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FIRST
SECTION
CASE OF
ABDURASHIDOVA v. RUSSIA
(Application
no. 32968/05)
JUDGMENT
STRASBOURG
8 April 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 Abdurashidova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 18 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32968/05) 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 a Russian national, Ms Zulpa Abdurashidova
(“the applicant”), on 22 July 2005.
- The
applicant was represented before the Court by lawyers of
the International Protection Centre, an NGO registered in Moscow.
The Russian Government (“the Government”) were
represented by Mrs V. Milinchuk, the former
Representative of the Russian Federation at the European Court of
Human Rights, and subsequently by their new Representative,
Mr G. Matyushkin.
- On
22 April 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 also decided to examine the merits of the application
at the same time as its admissibility (Article 29 § 3 of the
Convention).
- 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
applicant was born in 1978. She lived in the village of Solnechnoye
in the Khasavyurt district of Dagestan, Russian Federation. Currently
she lives abroad after seeking asylum. The applicant is the mother of
Summaya (also spelled Sumaya) Abdurashidova, born in 1998.
A. The events of 14 March 2005
1. The applicant's account
- At
about 5.30 a.m. on 14 March 2005 approximately fifty men in two APCs
(armoured personnel carriers) and a white VAZ 2121 Niva car with the
registration plate 008 26 arrived at the applicant's house in
Solnechnoye.
- The
men were armed and equipped with portable radio sets. They neither
introduced themselves nor produced any documents. The applicant
thought that they were State servicemen. It appears that the
servicemen arrived to apprehend the applicant's husband and two men
who were staying in the house that night. The men broke into the
applicant's house and opened gunfire. The applicant's husband shouted
to the servicemen: “Do not shoot! There are children in the
house.” In spite of the warning the servicemen continued
shooting. They took the applicant's husband outside; the applicant's
three children remained in their rooms and the applicant was in the
corridor.
- During
the shooting the applicant's two sons Bilal (born in 1997) and Ilyas
(born in 2002) ran out from their bedrooms into the corridor. At some
point Bilal ran out of his sister's bedroom, screaming that Summaya
had been wounded and was bleeding. It appears that Summaya
Abdurashidova had been hit by a fragment of a rifle grenade.
- The
applicant tried to go into her daughter's room, but the servicemen
pushed her outside the house into the yard. When the applicant asked
them to let her go inside, the servicemen forbade her under gun
point. She was made to lie down on the ground with her hands behind
her head.
- When
the shooting was over, their neighbour Mr I.I. went into the house
and carried out the body of Summaya Abdurashidova.
- As
a result of the shooting the two men who were staying in the
applicant's house were killed, and the applicant's husband was taken
to the Department of the Interior of the Khasavyurt district (“the
Khasavyurt ROVD”).
- After
the shooting the applicant saw that her house, as well as her family
possessions in it, had been damaged by the gunfire. In addition, the
family's identity documents, including passports and birth
certificates, had been taken away by the servicemen.
- The
applicant submitted that after the shooting, the servicemen had taken
away two plastic bags with the applicant's family documents and
valuables, including the applicant's golden bracelet and two rings.
- The
applicant's description of the events of 14 March 2005 is based on
several undated accounts provided by her to her representatives and
on the letters which the applicant sent to the authorities. The
applicant also submitted articles published in the newspaper
“Druzhba” (Дружба)
on 8 April 2005 and on 15 April 2005 and an article published in
the newspaper “Niyso-Dagestan” (Нийсо-Дагестан)
on 14 April 2005.
2. Information submitted by the Government
- The
Government submitted, with reference to the documents from the
criminal investigation file (see below), that the two men who had
been at the applicant's house on the night of 14 March 2005 had been
suspected of the armed robbery of a woman and of an attack on a
serviceman of the traffic police, Mr M.M., who had later died. The
crimes had been committed by three persons on 31 December 2004, and
on 1 January 2005 the Khasavyurt district prosecutor's office (the
district prosecutor's office) opened a criminal investigation
into the incident. The investigation was assigned file number 5111.
It has been established that during the attack the criminals took
hold of M.M.'s police identity document and his PM service pistol
with a known serial number.
- The
police obtained information that two suspects, Mr S.Ya. and Mr R.Yu.,
had found refuge at the applicant's house and that they had stored
weapons and armaments there, including the PM pistol. On 14 March
2005 the investigator of the district prosecutor's office decided to
carry out an urgent search at the applicant's house with the aim of
finding the two suspects and the weapons. Since the suspects could
have been armed, the prosecutor had been assisted by servicemen of
the Khasavyurt ROVD and of the special police force of Dagestan.
- Upon
arrival at the applicant's house, police officers Mr P.A. and Mr S.O.
informed the applicant and her husband about the aim of their visit
and suggested that they evacuate the building for their own safety.
The applicant, her husband and their two sons Bilal and Ilyas came
out of the house. Then the applicant informed the policemen that her
daughter Summaya had remained in the house. Mr P.A. and Mr S.O.
returned to the house in order to take the child out, but Mr S.Ya.
and Mr R.Yu., who had taken refuge in the house, threw hand grenades
at them. Both policemen were injured. Their colleagues, in order to
cover them, opened gunfire and killed both suspects.
- After
the skirmish was over, the site was inspected by the investigator of
the district prosecutor's office and by forensic and medical experts,
in the presence of two attesting witnesses. They discovered the
bodies of Mr S.Ya. and Mr R.Yu. and of the applicant's daughter,
Summaya Abdurashidova. In the room where the two fugitives had been
hiding, they also found safety pins from hand grenades and a PM hand
pistol with the serial number corresponding to the one stolen from
M.M.
