FIRST SECTION
CASE OF
ARAPKHANOVY v. RUSSIA
(Application no.
2215/05)
JUDGMENT
STRASBOURG
3 October 2013
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 Arapkhanovy v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefčvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Mřse,
Ksenija Turković,
Dmitry Dedov, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 10 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
2215/05) 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 ten Russian nationals listed below (“the applicants”) on
30 December 2004.
The applicants were represented by lawyers of the
Stichting Russian Justice Initiative (“the SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
. On
28 September 2007 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
On 29 September 2007 the Court decided to apply Rule 41 of the Rules of Court and to grant
priority treatment to the application.
. The
Government objected to the joint examination of the admissibility and merits of
the application. Having considered the Government’s objection, the Court
dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants are:
(1) Ms Rimma Arapkhanova, born in 1967;
(2) Mr Zelimkhan Arapkhanov, born in 1982;
(3) Ms Ayshat Arapkhanova, born in 1933;
(4) Ms Malika Arapkhanova, born in 1993;
(5) Ms Romana Arapkhanova, born in 2000;
(6) Mr Amirkhan Arapkhanov, born in 1992;
(7) Mr Aslan Arapkhanov, born in 1997;
(8) Mr Mukharbek Arapkhanov, born in 1999;
(9) Ms Diana Arapkhanova, born in 1994; and
(10) Mr Adam Arapkhanov, born in 1996.
They live in the village of Galashki, Sunzhenskiy District, in the Republic of Ingushetia.
The first applicant was married to Mr Beslan
Arapkhanov, born in 1966. They are the parents of the fourth to tenth
applicants. The third applicant is the mother of Beslan Arapkhanov; the second
applicant is his cousin.
At the material time Beslan
Arapkhanov lived with his wife and children, the first and fourth to tenth
applicants, at 1 Partizanskaya Street in the village of Galashki. The second applicant
lived in a neighbouring house at 2 Partizanskaya Street. The third applicant
lived at 18 Shosseynaya Street in Galashki.
A. Events of 20 July 2004
1. The applicants’ account
(a) Killing of Beslan Arapkhanov
On the night of 19 July 2004 Beslan Arapkhanov,
his wife and their children were at their family home.
At about 4 a.m. on 20 July 2004 around ten men
wearing camouflage uniforms and armed with machine guns burst into Beslan Arapkhanov’s
house. Although the men did not identify themselves, the applicants believed
that they were Russian servicemen.
The servicemen grabbed Beslan Arapkhanov,
handcuffed him, forced him onto the floor and hit him with a machine gun butt.
Beslan Arapkhanov started bleeding. In the meantime a serviceman examined his
identity papers.
The servicemen searched the house without
producing a warrant. Eventually they found an assault rifle hidden in a couch.
According to the applicants, Beslan Arapkhanov kept the weapon to take revenge
on Chechen rebel fighters for the death of his brother.
The servicemen locked the
first applicant and her children in one of the rooms and dragged Beslan
Arapkhanov to the courtyard. Some three minutes later the first applicant heard
a burst of machine gun fire.
Fifteen or twenty minutes later a man wearing
civilian clothes entered the house and unlocked the room in which the first
applicant and her children were locked. He introduced himself as Mr K., an
investigator from the Department of the Federal Security Service of the Republic of Ingushetia (“the Ingushetia FSB”). Mr K. was accompanied by two unmasked soldiers;
he said that they were attesting witnesses and that he was going to search the
house. The first applicant told him that the servicemen had already seized the assault
rifle and that there was nothing else to search for.
Mr K. showed the first
applicant a warrant authorising a search of the house owned by a certain Mr Kh.
at 7 Partizanskaya Street in Galashki. The first applicant told him that their
address was 1 Partizanskaya Street and that her husband’s last name was
Arapkhanov, not Kh. The servicemen shouted abuse at her. Mr K. made some notes,
which the first applicant assumed were for a search report.
The servicemen took the
first applicant to the courtyard where she saw her husband lying still and
bloodied on the ground. The servicemen did not allow her to approach Beslan
Arapkhanov and ordered her to dig up any hidden weapons. She said that there
were no weapons but obeyed and began digging. After a while the servicemen
started digging as well. Having found nothing, they took the first applicant
back inside.
Mr K. asked the first applicant to sign the
search report, which she did. Then some of the servicemen presented a black
plastic bag containing a grenade which they said they had found in the
courtyard.
The servicemen locked the first applicant and
her children in one of the rooms and left. At about 9 a.m. local police
officers arrived and released them.
Beslan Arapkhanov was buried later that day.
(b) The second applicant’s account of the events
On the night of 19 July 2004 the second
applicant was asleep in his house at 2 Partizanskaya Street.
At about 4.30 a.m. on 20
July 2004 the second applicant was woken up by the sound of gunshots. He went
outside and saw several vehicles parked at the corner of the street and a group
of armed and masked men standing in front of Beslan Arapkhanov’s house. He also
glimpsed a man lying on the ground in Beslan Arapkhanov’s courtyard.
The armed men beckoned the second applicant and
asked for his identity papers, which he produced. They then asked him who lived
at 1 Partizanskaya Street; he replied that it was his cousin. The men
reported his words to someone via a portable radio transmitter. Then they beat
and kicked the second applicant, demanding that he disclose the whereabouts of
rebel fighters.
The armed men then took the second applicant to
a Gazel vehicle parked nearby, where a man in civilian clothes told him that he
was in charge of the other men and asked him how Beslan Arapkhanov had obtained
the rifle. The second applicant replied that he knew nothing about that. The
man continued to question him about his cousin and rebel fighters; some forty
or fifty minutes later he sent the second applicant home.
On returning home, the second applicant found two
men wearing masks and armed with machine guns in his courtyard. One of them hit
him in the face with a machine gun butt so that the second applicant lost
consciousness. When he regained his senses, he found himself lying on the
ground in a pool of blood.
Later the same day the
second applicant was admitted to hospital and diagnosed with cerebral bruising and
numerous abrasions on his face and neck. He was discharged from hospital on 10
August 2004.
(c) The search report
According to the search report drawn up on 20
July 2004 and submitted by the applicants, the search at 1 Partizanskaya
Street, Galashki, had been authorised by a warrant dated 20 July 2004. No
further details concerning the warrant were given.
The search was carried out by the investigator
of the Ingushetia FSB, Lieutenant K., between 5.45 and 6.55 a.m. on 20 July
2004 in the presence of the first applicant and two attesting witnesses,
Mr G. and Mr E., servicemen of military unit no. 3810 of Zheleznovodsk.
The report states that the aim of the search was
to discover hidden weapons and ammunition and that an assault rifle magazine
without cartridges, a holster and an F-1 grenade were eventually found.
2. Information submitted by the Government
On 19 July 2004
investigators in charge of a criminal case concerning a number of rebel attacks
committed on the territory of Ingushetia obtained intelligence information that
insurgents were probably hiding at 1 Partizanskaya Street in Galashki and were
storing armaments there.
On 20 July 2004 the North
Caucasus Department of the Prosecutor General’s Office instituted criminal
proceedings in case no. 04560060 in relation to unlawful insurgent activities
and ordered an urgent search of Beslan Arapkhanov’s house in order to find
members of illegal armed groups. Mr K., an investigator of the Ingushetia FSB,
was assigned to carry out the search.
