Last Updated on November 7, 2023 by LawEuro
Judgment 7.11.2023 [Section III]
Effectiveness of investigation and ensuing criminal proceedings into explosion at Gërdec weapon decommissioning facility resulting in deaths and grievous bodily injuries: violation
Loss of victim status and non-exhaustion of domestic remedies in relation to complaint about death of next of kin and grievous bodily injuries resulting from explosion at Gërdec weapon decommissioning facility: inadmissible
Facts – On 15 March 2008 a massive explosion occurred at the Gërdec facility for dismantling decommissioned and obsolete weapons, machinery and equipment of the armed forces. Twenty-six people died and around 300 were either grievously or lightly wounded. The seven-year-old son of the applicants in applications nos. 3543/09 and 12720/14 died and the remaining applicants sustained grievous life-threatening injuries. Criminal, administrative and civil proceedings ensued. The applicants complained that the State had failed to protect their or their next of kin’s right to life and that the criminal investigation into the incident had not been effective.
Law – Article 2:
(1) Procedural aspect –
(a) Whether the investigation was adequate – An official criminal investigation had been launched by the prosecution authorities on the same day the incident had taken place. The authorities had also sought assistance from the primary US federal unit of investigation of explosives incidents and for the enforcement of laws and regulations in that connection (the International Response Team (IRT) of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)), which had national and international investigating authority, thus ensuring the required expertise. Both the Prosecutor and the ATF-IRT had conducted the on-site searches as soon as possible, interviewed witnesses, including the applicants, and examined video-recordings and photographs of the facility from prior to the incident.
During the investigation three expert examinations had been carried out, one by the Prosecutor, one by the ATF-IRT and one by military experts. They had resulted in three reports which had established the most probable cause of the accident and pointed to several failures as regards the setting up and operating of the Gërdec facility and the lack of adequate security measures. In general, they concluded that the choice of Gërdec as the site of a weapons-decommissioning facility had been made in violation of the law and State regulations; the procedures used at the facility had been unsafe and not in compliance with normal working standards at workplaces dealing with explosives and propellants; the dismantling of ordnance had been carried out by untrained workers using vehicles which had not complied with safety standards; unsuitable static-producing clothing had been permitted and no training on how to reduce static-electricity hazards had been provided. A medical report had also been commissioned concerning the injuries the victims of the incident had sustained.
The investigation as a whole had resulted in the filing of indictments against thirty persons, including the former Minister of Defence (F.M.), the head of the Military Export-Import Company (MEIKO) – a State-owned company under the authority of the Minister/Ministry of Defence which had been entrusted with conducting the procedure for the sale of ammunition for decommissioning purposes and with entering into respective contracts, the subcontracting company that had carried out the dismantling and decommissioning of the ammunition as well as its manager and site manager, the Chief of the General Staff of the armed forces and a number of Ministry of Defence employees and military personnel. The above-mentioned reports had served as the basis for the indictments and had been used as evidence in the trial against the accused.
The investigation had thus been adequate in that it had generally succeeded in establishing the circumstances surrounding the incident and had identified those responsible for it.
(b) Participation of the applicants in the investigation phase – Although the applicants had not been given access to the investigation case file while the investigation had been ongoing, they had ultimately been provided with full access to that file at the end of the investigation which had been concluded within a year. The investigation had thus been prompt and the applicants had not had to wait for many years to learn about its results. Furthermore, the authorities had established all the relevant facts and the applicants had not pointed to any oversights or omissions on the part of the investigating authorities, or a particular fact that had not been established, or a particular line of inquiry that had not been followed. In those circumstances, the Court considered that the applicants had been granted access to the investigation to the extent necessary to safeguard their legitimate interests.
(c) Criminal trial against twenty-nine accused –
(i) Charges brought against the accused and the sanctions imposed – The Supreme Court had severed the criminal proceedings against F.M. from those against the other co-accused, having regard to the different nature of the charges against the latter and the nature of the collusion among them. It had held that under the Constitution that could only hear the charges against F.M.