B. Reaction of the authorities to the events of 14 March 2005
1. The applicant's correspondence with the State authorities
concerning the death of Summaya Abdurashidova
- Shortly
after the shooting had ended, experts from the Khasavyurt ROVD took
pictures of Summaya Abdurashidova and wanted to
take her body to the morgue for an autopsy. The applicant and her
relatives refused to give their permission and wrote down an official
statement of refusal.
- From
the beginning of her correspondence with the authorities the
applicant was assisted by Mr B., head of the local human rights
organisation Romashka (Ромашка).
The applicant and Mr B. contacted various official bodies, including
the Russian President, the Dagestan Government, the Khasavyurt
district administration, the mass media and prosecutors' offices at
different levels, describing the circumstances of Summaya
Abdurashidova's killing and requesting
an investigation into the crime. The applicant retained copies of a
number of their letters and submitted them to the Court. The relevant
information is summarised below.
- On
16 March 2005 the applicant wrote to a number of the State
authorities, including the district prosecutor's office, the Dagestan
prosecutor's office and the Prosecutor General. She described the
events of 14 March 2005 and requested an investigation into the death
of her daughter and prosecution of the culprits. The applicant also
complained that her property had been unlawfully destroyed during the
special operation and requested compensation for the pecuniary and
non-pecuniary damage caused by the actions of the servicemen.
- In
March or April 2005 the applicant informed the Dagestan prosecutor's
office that servicemen of the Khasavyurt ROVD had participated in the
special operation on 14 March 2005.
- On
20 April 2005 the Dagestan prosecutor's office informed the applicant
that her complaint about unlawful actions of servicemen of the
Khasavyurt ROVD during her husband's apprehension had been forwarded
to the district prosecutor's office for examination.
- On
26 April 2005 the district State registry office (ЗАГС)
issued a statement confirming the death of Summaya Abdurashidova
on 14 March 2005.
- On
26 April 2005 the Solnechnoye village administration issued a death
certificate for Summaya Abdurashidova.
- On
28 April 2005 the applicant again wrote to the authorities, including
the district prosecutor's office, the Dagestan prosecutor's office
and the Prosecutor General. In her letter she pointed out that on 16
March 2005 she had already complained about her daughter's killing,
but the authorities had failed to initiate a criminal investigation
into the death. She requested explanations concerning the reasons for
the failure to initiate the investigation and to prosecute the
perpetrators.
- On
17 May and 30 June 2005 the Dagestan prosecutor's office informed the
applicant that her complaint about the death of Summaya
Abdurashidova had been forwarded to the
district prosecutor's office for examination.
- On
25 May 2005 the Khasavyurt District Court sentenced the applicant's
husband to three months' imprisonment for harbouring two criminals.
In its judgment the court stated, inter
alia, that his “minor daughter
Summaya had been killed in the course of a special operation aimed at
apprehending the criminals who had been hiding in the house”.
The applicant's husband accepted his guilt and did not appeal against
the sentence.
- It
appears that Mr B., who had assisted the applicant in the preparation
of her complaints to the domestic authorities, was arrested in
November 2005 on suspicion of illegal possession of weapons.
Following allegations of torture and ensuing public pressure, he was
released and acquitted. He left Russia in 2006 and sought asylum in
another country.
2. The destruction of the applicant's property
- On
15 March 2005 a commission of the administration of Solnechnoye,
including the head of the administration, the chief accountant and
the applicant's two neighbours, visited the applicant's house. They
examined the scene and drew up the following report on damage:
“During the special operation on 14 March 2005 the
house ... was practically destroyed; as a result of gunfire and
explosions the windows and doors were blown out, the roof was damaged
by shots, a powerful blast resulted in cracks in the walls and in the
ceiling; the furniture in the living room and in the kitchen, the
refrigerator and the TV set were rendered unusable.”
According
to the report, the applicant's house was uninhabitable and required
major repairs. The report further estimated the cost of repairs at
between 650,000 and 800,000 Russian roubles (RUB), without specifying
additional details.
3. Information submitted by the Government
- In
response to a specific request from the Court, the Government
submitted 26 pages of documents from the criminal investigation files
mentioned above. Although this was not marked on many documents, it
appears that the Government submitted copies of the decisions to open
the criminal proceedings in the cases assigned file numbers 5111,
51151 and 51153.
- The
Government submitted that on 14 March 2005 the district prosecutor's
office had opened criminal investigation no. 51151 into the
attack on the police officers and the unlawful purchase and storage
of arms and ammunition. The investigation was opened in view of the
wounding of two policemen, Mr P.A. and Mr S.O. The decision did not
mention the suspects' and the applicant's daughter's deaths. The
investigation obtained information that Mr S.Ya. and Mr R.Yu. had
been involved with illegal armed groups and had fought against the
authorities in Chechnya. Thus, on 14 March 2005, the district
prosecutor's office opened a new investigation file concerning
participation in illegal armed groups, which was assigned number
51153.
- On
14 March 2005 the investigator of the district prosecutor's office,
assisted by medical and forensic experts, in the presence of two
witnesses, examined the body of Summaya Abdurashidova. They noted two
large open wounds: one measuring 10 cm by 8 cm to the head and one
measuring 10 cm by 6 cm to the upper part of the torso. The
Government submitted a copy of the expert report. The experts also
took photographs; however, as follows from subsequent documents and
the Government's submissions, the photographs could not be developed
because the film was defective.
- On
21 March 2005 criminal investigation files nos. 51151 and 51153
were joined and assigned number 51151. The decision did not refer to
the death of the applicant's daughter or to the deaths of the
suspects.
- No
separate criminal investigation was opened into the applicant's
daughter's death. The Government submitted that in the course of the
investigation of file no. 51151 the authorities had established
that Summaya Abdurashidova had died of splinter wounds caused by
hand-grenade explosions. The police officers had not used grenades
and had only employed hand guns. The forensic reports on the bodies
of Mr S.Ya. and Mr R.Yu. concluded that they had died as a
result of bullet wounds. Seeing that no autopsy had been carried out
on the body of Summaya Abdurshidova owing to her relatives' refusal
to submit it for such an examination, the investigation relied on the
description of her body, which referred to splinter wounds. It
concluded that her death had resulted from the explosion of hand
grenades thrown by the suspected criminals.