At about 4 a.m. on 20 July 2004 Mr K.,
accompanied by servicemen of a special unit of the Federal Security Service of
Russia (“the Russian FSB”), arrived in Galashki.
Facing a serious risk of armed resistance, the
Russian FSB servicemen surrounded Beslan Arapkhanov’s house.
Some of the Russian FSB
servicemen entered the house, arrested Beslan Arapkhanov and handcuffed him.
Later they took the handcuffs off as they needed the arrestee to unlock all the
doors in the house.
While the servicemen were searching the storage
room, Beslan Arapkhanov suddenly took a loaded Kalashnikov rifle from its
hiding place, kicked out a piece of plywood covering a window and jumped out of
the window. He fired a shot at the servicemen in the backyard. Since there was
a risk that he might continue firing, some of the servicemen returned fire and
killed him.
The second applicant
stepped out of a neighbouring house and started walking towards the scene of the
incident. The servicemen ordered him not to move and to show that he was not
carrying any arms, but he disobeyed. Some of them hit the second applicant
several times with machine gun butts to preclude him from acting unlawfully. As
a result the second applicant sustained cerebral concussion and a wound to the
forehead that qualified as minor bodily injuries.
In the course of the search of Beslan Arapkhanov’s
house the servicemen seized a Kalashnikov rifle inscribed with the number 6682,
a pouch containing five cartridges, sixty-nine 7.62 mm calibre bullets and F-1
and RGD-5 grenades.
During the search the first applicant explained
to the FSB servicemen that her husband had kept the rifle at home in order to
take revenge on rebels who had killed his brother.
On 21 July 2004 the Nazran District Court of the
Republic of Ingushetia declared the search of 20 July 2004 lawful.
B. Investigation into the killing of Beslan Arapkhanov
1. The applicants’ account
Shortly after the killing of Beslan Arapkhanov
the applicants began to complain about it to various State agencies and officials,
such as the Russian State Duma, the Russian President, the Head of the Russian
FSB, the President of the Republic of Ingushetia and prosecutors’ offices at
different levels.
On 21 July 2004
employees of the Office of the President and of the Government of the Republic of Ingushetia visited the first applicant. They told her that her husband had
been killed by mistake and gave her 100,000 Russian roubles (RUB),
apparently as an allowance for the loss of the breadwinner. A few days later
several employees of the Ingushetian Government again visited the first
applicant, examined her household and promised her financial support; it is
unclear whether the first applicant received it.
On 24 July 2004 the
prosecutor’s office of the Republic of Ingushetia forwarded the first applicant’s
complaint to the prosecutor’s office of the Sunzhenskiy District (“the district
prosecutor’s office”).
On 28 July 2004 the
district prosecutor’s office opened an investigation into Beslan Arapkhanov’s
killing under Article 105 § 1 of the Russian Criminal Code (“murder”). The
prosecutor’s decision stated that, while carrying out operational and search
measures, servicemen of the Ingushetian FSB had used firearms against Beslan
Arapkhanov, who had died of his wounds on the spot. On the same date the
prosecutor’s office informed the first applicant that an investigation had been
opened into the killing of her husband.
At the end of July and beginning of August 2004
the investigators questioned several inhabitants of the village of Galashki as witnesses in the case concerning Beslan Arapkhanov’s death.
On 29 July 2004 the district prosecutor’s office
ordered that Beslan Arapkhanov’s corpse be exhumed and an autopsy carried out.
Between 29 July and 27 August 2004 an expert
from the Forensics Bureau of the Republic of Ingushetia conducted the autopsy
and drew up a post-mortem report. According to the report, Beslan Arapkhanov’s
death was caused by numerous gunshot wounds to the head, body and extremities.
The expert also found bruises on the corpse’s wrists, possibly caused by
handcuffs.
On 30 July 2004 the district prosecutor’s office
granted the first applicant victim status in case no. 04600044 in connection
with her husband’s death.
On the same date the
first applicant was questioned. She described the events of 20 July 2004. She
stated, in particular, that Mr K. had shown her a search warrant in the name of
Mr Kh., their neighbour, and his address at 7 Partizanskaya Street, Galashki.
The first applicant had objected, stating that the warrant had not been drawn
up in their family name or their address but the servicemen had shouted abuse at
her.
On an unspecified date the second applicant was
granted victim status in case no. 04600044.
On 10 August 2004 the Forensics Bureau of the
Republic of Ingushetia issued a medical death certificate in respect of Beslan
Arapkhanov, according to which the death had been caused by fractures to the
skull combined with brain injuries and a perforating gunshot wound to the head.
On 25 August 2004 the first and second applicants
asked the district prosecutor’s office to provide them with copies of documents
from the case file, but their request does not appear to have been granted. On 20 September
2004 the first applicant sent a similar request to the prosecutor’s office of
the Republic of Ingushetia.
On 23 September 2004 case no. 04600044 was
transferred to the military prosecutor’s office of the North Caucasus Military
Circuit (“the circuit prosecutor’s office”). On the same date the prosecutor’s
office of the Republic of Ingushetia notified the first applicant accordingly.
On 24 September 2004 the prosecutor’s office of
the Republic of Ingushetia provided the applicant with copies of certain
documents from the case file but refused to give her copies of the entire file.
On 29 October 2004 the circuit prosecutor’s
office informed the first applicant that case no. 04600044 had been transferred
to the military prosecutor’s office of the United Group Alignment (“the UGA
prosecutor’s office”).
On 16 November 2004 the SRJI, acting on behalf
of the first applicant, asked the district prosecutor’s office to update them
on progress in the investigation.
On 17 December 2004 an FSB officer informed the
first applicant that her complaint to the head of the Russian FSB had been
forwarded to the circuit prosecutor’s office.
On 26 December 2004 the UGA prosecutor’s office
forwarded the first applicant’s complaint to the military prosecutor’s office
of military unit no. 04062 (“the unit prosecutor’s office”).
On 22 January 2005 the unit prosecutor’s office
took up the investigation in case no. 04600040 (it appears that there was a
clerical error in the case file number, which should read “04600044”) and
notified the first applicant accordingly. It appears that at some point they
changed the case number.
On 25 January 2005 the unit prosecutor’s office
informed the first applicant that they had received the complaint that she had addressed
to the Russian President and that the investigation into her husband’s death was
pending.
On 1 February 2005 the unit prosecutor’s office
informed the first and second applicants that the preliminary investigation
time-limit in case no. 34/01/0010-05 had been extended until 28 March
2005.
On 2 and 7 February 2005 the UGA prosecutor’s
office forwarded the first applicant’s complaints to the unit prosecutor’s
office.
On 22 February 2005 the unit prosecutor’s office
notified the first applicant that the investigation was under way.
On 23 May 2005 the unit prosecutor’s office
transferred the investigation file in case no. 34/01/0010-05 to the military
prosecutor’s office of military unit no. 20102 and notified the first and
second applicants accordingly.
On 22 June 2005 the SRJI asked the unit
prosecutor’s office to update them on progress in the investigation in case no.
34/01/0010-05. On 26 August 2005 the unit prosecutor’s office replied that they
had transferred the case to the military prosecutor’s office of military unit
no. 20102.
