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FIRST
SECTION
CASE OF
AMUYEVA AND OTHERS v. RUSSIA
(Application
no. 17321/06)
JUDGMENT
STRASBOURG
25
November 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Amuyeva and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Giorgio Malinverni,
George
Nicolaou,
judges,
and
André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 4 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17321/06) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by the four Russian nationals listed below (“the
applicants”), on 27 April 2006.
- The applicants were represented by lawyers of the NGO
EHRAC/Memorial Human Rights Centre. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- On
23 October 2008 the Court decided to apply Rule 41 of the Rules of
Court and to grant priority treatment to the application and to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1). The Government objected to
the joint examination of the admissibility and merits of the
application. Having considered the Government’s objection, the
Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are:
(1) Mrs
Imani Amuyeva, born in 1972;
(2) Mr
Eti Dzhabrailov, born in 1932;
(3) Mr
Uvays Israilov, born in 1918; and
(4) Mrs
Liza Makhmutmirzayeva, born in 1977.
- On
6 July 2008 the third applicant died. His son Mr Abdul-Rakhim
Israilov, born in 1959, provided a letter of authority expressing his
intention to continue the application in his name. For the sake of
convenience, he will hereinafter be referred to as “the fifth
applicant”.
- The
applicants live in Gekhi-Chu, Urus-Martan district, Chechnya.
A. The killing of the applicants’ four relatives
on 7 February 2000
- The
first, third, fourth and fifth applicants belong to the same extended
family. The third applicant was the father of Adam (also spelled
Adlan) Israilov, born in 1965; Turpal Israilov, born in 1972; and
Aslambek Israilov, born in 1971. His son, the fifth applicant,
is the brother of Adam, Turpal and Aslambek Israilov. The first
applicant is Adam Israilov’s wife. The fourth applicant is
Aslambek Israilov’s wife.
- The
second applicant is the father of Aslanbek (also spelled Alik)
Dzhabrailov, born in 1968.
- In
the autumn of 1999 military operations by the Russian military and
security forces started in Chechnya. According to the applicants, the
village of Gekhi-Chu in the Urus-Martan district came under full
control of the Russian military forces in December 1999. A military
unit was stationed at the outskirts of the village, the state
authorities were functioning and there were no clashes in the area.
For these reasons the residents had considered that their lives were
no longer endangered by the hostilities.
- In
the evening of 6 February 2000 the village came under fire by
automatic weapons from the position of the Russian forces about fifty
metres away from the edge of the village. The residents were aware
that a large group of Chechen fighters had entered the village from
the direction of Katyr-Yurt and many had taken shelter in the
basements of their houses.
- In
the morning on 7 February 2000 two military helicopters fired
missiles upon the village. The village then came under shelling by
artillery and from planes.
- The
first, third and fourth applicants live at 72 Shkolnaya Street in
Gekhi-Chu in a large residential compound comprised of several
houses. One house belonged to the third applicant and another one
belonged to his elder son, the fifth applicant. A large number of
neighbours and relatives took shelter in their compound. According to
them, there were about twenty-five people in the basement of only one
of the houses.
- The
second applicant lives at 76 Shkolnaya Street. On 6 and 7 February
2000 he, together with his son Aslanbek Dzhabrailov, was also taking
shelter in the basement of the first applicant’s house.
- At
about 2 p.m. on 7 February 2000 the shelling stopped. One of the men
looked into the courtyard and saw a group of military servicemen. The
soldiers ordered everyone to come out and lined up the men, women and
children in the courtyard.
- After
the residents came out, one serviceman threw a hand-grenade into the
basement of the third applicant’s house. The explosion damaged
the house.
- The
servicemen, who behaved in an aggressive manner, took aside four
young men: the third applicant’s three sons Aslambek, Adam and
Turpal Israilov, and Aslanbek Dzhabrailov, the second applicant’s
son. The third applicant approached the group because he feared for
his sons. The military servicemen told him that they would check
whether the young men had participated in illegal armed groups.
- The
servicemen then ordered some of the residents to descend into the
basement of a house situated further down in the Shkolnaya Street.
Others remained in the courtyard.
- The
fifth applicant also remained in the courtyard. He and other
witnesses saw that the servicemen had checked the passports of the
four young men, examined their torsos in order to see if they had
signs of wearing weapons and then allowed them to get dressed.
