaust domestic remedies as regards their Article 2 complaints because they neither challenged the decision dispensing with a criminal investigation into the natural disaster, nor invoked their right to life in their civil claims for damages. Concerning the decision dispensing with criminal proceedings, the applicants deny any knowledge that such decision has been adopted. Indeed, they were not involved in any such proceedings and it is unclear in what capacity under domestic law they would have been able to challenge the decision referred to by the Government. Unlike the first applicant, they had to prove their victim status before they could commence criminal proceedings. As to the alleged failure to invoke their right to life in the civil proceedings, the Court observes that their statement of claim was formulated in terms that embraced the substance of this guarantee. It therefore considers this part of the Government's preliminary objection also unfounded.

The Court accordingly rejects the Government's preliminary objection that the applicants failed to exhaust domestic remedies.

The Government denied any responsibility for the loss of life and other adverse consequences of the 2000 mudslide. They submitted that although the hazards of the area were well known both to the authorities and the civilian population, the mudslide of 18–25 July 2000 had been unpredictable owing to its exceptional force. It was an act of God, the time and the extent of which could neither be foreseen nor influenced. Even if the mudslide had been forecast, no effective technical measures could have prevented a catastrophe on that scale at such short notice. They submitted that after the 2000 disaster the construction of a new engineering defence structure had begun, and that this new project with increased mud retention capacity was due for completion in 2006. No up-to-date information on the new construction was made available to the Court.

The Government contended that on 5 January 2001 funds were allocated for the reconstruction of the defence infrastructure damaged by the mudslide of 2000.

Concerning the arrangements in place for warning the local population, the Government submitted that there was an operational system of general weather monitoring in the area. In particular, during the period of mud activity every year the Mountain Institute engaged in a special surveillance mission staffed by its research fellows. In the event of a mud hazard the evacuation of the civilian population would be ordered. In 2000 the visual monitoring of the mud slippage was performed by the KBR division of the integrated national system of disaster prevention and relief.

The Government considered that on the night of 18–19 July 2000 the civilian population had received due warning of the mudslide. They submitted that after the first wave of the mudslide, the Elbrus police, the fire brigade and staff from the municipal community services had called at peoples' homes to inform them of the mudslide and had helped evacuate elderly residents who were unable to leave unaided. They also stated that police vehicles equipped with loudspeakers had driven round residential quarters calling on residents to evacuate because of the mud hazard. The Government claimed that all necessary measures had been taken to rescue the victims, to resettle the residents of affected apartment blocks and to bring in emergency supplies. 620 members of the rescue services, 106 units of technical facilities, 9 floating facilities and 3 helicopters had been engaged on the site of the disaster.

The Government further submitted that the local population could have listened to the weather forecasts broadcast by the media and that public servants from various State institutions were trained to respond to emergencies. They finally submitted that since 1994 a central warning system had been functioning in the KBR.

In so far as the applicants claimed that they had not had an effective remedy in respect of the alleged violations, the Government contended that they had, in fact, availed themselves of such a remedy, namely, the civil action in damages against the State, even though they were ultimately unsuccessful.

The Government also referred, as in their preliminary objection above, to a remedy which the applicants had allegedly failed to use, namely an application for review of the decisions dispensing with the inquest into the deaths and with the criminal investigation into the circumstances of the disaster.

The applicants contested the Government's submissions pointing out the absence of any specific information about the preventive measures allegedly implemented to mitigate the risks posed by the regular mudslides. They maintained that the authorities had found themselves in a position where they were simply incapable of providing an adequate response to the disaster or of giving an early warning because they had failed to ensure the functioning of the safety infrastructure. In particular, they had failed to organise surveillance of the mud slippage in the summer period and had neglected the maintenance of the mud defence structure. They referred to the official letters referred to above in the Facts Section (Part C-2 ‘Official letters and documents issued before the 2000 mudslide’) and claimed that the authorities could not deny knowledge of the imminent threat to lives and property, or their failure to take even the most basic steps to mitigate the risk. In addition, they referred to the petition whereby the civilian population had called upon the local authorities to clear the mud conveying channel in readiness for the forthcoming season.

The applicants further claimed that they had not received warning of the mudslide before it started on 18 July 2000. They did not accept that the warning transmitted through the loudspeakers after the mudslide had already hit the town could count as such a warning, because it was given too late. They also denied knowledge of the existence of a central warning system referred to by the Government and suggested that even if such a system was indeed functioning in the KBR it obviously did not cover their area and was not used for informing the public.

The applicants also contested the Government's allegation that their return home on 19 July 2000 was in breach of an order to evacuate. They maintained that no ban or warning had been communicated to them. In particular, there had been no sign or barrier, or other indication of any ongoing mud alert.