On 24 October 2005 the Ministry of the Interior
of Ingushetia notified the first applicant that on 23 October 2004 criminal
case no. 04600044 had been transferred to the North-Caucasus Military
Circuit.
On 3 December 2005 the unit prosecutor’s office
informed the first applicant that the case had been transferred to the military
prosecutor’s office of military unit no. 20102.
On 7 July 2006 the Prosecutor General’s Office
of Russia informed a member of parliament of Ingushetia, inter alia,
that the criminal investigation into the killing of Beslan Arapkhanov had been
terminated on 30 May 2005.
On 12 April 2007 the UGA prosecutor’s office
informed the first applicant that the criminal proceedings against the two
servicemen of the Ingushetia FSB, Mr P. and Mr V., had been terminated by the
unit prosecutor’s office on 7 December 2006 for lack of corpus delicti
and that there were no grounds for quashing that decision.
On 10 May 2007 the SRJI asked the unit
prosecutor’s office to provide the first applicant with a copy of the decision
of 7 December 2006 and to allow her to study the case file.
On an unspecified date the first applicant
challenged the decision of the unit prosecutor’s office of 7 December 2006
before the Sunzhenskiy District Court of the Republic of Ingushetia.
On 16 July 2007 the Sunzhenskiy District Court
decided to transfer the case to a military court, pursuant to the rules on the
jurisdiction of the relevant subject matter.
On 9 January 2008 the unit prosecutor’s office
informed the SRJI that the first applicant could study the case file in the premises
of the military prosecutor’s office of military unit no. 29483.
2. The Government’s account
On 28 July 2004 the district prosecutor’s office
instituted an investigation into Beslan Arapkhanov’s killing under Article 105
§ 1 of the Russian Criminal Code.
On 22 January of an unspecified year the
investigation was transferred to the unit prosecutor’s office.
A number of witnesses were
questioned in the course of the investigation. Some of them were servicemen of
the Russian FSB, who took part in the arrest of Beslan Arapkhanov. For their
own protection and that of their families, their real names were not disclosed
by the Government.
On an unspecified date Mr I. (it is unclear
whether the Government provided his real name or an alias) was questioned and
stated that on 20 July 2004 he had been in command of a special unit of
the Russian FSB that had ensured the security of investigators searching Beslan
Arapkhanov’s house. As it was thought likely that insurgents would be hiding in
the house, the special unit servicemen entered the house first and arrested
Beslan Arapkhanov. While in the storage room, Beslan Arapkhanov suddenly took a
loaded Kalashnikov rifle from its hiding place, kicked out a piece of plywood
covering a window and jumped out of the window. He fired a shot at two servicemen
who were standing in the backyard. They fired back and killed Beslan
Arapkhanov.
The two servicemen who used
firearms against Beslan Arapkhanov belonged to a special unit of the Russian
FSB (military unit no. 35690). Their code names were “Ruby” and “Uran”. The
investigation could not question them because they had died in the course of a
special anti-terrorist operation on 3 September 2004.
All the other servicemen of
the special unit of the Russian FSB who were present during the search of 20
July 2004 were questioned on unspecified dates. They confirmed that Beslan
Arapkhanov had showed armed resistance during his arrest and that the firearms
had been used against him lawfully.
On an unspecified date the
corpse of Beslan Arapkhanov was exhumed. A post-mortem examination established
that the death had been caused by gunshot wounds. There were also bruises on
each of Beslan Arapkhanov’s wrists, as well as a wound measuring five centimetres
by two centimetres on his left wrist, probably caused by handcuffs.
On an unspecified date the investigators
questioned a deputy head of the Government of Ingushetia, who submitted that on
21 July 2004 he and two other officials had visited the first applicant and
given her a funeral subsidy from the Government of Ingushetia in the amount of RUB
100,000.
On 7 December 2006 the
unit prosecutor’s office terminated the criminal investigation for lack of evidence
of a crime, as the servicemen had lawfully used firearms during the arrest to
prevent Beslan Arapkhanov from injuring their fellow servicemen.
On 3 December 2007 the deputy
of the Main Military Prosecutor of Russia quashed the decision of 7 December
2006.
On an unspecified date Mr K., former
investigator of the Ingushetia FSB, was questioned and stated that there had
been no breaches of statutory procedure in the course of the search of 20 July
2004.
The investigation into Beslan Arapkhanov’s
killing was reopened.
A complaint lodged by the first applicant about the
unlawful termination of the criminal proceedings was examined on an unspecified
date by the Nalchik Garrison Military Court and dismissed as unsubstantiated.
Despite specific
requests by the Court, the Government did not disclose any materials from the
case file concerning the killing of Beslan Arapkhanov. Relying on information
obtained from the Prosecutor General’s Office, the Government stated that the
investigation was in progress and that disclosure of the documents would breach
Article 161 of the Code of Criminal Procedure, since the file contained
information of a military nature and personal data concerning the witnesses and
other participants in the criminal proceedings.
C. Investigation into the injuries sustained by the
second applicant
1. The applicants’ account
On 22 July 2004 the second applicant complained
to the district prosecutor’s office that he had been severely beaten by a group
of servicemen armed with machine guns. He requested that those responsible be
punished.
On 19 August 2004 the district prosecutor’s
office asked Sunzhenskiy District Hospital to produce the second applicant’s
medical record, which contained information on the injuries he had sustained on
20 July 2004. They commented that the request was “in connection with the
investigation in criminal case no. 04600044 concerning B[eslan] Arapkhanov’s death
and the infliction of bodily injuries on Z[elimkhan] Arapkhanov”.
2. The Government’s account
On 23 July 2004 the second applicant complained
to the district prosecutor’s office that federal servicemen had inflicted
bodily injuries on him.
The second applicant was granted victim status
and questioned.
In order to determine the degree
of severity of the bodily injuries, the investigators ordered a forensic expert
examination of the second applicant. The experts established that upon
admission to hospital the second applicant had been diagnosed with cerebral bruising
and numerous abrasions on the face and abdomen. The cerebral bruising had not
been confirmed by objective clinical neurological data and therefore could not
be subjected to forensic assessment. A scar on the right side of the forehead
was assessed as a minor bodily injury.
It is not clear whether a separate set of
criminal proceedings was instituted in respect of the injuries sustained by the
second applicant or whether the investigation into the incident formed part of
the investigation in case no. 04600044. Nor is it clear whether any progress was
made in the investigation of the beating of the second applicant.
Despite specific
requests by the Court, the Government did not disclose any materials from the case
file concerning the bodily injuries sustained by the second applicant.
II. RELEVANT DOMESTIC LAW
For a summary of relevant domestic law, see Khatsiyeva
and Others v. Russia (no. 5108/02, §§ 105-07,
17 January 2008).
THE LAW
I. The government’s objection regarding LOCUS STANDI
The Government pointed out that the application to
the Court had been signed by three lawyers of the SRJI named in the powers of
attorney issued by the applicants and two other persons who had not been
officially authorised to represent the applicants. Referring to the Court’s
decision in Vasila
and Petre Constantin in the name of Mihai Ciobanu v. Romania (no. 52414/99, 16 December 2003), the Government concluded that
there was a lack of locus
standi in the present case.
