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FIRST
SECTION
CASE OF
AKHMADOVA v. RUSSIA
(Application
no. 25548/07)
JUDGMENT
STRASBOURG
3
April 2012
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 Akhmadova v.
Russia,
The
European Court of Human Rights (First Section),
sitting as a Chamber composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre
Sicilianos,
Erik
Møse,
judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 13 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25548/07)
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 Yakha
Akhmadova (“the applicant”), on 28 May 2007.
- The
applicant was represented
by Mr D.A. Boyev, a lawyer practising in Talnakh.
The Russian Government (“the Government”) were
represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- Relying
on Articles 2 and 13 of the Convention, the applicant
alleged, in particular, that her
son had been killed by State servicemen, and that the
authorities had failed to carry out an effective investigation into
the matter.
- On
27 August 2009 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. Under the
provisions of the former Article 29 § 3 of the Convention, it
decided to examine the merits of the application
at the same time as its admissibility.
- 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 1953. She
lives in Grozny, Chechnya. She is the
mother of Khozh Akhmed Akhmadov.
A. Killing of Khozh-Akhmed Akhmadov
1. The applicant’s account
(a) Killing of Khozh-Akhmed Akhmadov
- At
the material time Khozh Akhmed Akhmadov was a police officer in
the PPMS battalion (the police patrolling unit) of the Chechnya
Ministry of the Interior (the Chechnya MVD).
- At
about 11.30 p.m. on 19 November 2004 sergeant Khozh Akhmed
Akhmadov and his colleague, private M.K., were driving in their car
in the Leninskiy district of Grozny. Next to “Musa Motors”
car service station they were stopped by a group of thirty armed men
in camouflage uniforms, who drove around in ten to fifteen silver
cars without registration numbers.
- The
men introduced themselves as police officers of the OMON (special
task unit) of the Chechnya MVD and explained that they were
conducting a special operation to arrest a criminal. It is unclear
what subsequently happened during the encounter. The armed men opened
gunfire, took away the service guns of the two PPMS officers and the
service identity card of Khozh Akhmed Akhmadov. The applicant’s
son received several gunshot wounds in the torso and perforating
wounds on both feet and the upper part of his left leg. He was taken
to Grozny town hospital no. 9.
- On
21 November 2004 Khozh Akhmed Akhmadov died in the hospital.
(b) Subsequent events
- On
22 November 2004 the chief of the headquarters of the PPMS battalion
at the Chechnya MVD, officer S.R., the deputy head of the battalion,
Mr L. A.B., and the head of the battalion’s human
resources department, Mr S.D., attended Khozh-Akhmed Akhmadov’s
funeral.
- According
to the applicant, they told her that the persons who had killed her
son had been identified; and that the perpetrators of the killing had
spoken to the heads of the battalion and returned the service guns
and the service identity card which they had taken away during the
incident. The perpetrators had explained that they were from the
local ‘Oil battalion’ (нефте-полк),
under the command of Mr A.M., and that they had killed
Khozh Akhmed Akhmadov by mistake.
- According
to the applicant, officers S.R., L. A.B. and S.D. assured her
that the perpetrators of her son’s killing would be duly
prosecuted.
- In
support of her statements the applicant submitted copies of the
documents she had received from the authorities.
2. Information submitted by the Government
- The
Government did not challenge the facts as presented by the applicant.
However, they stated that the perpetrators of the applicant’s
son’s killing had not belonged to any military or
law enforcement agency, and that he had been a victim of
unidentified criminals.
B. The official investigation into the killing
1. The applicant’s account
- On
26 November 2004 the Leninskiy District Prosecutor’s Office of
Grozny instituted an investigation into the killing of Khozh Akhmed
Akhmadov under Article 105 § 1 of the Criminal Code
(murder). The case file was given the number 30139. The decision
stated, inter alia, the following:
“...At about 10.30 p.m. on 19 November 2004 two
officers of Regiment PPSM 1, Mr M.K. and Mr Khozh-Akhmed
Akhmadov were driving in their VAZ-21099 car in Zhukovskogo Street,
in the Leninskiy district of Grozny. Next to the service station
“Musa Motors” they were stopped by unidentified masked
men in camouflage uniforms, who asked the officers about their
identities...[the masked men] shot Kh.-A. Akhmadov with automatic
firearms ...