The twenty-nine co-accused had then been tried by the District Court and found guilty of criminal offences such as a violation of safety rules, production and possession of arms and ammunition at work, abuse of duty and destruction of property by negligence. Although none of the main accused had been ultimately convicted of homicide, all the offences for which they had been convicted had been related to the Gërdec incident and their convictions had specifically referred to causing death and injuries to a number of persons. Thus, their convictions related to life-endangering acts and to the protection of the right to life within the meaning of Article 2. Furthermore, the prison sentences imposed on the main accused and the time they had actually spent in prison (ranging from six years and seven months to ten years and twenty-seven days) could not be regarded as manifestly disproportionate to the seriousness of the acts committed by them, given that the present case did not involve intentional killings but negligence, albeit grave. In those circumstances, the Court could not conclude that the criminal-law system, as applied in the instant case, had not had a sufficiently dissuasive effect capable of ensuring the effective prevention of unlawful acts such as those complained of by the applicants.
(ii) Participation of the applicants in the criminal proceedings – The Court found that the applicants had not been afforded an adequate opportunity to participate in the trial against the accused. In particular, the civil claim against some of the accused lodged by the applicants in applications nos. 63543/09 and 12720/14 in the criminal proceedings had been severed from those proceedings by the Supreme Court before the trial had even begun. From then on, they had no longer been informed of any of the steps taken in the criminal proceedings and of any of the hearings in the ensuing trial and had not been invited to participate in the trial in any capacity. Under domestic law at the time, an injured party who had not lodged a civil claim during the criminal proceedings did not have the right to actively participate in a trial against the accused by putting forward evidence, cross-examining witnesses or defendants, or making comments on the evidence collected. In addition, the decisions and judgments adopted in the criminal proceedings had not been served on the applicants and they had no right of appeal against them. Therefore, in the course of the criminal proceedings, the applicants had had no procedural rights.
The possibility of lodging a civil claim for damages put forward by the Government could not compensate for the lack of opportunity to participate effectively in the criminal proceedings, including at the trial stage, to the extent necessary to safeguard the applicants’ legitimate interests. Such proceedings would only examine their civil claim and not the criminal responsibility of the accused. The requirement to allow for involvement of the victims could hardly be satisfied when victims of violations under Article 2 or their next of kin had no possibility to participate in criminal proceedings against perpetrators of such violations.
(d) Proceedings against the former Minister of Defence – After Parliament had initially waived parliamentary immunity in order to allow the criminal investigation and prosecution of F.M. as the Minister of Defence at the time, and a criminal investigation had been opened in respect of him, indictment had been preferred before the Supreme Court on charges of the criminal offences of abuse of office, the manufacture and illegal possession of firearms and ammunition, and the military criminal offence of abuse of office in complicity with a military staff member. However, F.M.’s subsequent re-election as an MP, had given him renewed parliamentary immunity, which had prevented the pursuit of the criminal proceedings against him and had resulted in the discontinuation by the Supreme Court of the proceedings against him in 2009. After that, a new parliamentary authorisation had not been sought. Consequently, any further attempts to establish F.M.’s responsibility for the Gërdec incident had ceased. Although since 26 October 2012, in the wake of an amendment to the Constitution, parliamentary immunity had not been a bar to the institution or continuation of a criminal investigation in respect of an MP, the Prosecutor had not pursued the reopening of the criminal proceedings against F.M. until May 2021. As a result, there had been a nine-year gap in his prosecution. During that period the applicants had made several attempts to institute criminal proceedings against him. However, placing the burden on the applicants, as injured parties, to produce evidence for alleged offences that were subject to State-assisted prosecution was not acceptable. Those failures raised serious questions as to the willingness and diligence of the prosecution to pursue the matter in line with the requirements of Article 2, creating thus a potential for impunity. Furthermore, in the administrative proceedings brought by some of the applicants, the Administrative Court of first instance (Administrative Court) in its judgment had included extensive findings on F.M.’s personal (civil) liability for the harm that had been caused to the Gërdec victims which could have been used in support of the prosecution’s case against him.
