SECOND SECTION      CASE OF TOTCHI AND OTHERS v. THE REPUBLIC OF MOLDOVA, RUSSIA AND UKRAINE (Application no. 8833/10)         JUDGMENT         STRASBOURG 15 June 2021 This judgment is final but it may be subject to editorial revision.In the case of Toțchi and Others v. the Republic of Moldova, Russia and Ukraine,The European Court of Human Rights (Second Section), sitting as a Committee composed of: Aleš Pejchal, President, Egidijus Kūris, Carlo Ranzoni, judges,and Hasan Bakırcı, Deputy Section Registrar,Having regard to:the application (no. 8833/10) against the Republic of Moldova, Russia and Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Iurie Toțchi and Mrs Tatiana Toțcaia and one Ukrainian national, Mr Marc Fașcevschii (“the applicants”), on 29 January 2010;the decision to give notice of the application to the Moldovan and the Russian Governments (“the Governments”);the Russian Government’s objection to the examination of the application by a committee and to the Court’s decision to reject it;the parties’ observations;Having deliberated in private on 18 May 2021,Delivers the following judgment, which was adopted on that date:Introduction1. The case concerns the death of the applicants’ next-of-kin as a result of consumption of mushrooms bought from a public market and the alleged failure of the authorities to protect the victim’s right to life and to conduct an effective investigation into the circumstances surrounding the death.THE FACTS2. The applicants were born in 1946, 1951 and 1973, respectively, and live in Bender.3. The present case concerns the circumstances surrounding the death of Ms Iana Faşcevscaia (the victim), who was the first and second applicants’ daughter and the third applicant’s wife.4. The background to the case, including the Transdniestrian armed conflict of 1991-1992 and the subsequent events, is set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004‑VII) and Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 8-42, ECHR 2012). The death of the victim5. On 6 July 2001 two persons (K.S. and K.V.) collected mushrooms in the woods and sold them in a market in Tiraspol, a city controlled by the self-proclaimed Moldovan Republic of Transnistria (“the MRT”). On 8 July 2011 two persons who had consumed mushrooms were admitted to the intensive care unit of the “Republican Clinical Hospital” in Tiraspol (“the RCH”). It was established that both were victims of poisonous mushrooms which they had bought from K.S. and K.V. More persons were subsequently admitted to that hospital, all of whom had consumed mushrooms from the same sellers.6. On 9 July 2001, at 10.35 a. m., the RCH staff made an urgent call to the “Republican Centre for Hygiene and Epidemiology” (“the Centre”), informing about the incident and about the marketplace where the mushrooms had been bought from.7. On the same day, at around 5 p. m., Ms Iana Faşcevscaia bought mushrooms from K.S. and K.V. The latter showed her a certificate from the veterinary and sanitary laboratory of the market on which they were selling their merchandise, confirming that the mushrooms were suitable for consumption. Later that day Ms Iana Faşcevscaia prepared dinner for her family. At around 4.10 a.m., on 10 July 2001, she felt discomfort in her stomach. She was admitted to the RCH at 6 am. on the same day.8. Because the state of health of Ms Iana Faşcevscaia deteriorated significantly, on 13 July 2001 she was urgently transported to the 3rd city hospital in Chișinău. Despite all efforts of the doctors, on 15 July 2001 she died in that hospital.Investigation into the circumstances of the victim’s death and the ensuing criminal proceedings9. On 19 July 2001 the “Tiraspol Prosecutor’s Office” initiated two criminal investigations: against K.S. and K.V. and against the expert from the local market’s sanitary expertise laboratory. However, on 31 May 2002 both investigations were discontinued. It was established that K.S. and K.V. had had no way to determine that amongst the mushrooms which they were selling were several poisonous ones, the more so that they had been issued a certificate by the laboratory. As for the laboratory expert, it was established that she had used a rudimentary method of verifying the mushrooms by visually inspecting them and by boiling several of them together with an onion and observing any changes in the latter’s colour. It was also established that none of the market laboratories in the MRT had equipment needed for biochemical tests on mushrooms. By virtue of an amnesty law the laboratory expert could no longer be prosecuted.10. During the following years the applicants made numerous complaints to various authorities in the MRT and in Russia. The MRT prosecutor’s office reopened the criminal investigation against K.S. and K.V. and discontinued it three times. Eventually, they were relieved from criminal responsibility due to the application of the limitation period for criminal responsibility.11. On an unknown date the criminal investigation was extended to three officials from the Centre, who were accused of negligence for failing to react promptly to the urgent call from the RCH on the morning of 9 July 2001 and for not having prevented the further sale of dangerous mushrooms, even though they had had time to do so.12. On 14 May 2009 the “Tiraspol city