- At
that time, there was an exchange of gunfire from the neighbouring
house at 74 Shkolnaya Street. A tank and an armoured personnel
carrier drove up to that house. The residents later learned that a
fighter had taken shelter in the basement of that house and had shot
at a Russian soldier and killed him. He was shot dead in response.
- The
military servicemen separated the men, including the fifth applicant,
from the remaining group of residents and led them away towards
Centralnaya Street. The four young men remained in the courtyard of
the first applicant’s house, under the guard of military
servicemen. Before leaving, the fifth applicant saw his three
brothers and Aslanbek Dzhabrailov being escorted into the courtyard
at 74 Shkolnaya Street where the exchange of gunfire had taken place.
In the meantime, the second and third applicants joined the group of
women and children who remained in the third applicant’s
courtyard. The military assured them that their sons would be
released after a check.
- Ten
or fifteen minutes later the people in the courtyard, including the
first, third and fourth applicants, heard shots fired in the
courtyard of the house at 74 Shkolnaya Street. Some five minutes
later the military ordered the residents to go into the fifth
applicant’s house and wait there.
- In
the meantime, the group of men who had been taken to Centralnaya
Street had been examined, one by one, by the military servicemen. The
servicemen had led away two brothers from the T. family and another
young man, who were later found shot.
- The
fifth applicant was released after the check and returned to his
house. The military ordered him to join the other residents inside
the house.
- Sometime
later the soldiers left the village. The second applicant went home
but did not find his son, Aslanbek Dzhabrailov, there.
- The
fifth applicant went into the courtyard at 74 Shkolnaya Street. There
he saw the four bodies of the young men who had been led away by the
soldiers. Under the fence-roof (a roof covering part of the
courtyard) there were the bodies of Adam Israilov and Aslanbek
Dzhabrailov, and further back in the courtyard, face down, Aslambek
and Turpal Israilov. The bodies had gunshot wounds. The bodies of
Aslanbek Dzhabrailov and Aslambek Israilov also had knife wounds to
the back, in the heart area.
- The
fifth body found in the same courtyard was probably that of the
fighter who had been killed there earlier.
- The
applicants submitted written statements about the events produced by
the first, second, fourth and fifth applicants, as well as by two
neighbours, I. A. and Ch. D.
- The
Government did not challenge the facts as presented by the
applicants.
B. The official investigation
- Despite
a specific request by the Court, the Government did not disclose any
documents from criminal case no. 24037 which had been opened in
relation to the matter. The Government stated that the investigation
was in progress and that disclosure of the documents would be in
violation of Article 161 of the Code of Criminal Procedure, because
the file contained personal data concerning the participants in the
criminal proceedings. They outlined a number of investigative
measures taken so far. The parties’ submissions in this respect
could be summarised as follows.
- The
applicants stated that on 8 February 2000 a group of officials from
the Urus-Martan district prosecutor’s office (“the
district prosecutor’s office”) and district temporary
Department of the Interior (VOVD) arrived in Gekhi-Chu. They
questioned several witnesses, examined the site of the shooting and
drew up a plan. It also appears that they photographed the bodies.
- On
the following day, 9 February 2000, the four bodies were buried in
the local cemetery.
- One
week later an investigator from the district prosecutor’s
office informed the applicants during a meeting in Gekhi-Chu that a
criminal investigation had been opened by that office under Article
105 of the Penal Code (murder). Despite this information, it appears
that the criminal investigation was opened only in July 2000 (see
below).
- On
26 February 2000 the Urus-Martan district civil registration office
issued death certificates for the four men. The date of death was
recorded as 7 February 2000 for all, but the cause of death was noted
only for Aslanbek Dzhabrailov - numerous gunshot wounds to the head.
- On
14 July 2000 an investigator of the Chechnya Prosecutor’s
Office opened a criminal investigation under Article 105 of the
Criminal Code into the deaths of the three Israilov brothers,
Aslanbek Dzhabrailov and the unidentified member of the illegal armed
group (“the IAG”). According to the Government, this
action was prompted by a letter of the deputy Minister of Foreign
Affairs, and prior to that date the applicants had not submitted any
complaints to the authorities.