F.M.’s prosecution had been plagued by significant delays, inertia of the prosecuting authorities and many futile attempts of the applicants to bring him to justice. The criminal proceedings against him for abuse of office (the investigation against him on the other charges having been closed) were still pending, leaving the applicants without a final conclusion as to his responsibility more than fourteen years after the Gërdec incident had taken place. Without taking a stance as to F.M.’s criminal responsibility, the Court considered that, given the particular social significance of the Gërdec tragedy and the evidence collected against him, the applicants as well as the general public had the right to know not only the circumstances in which the loss of life and severe injuries had taken place, but also the exact role the former Minister of Defence had played in those events.
Conclusion: violation (unanimously) on account of the lack of the applicants’ involvement in the criminal trial of the twenty-nine accused and the manner in which the authorities had approached F.M.’s prosecution.
(2) Substantive aspect – The Court considered that in the circumstances the issues of the applicants’ victim status and the exhaustion of domestic remedies were intrinsically linked and thus addressed them together.
The two applicants in applications nos. 63543/09 and 12720/14 and one of the applicants in application no. 46707/13 had brought administrative proceedings seeking compensation for the death of their close relative or for the injuries they had suffered themselves.
Given that the investigation had been adequate in that it had established the circumstances of the case and had led to the identification of those responsible, the Court examined in relation to the applicants’ victim status the nature of redress provided in the administrative proceedings. In that respect it had to ascertain whether the proceedings providing for the assessment of the State’s direct responsibility as regards its failure to take adequate operational and safety measures or to ensure that such measures were taken by private parties, and the award of damages in that respect, might, in principle, be regarded as satisfying the State’s obligation in respect of the substantive aspect of Article 2 in the circumstances of the present case.
The main issue in respect of the substantive aspect of Article 2 was the institutional liability which could have provided a basis for reparation to the victims, whereas the individual criminal responsibility of State officials was an aspect of the procedural obligations of the State. The substantive aspect of Article 2 in the present case concerned a more general failure of the State authorities to properly discharge their duties aimed at the protection of the lives of those under their jurisdiction. In respect of those allegations the only compensatory remedy after the tragic event in question had been the possibility for the applicants of obtaining damages.
The Court was satisfied that there existed an adequate domestic legal and regulatory framework relevant for the specific circumstances of the present case. There had been several legal bases for seeking compensation from the State, in particular, under the Constitution (right to compensation for damage caused by an unlawful act, action or omission of a State body under Article 44), the Civil Code (general obligation on everyone to compensate damage caused culpably or illegally by an action or omission towards another person – Articles 608 and 609) and Law no. 8510 of 15 July 1999 on the non-contractual responsibility of institutions of State administration which provided for the liability of State administrative bodies for damage caused by such bodies.
Moreover, the expert reports which had been produced during the investigation had established the circumstances in which the applicants’ own lives or the lives of their close relatives had been lost or put at serious risk.
The criminal proceedings had not stopped with the investigation but had led to the indictment of thirty accused. The facts relevant for a civil claim against the State had been established in the criminal proceedings. Therefore, as to the possibility of the applicants proving their claims in the civil proceedings, the present case differed from other cases in which no investigation had been opened at all or the investigation had not led to the establishment of the relevant facts which in turn had negatively affected the prospect of the applicants in those cases succeeding with their civil claims.