The Court notes that the applicants gave the
SRJI and three of its lawyers the authority to act on their behalf. The
application form was signed by five lawyers in total. The names of three of them
appeared in the powers of attorney, while the other two were working with the
SRJI. In such circumstances the Court
considers that the SRJI lawyers were duly authorised to submit an application
on the applicants’ behalf. Accordingly, the Government’s objection must be
dismissed.
II. The government’s objection regarding non-exhaustion
of CIVIL domestic remedies
A. The parties’ submissions
The Government contended that the applicants had
not brought any civil claims for non-pecuniary damages caused by acts or
omissions of the investigating authorities and thus had failed to exhaust
available domestic remedies.
The
applicants contested that objection and stated that the remedies referred to by
the Government were ineffective.
B. The Court’s assessment
The Court reiterates that the rule of exhaustion
of domestic remedies under Article 35 § 1 of the Convention obliges applicants
to use first the remedies which are available and sufficient in the domestic
legal system to enable them to obtain redress for the breaches alleged. The
existence of the remedies must be sufficiently certain both in theory and in
practice, failing which they will lack the requisite accessibility and
effectiveness. Article 35 § 1 also requires that complaints intended to be
brought subsequently before the Court should have been made to the appropriate
domestic body, at least in substance and in compliance with the formal
requirements and time-limits laid down in domestic law and, further, that
any procedural means that might prevent a breach of the Convention should have
been used. However, there is no obligation to have recourse to remedies which
are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52,
Reports of Judgments and Decisions 1996-VI, and Cennet Ayhan and
Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June 2006).
It is incumbent on the respondent Government
claiming non-exhaustion to indicate to the Court with sufficient clarity
the remedies to which the applicants have not had recourse and to satisfy the
Court that the remedies were effective and available in theory and in practice
at the relevant time, that is to say that they were accessible, were capable of
providing redress in respect of the applicant’s complaints and offered
reasonable prospects of success (see Cennet Ayhan and Mehmet Salih Ayhan,
cited above, § 65).
The Court has already found in a number of
similar cases that a civil action to obtain redress for damage sustained
through the alleged illegal acts or unlawful conduct of State agents alone
cannot be regarded as an effective remedy in the context of claims brought
under Article 2 of the Convention. A civil court is unable to pursue any
independent investigation and is incapable, without the benefit of the
conclusions of a criminal investigation, of making any meaningful findings
regarding the identity of the perpetrators of fatal assaults or disappearances,
still less of establishing their responsibility (see Khashiyev and Akayeva
v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 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 applicants were not obliged to pursue civil remedies. The
Government’s objection must therefore be rejected.
III. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE
CONVENTION
The applicants complained of Beslan Arapkhanov’s
killing and of the domestic authorities’ failure to carry out an effective
investigation in this connection. They relied on Article 2 of the Convention,
which 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. The parties’ submissions
1. The Government
The Government conceded that Beslan Arapkhanov
had been deprived of his life by State agents. They argued, however, that the
use of lethal force against him had been proportionate and justified. Beslan
Arapkhanov kept an assault rifle at home, as well as a considerable number of
cartridges and several grenades. None of the applicants were eye-witnesses
to the actual shooting. Beslan Arapkhanov opened fire at the servicemen
attempting to arrest him. The FSB servicemen acted in a rapidly changing
situation to stop the unlawful actions of Beslan Arapkhanov armed with a gun
and to protect their own lives. In so doing, they acted in accordance with domestic
law. The domestic authorities were carrying out an investigation to establish
whether the use of force was necessary and proportionate.
The investigation into the killing opened on
the first applicant’s request was ongoing. The investigators had questioned
certain witnesses, including the FSB servicemen who took part in Beslan
Araphanov’s arrest. The two servicemen who shot the applicants’ relative could
not be questioned because they had died in September 2004. The first and second
applicants were questioned as victims. The forensic expert examination of
Beslan Araphanov’s exhumed body established that he had died of firearm wounds.
The copies of interview records provided by the applicants could not be
considered as evidence in the context of the criminal investigation as they did
not meet the requirements of official documents.
The first and second applicants were informed
of their right to study the non-classified case materials. The first applicant
made use of her right to appeal against the decision of the prosecutor’s office
to terminate the investigation. The investigation was terminated twice but then
reopened and was currently under way. In sum, the Government claimed that the investigation
was effective.
2. The applicants
The applicants maintained their complaints.
They submitted that the arrest operation carried out by the FSB servicemen had
not been properly planned. Referring to the case of Karagiannopoulos v.
Greece (no. 27850/03, § 61, 21 June 2007), they emphasised that the
very fact that Beslan Arapkhanov’s handcuffs had been removed demonstrated the
failure to organise the operation in a manner compatible with the requirements
of Article 2 of the Convention.
They further insisted that the authorities had
failed to investigate the killing of their relative, in breach of their
procedural obligation under Article 2 of the Convention, as the proceedings
had been unreasonably long without any plausible explanation. They also
submitted that they had been denied access to the case materials and that the
investigative measures taken by the authorities had been scarce.
B. The Court’s assessment
1. Admissibility
The Court considers, in the light of the
parties’ submissions, that this complaint raises serious issues of fact and law
under the Convention, the determination of which requires an examination of the
merits. The complaint must therefore be declared admissible.
2. Merits
(a) General principles
The Court reiterates that Article 2, which safeguards the
right to life and sets out the circumstances when deprivation of life may be
justified, ranks as one of the most fundamental provisions in the Convention,
from which no derogation is permitted. The situations where
deprivation of life may be justified are exhaustive and must be narrowly
interpreted. The use of force which may result in the deprivation of life must
be no more than “absolutely necessary” for the achievement of one of the
purposes set out in Article 2 § 2 (a), (b) and (c). This term indicates that a
stricter and more compelling test of necessity must be employed than that
normally applicable when determining whether State action is “necessary in a
democratic society” under the second paragraphs of Articles 8 to 11 of the
Convention. Consequently, the force used must be strictly proportionate to the
achievement of the permitted aims (see McCann and Others v. the United
Kingdom, 27 September 1995, §§ 146-50, Series A no. 324; Andronicou and Constantinou v. Cyprus, § 171,
9 October 1997, Reports of Judgments and
Decisions 1997-VI; Oğur v. Turkey
[GC], no. 21594/93, § 78, ECHR 1999-III; Bazorkina v. Russia,
no. 69481/01, § 103, 27 July 2006).
In determining whether the force used is
compatible with Article 2, it may therefore be relevant whether a law
enforcement operation has been planned and controlled so as to minimise to the
greatest extent possible recourse to lethal force or incidental loss of life (see
McCann and Others, cited above, §
194, and Ergı v. Turkey,
28 July 1998, § 79, Reports
1998-IV).
In addition to setting out the circumstances
when deprivation of life may be justified, Article 2 implies a primary duty on
the State to secure the right to life by putting in place an appropriate legal
and administrative framework defining the limited circumstances in which law
enforcement officials may use force and firearms, in the light of the relevant
international standards (see
Makaratzis v. Greece [GC], no. 50385/99, §§ 57-59, ECHR
2004-XI, and
Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98,
§ 96, ECHR 2005-VII). Furthermore, the national law regulating
policing operations must secure a system of adequate and effective safeguards
against arbitrariness and abuse of force, and even against avoidable accident
(see
Makaratzis, cited above, § 58, and Giuliani and Gaggio v. Italy [GC],
no. 23458/02, § 209, ECHR 2011 (extracts)). In particular, law enforcement
agents must be trained to assess whether or not there is an absolute necessity
to use firearms, not only on the basis of the letter of the relevant
regulations, but also with due regard to the pre-eminence of respect for
human life as a fundamental value (see Nachova
and Others, cited above, § 97).