- On
15 July 2000 the file was forwarded for investigation to the district
prosecutor’s office and assigned number 24037. The decision
contained the following passage:
“On 7 February 2000 in Gekhi-Chu... servicemen of
the federal forces carried out a special operation with the aim of
identifying members of illegal armed groups. At that time [the
following] residents of the village, brothers Adlan, Aslambek and
Turpal Israilov, Alik Dzhabrailov, and an unidentified member of the
IAG stayed in a dugout shelter in the Israilovs’ house. In the
course of the special operation the member of the IAG committed the
murder of a military serviceman, after which the above-mentioned
member of the IAG, Adlan, Aslambek and Turpal Israilov and Alik
Dzhabrailov were killed”.
- The
Government submitted that on an unidentified date the investigation
had established the number of the military unit which had taken part
in the operation in Gekhi-Chu and had obtained information about two
servicemen of that unit who had been killed on 7 February 2000.
- On
6 October 2000 the second applicant was granted victim status in the
criminal investigation concerning the murder of his son. On the same
day the fifth applicant was granted victim status. According to the
Government, both men had been questioned on the same day. They had
confirmed the circumstances of their relatives’ deaths, as
summarised above.
- The
Government further submitted that on 10 October 2000 the investigator
had examined the residential compound of the Israilov family and
Z.D.’s neighbouring compound where the bodies had been found.
Nothing of relevance to the investigation had been found.
- The
Government submitted that on 10 October 2000 another Israilov brother
and Aslanbek Dzhabrailov’s mother had been questioned and had
given similar testimonies. The investigator had also collected the
clothes which the murdered men had been wearing on 7 February 2000
from the family. It appears from the submitted documents that the
jackets were returned to the applicants about one month later but it
is unclear if any reports or other steps were taken at that time.
- On
4 December 2000 the investigation was adjourned due to its failure to
identify the culprits. The applicants submit that they had only been
informed of this decision in November 2005 when they applied to the
district prosecutor’s office for information while collecting
documents required in order to obtain compensation for the deaths of
their relatives.
- On
9 October 2001 the second applicant asked the district prosecutor’s
office to inform him as to whether a criminal investigation into the
murder of his son and the three Israilov brothers by the servicemen
had been pending and, if so, who had been in charge of the
investigation.
- On
15 October 2001 the second applicant lodged a request with the
district prosecutor’s office that he be granted the status of a
civil claimant in the criminal proceedings related to the killing of
his son by the military servicemen. It does not appear that any
answer has been given to the two aforementioned letters.
- On
18 November 2005, having learnt of the decision to suspend the
investigation, the second applicant wrote to the district
prosecutor’s office. He described in detail the events of 7
February 2000 and asked that the investigation be resumed. In
particular, he requested that the serviceman who had been killed on
that day be identified and the number of the military unit which had
been involved in the operation be disclosed, in order to identify and
question the servicemen who had killed the four men and to question
the other witnesses of the crime. He also asked the district
prosecutor’s office to transfer the investigation to the
military prosecutor’s office.
- Per
the Government’s observations, the investigation had been
resumed at some point after that. On 28 November 2005 the
investigator had again questioned the fifth applicant. On the same
day the investigator had collected a statement from the head of the
village administration, who had confirmed that the four men had been
killed on 7 February 2000 during a security operation.
- According
to the Government, between 30 November and 13 December 2005 the
investigator had questioned five relatives of the dead men, including
the second and fourth applicant. Their submissions had corroborated
the statements previously obtained.
- On
14 February 2006 the first and fourth applicants wrote to the
district prosecutor’s office and asked to be granted victim
status in the proceedings concerning the murder of their husbands.
- On
20 February 2006 the first and fourth applicants were granted the
status of victims. The Government also submitted that on the same day
the first applicant had been questioned. It appears that on 16 March
2006 the investigation was adjourned.
- Per
the Government’s observations, the next round of investigation
had started in September 2006. On 8 September 2006 the investigator
had requested that the commander of the military unit submit a copy
of the internal inquiry into the deaths of their two servicemen in
Gekhi-Chu on 7 February 2000, as well as copies of forensic
reports. According to the Government, this request had been complied
with. However, they did not disclose the content or the conclusions
of the relevant documents.