... [a group] of police officers who were patrolling the
area at the time, stated during their questioning [by the
investigators], that the unidentified men who had shot Kh.-A.
Akhmadov had introduced themselves [to them] as servicemen from the
OMON of the Chechnya MVD and had explained [to them] that they were
conducting a special operation in order to arrest a criminal... these
men ...had driven around in ten to fifteen VAZ-2121 (Niva) and
VAZ-21099 cars...”
- On
21 December 2004 an inspecting officer from the criminal
investigation division of the Chechnya MVD issued a summary of the
official internal inquiry into the circumstances of Khozh Akhmed
Akhmadov’s death. The document stated, inter alia, the
following:
“... at about 10.50 p.m. on 19 November 2004 in
Zhukovskogo Street in Grozny, next to “Musa Motors”
service station a group of thirty unidentified persons in camouflage
uniforms who were armed with automatic firearms and drove around in
ten to fifteen silver “Niva” and VAZ-21099 cars without
registration numbers, stopped a silver VAZ-21099 car... with police
sergeant Khozh-Akhmed Akhmadov and private M.K inside. These men
introduced themselves as officers from the OMON of the Chechnya MVD,
and took from Mr M.K. his service gun PM no. 4012, and from
Kh.-A. Akhmadov his service gun PM no. 4101. Kh. A. Akhmadov
tried to run away, but the men opened gunfire. As a result
Kh. A. Akhmadov was wounded; he died from his gunshot
wounds on 21 November 2004 in Grozny town hospital no. 9.
...in the course of this inquiry private M.K. stated
that ... he and Kh. A. Akhmadov... had been stopped by a
group of thirty unidentified men in camouflage uniforms armed with
automatic firearms. M.K. had come out of his car and introduced
himself as an officer from the PPSM regiment of the Chechnya MVD.
These men had attacked him and started beating him... had managed to
take away his service gun....gunshots had been fired ...he had run up
to Kh. A. Akhmadov, who had received gunshot wounds and was
on the ground. These persons had taken away Kh.-A. Akhmadov’s
service gun and had quickly driven away. M.K. had taken wounded
Kh.-A. Akhmadov to Grozny town hospital no. 9. Sometime later he
had reported the events to the duty station of the PPSM regiment of
the Chechnya MVD...
... as a result of operational measures taken by the
heads of the PPSM battalion of the Chechnya MVD, service guns PM VO
4101 03 and PM 4012 03, which had been taken away [during the
incident] were returned to the battalion. ”
- On
26 February 2005 the District Prosecutor’s Office decided to
suspend the criminal investigation for failure to establish the
identities of the perpetrators.
- On
2 February 2006 the District Prosecutor’s Office decided to
resume the investigation and informed the applicant accordingly.
- On
16 March 2006 the Chechnya MVD informed the applicant that they had
examined her complaint about her son’s murder.
- On
29 June 2006 the Chechnya Prosecutor’s Office informed the
applicant, inter alia, that on 15 June 2006 they had overruled
the decision to suspend the investigation, and that the investigators
had been instructed to take certain investigating steps.
- On
22 July 2006 the District Prosecutor’s Office decided to
suspend the criminal investigation for failure to establish the
identities of the perpetrators and informed the applicant
accordingly.
- At
the beginning of 2007 the applicant complained to the Russian
Prosecutor General about the alleged ineffectiveness of the
investigation into her son’s murder. On 30 March 2007 the
Prosecutor General’s Office informed her that they were
examining her complaint. It is unclear whether the applicant received
any further response from the authorities.
2. Information submitted by the Government
- On
19 November 2004 an operational search officer questioned Mr M.S.
(also referred to as B.S. in the document submitted), an officer from
the PPSM unit, who stated that earlier on that day he had been
patrolling the streets in the vicinity of ‘Musa Motors’
service station when he had heard automatic gunfire. He had run to
the place and there found a group of about thirty armed men in
camouflage uniforms, who were driving around in more than ten cars
and introduced themselves as OMON officers conducting a special
operation.
- On
20 November 2004 an operational search officer from the Leninskiy
district department of the interior of Grozny (the ROVD), lieutenant
colonel B. questioned Mr S.M., an employee of ‘Musa Motors’
service station. His statement concerning the events was similar to
the one given by officer M.S. on 19 November 2004.