(b) Application
of the above principles to the present case
(i) Killing of Beslan Arapkhanov
The Court notes at the outset that it is not
disputed between the parties that Beslan Arapkhanov was killed by State
servicemen on 20 July 2004.
The Court’s core task, therefore, is to assess
whether the deprivation of life was justified in the particular circumstances
of the case. However, in the absence of any documents relating to the official
investigation into the events of 20 July 2004, it is difficult for the Court to
verify whether the FSB operation was compatible with the standards of Article 2
of the Convention.
The Court has been
deprived of an opportunity to study the factual findings of the official
investigation of the events at issue undertaken at domestic level owing to the
Government’s refusal to produce the case materials, on the grounds that they
were precluded from providing them by Article 161 of the Code of Criminal
Procedure. In previous cases the Court has found this explanation insufficient
to justify the withholding of key information which it has requested (see
Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-...
(extracts)). Therefore the Court considers that it can draw inferences from the
Government’s conduct in this respect.
The Court reiterates that where the applicants
make out a prima facie case and the Court is prevented from reaching factual
conclusions owing to a lack of documents, it is for the Government to show
conclusively why the documents in question cannot serve to corroborate the
allegations made by the applicants, or 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).
In the present case the applicants could not
provide a detailed account of the circumstances of Beslan Arapkhanov’s death as
they did not witness it (see paragraphs 13, 16 and 21 above).
. The Government in their turn
alleged that Beslan Arapkhanov, suspected of storing armaments, had opened fire
at the servicemen attempting to search his house and had been shot to prevent
him from harming the servicemen (see paragraph 34 above). Given that the
applicants were not direct eye-witness to the actual shooting in the courtyard
of their house (see, mutatis mutandis, Tepe v. Turkey, no.
27244/95, § 186, 9 May 2003), the Court is ready to accept, for the sake
of argument, that the FSB servicemen opened fire only after Beslan Arapkhanov
had taken the weapon, thus pursuing a legitimate aim of protecting the life of others.
. Nevertheless, the Court reiterates
that, in the light of the importance of the protection afforded by Article 2,
it must subject deprivation of life to the most careful scrutiny, taking into
consideration not only the actions of State agents but also all the surrounding
circumstances (see McCann and Others, cited above, § 147). In the Court’s
view the very fact that the FSB servicemen went to the applicants’ house in
order to search for insurgents and concealed lethal weapons (see paragraph 29 above) suggests that they were on a security
operation and thus were bound to have had a clear plan of actions allowing for
various likely scenarios.
. The Court reiterates that in carrying out its assessment of the planning and control phase
of the operation from the standpoint of Article 2 of the Convention, it 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, cited above, §
182). Regrettably, the Government’s blatant refusal to provide the Court with
any materials from the domestic investigation precludes it from adequately
assessing the planning and control phase of the security operation.
. Nevertheless,
the Court will proceed to determine whether the way in which the FSB security
operation was conducted showed that the FSB servicemen took appropriate care to
ensure that any risk to the life of the applicants’ relative was kept to a
minimum (see Leonidis v. Greece, no. 43326/05, § 60, 8
January 2009).
. It
follows from the Government’s own submissions that once at the Arapkhanovs’
house, the FSB servicemen handcuffed Beslan Arapkhanov (see paragraph 33 above), thus ensuring that he posed no danger to them. Assuming
that the servicemen intended to effect his lawful arrest, this legitimate aim
could only justify putting human life at risk in circumstances of absolute
necessity. The Court considers that in principle there can be no such necessity
where it is known that the person to be arrested poses no threat to life or
limb and is not suspected of having committed a violent offence, even if
refraining from using lethal force may result in the opportunity to arrest the
fugitive being lost (see Makaratzis, cited above, §§ 64-66).
. In
this respect the Court notes that there are certain basic precautions which
State officers should be expected to take in all cases in order to minimise any
potential risk (see Mižigárová v. Slovakia, no. 74832/01, § 89, 14
December 2010). However, in the present case the
Court cannot see any reasonable explanation as to why the FSB servicemen took
the handcuffs off a potentially dangerous person while searching for concealed
weapons. It is clear that they were able to open the doors in the household
themselves once they had taken the keys from Beslan Arapkhanov. Uncuffing the
latter appears to be tangible proof that the servicemen in charge of the
operation failed to foresee a number of highly probable occurrences, such as an
attempt to flee or violent resistance, and thus did not comply with their duty
to plan the security operation.
. Given
that the Government failed to submit to the Court any materials concerning the
operation of 20 July 2004, the Court does not deem it necessary to examine
whether there was an appropriate legal framework defining the circumstances in
which use of lethal force was permissible.
. In
the light of the above, the Court considers that, the respondent State had not,
at the relevant time, done all that could be reasonably expected of it to avoid
real and immediate risk to life which they knew was liable to arise in police
operations (see, mutatis mutandis, Makaratzis, cited above, § 71, and Leonidis, cited above, § 66).
Accordingly, the Court finds that there has
been a violation of Article 2 of the Convention in respect of the killing of Beslan
Arapkhanov.
(ii) The alleged inadequacy of the investigation into
the killing
The Court reiterates that the obligation to
protect the right to life under Article 2 of the Convention, read in
conjunction with the State’s general duty under Article 1 of the
Convention to “secure to everyone within [its] jurisdiction the rights and
freedoms defined in [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 (see Kaya v. Turkey, 19
February 1998, § 86, Reports 1998-I). The essential purpose
of such an investigation is to secure the effective implementation of the
domestic laws which protect the right to life and, in those cases involving
State agents or bodies, to ensure their accountability for deaths occurring
under their responsibility. This investigation should be independent,
accessible to the victim’s family, carried out with reasonable promptness and
expedition, effective in the sense that it is capable of leading to a
determination of whether the force used in such cases was or was not justified
in the circumstances or otherwise unlawful, and afford a sufficient element of
public scrutiny of the investigation or its results (see Hugh Jordan v. the
United Kingdom, no. 24746/94, §§ 105-09, ECHR 2001-III
(extracts), and Douglas-Williams v. the United Kingdom (dec.),
no. 56413/00, 8 January 2002).
In the present case, the killing of Beslan
Arapkhanov was investigated. The Court must assess whether that investigation
met the requirements of Article 2 of the Convention.
The Court notes once again that the documents
from the investigation remain undisclosed by the Government. It therefore has
to assess the effectiveness of the investigation on the basis of the few
documents submitted by the applicants and the sparse information on its
progress presented by the Government.
First, the Court observes that, although it is clear
that the public officials of Ingushetia were already aware of the incident on
21 July 2004 (see paragraph 40 above) and that the prosecutor’s office of
Ingushetia were informed of Beslan Araphkanov’s killing on 24 July 2004 at the
latest (see paragraph 41 above), the investigation into the killing commenced
only on 28 July 2004 (see paragraph 42 above), that is, eight days after the
event. The Government put forward no explanation for that substantial delay,
which would have had an inevitable adverse effect on the investigation into the
use of lethal force by the State agents.