- On
2 April 2005 the criminal proceedings against Mr S.Ya. and Mr R.Yu.
were terminated on account of their deaths. The investigation of
criminal case no. 5111 continued.
- On
26 April 2005 the district prosecutor's office took statements from
two investigators, medical and forensic experts who had examined the
child's body and two attesting witnesses. The Government submitted
copies of their testimonies, except for the medical expert's
statement and one witness's statement. The forensic expert explained
that he had taken photographs of the house, of two male bodies in the
courtyard and of the girl's body in the neighbouring house. Once the
film was developed, some photographs were spoiled because the film
was defective. Thus, no photographs of the girl's body came out.
- According
to the Government, the medical expert stated that he had examined the
girl's body in the neighbouring house and noted two large open wounds
to the head and upper part of the torso. These wounds could have been
caused by splinters from an explosive device. The body had then been
transferred to the relatives, who had refused to submit it for an
autopsy.
- The
investigator submitted that late at night on 14 March 2005 he had
been alerted that the suspects in the murder of Inspector M.M. were
hiding in the house of the imam of Solnechnoye. Early in the morning
he went to the scene, accompanied by servicemen of the Khasavyurt
ROVD and of the special police unit of Dagestan. They also invited
two witnesses residing in Khasavyurt, Timur E. and Murat. Once at the
house, the servicemen surrounded the house. After that the police
ordered everyone to leave the house. A woman, a man and two children
came out into the entry hall and the police led them outside the
house. The woman said that another child remained in the house. Two
servicemen of the special police unit entered the house and
immediately afterwards there came the sound of explosions. Several
policemen ran to the house and started to shoot in order to cover up
their colleagues. The persons taking refuge in the house fired back
and threw hand grenades, some of which exploded outside the house,
and some inside the house. As soon as the two policemen were led out
of the building, other servicemen shot at the doors and windows of
the house with machine guns and automatic rifles. When the shooting
from inside the house subsided, the policemen went in and brought out
two male bodies. They said that there was a child's body in the
house. A neighbour walked in and carried the body to the nearby
house. Then the body was examined by the officials from the
prosecutor's office, in the presence of two witnesses. They noted two
large open splinter wounds – one to the front of the head and
another near the shoulder blade. The investigator added that the
police had not used hand grenades; they had fired from machine guns
and automatic rifles. The investigator also answered a number of
questions concerning the missing property and identity documents and
the damage caused to the applicant's house. He stated that they had
collected and seized two yellow rings and the applicant's passport.
No other documents or valuables had been found or seized. As to the
state of the house, the investigator specified that the window
glazing, furniture and parts of the roof had been damaged. The walls
had not been damaged. Some parts of the house were in any event
unfinished and were not inhabitable. The state of the house could be
ascertained from the photographs taken immediately after the attack.
- Another
investigator, a member of the team working on M.M.'s murder, stated
that he had arrived at the applicant's house at about 9 a.m. on 14
March 2005. There he was instructed to examine the child's body,
together with the criminal and forensic experts. They noted two large
wounds, caused by splinters from an explosive device. The mother of
the child refused to submit the body for an autopsy and signed a
document to that effect. After the body was examined, the relatives
took it for burial. The criminal expert later informed the
investigator that the film had been defective and no photographs
could be developed.
- The
witness Marat G. stated that he and his friend Timur E. had been
doing their morning jogging when the police asked them to be
witnesses to a search in Solnechnoye. When the two men arrived at the
house, it was surrounded by police. They saw a man, a woman and two
children come out, accompanied by servicemen. The woman said that
another child remained in the house. Two police officers went in and
there followed several explosions. Then several more policemen ran to
the house and the witnesses were taken away to a safe distance, from
where they could not see the house. They could hear shots being fired
and explosions. Once the shooting was over, the witnesses were
invited by the investigator to be present during the search. In front
of the house there were two male bodies. Someone brought out a
child's body, which was taken to the neighbouring house. The
investigator found and seized two yellow rings and a woman's
passport. The investigator also noted and seized a number of safety
pins from hand grenades and empty cartridges, as well as a hand
pistol. The rooms were first inspected by a bomb expert and then by
the investigators and witnesses. The house was partially damaged, but
the load-bearing walls and the roof were intact. Some rooms were
unfinished. The Government submitted a copy of Marat G.'s testimony
and stated that Timur E. had made similar statements.
- In
their observations the Government extensively cited an undated
statement by Mr A.A., the head of the criminal investigation
department of the Khasavyurt ROVD, no copy of which has been
submitted. According to the Government, Mr A.A. stated that the
department had been tipped off about the location of the suspects in
M.M.'s murder. Early in the morning on 14 March 2005 he had arrived
at the applicant's house, accompanied by servicemen of the special
police force. The servicemen surrounded the house. One serviceman of
the special police force walked up to the house and knocked on the
door. He was let inside. About one minute later he came out of the
house, together with a man, a woman and two children. The woman said
that a third child remained in the house. She wanted to return to the
house, but was not allowed to. Two servicemen of the special police
force went to the house in order to retrieve the child. As soon as
they had gone in, there came the sounds of explosions. Several more
servicemen ran to the house to help their colleagues. They were shot
at from inside the house and more grenades were thrown. The two
wounded policemen were assisted in leaving the house, and the
servicemen shot at the windows and doors of the house. The policemen
were not equipped with grenades. When the shooting from inside the
house subsided, several policemen went into the house. They found the
bodies of two men and a girl. The male bodies were taken into the
courtyard. A local resident took out the child's body and took it to
the neighbouring house. Mr A.A. was told by his colleagues that the
body had two large splinter wounds. An expert in explosives examined
the house, following which an investigator conducted a search in the
presence of two witnesses. Mr A.A. also stated that he had seen the
seized pistol with the serial number corresponding to that taken from
M.M. and a number of empty cartridges. The investigators put them in
bags and sealed off the courtyard of the house.