Although the Court had found a violation of the procedural aspect of Article 2 in respect of the investigation against F.M., that one aspect could not call into question the overall adequacy of the investigation. The fact that the criminal proceedings against F.M. had not complied fully with the procedural requirements of Article 2 did not affect the fact that those proceedings had led to the establishment of the circumstances of the incident and to the criminal convictions of several persons. The applicants’ civil claim against the State had not been dependant on the outcome of the criminal proceedings against F.M. Indeed, the Administrative Court in the administrative proceedings brought by some of the applicants had held, inter alia, that the Ministry of Defence and the MEICO had been responsible for the consequences of the tragedy. F.M.’s objective liability had stemmed from his failure to undertake reasonable actions to avoid or reduce the life-threatening danger through supervision of the hazardous activities and his subjective liability from his inaction to engage the armed forces to supervise the hazardous activities. Thus, irrespective of the deficiencies of the criminal proceedings against him, the Administrative Court had established his civil/administrative liability for the events at issue.
In addition, and most significantly, the Administrative Court had held that the burden of proof had rested on the State and not on the applicants as claimants of compensation for damage caused by the explosion. That had relieved the applicants from the demanding task of having to secure evidence for their claims and prove the State’s responsibility which had been presumed, and it had been for the State to prove otherwise. Given the findings of the expert reports that had served as the main evidence in the administrative proceedings in which the applicants had claimed damages, the applicants’ position in those proceedings had been very strong and the State had had little chance of disproving its responsibility.
Furthermore, the criminal courts’ findings as to whether a criminal offence had been committed and by whom had been binding on the Administrative Court and at the time when that court had adopted its decision in the applicants’ case, the accused in the criminal proceedings had already been found guilty in a final decision. That had certainly reinforced the applicants’ claim in the administrative proceedings.
There was no reason to believe that the applicants could not have sought compensation in civil or administrative proceedings from the State in respect of its positive obligations under Article 2 by relying on the above-mentioned officially produced reports and the legal bases in domestic law for seeking compensation from the State. In that connection the Court noted that the right to life was guaranteed by the Albanian Constitution and that the Convention was directly applicable in Albania.
While the Administrative Court had not expressly stated that there had been a violation of the applicants’ right to life under Article 2 or its constitutional equivalent, the applicants had had their claims granted, and had been awarded pecuniary and non-pecuniary damage in the amounts not lower than what the Court had awarded under Article 41 of the Convention in comparable cases.
Further, the Administrative Court had found that the State authorities had not taken adequate preventive measures to ensure that minimal safety standards had been observed at the Gërdec facility, the work processes at the facility had been chaotic and the decommissioning activities had been carried out without the required licences; the employees had had no appropriate training for performing such work; the activities had been carried out in violation of military technical regulations; the site had not met the criteria set out in a relevant decision of the Council of Ministers; and the setting up of the facility and its operation had not been monitored or supervised by the responsible State authorities. The Administrative Court had concluded that the hazardous activities at the Gërdec facility had resulted in the death of the applicants’ son and injuries to the other applicants. In the Court’s view, those findings amounted to an acknowledgment in substance of the State’s responsibility as regards the substantive aspect of Article 2.
The two applicants in applications nos. 63543/09 and 12720/14 had not lodged an appeal against the Administrative Court’s judgment, despite having the possibility to do so. By not doing so, they had tacitly accepted that they had been satisfied with the sums awarded. It followed that they had renounced further use of the national remedies. It followed that those applicants either could no longer claim to be victims of the alleged violation under the substantive aspect of Article 2 because it was to be assumed that they had been satisfied with the damage awarded to them and in any event the damage awarded to them had been satisfactory or had not exhausted domestic remedies.
As to the applicants in the remaining applications, they had not submitted any evidence that they had lodged civil or administrative claims for damages against the State in respect of their substantive complaint under Article 2. Consequently, they had not properly exhausted domestic remedies.
Conclusion: inadmissible (manifestly ill-founded and non-exhaustion of domestic remedies).
Article 41: award made in respect of non-pecuniary damage in the sums of EUR 12,000 jointly to the applicants in applications nos. 63543/09 and 12720/14 and EUR 10,000 to each of the applicants in applications nos. 46707/13 and 46714/13.