The Government were vague when referring to the
very few investigative steps that had been taken to solve the killing of Beslan
Arapkhanov. For instance, they stated that the investigators had questioned a
number of witnesses (see paragraphs 74, 75 and 77 above) and that a forensic
examination of the corpse had been carried out after it had been exhumed (see
paragraph 78 above). Hence, in the absence of the case file materials it
remains unclear whether the measures in question could have contributed in any
manner to the overall effectiveness of the investigation.
Moreover, while accepting that the two identified
servicemen who opened fire at Beslan Arapkhanov died on 3 September 2004 (see paragraph 76 above) and thus could not be questioned after that date, the Court considers
that the investigators’ failure to question them at the very beginning of the
investigative proceedings shows that the investigation into this grave incident
was not conducted speedily and efficiently.
Furthermore, a number of important
investigative steps were never taken. For instance, it does not appear that the
inspection of the crime scene was ever carried out. Nor have the Government
mentioned any ballistic expert examinations of the weapon from which Beslan
Arapkhanov allegedly fired at the servicemen. It appears that no fingerprints
were taken from the gun in question either.
Accordingly, the Court considers that the
domestic investigative authorities demonstrably failed to act of their own
motion and breached their obligation to exercise exemplary diligence and
promptness in dealing with such a serious incident (see
Önery˙ld˙z v. Turkey [GC], no. 48939/99, § 94, ECHR 2004-XII).
The Court also notes that the applicants were
not promptly informed of significant developments in the investigation. It therefore
considers that the investigators failed to ensure that the investigation
received the required level of public scrutiny, and to safeguard the interests
of the next of kin in the proceedings (see Oğur
v. Turkey [GC], no. 21594/93, § 92, ECHR 1999-III).
Lastly, the Court notes that the investigation into
the death of Beslan Arapkhanov was suspended and then resumed (see paragraphs 80 and 81 above) and that there were lengthy periods of inactivity on the part of the investigators
for which no explanation was provided by the Government. Such handling of the
investigation could not but have had a negative impact on the prospects of establishing
the exact circumstances of Beslan Arapkhanov’s death.
In the light of the foregoing considerations,
the Court finds that the domestic authorities failed to carry out an effective criminal
investigation into the killing of Beslan Araphkanov, in breach of
Article 2 in its procedural aspect.
IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE
CONVENTION
The second applicant complained that on 20 July
2004 he had been ill-treated by State agents and that the investigation of the
incident had not been effective.
The applicants further complained that as a
result of the killing of their relative and the State’s failure to investigate
it properly, they had endured profound mental suffering. They relied on Article
3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. The
parties’ submissions
1. The Government
The Government contested the second applicant’s
allegations. An investigation into his alleged ill-treatment had been opened on
his request on 23 July 2004 as part of the criminal investigation (presumably
in the case concerning his cousin’s death). The second applicant was granted
victim status and questioned in detail about the events in question. He also underwent
a forensic medical examination. He made no complaints in relation to the
investigation. The investigation into the injuries that he had sustained was
ongoing and effective.
The Government denied that the applicants had
been subjected to treatment proscribed by Article 3 of the Convention in the
course of the investigation into Beslan Arapkhanov’s killing.
2. The applicants
The second applicant maintained his complaints
and stated that he had had no information on the course of the investigation into
his ill-treatment.
The applicants further stated that as a result
of the authorities’ clear indifference to the distress caused to them by the
killing of their close relative, they had endured profound mental suffering.
B. The Court’s assessment
1. Admissibility
The Court notes that the complaints under
Article 3 of the Convention are not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. It further notes that they are not
inadmissible on any other grounds and must therefore be declared admissible.
2. Merits
(a) The complaint concerning the second applicant’s
ill-treatment
(i) Compliance with Article 3
The Court reiterates that ill-treatment must
attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this
minimum is relative: it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and/or mental effects and, in some
cases, the sex, age and state of health of the victim (see, among many other
authorities, Tekin v. Turkey, 9 June 1998, § 52, Reports 1998-IV,
and Zabiyeva and Others v. Russia, no. 35052/04, § 124, 17 September
2009).
The Court observes that it was not
disputed between the parties that the second applicant had been beaten by State
agents and had sustained the injuries, namely, cerebral bruising and numerous
abrasions on the face and abdomen (see paragraphs 25, 35 and 90 above). The Court considers that this treatment reached the threshold of “inhuman and degrading”.
Therefore,
there has been a violation of Article 3 of the Convention in its substantive
aspect in respect of the second applicant on account of his ill-treatment by
the servicemen.
(ii) Effective investigation
The Court notes
that the second applicant raised the complaint concerning ill-treatment by
State servicemen before the investigating authorities when describing the
events of 20 July 2004. According to the Government, an investigation into the
incident was opened. However, it remains unknown whether that investigation
formed part of the investigation of the case concerning his cousin’s death or
whether it formed part of a separate set of proceedings.
147. The
Court notes at the outset that it remains unknown on what date and by which
body the investigation was opened, or whether it produced any tangible results,
as none of the documents from the investigation were disclosed by the
Government. Moreover, the Government did not communicate to the Court the
number assigned to the investigation.
Owing to the lack of information at its
disposal, the Court is not in a position to establish whether any progress has
been achieved in the investigation into the injuries sustained by the first
applicant. Nonetheless, it is clear that the perpetrators have not yet been
identified. Drawing inferences from the Government’s refusal to provide any
material from the case file or to submit at the very least a summary outline of
the investigation, the Court finds that the domestic investigating authorities
have failed to take the requisite measures to solve the crime.
In the absence
of any information regarding the investigation into the second applicant’s
ill-treatment, bearing in mind its findings regarding the ineffectiveness of
the investigation into the killing of the second applicant’s cousin, the Court
is bound to conclude that the Government have failed to conduct an effective
investigation into the ill-treatment of the second applicant.
Accordingly,
there has been a violation of Article 3 in its procedural aspect in respect of
the second applicant.
(b) Complaint concerning the applicants’ mental
suffering
The Court notes that while a family member of a
“disappeared person” can claim to be a victim of treatment contrary to Article
3 (see Kurt v. Turkey, 25 May 1998, §§ 130-34, Reports 1998-III),
the same principle would not usually apply to situations where the person taken
into custody has later been found dead (see Tanlı v. Turkey, no.
26129/95, § 159, ECHR 2001-III (extracts)).
The Court observes that in the present case there was no distinct long-lasting period
during which the applicants sustained uncertainty, anguish and distress
characteristic to the specific phenomenon of disappearances (see, by contrast,
Kukayev v. Russia, no. 29361/02, § 107, 15 November 2007). Accordingly, the
Court considers that the mental suffering endured by the applicants has not
reached a dimension and character distinct from the emotional distress which
may be regarded as inevitably caused to relatives of a victim of a serious
human-rights violation (see, by contrast, Khadzhialiyev and Others v.
Russia, no. 3013/04, § 121, 6 November 2008).
In view of the above, the Court finds that
there has been no breach of Article 3 of the Convention in respect of the applicants
on account of their mental suffering.
V. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE
CONVENTION
The applicants complained that the search of
their house carried out by Russian servicemen on 20 July 2004 breached their right
to respect for their home. The fifth, seventh, eighth and tenth applicants
complained that the killing of their father breached their right to respect for
family life. They relied on Article 8 of the Convention, which reads, in so far
as relevant, as follows:
“1. Everyone has the right to respect for his ...
family life, his home ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
A. The parties’ submissions
1. The Government
The Government claimed that
the applicants’ right to respect for their home had not been breached because
they had lived under the same roof as a person suspected of involvement in an
illegal armed group. The search was lawful as it had been ordered under
exceptional circumstances and retroactively authorised by the Nazran District
Court on 21 July 2004, in accordance with Article 165 § 2 of the Criminal
Procedure Code. The first applicant signed the search report.
Furthermore, the applicants did not appeal
against the search warrant issued by the investigator and thus failed to
exhaust available domestic remedies.
2. The applicants
The applicants maintained their complaints.
They claimed that they had not received copies of the prosecutor’s decision to
carry out an urgent search of their house or the Nazran court’s judgment to
authorise it retroactively. They also submitted that the grenades that had
allegedly been found in their courtyard had not been fingerprinted.
In their observations on
the admissibility and merits of 7 April 2008, the applicants stated that they
no longer wished to maintain their complaints under Article 8 of the Convention
regarding the alleged violation of their right to respect for family life.
B. The Court’s assessment
1. Admissibility
(a) The applicants’ right to respect for family life
. The
Court, having regard to Article 37 of the Convention, notes that the applicants
do not intend to pursue the part of the application concerning the alleged
violation of their right to family life, within the meaning of Article 37 § 1
(a). It finds no reasons of a general character affecting respect for human
rights as defined in the Convention which require the further examination of
the present complaint by virtue of Article 37 § 1 of the Convention in fine (see, among other
authorities, Stamatios Karagiannis v. Greece, no. 27806/02, § 28, 10 February 2005, and Gekhayeva
and Others v. Russia, no. 1755/04, § 146, 29 May 2008).
. It
follows that this part of the application must be struck out in accordance with
Article 37 § 1 (a) of the Convention.
(b) The applicants’
right to respect for their home
. The
Court considers that the Government’s objection as to non-exhaustion of
domestic remedies (see paragraph 156 above) is closely linked to the merits of
the applicants’ complaint. Thus it considers that the matter falls to be
examined below.
. The
Court further points out that the search in question concerned the house at 1 Partizanskaya Street, Galashki, in which only the first and fourth to tenth applicants
lived (see paragraph 8 above). It finds therefore
that the second and third applicants cannot claim to be victims of the alleged
violation and declares their complaint concerning the right to their home
inadmissible ratione personae, pursuant to Article 35 § 3 (a) of the
Convention.
. The Court further considers
that the complaint concerning the search of the first and fourth to tenth
applicants’ home 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 notes at the outset that the
Government insisted that the search of the Arapkhanovs’ house had been duly
authorised. However, the first applicant submitted that the warrant presented
to her by Mr K., the officer in charge of the search, had been written with
regard to another house at a different address owned by a third person (see paragraph 15 above). Most notably, she presented the same account of the events when
questioned by the investigators at the outset of the investigation into her
husband’s killing (see paragraph 47 above).
The Court reiterates that the Government’s
failure to submit any documents from the investigation file enables it to draw
inferences from their conduct (see paragraph 113 above).
In the absence of copies of the search warrant issued
by the North Caucasus Department of the Prosecutor General’s Office to which the
Government referred (see paragraph 30 above) and of the decision by the Nazran
District Court of 21 July 2004 upholding it (see paragraph 155 above), the
Court cannot accept the Government’s position that the search of the applicants’
home was duly authorised in accordance with the domestic law.
As regards the
Government’s objection of non-exhaustion of domestic remedies, joined to the
merits inasmuch as it concerns the applicants’ failure to appeal against the
search warrant, the Court points out that nothing in the Government’s
submissions suggests that the first applicant and her children were served with
copies of either the search warrant or the court’s decision of 21 July 2004. In
such circumstances it remains unclear whether the wife and children of Beslan
Arapkhanov had a realistic opportunity to appeal against the said decisions to
a higher court. Moreover, the first applicant informed the authorities that the
search had not been duly authorised at an early stage of the investigation of
her husband’s killing. Accordingly, the Court considers that the first and
fourth to tenth applicants cannot be said to have omitted to exhaust effective
domestic remedies available to them with regard to the search of their home.
The Court thus finds that the remedy relied on by the Government was
ineffective in the circumstances of the case and rejects their preliminary
objection.
. In
such circumstances the Court finds that the search of the first and fourth to
tenth applicants’ home was carried out without
any proper authorisation or safeguards.
. Accordingly,
there was an interference with the first and
fourth to tenth applicants’ right to respect
for their home. In the absence of any reference on behalf of the Government to
the lawfulness and proportionality of that measure, the Court finds that there
has been a violation of the applicants’ right to respect for their home
guaranteed by Article 8 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicants complained that they had been
deprived of effective remedies in respect of the alleged violations of Articles
2, 3 and 8, contrary to Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention
are violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in an
official capacity.”
A. The parties’ submissions
The Government contended
that the applicants had had effective remedies at their disposal as required by
Article 13 of the Convention and that the authorities had not prevented them
from using them.
The applicants
reiterated the complaint, asserting that in the absence of an effective
investigation into the events of 20 July 2004, they had no effective domestic
remedies as required by Article 13 of the Convention.
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 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
2. Merits
174. The Court reiterates that in circumstances where a criminal
investigation of a killing and infliction of bodily injuries has been
ineffective and the effectiveness of any other remedy that might have existed
has consequently been undermined, the State will be found to have failed in its
obligation under Article 13 of the Convention (see Khashiyev and Akayeva v.
Russia, nos. 57942/00 and 57945/00, § 183, 24 February 2005).
. Consequently,
there has been a violation of Article 13 in conjunction with Article 2
of the Convention in respect of the killing of Beslan Arapkhanov and with
Article 3 of the Convention in respect of the second applicant.
Turning to the alleged
lack of effective domestic remedies in relation to the search of the first and
fourth to tenth applicants’ home, the Court reiterates its findings concerning the ineffectiveness
of the remedy referred to by the Government in the circumstances of the case
(see paragraph 167 above). The Government did not
point to any other avenue of redress which the first and fourth to tenth
applicants could have used to vindicate their right to respect for their home.
They have thus failed to show that any remedies existed in
respect of the unlawful search at issue (see Betayev and Betayeva v. Russia, no. 37315/03, § 123, 29 May 2008).
. There
has therefore been a violation of Article 13 in conjunction with Article 8 of
the Convention.
As regards the applicants’
reference to Article 3 on account of their mental suffering, the Court
considers that, in the circumstances, no separate issue arises in respect of
Article 13, read in conjunction with Article 3 of the Convention (see Kukayev v. Russia, no.
29361/02, § 119, 15 November 2007, and Aziyevy
v. Russia, no. 77626/01, § 118, 20 March
2008).
VII. 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
The first and fourth to tenth applicants
claimed damages in respect of the lost wages of their husband/father, who would
have supported them financially. They submitted a certificate issued
by the State Unitary Enterprise “Galashki” confirming that it had employed Beslan
Arapkhanov between 1 October 1999 and 20 July 2004; his salary was not indicated.