- On
20 September 2006 the investigation questioned a further five
witnesses among local residents, including the second and fifth
applicants.
- On
21 September 2006 the investigator again collected the jackets of the
murdered men from the fifth applicant. On 22 September 2006 these
items were inspected and attached as pieces of evidence to the
criminal investigation file. On 24 September 2006 the investigation
was again adjourned.
- A
new round of investigation was opened on 1 February 2007. Per the
Government’s submissions, between 25 February and 10 June 2006
the investigation had collected statements from twelve relatives and
neighbours of the dead men, including the applicants. The first
applicant had given her consent to the exhumation of her husband’s
body.
- On
31 March 2007 the investigator refused to allow the second and fourth
applicants to make copies of all the witness statements collected by
the investigation. They were allowed to make copies of the decisions
to adjourn proceedings.
- On
20 June 2007 the first and fourth applicants again requested that the
district prosecutor’s office identify and question the
servicemen and commanders of the military units which had taken part
in the special operation.
- According
to the Government, the graves of the Israilov brothers and of
Aslanbek Dzhabrailov had been inspected on 6 July 2007.
- The
Government further submitted that the progress of the investigation
had been supervised by the Investigative Committee of the General
Prosecutor’s Office. According to the Government, the
applicants had been duly informed of all decisions taken during the
investigation.
C. Proceedings against law-enforcement bodies
- On
17 May 2006 the first and the fourth applicants complained to the
district prosecutor’s office of its failure to effectively
investigate the murder of their husbands. They also asked to be
granted access to the case file.
- On
6 July 2006 the first and fourth applicants applied to the
Urus Martan District Court (“the district court”),
complaining that the district prosecutor’s office had failed to
investigate the murder of Adam, Turpal and Aslambek Israilov and
Aslanbek Dzhabrailov effectively and had failed to provide a response
to their previous complaints. They again asked to be granted access
to the case file.
- On
26 July 2006 the district court partially allowed the complaint
against the district prosecutor’s office based on the latter’s
failure to take effective steps to investigate the applicants’
relatives’ murder. The district court ordered the district
prosecutor’s office to resume the investigation. The district
court noted that the investigators had failed to identify the
military and security units responsible for the operation, had failed
to question the commanders of and participants in the operation and
to study the documents related to its execution and results, and had
failed to question the commanders of the district military and
security authorities about the operation. The court granted the
applicants access to the case file, stating that the documents in the
file were accessible unless they contained secret information and
noted that access to the file was essential in order to realise the
applicant’s right to appeal. As to copying of documents from
the case file, the court noted that this right was accorded to
victims only upon completion of the investigation, and not when the
proceedings were adjourned. On 23 August 2006 the Chechnya Supreme
Court upheld the district court’s decision.
- On
19 December 2006 the first and fourth applicants seized the district
court with a similar complaint. They noted that the investigation was
again adjourned without the necessary steps having been taken. On
2 February 2007 the deputy district prosecutor announced in
court that the investigation had been reopened by the district
prosecutor’s office on 19 December 2006 in order that it
be completed. In such circumstances, the district court found that
the applicants’ complaint had been resolved and dismissed it.
II. RELEVANT DOMESTIC LAW
- For
a summary of the relevant domestic law see Akhmadova and
Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May
2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained under Article 2 of the Convention that their
four relatives had been deprived of their lives by State agents and
that the domestic authorities had failed to carry out an effective
investigation of the matter. Article 2 reads:
“1. 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.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. Admissibility
1. The parties’ submissions
- The
Government contended that the complaint should be declared
inadmissible. They submitted that the investigation into the murder
of the four men had not yet been completed. As victims, the
applicants could have challenged any acts or omissions of the
investigating or other law-enforcement authorities before a
supervising prosecutor, or in court. They also argued that it had
been open to the applicants to pursue civil complaints but that they
had failed to do so. Accordingly, they argued that the applicants had
failed to exhaust domestic remedies.
- The
applicants contested the Government’s objection. They stated
that the criminal investigation had proved to be ineffective and that
complaints to that effect had been futile. With reference to the
Court’s case-law, they argued that they had not been obliged to
apply to the civil courts in order to exhaust domestic remedies. The
applicants also argued that they had complied with the six-month
time-limit as provided for in Article 35 § 1 of the Convention,
because they had only become aware of the ineffectiveness of the
domestic investigation in November 2005.