- On
19 or 20 November 2004 an operational search officer questioned
private M.K., the colleague of Kh. A. Akhmadov, who stated that
in the evening of 19 November 2004, next to ‘Musa Motors’
service station they had been stopped by a group of thirty armed men
in camouflage uniforms, some of whom had been masked. The men had
beaten him up and taken away his service gun. They had shot Kh. A.
Akhmadov; M.K. had taken him to town hospital no. 9 in Grozny.
- On
20 November 2004 lieutenant colonel B. filed an official report
concerning the circumstances of the wounding of patrolling officer
Kh. A. Akhmadov. According to the document, the applicant’s
son had been shot by a group of about thirty men in camouflage
uniforms, who had introduced themselves as police officers from the
OMON of the Chechnya MVD who were carrying out a special operation.
The OMON officers, who were driving around in ten to fifteen cars of
VAZ 2121 (‘Niva’) and VAZ 21099
(‘Zhiguli’) models, had taken away the service
guns of Kh. A. Akhmadov and his colleague M.K.
- On
20 November 2004 the investigators examined the crime scene, and
collected forty-seven bullet casings left by the perpetrators of
Kh. A. Akhmadov’s killing.
- On
26 November 2004 the Leninskiy District Prosecutor’s Office
opened criminal case no. 30139 in connection with the killing of
the applicant’s son.
- On
15 December 2004 the Expert Evaluations Bureau (the Bureau) of the
Chechnya MVD informed the investigators that traces on three of the
bullet casings collected from the crime scene in case no. 30112
matched the traces on three of the bullet casings collected from the
crime scene in criminal case no. 30139, which meant that these
bullets must have been fired from the same gun. On the basis of this
finding the investigations concerning the two criminal cases were
joined and the criminal case was given the joint number 30112 (see
paragraph 44 below).
- On
23 December 2004 the investigators questioned Mr M.S., who reiterated
his statement of 19 November 2004 (see paragraph 24 above) and
added that the perpetrators’ vehicles had been white and
silver, and had had blackened windows.
- On
27 December 2004 the investigators again questioned officer M.S., who
stated that on 19 November 2004 he and his five colleagues had been
patrolling the area next to ‘Musa Motors’ service station
when they had heard gunfire. In about ten minutes they had arrived at
the place of the shooting. There they had found a group of about
thirty armed men in camouflaged uniforms who had informed them that
they were from the OMON, and in the process of carrying out a special
operation. These men, who had beaten up private M.K. and had killed
patrolling officer Kh. A. Akhmadov, had been driving around
in nine or ten VAZ ‘Niva’ and ‘Zhiguli’
model silver and white cars.
- On
17 January 2005 the investigators again questioned Mr S.M., an
employee of ‘Musa Motors’ service station, who stated
that on 19 November 2004 he had been at work when a group of
twenty to thirty VAZ 2109 (‘Zhiguli’) and
VAZ-2121 (‘Niva’) vehicles had arrived at the
station. The armed men, who had been riding in the cars, had been in
camouflage uniforms and masks; they had ordered Mr S.M. to stay
inside and he had obeyed. About half an hour later he had heard
gunfire and had heard men screaming in Chechen that someone had to be
put in a car. Later on Mr S.M. had learnt that the armed men had
wounded a patrolling police officer.
- On
18 January 2005 the investigators again questioned private M.K., who
stated that in the evening of 19 November 2004 he had been
driving with his colleague Mr Kh A. Akhmadov, when their car had
been stopped next to the ‘Musa Motors’ service station by
a group of about thirty armed men in camouflage uniforms and masks.
The men had checked his service identity card and had taken away his
service gun; then they had shot the applicant’s son and had
also taken away his service identity card and gun.
- On
19 January 2005 the applicant was granted victim status in the
criminal case and questioned. She stated, among other things, that
the head of the PPMS battalion had told her at her son’s
funeral that the latter had been killed by mistake by members of
law-enforcement agencies.
- On
31 January 2005 the Chechnya Department of the Federal Security
Service (the FSB) informed the investigators that they had not
conducted any special operations in Grozny on 19 November 2004.