court” found two of the above three officials, accused of negligence, guilty as charged. It was established that they had not followed the applicable rules and had not promptly and fully investigated the cases of poisoning with mushrooms. The court found that had they discharged their duties properly, the further sale of mushrooms would have been prohibited and the victim’s death would have been avoided. The two officials were sentenced to three years’ imprisonment; however, due to the expiry of the limitation period, they were relieved from serving the sentence.13. On the same day, the court adopted a decision whereby it drew the attention of the Centre’s administration to the fact that it had established serious shortcomings in the work aimed at preventing incidents similar to that leading to the victim’s death. In particular, it noted the fact that the old regulations concerning the activity of veterinary and sanitary laboratories no longer applied, while no new regulations had been adopted by the date of adopting the decision. Therefore, those laboratories effectively worked without a legal basis and the staff employed could not bear criminal responsibility should similar cases happen in the future. Moreover, those laboratories did not have any equipment for testing the quality of food. Finally, the court noted that the prosecution had asked for documents concerning the laboratory expert concerned by the victim’s case only in October 2004 and that it had allowed the investigation to run for such a long period of time that the limitation period expired. These unwarranted delays allowed the persons responsible for the victim’s death to avoid criminal responsibility.14. On 30 July 2009 the “MRT Supreme Court” upheld the judgment of 14 May 2009, essentially repeating the lower court’s reasons.15. The applicants attempted to have the judgments quashed by the Supreme Court of Moldova but the latter refused to examine the appeal on the ground that the contested judgments had been issued by unconstitutional courts and invited the applicants to pursue the normal procedure before the constitutional courts of the Republic of Moldova. It does not appear that the applicants followed the above instructions.RELEVANT LEGAL FRAMEWORK16. Reports by inter-governmental and non-governmental organisations, the relevant domestic law and practice of the Republic of Moldova, and other pertinent documents were summarised in Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, §§ 61-77, 23 February 2016).THE LAWJURISDICTION17. The Court must first determine whether the applicants fall within the jurisdiction of the respondent States for the purposes of the matters complained of, within the meaning of Article 1 of the Convention.18. In so far as Ukraine is concerned, the Court notes that the applicants adduced no evidence in support of the allegation that it had jurisdiction in the present case. In those circumstances, the Court considers that the claim concerning the jurisdiction of Ukraine is unsubstantiated and holds that the applicants did not fall within Ukrainian jurisdiction under Article 1 of the Convention. Consequently, the part of the application directed against Ukraine must be declared inadmissible under Article 35 § 4 of the Convention (see Soyma v. the Republic of Moldova, Russia and Ukraine, no. 1203/05, § 16, 30 May 2017).The parties’ submissions19. The applicants submitted that both respondent Governments had jurisdiction.20. The Moldovan Government submitted that they had had positive obligations to secure the applicants’ rights.21. For their part, the Russian Government argued that the applicants did not fall within their jurisdiction and that, consequently, the application should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. As they did in Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, §§ 92-94, 23 February 2016), the Russian Government expressed the view that the approach to the issue of jurisdiction taken by the Court in the cases of Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004‑VII), Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011), and Catan and Others (cited above) was wrong and at variance with public international law.The Court’s assessment22. The Court notes that the parties in the present case maintain views on the issue of jurisdiction which are similar to those expressed by the parties in Catan and Others (cited above, §§ 83-101) and in Mozer (cited above, §§ 81-95). In particular, the applicants and the Moldovan Government submitted that both respondent Governments had jurisdiction, while the Russian Government submitted that they had no jurisdiction.23. The Court recalls that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of actions and facts pertaining to the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-19), Catan and Others (cited above, §§ 103-07) and Mozer (cited above, §§ 97-98).24. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer it found that although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State and that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others, cited above, § 333; Catan and Others, cited above, § 109; and Mozer, cited above, § 100). Moldova’s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others, cited above, §§ 322 and 330-31; Catan and Others, cited above, §§ 109-10; and Mozer, cited above, § 99).25. The Court sees no reason to distinguish the present case from the above-mentioned cases. Besides, it notes that the Moldovan Government do not object to applying a similar approach in the present case. Therefore, it finds that Moldova has jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of is to be assessed in the light of the above-mentioned positive obligations (see Ilaşcu and Others, cited above, § 335).26. In so far as the Russian Federation is concerned, the Court notes that in Ilașcu and Others it found that the Russian Federation contributed both militarily and politically to the creation of a separatist regime in the region of Transdniestria in 1991 and 1992 (see Ilașcu and Others, cited above, § 382). The Court also found in subsequent cases concerning the Transdniestrian region that up until July 2010, the “MRT” was only able to continue to exist, and to resist Moldovan and international efforts to resolve the conflict and bring democracy and the rule of law to the region, because of Russian military, economic and political support (see Ivanţoc and Others, cited above, §§ 116-20; Catan and Others, cited above, §§ 121-22; and Mozer, cited above, §§ 108 and 110). The Court concluded in Mozer that the “MRT”‘s high level of dependency on Russian support provided a strong indication that the Russian Federation continued to exercise effective control and a decisive influence over the Transdniestrian authorities and that, therefore, the applicant fell within that State’s jurisdiction under Article 1 of the Convention (see Mozer, cited above, §§ 110-11).27. The Court sees no grounds on which to distinguish the present case from Ilașcu and Others, Ivanţoc and Others, Catan and Others, and Mozer (all cited above).28. It follows that the applicants in the present case fell within the jurisdiction of the Russian Federation under Article 1 of the Convention. Consequently, the Court dismisses the Russian Government’s objections ratione personae and ratione loci.29. The Court will hereafter determine whether there has been any violation of the applicants’ rights under the Convention such as to engage the responsibility of either respondent State (see Mozer, cited above, § 112).ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION30. The applicants complained that the State authorities had failed in their positive obligation to protect the victim’s right to life and that no effective investigation had been conducted into their criminal complaints. The relevant part of Article 2 of the Convention, reads as follows:“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...”Admissibility31. The Russian Government submitted that it is clear from the materials of the case that the applicants considered the investigation into the circumstances of the victim’s death to be ineffective a long time before lodging their application with the Court. In October 2006 they had written to members of the Russian Parliament complaining about the ineffectiveness of the investigation and seeking their assistance. In 2007 they had also written to representatives of the local administration about their intention to go on a hungerstrike to protest against the inaction of the prosecutors. Finally, in their application giving rise to the present case they had complained under Article 13 of the Convention that there had been no effective remedies in respect of their grievances under Article 2 of the Convention.32. Having been aware about the inefectiveness of the investigation already in 2006, the applicants should not have waited for the “MRT” Supreme Court to give a final ruling on the case but should rather have complained before the Court within six months. Since the applicants had not done so, their application should be dismissed for failure to submit it within the six months’ time-limit.33. The Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of or from the date of knowledge of that act or its effect on or prejudice to the applicant. Moreover, Article 35 § 1 of the Convention cannot be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 of the Convention to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 259-60, ECHR 2014 (extracts); and Blokhin v. Russia [GC], no. 47152/06, § 106, 23 March 2016).34. The Court notes that, in spite of the letters written to the Russian MP’s and other materials referred to by the Russian Government, there is no evidence that at the time of the events the applicants knew that the proceedings before the “MRT” courts were ineffective. The Court therefore does not consider it possible to blame the applicants for attempting to exhaust all remedies available to them before the self-proclaimed “MRT” authorities. In such circumstances it cannot be said that the application was lodged out of time. It follows that the Russian Government’s objection must be dismissed.35. The Court further notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other ground. The Court therefore declares it admissible.Merits36. The applicants submitted that the MRT authorities did not create a framework to effectively prevent the risk to the life of the consumers by failing to provide for a system for emergency alerts and a protocol to be followed in life threatening circumstances. Moreover, they had also failed to provide with appropriate testing equipment and to deploy properly trained personnel charged with issuing food quality certificates. They also argued that no effective investigation had been carried out into the circumstances of the victim’s death.37. The respondent Governments did not make any submissions on the merits of this complaint.38. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe, requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998-III; Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002‑I, and Fernandes de Oliveira v. Portugal [GC], no. 78103/14, § 104, 31 January 2019).39. This substantive positive obligation entails a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (see Öneryıldız v. Turkey [GC], no. 48939/99, § 89, ECHR 2004-XII; Budayeva and Others v. Russia, nos. 15339/02 and 4 others, § 129, ECHR 2008 (extracts); Kolyadenko and Others v. Russia, nos. 17423/05 and 5 others, § 157, 28 February 2012; and Fernandes de Oliveira, cited above, §§ 103 and 105-07). It applies in the context of any activity, whether public or not, in which the right to life may be at stake (Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 130, ECHR 2014, and Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 165, 19 December 2017). It also requires the State to make regulations compelling institutions, whether private or public, to adopt appropriate measures for the protection of people’s lives (see, in the context of the use of force by State agents, McCann and Others v. the United Kingdom, 27 September 1995, § 151, Series A no. 324; Makaratzis v. Greece [GC], no. 50385/99, §§ 58, 59 and 62, ECHR 2004‑XI; Perişan and Others v. Turkey, no. 12336/03, § 85, 20 May 2010; in the context of health care, Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 130; Lambert and Others v. France [GC], no. 46043/14, § 140, ECHR 2015 (extracts); Lopes de Sousa Fernandez, cited above, § 166; and Fernandes de Oliveira, cited above, § 105; in the context of industrial activities, Öneryıldız, cited above, §§ 71 and 90; and Kolyadenko and Others, § 158). In this context, the absence of any direct State responsibility for the death of an individual or for placing his life in danger does not exclude the applicability of Article 2 (see Cavit Tınarlıoğlu v. Turkey, no. 3648/04, § 61, 2 February 2016).40. The State’s duty to safeguard the right to life must also be considered to involve not only the substantive positive obligations, but also, in the event of death, the procedural positive obligation to have in place an effective independent judicial system. Such system may vary according to circumstances. It should, however, be capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (compare Calvelli and Ciglio, cited above, § 49; Vo v. France [GC], no. 53924/00, § 89, ECHR 2004‑VIII; Šilih v. Slovenia [GC], no. 71463/01, §§ 155 and 192, 9 April 2009; and Lopes de Sousa Fernandes, cited above, § 214).41. Turning to the facts of the present case, the Court notes that the criminal investigation conducted by the local authorities established that none of the market laboratories in the MRT had necessary equipment for biochemical tests on mushrooms (see paragraph 9 above) and that the old regulations concerning the activity of veterinary and sanitary laboratories no longer applied, while no new regulations had been adopted (see paragraph 13 above). Furthermore, it was also found that the officials from the Centre had failed to act promptly with a view to stopping the further sale of poisonous mushrooms (see paragraph 12 above). The Court notes that these findings were not disputed by the respondent Governments and therefore, it considers it established that the State failed to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the victim’s right to life.42. In so far as the investigation into the circumstances of the victim’s death is concerned, the Court notes that although the responsibility of the sellers of the mushrooms, the laboratory expert and the officials from the Centre was established, none of them was held accountable due to the limitation period or to amnesty. In this respect the Court recalls that the procedural obligations arising under Articles 2 and 3 of the Convention can hardly be considered to have been met where an investigation is terminated through statutory limitation of criminal liability resulting from the authorities’ inactivity (Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, § 144, 24 May 2011). In such circumstances, the Court cannot but find that the investigation into the circumstances of the victim’s death was not effective within the meaning of Article 2 of the Convention.43. The Court finally recalls that in cases concerning unintentional infliction of death, the requirement to have in place an effective judicial system will be satisfied if the legal system affords victims (or their next‑of‑kin) a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility to be established and any appropriate civil redress to be obtained (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, §159, 25 June 2019). However, in the present case, the respondent Governments did not argue that there existed any effective civil remedies available to the applicants.44.

Article of the Convention at issue: Article 2
Outcome: no_violation