- The
Government submitted a note dated 14 March 2005, in which Mrs Raisa
Ya. stated that the family had refused to submit the body of Summaya
Abdurashidova for an autopsy with the aim of establishing the cause
of her death. The note stated that the family knew the cause of the
child's death and that they wanted to proceed with the burial in
accordance with religious rites.
- The
Government submitted an undated note signed by the applicant to the
effect that she had received from the investigator of the district
prosecutor's office two golden rings and her passport, which had been
seized at her house on 14 March 2005.
- The
Government also submitted a number of letters sent by the district
prosecutor's office to the applicant. On 4 April 2005 the
investigator informed the applicant that the investigation had
established that her daughter had died as a result of grenade
explosions caused by S.Ya. and R.Yu. The criminal proceedings against
the two men had been terminated on account of their deaths. Two rings
had been returned to the applicant. She could seek compensation for
other damage through the Khasavyurt District Court. The decisions of
the investigators could be appealed against to a higher-ranking
prosecutor or to a court.
- From
the documents submitted it does not appear that the investigators
attempted to take statements from the applicant, her husband or their
neighbours.
- The
Government stated that the investigation of criminal case file
no. 5111 was in progress and that disclosure of other documents
would be in violation of Article 161 of the Code of Criminal
Procedure, since the files contained information of a military nature
and personal data concerning the witnesses or other participants in
the criminal proceedings.
C. Court proceedings brought by the applicant
- On
14 June 2005 the applicant complained to the Khasavyurt District
Court of Dagestan (“the district court”) about the
destruction of her property during the special operation conducted on
14 March 2005 and the failure of the authorities to initiate criminal
proceedings into the death of Summaya
Abdurashidova. She sought a ruling
obliging the district prosecutor's office to initiate an
investigation into the crime and to prosecute the perpetrators.
- On
2 August 2005 the district court refused to examine her complaint. It
stated that the applicant was entitled to appeal against actions of
the district prosecutor's office only within the course of an ongoing
criminal investigation or that she could appeal against the
authorities' refusal to initiate criminal proceedings. The court
pointed out that she had failed to submit any evidence of an ongoing
criminal investigation or of the authorities' refusal to initiate
criminal proceedings.
- The
applicant did not appeal against that decision.
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
applicant alleged that the authorities had breached both their
negative and positive obligations under Article 2 in respect of her
daughter. She also complained that no proper investigation had taken
place. 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 for non-exhaustion of domestic remedies. They argued
that the applicant had not used the normal recourse provided for by
the domestic legislation. She had failed to appeal to a prosecutor's
office or to a court against the decision to terminate the criminal
proceedings against S.Ya. and R.Yu. In August 2005 her complaint to
the district court had been left unexamined since she had failed to
refer to the contested decision. They further argued that it had been
open to the applicant to pursue civil proceedings.
- The
applicant contested that objection. She stated that the criminal
investigation had proved to be ineffective and that her complaints to
that end, including an application to the district court, had been
futile. The applicant stressed that she had not been accorded any
procedural status in the investigation allegedly relating to her
daughter's death. The district prosecutor's office had not informed
her of any procedural decisions and the district court had found the
information contained in the letter of 4 April 2005 insufficient to
review her complaint in substance. With reference to the Court's
practice, she argued that she was not obliged to apply to civil
courts in order to exhaust domestic remedies. Finally, she referred
to the threats to herself and the alleged persecution of her lawyer
B., as a result of which they had both left Russia and sought asylum
abroad.
2. The Court's assessment
- 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 alleged illegal acts or 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 v. Russia, no. 60272/00, § 77, 12 October 2006).
In the light of the above, the Court confirms that the applicant was
not obliged to pursue civil remedies. The Government's objection in
this regard is thus dismissed.
- As
regards criminal-law remedies, the Court observes that under Russian
law, parties to proceedings may challenge the progress of the
criminal investigation before a supervising prosecutor or a judge. It
is undisputed that the authorities were immediately aware of the
applicant's daughter's death and took some steps to investigate it.
However, the applicant and members of her family were excluded from
these proceedings. Contrary to the usual practice under national law,
the deceased's family members were not granted the official status of
victims in the criminal proceedings, a procedural role which would
have entitled them to intervene during the course of the
investigation. In March and April 2005 the applicant submitted a
number of complaints to various authorities, including the
prosecutor's office, but this did not prompt the investigators to
correct the situation and to accord a procedural status to the
applicant. The Government's memorandum does not contain any
explanation of this omission. Thus, it is unclear how the applicant
could have made use of these provisions.
- Proof
of the ineffectiveness of the domestic legal mechanisms in the
present case is provided by the fact that on 2 August 2005 the
district court refused to consider on the merits the applicant's
complaint about the investigation, referring, in essence, to the
absence of any procedural decisions taken upon her complaint. The
Court is thus not persuaded that any further appeals by the applicant
would have made any difference. The applicant must therefore be
regarded as having complied with the requirement to exhaust the
relevant criminal-law remedies.
- Accordingly,
the Court dismisses the Government's preliminary objection in respect
of the complaints under Article 2.
- 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.
B. Merits
1. The parties' submissions
- The
applicant maintained that her daughter had been killed by the agents
of the State who had carried out a security operation at her home.