- On
4 February 2005 the investigators requested that the head of the PPMS
battalion provide them with the two service guns which had been taken
away from the applicant’s son and his colleague on 19 November
2004 and which ‘had been recovered as a result of operational
search measures taken by the heads of the PPMS battalion’.
According to the request, the guns were needed in order to ‘take
investigative steps’.
- On
the same date, 4 February 2005, the head of the PPMS battalion
provided the investigators with the guns as requested.
- On
22 February 2005 the investigators questioned the deputy head of the
PPMS battalion, officer L.B., who stated that at some point the two
service guns which had been taken away by the perpetrators of
Kh. A. Akhmadov’s killing had been planted by someone
at night in the battalion’s premises. According to officer
L.B., the perpetrators of the killing must have been working for
law-enforcement agencies, as regular criminals or members of illegal
armed groups would have kept the guns for themselves. The officer who
had found the planted guns had died at some point later as a result
of a bomb explosion.
- On
25 February 2005 the investigators ordered a ballistic expert
evaluation of the two service guns which had been taken away and then
returned by the perpetrators of Kh. A. Akhmadov’s killing.
- On
26 February 2005 the investigation in the criminal case was suspended
for failure to identify the perpetrators.
- On
5 March 2005 the experts reported their findings, according to which
both guns were in working condition.
- On
2 February 2006 the supervising prosecutor overruled the decision to
suspend the investigation as premature and unsubstantiated, and
ordered that the investigators take a number of steps. In particular,
the investigators were to question again the key witnesses and to
clarify the circumstances of the discovery of the guns which had been
taken by the perpetrators of the applicant’s son’s
killing.
- On
2 February 2006 the investigators joined the investigation of
criminal case no. 30112, which had been opened in September 2004
by the Leninskiy District Prosecutor’s Office in connection
with an attack against a group of five policemen perpetrated by
unidentified culprits who had opened gunfire on the police car, and
of criminal case no. 30139 opened in connection with the
applicant’s son’s killing. The decision was taken on the
basis of the match between traces on the bullet cartridges recovered
from both crime scenes, which signified that the same firearm had
been used during the commission of both crimes.
- On
3 February 2006 the investigators again questioned the applicant, who
reiterated her previous statement (see paragraph 35 above) and
stated, among other things, that according to her son’s
colleagues, his murder had been perpetrated by members of
law-enforcement agencies, who had committed it by mistake; and that
on 22 November 2004 three of her son’s supervisors had
visited her house, and had brought her her son’s service gun
and his service identity card.
- On
16 February 2006 the investigators again questioned private M.K. A
copy of his statement was not furnished to the Court.
- On
27 February 2006 the investigators questioned an officer from the
PPSM, Mr A.K. A copy of his statement was not furnished to the Court.
- On
2 March 2006 the investigation of the criminal case was suspended for
failure to identify the perpetrators.
- On
14 June 2006 the supervising prosecutor overruled the decision to
suspend the investigation as premature and unsubstantiated, and
ordered that the investigators take a number of steps, such as the
questioning of witnesses, the ordering of expert evaluations, and the
clarification of the circumstances of the discovery of the guns which
had been taken by the perpetrators of the applicant’s son’s
killing.
-
On 21 July 2006 the investigators questioned the deputy head of the
PPSM battalion, Mr S.D. He stated that he had learnt from an
unidentified source that the applicant’s son had been killed by
servicemen from the ‘Oil Battalion’, who had subsequently
brought his service gun and service identity documents to the head of
the PPSM battalion and had explained to the latter that they had
killed Kh. A. Akhmadov by mistake, having taken him for a member
of an illegal armed group.
- On
22 July 2006 the investigation of the criminal case was again
suspended for failure to identify the perpetrators.
- On
2 November 2009 the supervising prosecutor overruled the decision to
suspend the investigation as premature and unsubstantiated, and
ordered that the investigators take a number of steps, including the
following: identifying and questioning the persons who had told the
applicant that her son had been killed by mistake; questioning
additional eye-witnesses to the events of 19 November 2004 at the
service station, namely Mr Kh.Kh., Mr L A.B., Mr I and Mr Z.;
establishing the owners of the vehicles used by the perpetrators of
Kh. A. Akhmadov’s killing; and questioning the head of the
PPSM battalion, officer S.R., who had told the applicant that her son
had been killed by servicemen under the command of officer A.M. From
the materials submitted to the Court, it appears that these orders
have not been complied with.