2. The Court’s assessment
(a) Compliance with the six-month
time-limit
- The
Court reiterates that the purpose of the six-month rule is to promote
legal certainty and to ensure that cases raising issues under the
Convention are dealt with within a reasonable time. The rule should
ensure that it is possible to ascertain the facts of the case before
that possibility fades away, making a fair examination of the
question at issue next to impossible (see Kelly v. the United
Kingdom, no. 10626/83, Commission decision of 7 May 1985,
Decisions and Reports (DR) 42, p. 205, and Baybora and Others v.
Cyprus (dec.), no. 77116/01, 22 October 2002). It is not open to
the Court to set aside the application of the six-month rule
(Belaousof
and Others v. Greece, no. 66296/01, judgment of 27 May 2004,
§ 38).
- The Court further reiterates that in a number of cases
concerning ongoing investigations into the deaths of applicants’
relatives it has examined the period of time from which the applicant
can or should start doubting the effectiveness of a remedy and its
bearing on the six-month time-limit provided for in Article 35 §
1 of the Convention (see Şükran Aydın and
Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Elsanova
v. Russia (dec.) no. 57952/00, 15 November 2005; and Narin
v. Turkey, no. 18907/02, §
50, 15 December 2009). The determination of whether the applicant in
a given case has complied with the admissibility criteria will depend
on the circumstances of the case and other factors, such as the
diligence and interest displayed by the applicants, as well as the
adequacy of the investigation in question (see Narin,
cited above, § 43). The
Court has found that in cases concerning instances of violent death,
as opposed to disappearances, the ineffectiveness of the
investigation will generally be more readily apparent. The
requirement of expedition may accordingly require an applicant to
bring such a case before the Court within a matter of months, or at
most, depending on the circumstances, a very few years after the
events (see Varnava and Others v. Turkey [GC], nos. 16064/90,
16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90
and 16073/90, § 162, ECHR 2009 ...).
- In
the case at issue, the Court notes that the investigation into the
applicants’ relatives’ murder was suspended on 4 December
2000 for failure to identify the suspects. In October 2001 the
applicants sought information about the proceedings (see paragraph 40
above) but it does not appear that they received any response. After
that, they challenged the decision in question in November 2005,
which resulted in the resumption of the investigation. Their
application to the Court was lodged on 27 April 2006.
- The
Court notes, first of all, that the applicants were not informed in
due time of the decision of 4 December 2000. In the meanwhile, they
were aware of the steps taken by the investigation in 2000. Two of
the applicants were granted victim status in October 2000 and
therefore could expect, by law, to be informed of any significant
procedural developments. On two occasions in October 2001 the
applicants contacted the district prosecutor’s office but
received no response. In such circumstances it is reasonable to
suggest that in the absence of communication from the investigating
authorities, they presumed, at least for some time, that the
proceedings remained pending.
- The
Court also considers it important that in November 2005 the
applicants successfully lodged a complaint with the district
prosecutor’s office, following which the investigation was
resumed. Per the Government’s submissions, between November
2005 and July 2007 more than twenty interviews took place, the
remaining applicants were accorded the status of victims, the
relevant sites were inspected and other information was obtained (see
paragraphs 44-54 above). These measures still failed to bear any
fruit as to the outcome of the investigation; however the Court
attaches particular weight to the fact that after 2005 the applicants
perceived this investigation as effective, as demonstrated by their
active stance. Thus, the applicants successfully challenged the
suspension of proceedings in the district court on two occasions in
2006 (see paragraphs 58 -59 above) and demonstrated their willingness
to cooperate with the investigation in other important aspects (see,
for example, paragraph 51 in fine).
- It
is regrettable that between October 2001 and November 2005 no
domestic investigation was pending and that the applicants did not
take any steps to remedy this situation. The applicants were
eye-witnesses of their relatives’ deaths and little doubt
persists as to the occurrence of the crime. The Court is of the view
that, as the closest relatives of the deceased, the applicants bore a
duty to take steps to keep track of the investigation’s
progress, especially as time is of importance in resolving the issues
in such a case. However, in the present case the Court considers that
the applicants complied with the requirement to submit their case
within “a very few years after the events” (see Varnava
and Others, cited above, § 162). The Court takes
special note of the progress of the investigation and the applicants’
conduct after November 2005, and considers that when assessing their
compliance with the six-month rule the domestic investigation should
be considered as a whole.