She referred to her own statements describing the operation. She
insisted that the armed police officers had stormed her house without
a warning and fired shots in the rooms, as a result of which her
daughter had been killed. The documents from the domestic
investigation were inconclusive and did not rule out her version of
the events. She further maintained that the positive obligation to
protect the right to life had been violated, since the special
operation had been planned and executed without proper consideration
for the safety of the inhabitants of the house. Finally, the
applicant insisted that no proper investigation into the death had
taken place, since the only proceedings instituted by the district
prosecutor's office had been aimed at solving the crimes allegedly
committed by S.Ya. and R.Yu.
- The
Government denied all those allegations. Citing the documents of the
domestic investigation, they argued that the death of Summaya
Abdurashidova had been caused by splinters from explosive devices
used by the two criminal suspects. The applicant and her family had
refused to submit the girl's body for an autopsy which could have
provided conclusive results as to the cause of death. As to their
positive obligation, the Government emphasised that the applicant's
husband had knowingly harboured two armed criminal suspects in his
family home. He had later been found guilty of this crime. Two police
officers had been wounded when they had tried to enter the house and
take the girl out. The State servicemen had thus done everything
possible to prevent any harm to the applicant and her family. Faced
with violent resistance from the two men and in order to save the
lives of the two officers who had entered the house, the police had
been forced to open fire, as a result of which both suspects had been
killed. As to the investigation, the Government contended that it had
been in line with domestic law and the Convention requirements.
2. The Court's assessment
(a) As to the responsibility of the respondent State
for the death of Summaya Abdurashidova in the light of the
substantive aspect of Article 2 of the Convention
- It
was not disputed by the parties that the applicant's daughter had
been killed during a security operation aimed at the apprehension of
two armed criminal suspects at the applicant's house. It was further
recognised that both the police and the two suspects had employed
lethal force; as a result of the operation, both suspects were killed
and two police officers were wounded. The question to decide in the
present case is whether the State authorities were directly
responsible for the death of the applicant's daughter, as the
applicant alleged.
- The
Court reiterates that Article 2, which safeguards the right to life
and sets out the circumstances in which deprivation of life may be
justified, ranks as one of the most fundamental provisions in the
Convention, from which no derogation is permitted. In its extensive
jurisprudence the Court has developed a number of general principles
relating to the scope of the obligations under this provision, as
well as to the establishment of facts in dispute, when confronted
with allegations under Article 2 (for a summary of these, see
Bazorkina v. Russia, no. 69481/01, §§ 103-109,
27 July 2006, and Akpınar and Altun v. Turkey, no.
56760/00, §§ 47-52, ECHR 2007 III). 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 reiterates that the evidentiary standard of proof required for
the purposes of the Convention is proof “beyond reasonable
doubt”, and that such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. The Court has also noted the
difficulties for applicants to obtain the necessary evidence in
support of allegations in cases where the respondent Government are
in possession of the relevant documentation and fail to submit it.
Where the applicant makes out a prima facie case and the Court
is prevented from reaching factual conclusions owing to the lack of
such documents, it is for the Government to argue conclusively why
the documents in question cannot serve to corroborate the allegations
made by the applicants, or to provide a satisfactory and convincing
explanation of how the events in question occurred. The burden of
proof is thus shifted to the Government and if they fail in their
arguments, issues will arise under Article 2 and/or Article 3 (see
Toğcu v. Turkey, no. 27601/95, § 95, 31 May
2005, and Akkum and Others v. Turkey, no. 21894/93, § 211,
ECHR 2005-II).
- The
Court notes that despite its requests for the entire investigation
file concerning the death of the applicant's daughter, the Government
produced only part of the documents. The Government referred to
Article 161 of the Code of Criminal Procedure. In previous cases
the Court has already found this explanation insufficient to justify
the withholding of key information requested by it (see Imakayeva
v. Russia, no. 7615/02, § 123, ECHR 2006 XIII).
- The
Court notes, however, that the investigation in the present case
focused primarily on the actions of the two criminal suspects. From
the outset of the proceedings the authorities considered that the
girl's death had resulted from the explosions caused by the two men
while they had resisted the police. It does not appear that any
elements in the investigation conducted by the district prosecutor's
office contained information which could have warranted different
conclusions. Therefore, the main problem in the present case is not
the Government's failure to disclose certain documents, but rather
the quality of the investigation itself, which will be addressed
below.
- The
Court notes that the applicant's allegation that the State servicemen
were responsible for the death of Summaya Abdurashidova is based
exclusively on her own statement. No other statements or evidence to
support this assertion have been provided by the applicant to the
Court or to the domestic investigation.
- The
description of the body drawn up on 14 March 2005 by a forensic
expert and the statements collected on 26 April 2005 from two
investigators, one attesting witness and the criminal expert who had
examined the body indicated that the death had been caused by
splinters from an explosive device (see paragraphs 33, 37 and 39-41
above). These documents and statements appear coherent and the Court
does not discern any reasons to question their credibility. The
investigation found that the two criminal suspects had used hand
grenades against the police officers; safety pins from grenades were
found in the house. The police had used firearms and the two
suspects' deaths had been caused by bullet wounds (see paragraph 39
above). There is no mention in any of the descriptions of the events
that the security forces used explosive devices against the two
suspects. The applicant did not allege this either. Thus, the
domestic investigation concluded that the child's death had resulted
from the actions of the two criminal suspects who had been killed
during the operation. Although many aspects of the domestic
investigation are open to criticism (see below), the Court cannot
find its conclusions to be so faulty as to reject them altogether as
“defying logic” or improbable (contrast Beker
v. Turkey, no. 27866/03,
§§ 51-52, 24 March 2009).