The applicants considered that through these omissions the authorities had failed to comply with their positive obligations to take reasonable and appropriate measures to protect people and property from the hazards to which the area was subject.

The Court will begin by noting that although only one of the present applications, brought by Ms Budayeva, concerns the death of a family member, the circumstances of the case in respect of the other applicants leave no doubt as to the existence of a threat to their physical integrity (see, mutatis mutandis, Makaratzis v. Greece[GC], no. 50385/99, §§ 52–55, ECHR 2004-XI). This brings their complaints within the ambit of Article 2 of the Convention. Moreover, the applicability of Article 2 has not been contested by the Government. Turning to the applicants' specific complaints, the Court observes that they accused the authorities of having allowed three major shortcomings in the functioning of the system for protection against natural hazards in Tyrnauz, which led to casualties and losses in July 2000. Firstly, they alleged a negligent failure to maintain mud-protection engineering facilities, notably to restore the mud-retention dam damaged in 1999 and to clear the mud-retention collector blocked by the leftover debris. Secondly, they complained about the lack of a public warning about the approaching disaster that would help to avoid casualties, injuries and mass panic. Finally, they complained that these events, despite their scale and devastating consequences, did not give rise to an enquiry that would assess the effectiveness of the authorities' conduct before and during the mudslide, in particular whether everything possible had been done to mitigate the damage. The Court will consider each of these aspects in the light of the general principles set out above.

On the question of compliance with the State's positive obligations under Article 1 of Protocol No. 1 to the Convention, the Government made no submissions other than those submitted under Article 2 of the Convention.

As regards compensation, they claimed that all the applicants had benefitted from disaster-relief benefits in the form of replacement accommodation and lump-sum compensations. They considered these benefits sufficient to cover the damage sustained by the applicants.

Referring to the omissions in ensuring the functioning of the mud-defence and warning infrastructures, the applicants submitted that the authorities' failure to take even the most basic steps to mitigate the risks and effects of the mudslide also led to the destruction of their flats and possessions.

They contested the Government's argument as to the adequacy of the compensation granted to them. In particular, they pointed out that the above benefits were offered to them as victims of natural disaster on humanitarian grounds, irrespective of the property they had lost. Compensation of the full amount of damage was refused by the domestic courts, since they concluded that the responsibility for the damage was not attributable to the authorities.

The Court reiterates that Article 13 of the Convention requires domestic legal systems to make available an effective remedy empowering the competent national authority to address the substance of an ‘arguable’ complaint under the Convention (see Z and Others v. the United Kingdom[GC], no. 29392/95, § 108, ECHR 2001-V). Its object is to provide a means whereby individuals can obtain appropriate relief at national level for violations of their Convention rights before having to set in motion the international machinery of complaint before the Court (see Kudła v. Poland[GC], no. 31210/96, § 152, ECHR 2000-XI).

However, the protection afforded by Article 13 does not go so far as to require any particular form of remedy, Contracting States being afforded a margin of discretion in conforming to their obligations under this provision (see, for example, Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, pp. 329–30, § 106).

The nature of the right at stake has implications for the type of remedy the State is required to provide under Article 13. Where violations of the rights enshrined in Article 2 are alleged, compensation for pecuniary and non-pecuniary damage should in principle be possible as part of the range of redress available (see Paul and Audrey Edwards, cited above, § 97; Z and Others v. the United Kingdom, cited above, § 109; and T.P. and K.M. v. the United Kingdom[GC], no. 28945/95, § 107, ECHR 2001-V). On the other hand, neither Article 13 nor any other provision of the Convention guarantees an applicant a right to secure the prosecution and conviction of a third party or a right to ‘private revenge’ (see Perez, cited above, § 70). What is important is the impact the State's failure to comply with its procedural obligation under Article 2 had on the deceased's family's access to other available and effective remedies for establishing liability on the part of State officials or bodies for acts or omissions entailing the breach of their rights under Article 2 and, as appropriate, obtaining compensation (see Öneryıldız, cited above, § 148).

In relation to fatal accidents arising out of dangerous activities which fall within the responsibility of the State, Article 2 requires the authorities to carry out of their own motion an investigation, satisfying certain minimum conditions, into the cause of the loss of life. Without such an investigation, the individual concerned may not be in a position to use any remedy available to him for obtaining relief, given that the knowledge necessary to elucidate facts such as those in issue in the instant case is often in the sole hands of State officials or authorities. Accordingly, the Court's task under Article 13 is to determine whether the applicant's exercise of an effective remedy was frustrated on account of the manner in which the authorities discharged their procedural obligation under Article 2 (see Öneryıldız, cited above, §§ 90, 93–94 and 149).

These principles must equally apply in the context of the State's alleged failure to exercise their responsibilities in the area of disaster relief.