- Finally,
the Court would like to stress that the circumstances of the present
case should be clearly distinguished from the situations where
information purportedly casting new light on the circumstances of a
killing may revive the procedural obligation to investigate, even
though the substantive claim under Article 2 and the alleged
ineffectiveness of the investigation would be out of its temporal
jurisdiction (see Brecknell v. the United Kingdom, no.
32457/04, § 71, 27 November 2007; Gasyak and Others v.
Turkey, no. 27872/03, § 60, 13 October 2009). The Court
deems it important to reiterate at this juncture that there is little
ground to be overly prescriptive as regards the possibility of an
obligation to investigate unlawful killings arising many years after
the events, since the public interest in obtaining the prosecution
and conviction of perpetrators is firmly recognised, particularly in
the context of war crimes and crimes against humanity (Brecknell,
cited above, § 69).
- In
the light of the foregoing, the Court considers that, in the
circumstances of the present case, the applicants have complied with
the six-month rule in respect of their complaints.
(b) Exhaustion of domestic remedies
- The
Court will examine the arguments of the parties in the light of the
provisions of the Convention and its relevant practice (for a
relevant summary, see Estamirov and Others v. Russia, no.
60272/00, §§ 73-74, 12 October 2006).
- The
Court notes that the Russian legal system provides, in principle, two
avenues of recourse for the victims of illegal and criminal acts
attributable to the State or its agents, namely civil and criminal
remedies.
- As
regards a civil action to obtain redress for damage sustained through
the allegedly illegal acts or the unlawful conduct of State agents,
the Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention (see
Khashiyev and Akayeva v. Russia, nos. 57942/00 and
57945/00, §§ 119-121, 24 February 2005, and Estamirov
and Others, cited above, § 77). In the light of the above,
the Court confirms that the applicants were not obliged to pursue
civil remedies. The Government’s objection in this regard is
thus dismissed.
- As
regards criminal law remedies, the Court considers that the
Government’s objection raises issues concerning the
effectiveness of the investigation which are closely linked to the
merits of the applicants’ complaints. Thus, it decides to join
this objection to the merits of the case and considers that the issue
falls to be examined below.
(c) Other factors regarding admissibility
- The
Court considers, in the light of the parties’ submissions, that
the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. The complaint under Article 2 of the Convention must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicants argued that there had been a violation of the right to
life in respect of their deceased relatives. They further submitted
that the investigation into the murders had been ineffective –
both prior to the resumption of proceedings in 2005 and after that
date. The prosecutor’s office had failed to address numerous
omissions noted by the district court. It had also failed to ensure
the necessary level of public scrutiny by not informing the
applicants of the most important developments in the proceedings.
- The
Government did not dispute the facts as presented by the applicants
concerning the deaths of Aslambek, Adam and Turpal Israilov and
Aslanbek Dzhabrailov. However they considered that any attribution of
guilt was impossible prior to the completion of the domestic
investigation. They further contended that the investigation of the
incident was pending, that there was no sufficient evidence that the
murders had been committed by State agents and that there were
therefore no grounds for holding the State liable for the alleged
violations of the applicants’ rights. As to the investigation,
the Government argued that all possible measures were being taken in
order to solve the crime.
2. The Court’s assessment
(a) The alleged violation of the right to
life
- The
applicants alleged that the persons who had killed Aslambek, Adam and
Turpal Israilov and Aslanbek Dzhabrailov on 7 February 2000 had been
State agents. The Government did not dispute any of the factual
elements underlying the application and did not provide another
explanation of the events. Moreover, they agreed that the documents
collected by the domestic investigation supported the applicants’
account. However, they stressed that the conclusions as to the
identity of the perpetrators should be made by the domestic courts.
- The
Court observes that in its extensive jurisprudence it has developed a
number of general principles relating to the establishment of facts
in dispute, in particular when faced with allegations under Article 2
of the Convention (for a summary of these, see Bazorkina v.