- The
Court further notes that pursuant to the decision taken by the
applicant and her family, no autopsy of the body was conducted. In
the note signed by the applicant's sister-in-law on 14 March 2005 the
decision not to conduct an autopsy was justified by the fact that
there was no need to establish the cause of death since the family
was aware of it (see paragraph 43 above); therefore, it appears
that the family accepted the forensic expert's conclusion that the
death had resulted from splinter wounds. While fully appreciating
that this choice was made under the influence of a shock following
tragic and traumatic events, the Court notes that it resulted in the
absence of a document which could have provided a complete and
accurate record of injuries and an objective analysis of clinical
findings, including the cause of death (see Salman v. Turkey [GC],
no. 21986/93, §106, ECHR 2000-VII).
- In
such circumstances the Court finds that it has not been established
to the required standard of proof “beyond reasonable doubt”
that the security forces were directly responsible for the death of
Summaya Abdurashidova.
- Accordingly,
the Court finds no direct State responsibility, and thus no violation
of Article 2 of the Convention in this respect.
(b) The alleged failure to safeguard the
right to life of Summaya Abdurashidova
- The Court has not found it established that State
agents were responsible for the death of the applicant's daughter.
However, this does not necessarily preclude the responsibility of the
Government under Article 2 of the Convention (see Osmanoğlu
v. Turkey, no. 48804/99, § 71, 24 January 2008). According
to the established case-law of the Court, the first sentence of
Article 2 § 1 enjoins the State not only to refrain from the
intentional and unlawful 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 of Judgments and Decisions 1998-III). The State's
obligation in this respect extends beyond its primary duty to secure
the right to life by putting in place effective criminal-law
provisions to deter the commission of offences against the person,
backed up by law-enforcement machinery for the prevention,
suppression and punishment of breaches of such provisions. Article 2
of the Convention may also imply a positive obligation on the
authorities to take preventive operational measures to protect an
individual whose life is at risk from the criminal acts of another
individual (see Osman v. the United Kingdom,
28 October 1998, § 115, Reports 1998-VIII).
- In
this connection the Court reiterates that, in the light of the
difficulties in policing modern societies, the unpredictability of
human conduct and the operational choices which must be made in terms
of priorities and resources, the scope of the positive obligation
must be interpreted in a way which does not impose an impossible or
disproportionate burden on the authorities. Not every claimed risk to
life, therefore, can entail for the authorities a Convention
requirement to take operational measures to prevent that risk from
materialising. For a positive obligation to arise, it must be
established that the authorities knew or ought to have known at the
time of the existence of a real and immediate risk to the life of an
identified individual or individuals from the criminal acts of a
third party and that they failed to take measures within the scope of
their powers which, judged reasonably, might have been expected to
avoid that risk (see Osman, cited above, § 116).
- In
the light of the foregoing, the Court will have to determine whether
the way in which the police operation was conducted showed that the
police officers had taken appropriate care to ensure that any risk to
the life of the applicant's daughter was kept to a minimum. In
carrying out its assessment of the planning and control phase of the
operation from the standpoint of Article 2 of the Convention, the
Court must have particular regard to the context in which the
incident occurred as well as to the way in which the situation
developed (see Andronicou and Constantinou v. Cyprus, 9
October 1997, § 182, Reports 1997 VI).
- Turning
to the circumstances of the present case, the Court notes that its
ability to evaluate the operation has been seriously hampered by the
absence of any meaningful investigation into the police's conduct.
Nevertheless, the Court will assess the organisation of the operation
on the basis of the material available to it, in particular by
relying on the relevant evidence submitted by the Government, which
is not disputed by the applicant.
- First
of all, the Court notes that the operation was not spontaneous and
the police had time to gather and bring to the applicant's house a
significant number of well-equipped and trained servicemen. They
arrived in the early hours of the morning and surrounded the house,
without encountering any difficulties or resistance from the
suspected criminals (see paragraphs 39 and 42 above). The
prosecutor's office and the police conducting the operation were
aware of the danger posed by the two criminal suspects, as is
demonstrated by the impressive scope of the security arrangements.
They also had sufficient time and personnel for the adequate planning
and execution of the search and apprehension, while bearing in mind
the need to ensure the safety of the inhabitants of the house,
including three small children. However, there is nothing in the
documents reviewed by the Court to suggest that any serious
consideration was devoted to this issue at the planning stage of the
operation.
- It
further appears that once the operation had commenced, the police
took steps to remove the applicant's family from the house. According
to the Government, as the head of the criminal investigations
department of the district police office stated, one member of the
special police force was allowed into the house and was able to walk
away unharmed with the applicant, her husband and their two children
(see paragraph 42 above). Nevertheless, it remains entirely unclear
why at that moment it was impossible to evacuate the applicant's
daughter. In the absence of any explanations from the authorities,
this has to be seen as a major failure of the operation, which
subjected the child to an impermissibly high risk of injury or death.
- The
police officers should have been aware of the extreme vulnerability
of a six-year-old girl, who would undoubtedly have been frightened
and disoriented by the events. Once it became apparent that she had
been left behind, ensuring her safety should have been the primary
concern for the law-enforcement personnel. However, from the
documents submitted by the Government, it does not appear that any
precautions were taken with a view to safeguard the child's life.
Instead, it appears that an exchange of fire was provoked by the
sending of two officers of the special police force to enter the
house by the main door. This led to the wounding of the two officers
and the deaths of both suspects and Summaya Abdurashidova. While
bearing in mind the limitations on the scope of its review as
mentioned above, the Court finds that such conduct by the police
could hardly be found to be compatible with the requirement to
minimise the risk to life of persons in need of protection.
- Finally,
the Court is surprised by the lack of diligence displayed in the
immediate aftermath of the skirmish. Thus, it is impossible to
understand why a local resident was allowed on to the site before the
investigators and emergency services. The Court will discuss the
deficiencies of the investigation below; however, the control over
security arrangements whereby a civilian was able to penetrate the
police lines can be best described as seriously flawed.