The applicants asserted that Beslan Arapkhanov could not have earned less than the
minimum wage. They claimed the following amounts in respect of pecuniary
damage: 206,027.76 Russian roubles (RUB ─ 5,572 euros (EUR)) for the
first applicant; RUB 29,979.63 (EUR 810) for the fourth applicant; RUB 65,240.95
(EUR 1,760) for the fifth applicant; RUB 24,217.66 (EUR 655) for the
sixth applicant; RUB 50,466.65 (EUR 1,365) for the seventh applicant; RUB
58,691 (EUR 1,590) for the eighth applicant; RUB 37,760.76 (EUR 1,020) for
the ninth applicant; and RUB 44,753.92 (EUR 1,210) for the tenth
applicant.
The Government noted that the applicants could
have claimed a pension for the loss of a breadwinner at national level.
The Court reiterates that there must be a clear
causal connection between the damage claimed by the applicants and the
violation of the Convention, and that pecuniary damage may be awarded in
respect of loss of earnings. It considers that there is a direct causal link
between the violation of Article 2 in respect of Beslan Arapkhanov and the
loss by his wife and children of the financial support which he could have
provided. Noting that the applicants did not provide any documents indicating
Beslan Arapkhanov’s income, it finds appropriate to award in respect of
pecuniary damage EUR 5,000 to the first and fourth to tenth applicants jointly,
plus any tax that may be chargeable thereon.
B. Non-pecuniary damage
The applicants claimed non-pecuniary damage for
the suffering they had endured as a result of their relative’s death in the
following amounts: EUR 50,000 for the first applicant; EUR 5,000 for the second
applicant; EUR 40,000 for the third applicant; and EUR 30,000 each for the
fourth to tenth applicants.
The Government found the amounts claimed
exaggerated.
The Court has found violations of Articles 2 and
13 of the Convention in respect of the applicants’ late relative, as well as a
violation of Article 3 in respect of the second applicant and a violation of
Article 8 in respect of the first and fourth to tenth
applicants on account of the search of their home. The Court thus accepts that
the applicants have suffered non-pecuniary damage which cannot be
compensated for solely by the findings of violations. It finds it appropriate
to award in respect of non-pecuniary damage EUR 60,000 to the first and
third to tenth applicants jointly and EUR 3,000 to the second applicant,
plus any tax that may be chargeable thereon.
C. Costs and expenses
The applicants were represented by the SRJI,
which submitted an itemised invoice of costs and expenses, including research at
a rate of EUR 50 per hour and the drafting of legal documents submitted to
the Court and the domestic authorities at a rate of EUR 50 per hour for SRJI
lawyers and EUR 150 per hour for SRJI senior staff. They also claimed
translation and courier fees, confirmed by invoices, and administrative
expenses that were not supported by any evidence. The aggregate claim in
respect of costs and expenses related to the applicants’ legal representation
amounted to EUR 9,677.26. They requested that the payment under this head
be transferred to their bank account in the Netherlands.
The Government submitted that the
applicants’ claims for just satisfaction had been signed by five lawyers, two
of whom had not been mentioned in the powers of attorney issued by the
applicants. They also doubted the reasonableness of the postal costs.
The Court points
out that the applicants gave the SRJI and three of its lawyers the authority to
act on their behalf. The applicants’ claims for just satisfaction were signed
by five persons in total. The names of three of them appeared in the powers of
attorney, while two other lawyers worked with the SRJI. In such circumstances
the Court sees no reasons to doubt that the five lawyers mentioned in the
applicants’ claims for costs and expenses took part in the preparation of the
applicants’ observations. It also sees no reason to conclude that the
applicants were not entitled to send their submissions to the Court via a courier
service.
The Court now has to establish whether the
costs and expenses indicated by the applicants’ representatives were actually
incurred and, secondly, whether they were necessary (see McCann and Others, cited above, § 220).
Having regard to the details of the
information, the Court is satisfied that these rates are reasonable and reflect
the expenses actually incurred by the applicants’ representatives.
As to the necessity of the expenses, the Court
notes that this case was complex and required a certain amount of research and
preparation. It notes at the same time that, owing to the application of
Article 29 § 1 in the present case, the applicants’ representatives submitted
their observations on admissibility and merits in one set of documents. Furthermore,
the case involved little documentary evidence, in view of the Government’s
refusal to submit the case file. The Court therefore doubts that legal drafting
was necessarily time-consuming to the extent claimed by the representatives.
Having regard to the details of the claims
submitted by the applicants, the Court finds it appropriate to award them EUR 5,000,
together with any value-added tax that may be chargeable to the applicants, the
award to be paid into the representatives’ bank account in the
Netherlands, as identified by the applicants.
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
1. Decides to
strike the application out of its list of cases in accordance with Article 37 §
1 (a) of the Convention in so far as it concerns the applicants’ complaint
under Article 8 of the Convention concerning the alleged violation of their
right to family life;
2. Decides to join to the merits the
Government’s objection concerning non-exhaustion of domestic remedies as
regards the complaint concerning the applicants’ right to respect for home and
rejects it;
3. Declares the complaints
under Article 2 of the Convention in respect of the killing of Beslan
Arapkhanov, the complaint under Article 8 of the Convention in respect of the
first and fourth to tenth applicants concerning the search of their home, as
well as the complaints under Articles 3 and 13 of the Convention admissible and
the remainder of the application inadmissible;
4. Holds that there has been a violation of
Article 2 of the Convention in respect of the killing of Beslan Arapkhanov;
5. 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 of the killing of Beslan
Arapkhanov;
6. Holds
that there has been a violation of Article 3 of the Convention in respect
of the second applicant on account of his ill-treatment by State servicemen;
7. Holds
that there has been a violation of Article 3 of the Convention in respect
of the failure to conduct an effective investigation into the ill-treatment of
the second applicant;
8. Holds
that there has been no violation of Article 3 of the Convention in respect
of the applicants on account of their mental suffering;
9. Holds
that there has been a violation of Article 8 of the Convention in respect
of the first and fourth to tenth applicants on account of the search of their
home;
10. Holds that there
has been a violation of Article 13 of the Convention in conjunction with
the alleged violations of Article 2 of the
Convention in respect of the killing of Beslan Arapkhanov, Article 3 of the Convention on
account of the ill-treatment of the second applicant and Article 8 on account
of the search of the first and fourth to tenth applicants’ home;
11. Holds that no
separate issue arises under Article 13 in respect of the alleged violation of Article
3 of the Convention on account of the applicants’ mental suffering;
12. 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 5,000 (five thousand euros) to the first,
fourth, fifth, sixth, seventh, eighth, ninth and tenth applicants jointly, in
respect of pecuniary damage, to be converted into Russian roubles at the rate
applicable at the date of settlement, plus any
tax that may be chargeable on this amount;
(ii) EUR 60,000 (sixty thousand euros) to the first
and third to tenth applicants jointly and EUR 3,000 (three thousand euros) to
the second applicant, in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on these amounts;
(iii) EUR 5,000 (five thousand euros), in
respect of costs and expenses, to be paid into the representatives’ bank account
in the Netherlands, plus any tax that may be chargeable to the applicants;
(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;
13. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 3 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Isabelle
Berro-Lefčvre
Registrar President