Russia, no. 69481/01, §§ 103-109, 27 July 2006).
The Court also notes that the conduct of the parties when evidence is
being obtained has to be taken into account (see Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no.
25).
- The
Court notes that despite its request for a copy of the investigation
file into the murders, the Government produced no such documents. In
previous cases the Court has already found the reference to Article
161 of the Code of Criminal Procedure insufficient to justify the
withholding of key information requested by the Court (see Imakayeva
v. Russia, no. 7615/02, § 123, ECHR 2006-XIII
(extracts)).
- In
view of this and bearing in mind the principles referred to above,
the Court finds that it can draw inferences from the Government’s
conduct in respect of the well-founded nature of the applicants’
allegations.
- Having
examined the parties’ submissions, and drawing inferences from
the Government’s failure to submit documents which were in
their exclusive possession or to provide another plausible
explanation for the events in question (see Toğcu v. Turkey,
no. 27601/95, § 95, 31 May 2005, and Akkum and Others v.
Turkey, no. 21894/93, § 211, ECHR 2005 II (extracts)),
the Court finds that Aslambek Israilov, Adam Israilov, Turpal
Israilov and Aslanbek Dzhabrailov were killed on 7 February 2000 by
State servicemen during a security operation.
- In
the absence of any justification in respect of the use of lethal
force by State agents, the Court finds that there has been a
violation of Article 2 in respect of the four men.
(b) The alleged inadequacy of the
investigation
- The
Court has on many occasions stated that the obligation to protect the
right to life under Article 2 of the Convention also requires by
implication that there should be some form of effective official
investigation when individuals have been killed as a result of the
use of force. It has developed a number of guiding principles to be
followed for an investigation to comply with the Convention’s
requirements (for a summary of these principles see Bazorkina,
cited above, §§ 117-119).
- In
the present case, the murder of the applicants’ relatives was
investigated. The Court must assess whether that investigation met
the requirements of Article 2 of the Convention.
- The
Court notes at the outset that the documents from the investigation
file were not disclosed by the Government. It therefore has to assess
the effectiveness of the investigation on the basis of the few
documents submitted by the parties and the information about its
progress presented by the Government.
- Turning
to the facts of the present case, the Court notes a number of serious
defects in the investigation, such as delays in the opening of the
proceedings and collecting essential statements, securing the
evidence and providing information to the next-of-kin. Furthermore,
the Court observes that the applicants were not timely informed of
the decision to suspend the investigation which was taken in December
2000.
- However,
the Court finds that the investigation’s most obvious defect is
the absence of any action to identify and question the commanders and
servicemen of the military units who had taken part in the security
operation in Gekhi-Chu and, eventually, to bring charges against
those responsible. These failures were obvious to the supervising
prosecutors and courts, who criticised the investigation on several
occasions. However, it appears that their orders were ignored. In the
Court’s view, the astonishing ineffectiveness of the
prosecuting authorities in this case can only be qualified as
acquiescence in the events.
- The
Government, referring to Article 125 of the Code of Criminal
Procedure, argued that the applicants could have sought judicial
review of the decisions of the investigating authorities in the
context of the exhaustion of domestic remedies. The Court observes
that the applicants did, in fact, make use of that remedy on two
occasions, which led to the resumption of the investigation.
Nevertheless, the district court’s interventions did not bring
about any tangible results for the applicants. The investigation was
repeatedly suspended and resumed, but no significant investigative
measures were taken to identify those responsible for the murders. In
such circumstances, the Court considers that the applicants could not
have been required to challenge every single decision of the district
prosecutor’s office in court. The Court also recalls its above
conclusions that the applicants were not timely informed of the
proceedings. Accordingly, the Court dismisses the Government’s
preliminary objection as regards the applicants’ failure to
exhaust domestic remedies within the context of the criminal
investigation.
- In
the light of the foregoing, the Court holds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the murder of Aslambek, Adam and Turpal
Israilov and Aslanbek Dzhabrailov, in breach of Article 2 in its
procedural aspect.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants complained that they had been deprived of effective
remedies in respect of the aforementioned violation of Article 2,
contrary to Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties’ submissions
- The
Government contended that the applicants had effective remedies at
their disposal as required by Article 13 of the Convention. The
applicants had an opportunity to challenge the acts or omissions of
the investigating authorities in court pursuant to Article 125 of the
Code of Criminal Procedure. They added that participants in criminal
proceedings could also claim damages in civil proceedings and
referred to cases where victims in criminal proceedings had been
awarded damages from state bodies and, in one instance, the
prosecutor’s office. In sum, the Government submitted that
there had been no violation of Article 13.