- On
11 November 2009 the investigation in the criminal case was resumed
following the Prosecutor’s orders.
- On
various dates between 26 November 2004 and 17 November 2009 the
investigators forwarded requests for information to various
law-enforcement agencies, asking them to provide information and
assistance in establishing the witnesses to the events.
- On
11 March 2010 the investigation in the criminal case was again
suspended for failure to identify the perpetrators.
- The
investigation failed to establish the perpetrators of Khozh Akhmed
Akhmadov’s killing, but the proceedings were still in progress
at the time the application was lodged.
- Upon
specific request by the Court, the Government disclosed the ‘the
full contents of criminal case file no. 30112’ which was
423 pages long.
II. RELEVANT DOMESTIC LAW
- For
a summary of the relevant domestic law see the Court’s judgment
in the case of Akhmadova and Sadulayeva v. Russia
(no. 40464/02, §§ 67 69, 10 May 2007).
THE LAW
I. ISSUE CONCERNING THE EXHAUSTION OF DOMESTIC REMEDIES
A. The parties’ submissions
- The
Government submitted that the investigation into the killing of
Khozh Akhmed Akhmadov had not yet been completed. They further
argued, in relation to the complaint under Article 13 of the
Convention, that it had been open to the applicant to lodge court
complaints about any acts or omissions on the part of the
investigating authorities. Moreover, she could have applied for civil
compensation.
- The
applicant contested the Government’s submission. She stated
that the only available remedy, the criminal investigation, had
proved to be ineffective. In particular, she pointed out that the
authorities had failed to provide her with information concerning the
progress of the investigation, which precluded her from appealing
against the investigation’s decisions and that she had not been
obliged to claim civil compensation in the domestic courts.
B. The Court’s assessment
- 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 and 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 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 21, 24 February 2005, and
Estamirov and Others, cited above, § 77). 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 the applicant
complained to the law-enforcement authorities after the killing of
Khozh Akhmed Akhmadov, and that an investigation has been
pending since 26 November 2004. The applicant and the Government
dispute the effectiveness of the criminal investigation.
- 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 applicant’s complaints. Thus, it
decides to join this objection to the merits of the case and
considers that the issue falls to be examined below.
II. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE
ESTABLISHMENT OF THE FACTS
A. The parties’ arguments
- The
applicant maintained that it was beyond reasonable doubt that the men
who had killed her son, Khozh Akhmed Akhmadov, had been State
agents. In support of her complaint, she referred to the statements
given by the PPSM battalion officers L. A.B. and S.D. to the
investigators, according to which Khozh Akhmed Akhmadov’s
service gun and his identity documents had been returned to the
officers by servicemen from the ‘Oil Battalion’. In
addition, a number of other witnesses had stated that the
perpetrators had introduced themselves as servicemen of that
particular regiment. Furthermore, the authorities had not disputed
the circumstances of the incident, and had failed to provide a
plausible explanation as to the perpetrators’ identities. The
applicant further contended that the authorities had failed to
promptly investigate the matter and that the investigation had been
plagued by inexplicable omissions and delays.
- The
Government submitted that Khozh-Akhmed Akhmadov had been killed
by unidentified men. They further contended that the investigation
into the incident was still pending, that there was no evidence that
the perpetrators had been State agents, and that therefore there were
no grounds for holding the State responsible for the alleged
violations of the applicant’s rights.
B. The Court’s assessment of the facts
- The
Court notes that it is undisputed by the parties that Khozh Akhmed
Akhmadov was shot on 19 November 2004 and subsequently died in
hospital. The applicant alleged that his murder had been committed by
State agents. The Government denied any involvement of State agents
in the crime. However, they did not provide any specific material to
rebut the applicant’s allegations to the contrary. In such a
situation the Court has stressed that the evaluation of the evidence
and the establishment of the facts is a matter for the Court, and it
is incumbent on it to decide on the evidentiary value of the
documents submitted to it (see Çelikbilek v. Turkey,
no. 27693/95, § 71, 31 May 2005).