- In
the light of the foregoing, and in so far as conclusions may be drawn
from the material before it, the Court finds that the actions of the
authorities in respect of the planning, control and execution of the
operation were not sufficient to safeguard the life of Summaya
Abdurashidova. The authorities failed to take the reasonable measures
available to them in order to prevent a real and immediate risk to
the life of the applicant's daughter.
- There
has accordingly been a violation of the positive obligations arising
under Article 2.
(c) The alleged inadequacy of the
investigation of the kidnapping
- 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 investigation took some steps to establish the
circumstances of Summaya Abdurashidova's death. The investigator and
forensic and criminal experts drew up a description of the body and
took photographs of it. Their statements were collected in April
2005. These measures were taken in the course of the proceedings
conducted by the district prosecutor's office against the two men
suspected of the murder of a police inspector and involvement in
illegal armed groups.
- However,
no separate inquiry was initiated for the purpose of ascertaining the
details of the applicant's daughter's death. Consequently, other
important investigative steps have not been taken, such as
questioning the other witnesses and ordering additional expert
reports.
- The Court is appalled by the fact that as a result of
this failure the applicant was never accorded any procedural status,
and was thus entirely excluded from the investigation concerning her
daughter's death. The investigators in the present case blatantly
ignored the requirements to safeguard the interests of the next of
kin in the proceedings and to allow public scrutiny. What is even
more disturbing is that this situation was not corrected when the
applicant attempted to bring this failure to the attention of the
district court, whose role in principle should be to act as a
safeguard against the arbitrary exercise of powers by the
investigating authorities (see, mutatis mutandis, Trubnikov
v. Russia (dec.), no. 49790/99, 14 October
2003).
- These
factors resulted in the investigation's failure to examine all the
circumstances of the girl's death, including the aspects of the
police operation, as the positive obligations under Article 2
require.
- 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 death of Summaya Abdurashidova, in
breach of Article 2 in its procedural aspect.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant relied on Article 3 of the Convention, submitting that as a
result of her daughter's death and the State's failure to investigate
it properly, she had endured mental suffering in breach of Article 3
of the Convention. Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
- The
Government disagreed with these allegations and argued that it had
not been established that the applicant's daughter's death had been
caused by State agents. They also denied that there had been any
deficiencies in the investigation.
- The
applicant maintained her submissions.
B. The Court's assessment
- The Court would refer to its practice by which the
application of Article 3 is usually not extended to the relatives of
persons who have been killed by the authorities in violation of
Article 2 (see Yasin Ateş v. Turkey, no. 30949/96, § 135,
31 May 2005) or to cases of unjustified use of lethal force by State
agents (see Isayeva and Others v. Russia, nos. 57947/00,
57948/00 and 57949/00, § 229, 24 February 2005), as opposed
to the relatives of the victims of enforced disappearances. In such
cases the Court would normally limit its findings to Article 2. In
the present case the Court did not find that the applicant's daughter
had been killed by State agents and considers that the grievances
expressed by the applicant are covered by its above findings under
the substantive and procedural headings of Article 2.
- It
therefore concludes that, even if this complaint were to be declared
admissible, there is no need to examine it separately.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- The
applicant further stated that her house and property had been damaged
during the security operation on 14 March 2005. She invoked Article 1
of Protocol No. 1, which reads, in so far as relevant:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law. ...”
A. The parties' submissions
- First,
the Government stressed that the applicant had failed to seek damages
from the State or from third parties through civil proceedings, and
therefore had failed to exhaust domestic remedies. The Government
then contended that the damage to the house had been partly caused by
the explosions of hand grenades employed by the two criminal suspects
and that the State could therefore not be held responsible for it.
They further argued that the documents obtained during the
investigation demonstrated that some parts of the house had been
unfinished and uninhabitable and that the load-bearing walls and roof
had not suffered any significant damage. Furthermore, the valuables
collected by the investigator during the search on 14 March 2005 had
been returned to the applicant after she had signed for them. No
other valuables or documents had been collected.
- The
applicant reiterated the complaint.
B. The Court's assessment
1. Admissibility
- The
Government argued that the applicant had failed to exhaust domestic
remedies. As regards criminal-law remedies, the Court observes that
the applicant alleged that the damage had been caused to her property
during the security operation of 14 March 2005. The applicant raised
the question of the damage to her property in her formal complaints
to the authorities (paragraph 21). However, for the same reasons as
noted above in respect of her complaint under Article 2, not only was
no investigation conducted into this allegation, but the applicant
was not accorded any procedural status. This deprived her of any
possibility of participating in the proceedings or even of appealing
effectively against their outcome. The Court refers to its
conclusions in paragraph 58 above, and finds that the applicant
exhausted domestic remedies in this respect.
- Furthermore, in the absence of any domestic findings
concerning the responsibility for the damage caused to the
applicant's property, the Court is not persuaded that the court
remedy referred to by the Government was accessible to the applicant
and would have had any prospects of success (see Betayev and
Betayeva v. Russia, no. 37315/03, § 112, 29 May 2008). The
Government's objection concerning non-exhaustion of domestic remedies
must therefore be dismissed.
- 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 the complaint is not inadmissible on any other grounds and
must therefore be declared admissible.
2. Merits
- The
Court notes that the Government did not deny that the applicant's
property had been damaged during the security operation on 14 March
2005. They disagreed about the extent to which the State authorities
had been responsible for the losses and the amount of damage caused.
- The Court observes that the applicant brought her
complaint about the property to the attention of both the
prosecutor's service and the district court. She also took steps to
record her losses with the assistance of the local administration
(paragraph 30 above). Unfortunately, as noted above, no steps were
taken to verify these complaints and to establish the exact
circumstances of the events. The Government did not disclose any
documents from the domestic investigation which could shed light on
the events either; and the witnesses' statements simply confirmed
that the house and household items had been damaged. It also follows
from these statements that the damage had been at least partly caused
by the State agents who had stormed the house. Accordingly, the Court
finds that there was an interference with the applicant's right to
the protection of her property.
