Flooding claims from Vladivostok get to Strasbourg – and win

27 March 2012 by

Kolyadenko v. Russia

EHCtR, 28 February 2012 

This was the scene in the riverbed lying below a large reservoir near Vladivostok. There had been very heavy rain, causing the managers of the reservoir to let water through into that riverbed for fear that the reservoir might collapse. But the channel beneath was not exactly clear of obstructions, as the image shows. 6 flooded applicants obtained no redress in the Russian Courts, and had to go to Strasbourg to get damages – nearly 11 years after the flood in August 2001.

It might be thought that similar claimants here would not go uncompensated. But that is far from clear, as English law on flooding liabilities is by no means straightforward. Hence, the interest of the case, in which claims under Articles 2 (right to life), 8 (right to private and home life) and Article 1 Protocol 1 (right to possessions) were successful.

The local and regional authorities did not cover themselves in glory in the run-up to this flood. There were a number of warnings given by the reservoir authority and the local emergency committee that the channel was partly blocked by trees, bushes, debris, and abandoned cars. The various authorities knew the importance of keeping the spillway free of debris, not least because from time to time the reservoir was not capable of accommodating the flows into it during periods of heavy rain. But they did not actually do so.

On 7 August 2001 a month’s rain fell in a day. The water company started releasing flows into the spillway, initially at 12 cubic metres a second, but then increasing up to 167 cumecs.  The channel could not cope with these flows, and certain of the applicants found themselves in floodwater, with one applicant having to wade though breast-deep water with her 21-month son. Significant amounts of their property was damaged or destroyed, and their houses were flooded out.

The long and detailed judgment gives a full account of the various civil and criminal proceedings which were started, none of which led to anything. The most that the applicants got was small humanitarian payments, with 5 out of the 6 applicants getting a measly 25 euros.

It is plain from the judgment that Strasbourg was highly sceptical about the government version being served up to it – which version appears to have convinced the domestic courts via production of an expert’s report, which oddly was not produced to the ECtHR. Similarly a later investigation file was not produced to the Court despite its express request: [69].  Strasbourg was not best pleased. At [215], it came out with its boilerplate phraseology:

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.

It is a tad unclear as to how the ECtHR decides in any given case when it is “unavoidable” that the Court departs from findings of the domestic courts. But one way in which a member state courts that unenviable status is by coming across as, well, dodgy.

In the end the ECtHR found breaches of Articles 2, 8 and A1P1. Article 2 was engaged because the flooding posed risks to the lives of those applicants in residence at the time – the event does not need actually to kill someone, for it to arise. In a sentence of apparent moderation [154], in response to a brave, if not reckless, submission from Russia:

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 of floating debris, as being dangerous to her life.

It appears that it was not only the river that was “seething.”

The Court found that there was nothing wrong with the way the reservoir had been operated – releasing increasingly large quantities of water was inevitable given the extent of the flows into the reservoir. But the authorities were multiply to blame for what happened. They should have made and enforced planning laws to make sure that people were not living in the lee of the reservoir.  They should have kept the channel free of obstructions. And they should have warned the local populace, both generally, and in the run-up to the flooding, in the light of the dire weather forecast the day before.

In the words of [185] – which shows the wide reach of a substantive Article 2 claim –

 Firstly, the authorities failed to establish a clear legislative and administrative framework to enable them effectively to assess the risks inherent in the operation of the Pionerskoye reservoir and to implement town planning policies in the vicinity of the reservoir in compliance with the relevant technical standards. Secondly, there was no coherent supervisory system to encourage those responsible to take steps to ensure adequate protection of the population living in the area, and in particular to keep the Pionerskaya river channel clear enough to cope with urgent releases of water from the reservoir, to set in place an emergency warning system there, and to inform the local population of the potential risks linked to the operation of the reservoir. Lastly, it has not been established that there was sufficient coordination and cooperation between the various administrative authorities to ensure that the risks brought to their attention did not become so serious as to endanger human lives. Moreover, the authorities remained inactive even after the flood of 7 August 2001, with the result that the risk to the lives of those living near the Pionerskoye reservoir appears to persist to this day.

The Court additionally found a breach of the procedural aspects of Article 2. An official criminal investigation was indispensable – using “exemplary diligence and promptness”. Careful scrutiny was required,

so that the deterrent effect of the judicial system in place and the significance of the role it is required to play… are not undermined” [193]

And the various efforts of the authorities did not satisfy these requirements – the authorities

did not secure the full accountability of the State officials or the authorities concerned.  [202]

But the Court did not stop there. It went on to find breaches of Article 8 and of A1P1. Under Article 8, the negligence found against the authorities amounted not to interference but to the breach of a positive obligation, because the authorities failed to do everything within their power to protect the applicants’ Article 8 and A1P1 rights. Indeed the Court observed [216] that those positive obligations required the same practical measures as those expected under Article 2 – one assumes, they meant on the facts of this specific case, rather than by way of a general proposition of law.

The Court found no breach of Article 13 as regards the civil proceedings as the Applicants had an effective remedy, albeit the outcome was unfavourable to them.

The Court then made awards of 10,000 to 20,000 euros for non-pecuniary damage and some fairly modest sums by way of pecuniary losses.

As I said at the beginning, English law on flooding is not easy. Anyone who has ever studied law will remember the 19th century strict liability case of the leaking reservoir in Rylands v Fletcher, but this may not apply because use of the spillway was an integral part of the use of the reservoir. Claims against the various regulators and authorities involved in flood management for omitting to act face a number of legal hurdles, unless they are directly involved in the control of the channels in question or unless they made the position worse. So this decision may assist in providing either a direct cause of action under the Human Rights Act or by indirectly modifying the existing common law to ensure that it is HR compliant – the so-called horizontal effect of the HRA.

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