- The
applicants reiterated the complaint.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The
Court reiterates that in circumstances where, as here, a criminal
investigation into a killing has been ineffective and the
effectiveness of any other remedy that might have existed, including
civil remedies suggested by the Government, has consequently been
undermined, the State has failed in its obligation under Article 13
of the Convention (see Khashiyev and Akayeva, cited above, §
183).
- Consequently,
there has been a violation of Article 13 in conjunction with Article
2 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicants complained that they had been discriminated against in the
enjoyment of their Convention rights, because the violations of which
they complained had taken place because they had been resident in
Chechnya and because of their ethnic background as Chechens. This was
contrary to Article 14 of the Convention, which reads as follows:
“The enjoyment of the right and freedoms set forth
in [the] Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a national
minority, property, birth or other status.”
- The
Court observes that no evidence has been submitted to it that
suggests that the applicants were treated differently from persons in
an analogous situation without objective and reasonable
justification, or that they have ever raised this complaint before
the domestic authorities. It thus finds that this complaint has not
been substantiated.
- It
follows that this part of the application is
manifestly ill-founded and should be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE
41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants did not submit any claims for pecuniary damage. They asked
the Court to award them any sum it deemed appropriate in respect of
non-pecuniary damage for the suffering they had endured as a result
of the loss of their family members and the failure to investigate
the murders.
- The
Government denied any violations of the applicants’ rights and
considered that, in any event, the finding of a violation of the
Convention would be sufficient.
- The
Court accepts that the applicants have suffered non-pecuniary damage
which cannot be compensated for solely by the above findings of
violations of the Convention. It awards 60,000 euros (EUR) to the
first, second, fourth and fifth applicants each, plus any tax that
may be chargeable to them thereon.
B. Costs and expenses
- The
applicants were represented by lawyers from the NGO EHRAC/Memorial
Human Rights Centre. The aggregate claim in respect of costs and
expenses related to the applicants’ legal representation
amounted to 1,828 pounds sterling (GBP) (EUR 2,212). They
submitted a breakdown of costs and translators’ invoices.
- The
Government questioned the reasonableness of and justification for the
amounts claimed under this heading.
- The
Court is satisfied that these rates are reasonable and reflect the
expenses actually and necessarily incurred by the applicants’
representatives.
- Having regard to the details of the claims submitted
by the applicants, the Court awards them the amount as claimed,
together with any value-added tax that may be chargeable to the
applicants, the net award to be paid into the representatives’
bank account in the UK, as identified by the applicants.
C. Default interest
- The
Court considers it appropriate that default interest should be based
on the marginal lending rate of the European Central Bank, to which
should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the Government’s
objection as to non exhaustion of criminal domestic remedies and
rejects it;
- Declares the complaints under Articles 2
and 13 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a substantive
violation of Article 2 of the Convention in respect of Aslambek
Israilov, Adam Israilov, Turpal Israilov and Aslanbek
Dzhabrailov;
- Holds that there has been a violation of Article
2 of the Convention in respect of the failure to conduct an effective
investigation into the circumstances in which Aslambek Israilov, Adam
Israilov, Turpal Israilov and Aslanbek Dzhabrailov were killed;
5. Holds
that there has been a violation of Article 13 of the Convention in
respect of the alleged violations of Article 2 of the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the date of settlement, save in the case of the
payment in respect of costs and expenses:
(i) EUR
60,000 (sixty thousand euros), plus any tax that may be chargeable to
the applicants, in respect of non-pecuniary damage to the first,
second, fourth and fifth applicants each;
(ii) EUR 2,212
(two thousand two hundred and twelve euros), plus any tax that may be
chargeable to the applicants, in respect of costs and expenses, to be
paid into the representatives’ bank account in the UK;
(b) that,
from the expiry of the above-mentioned three months until settlement,
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 25 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach, Nina
Vajić
Deputy Registrar President