- The
Court notes that the applicant’s allegations that servicemen
were responsible for her son’s killing are supported by a
number of witness statements, including those of the policemen M.S.
and M.K., who had witnessed the events (see paragraphs 24, 26 and 32
above) and the superior officers from the applicant’s son’s
police patrolling unit, L.B. and S.D. (see paragraphs 39 and 50
above). The Court also observes that at the material time the area in
question was under the full control of the authorities. Therefore, it
is highly improbable that a large group of armed men in uniforms and
masks in at least ten vehicles, which had been able to introduce
themselves as a police unit conducting a special operation and to
subsequently freely open gunfire, could have driven around unbeknown
to the authorities.
- The
Court reiterates that the evidentiary standard 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. Where the applicant makes out a prima facie
case, it is for the Government to provide a satisfactory and
convincing explanation as to 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).
- Taking
into account the above elements, the Court is satisfied that the
applicant has made out a prima facie case that Khozh Akhmed
Akhmadov was killed by State agents. The Government’s statement
that the investigation did not find any evidence to support the
involvement of servicemen in the crime is insufficient to discharge
them from the above mentioned burden of proof.
- Accordingly,
the Court finds that the evidence available permits it to establish
to the requisite standard of proof that the death of the applicant’s
son can be attributed to the State.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained under Article 2 of the
Convention that her son had
been deprived of his life by State servicemen, and that the domestic
authorities had failed to carry out an effective investigation into
the matter. Article 2 reads as follows:
“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. The parties’ submissions
- The
Government contended that the application should be rejected as
manifestly ill-founded, as the domestic investigation had not found
any evidence of State servicemen’s involvement in the killing
of Khozh Akhmed Akhmadov. The Government further stated that the
investigation into the matter had met the Convention requirement of
effectiveness, as all possible measures available under national law
had been taken in an attempt to identify the culprits.
- The
applicant argued that Khozh-Akhmed Akhmadov had been killed by State
servicemen, and that the investigation into the matter had not met
the effectiveness and adequacy requirements laid down in the Court’s
case-law.
B. The Court’s assessment
1. 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. Furthermore, the Court has already found that the issue of
the effectiveness of the investigation should be joined to the merits
of the complaint (see paragraph 65 above). The complaint under
Article 2 of the Convention must therefore be declared
admissible.
2. Merits
(a) The alleged violation of the right to
life of Khozh-Akhmed Akhmadov
- The
Court has already found that the death of the applicant’s son
can be attributed to the State. In the absence
of any justification put forward by the Government, the Court finds
that there has been a violation of Article 2 of the Convention
in respect of Khozh-Akhmed Akhmadov.
(b) The alleged inadequacy of the
investigation into the killing
- 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 v.
Russia, no. 69481/01, §§ 117-19, 27 July
2006)
- In
the present case, the killing of Khozh-Akhmed Akhmadov was
investigated. The Court must assess whether that investigation met
the requirements of Article 2 of the Convention.
-
The Court notes that the authorities were immediately made aware of
the incident (see paragraph 24 above) and that the criminal
investigation into the killing was instituted on 26 November 2004
(see paragraph 29 above). From the documents submitted it
appears that from the very beginning of the proceedings, as early as
20 November 2004, the investigators were officially informed about
the alleged involvement of law enforcement officers in the
killing of the applicant’s son (see paragraph 27 above).
However, it does not appear that the investigators took any steps to
examine this allegation or to elucidate the circumstances of the
shooting. Furthermore, as it appears from the official witness
statements, the applicant informed the investigators about her son’s
killing by law enforcement officers ‘by mistake’ in
January 2005, but the investigators failed to follow up on this
information and to verify the circumstances of the recovery of the
service guns and of Khozh Akhmed Akhmadov’s service
identity documents, despite the supervising prosecutors’ orders
to this end (see paragraphs 35, 43, 45, 49 and 52 above). It is also
noteworthy that the investigators, despite having obtained witness
statements from Khozh Akhmed Akhmadov’s superiors
concerning the possible involvement of law-enforcement officers in
the incident (see paragraphs 39 and 50 above), failed to verify
this information. Moreover, the Court notes that, as can be seen from
the orders of the supervising Prosecutor’s Office, the
investigators also failed to take such basic steps as questioning key
witnesses or establishing the owners of the vehicles used by the
perpetrators (see paragraph 52 above). It is obvious that these
investigative measures, if they were to produce any meaningful
results, should have been taken immediately after the crime was
reported to the authorities, and as soon as the investigation
commenced. Such delays, for which there has been no explanation in
the instant case, not only demonstrate the authorities’ failure
to act of their own motion but also constitute a breach of the
obligation to exercise exemplary diligence and promptness in dealing
with such a serious crime (see Öneryıldız v.