- In the absence of any arguments from the Government
as to the lawfulness and proportionality of this interference, the
Court finds that there has been a violation of the applicant's right
to protection of property guaranteed by Article 1 of Protocol No. 1
to the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that she had been deprived of effective remedies
in respect of the aforementioned violations, 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 applicant had had effective remedies at
her disposal as required by Article 13 of the Convention and that the
authorities had not prevented her from using them. The applicant had
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 and had availed herself of it. They added
that participants in criminal proceedings could also claim damages in
civil proceedings. In sum, the Government submitted that there had
been no violation of Article 13.
- The
applicant 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 the circumstances of a violent death 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, and Medova v. Russia,
no. 25385/04, § 130, ECHR
2009 ...(extracts)).
- As
to the applicants' complaint under Article 13 in conjunction with
Article 1 of Protocol No. 1, the Court considers that in a situation
where the authorities denied involvement in the alleged damage to the
applicant's belongings and where the domestic investigation
completely failed to examine the matter, the applicant did not have
any effective domestic remedies in respect of the alleged violations
of her property rights. Accordingly, there has been a violation on
that account (see Karimov and Others v. Russia, no.
29851/05, § 150, 16 July 2009).
- Consequently,
there has been a violation of Article 13 in conjunction with Article
2 of the Convention and Article 1 of Protocol No. 1.
V. 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. Pecuniary damage
- Referring
to the note of 15 March 2005 about the damage to the house (see
paragraph 30 above), the applicant claimed 800,000 Russian roubles
(RUB – 18,800 euros (EUR)) under
this heading.
- The
Government disputed that the State bore responsibility for the damage
caused and regarded these claims as unfounded.
- The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicant and the violation of the
Convention. Furthermore, under Rule 60 of the Rules of Court, any
claim for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”.
- The
Court notes that the applicant submitted one report drawn up on 15
March 2005, confirming that her house and household items had
suffered significant damage. However, in the absence of a more
detailed breakdown of costs and of any other additional evidence
concerning the value of the lost and damaged items, the Court is
sceptical about accepting it as final evidence of the amount claimed.
The Court nevertheless agrees that the applicant must have borne some
costs in relation to the lost property, and that there is a clear
causal connection between these and the violation of Article 1 of
Protocol No. 1 found above, since the damage was at least partly
caused by State agents.
- In
the light of the above considerations, the Court finds it appropriate
to awards an amount of EUR 8,000 to the applicant as compensation for
the pecuniary losses sustained, plus any tax that may be chargeable
on that amount.
B. Non-pecuniary damage
- The
applicant claimed EUR 300,000 in respect of non-pecuniary damage
for the suffering she had endured as a result of the loss of her
daughter and the failure to investigate it properly.
- The
Government found the amount claimed exaggerated.
- The
Court has found a violation of the positive obligation to protect the
right to life of the applicant's daughter and a violation of the
right to the peaceful enjoyment of property under Articles 2 and 13
of the Convention and Article 1 of Protocol No. 1. The Court accepts
that the applicant has suffered non-pecuniary damage which cannot be
compensated for solely by the findings of violations. It awards her
EUR 60,000, plus any tax that may be chargeable on that amount.
C. Costs and expenses
- The
applicant was represented by two lawyers from the International
Protection Centre. They submitted a breakdown of costs borne by them,
which included fifty-six hours of research and drafting legal
documents at a rate of EUR 60 per hour and EUR 120 of
postal and stationary expenses. The aggregate claim in respect of
costs and expenses related to legal representation amounted to
EUR 3,480.
- The
Government did not dispute the reasonableness of and justification
for the amounts claimed under this heading.
- The
Court has to establish first whether the costs and expenses indicated
by the applicant's representatives were actually incurred and,
second, whether they were necessary (see McCann and Others v. the
United Kingdom, 27 September 1995, § 220, Series A no. 324).
- Having
regard to the information submitted by the applicant, the Court is
satisfied that these rates are reasonable and reflect the expenses
actually incurred by the applicant's representatives.
- As
to whether the costs and expenses incurred for legal representation
were necessary, the Court notes that this case was relatively complex
and required a certain amount of research and preparation.
- Having
regard to the details of the claims submitted by the applicant, the
Court awards her the amount of EUR 3,480 as claimed, together
with any value-added tax that may be chargeable to her.
D. Default interest
- The
Court considers it appropriate that the 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
- Dismisses the Government's objections as to
non-exhaustion of domestic remedies in respect of the complaints
under Article 2 of the Convention and Article 1 of Protocol No. 1;
- Declares the complaints under Articles 2, 3 and
13 of the Convention and Article 1 of Protocol No. 1 admissible;
- Holds that there has been no substantive
violation of Article 2 of the Convention in respect of Summaya
Abdurashidova;
- Holds that there has been a violation of
Article 2 of the Convention on account of the State's failure to
comply with its positive obligation to protect the life of Summaya
Abdurashidova;
- Holds that there has been a violation of
Article 2 of the Convention on account of the failure to conduct
an effective investigation into the circumstances in which Summaya
Abdurashidova died;
- Holds that no
separate issues arise under Article 3 of the
Convention;
- Holds
that there has been a violation of Article 1 of Protocol No. 1
to the Convention;
8. 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
and of Article 1 of Protocol No. 1;
- 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:
(i) EUR 8,000
(eight thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage to the applicant;
(ii) EUR 60,000
(sixty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the applicant;
(iii) EUR 3,480
(three thousand four hundred and eighty euros), plus any tax that may
be chargeable to the applicant, in respect of costs and expenses, to
be converted into Russian roubles at the date of settlement;
(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;
- Dismisses the remainder of the applicant's
claim for just satisfaction.
Done in English, and notified in writing on 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