Turkey [GC], no. 48939/99, § 94, ECHR 2004 XII).
- The
Court also notes that even though the applicant
was granted victim status in the criminal
proceedings, she was only informed of the
suspension and resumption of the proceedings, and not of any other
significant developments. Accordingly, the investigators failed to
ensure that the investigation received the required level of public
scrutiny, or to safeguard the interests of the next-of-kin in the
proceedings.
- Finally,
the Court notes that the investigation was suspended and resumed on
numerous occasions and that there were lengthy periods of inactivity
on the part of the investigators in which no proceedings were
pending. The supervising authorities criticised the deficiencies in
the proceedings and ordered remedial measures. It appears that their
instructions were not complied with.
- The
Government argued that the applicant 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 applicant, having no access to the case file and not being
properly informed of the progress of the investigation, could not
have effectively challenged the acts or omissions of the
investigating authorities before a court. Furthermore, the Court
emphasises in this respect that while the suspension or reopening of
proceedings is not in itself a sign that the proceedings are
ineffective, in the present case the decisions to suspend were made
without the necessary investigative steps having been taken, which
led to numerous periods of inactivity and thus unnecessary
protraction. Moreover, owing to the time that had elapsed since the
events complained of, certain investigative measures that ought
to have been carried out much earlier could no longer usefully be
conducted. Therefore, it is highly doubtful that the remedy relied on
would have had any prospects of success. Accordingly,
the Court finds that this remedy was ineffective in the circumstances
and dismisses the preliminary objection as regards the applicant’s
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 death of Khozh-Akhmed Akhmadov,
in breach of Article 2 of the Convention in its procedural
aspect.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that she
had been deprived of an effective remedy in respect of the
above-mentioned violation, contrary to Article 13 of the
Convention, which provides as follows:
“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 reiterated her complaint in this regard.
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 in the present case,
a criminal investigation into a murder has been ineffective and the
effectiveness of any other remedy that might have existed has
consequently been undermined, the State has failed in its obligations
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.
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. Damage
- In
general terms and without substantiating the claim, the applicant
claimed damages in respect of the loss of her son’s earnings
after his death.
- The
Government submitted that the applicant’s claim should be
rejected as unsubstantiated.
- 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”.
-
In the absence of any documents substantiating the claim, the Court
makes no award under this head.
B. Non-pecuniary damage
- The
applicant claimed 100,000 euros (EUR) in respect
of non pecuniary damage for the suffering she
had endured as a result of the loss of her son
and the authorities’ failure to effectively investigate his
murder.
- The
Government submitted that the amount of the award should be
calculated on an equitable basis.
- The
Court has found a violation of Articles 2 and 13 of the Convention on
account of the killing of the applicant’s
son and the authorities’ faliure to effectively
investigate the matter. The Court thus accepts that the
applicant has suffered non-pecuniary damage which cannot be
compensated for solely by the findings of violations. It awards to
the applicant EUR 60,000, plus any tax that
may be chargeable thereon.
C. Costs and expenses
99. The
applicant submitted a claim for the costs and expenses incurred in
connection with her application, leaving the determination of its
amount to the Court. She did not enclose any documents to
substantiate the claim.
100. The
Government contested the claim as unsubstantiated.
101. In
the absence of any documents substantiating the claim, the Court
makes no award under this head.
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
- Decides
to join to the merits the Government’s objection issue as to
the non exhaustion of criminal domestic remedies and rejects it;
- Declares
the application admissible;
- Holds that there has been a substantive
violation of Article 2 of the Convention in respect of
Khozh Akhmed Akhmadov;
- 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 surrounding the killing of Khozh Akhmed
Akhmadov;
5. Holds
that there has been a violation of Article 13 of the Convention
in conjunction with Article 2 of the Convention;
6. 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 amount of EUR 60,000 (sixty thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage to the applicant. The amount is 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 3 April 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy
Registrar President