GERASIMENKO AND OTHERS v. RUSSIA - 5821/10 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 1066 (01 December 2016)

In the case of Gerasimenko and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Luis López Guerra, President,
          Helena Jäderblom,
          Helen Keller,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Alena Poláčková, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 8 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The cases originated in two applications (nos. 5821/10 and 65523/12) 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 three Russian nationals, Mr Ilya Mikhaylovich Gerasimenko and Ms Luiza Aleksandrovna Salikhova, application no. 5821/10, and Ms Yelena Anatolyevna Dudal, application no. 65523/12 (“the applicants”), on 15 January 2010 and 6 October 2012 respectively.

2. The first and second applicants were represented by Mr I.L. Trunov and Ms L.K. Ayvar, lawyers practising in Moscow. The third applicant was represented by Ms I. Khrunova, a lawyer practising in Kazan.

3. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

4. The applicants alleged that the State had failed in its obligation to safeguard their lives and to provide an effective remedy in this respect.

5. On 4 November 2013 the complaints under Articles 2 and 13 of the Convention were communicated to the Government and the remainder of application no. 5821/10 was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants were born in 1990, 1989 and 1990 respectively and live in Moscow.

A. Background events

7. D.E. was a major in the police. He was born in 1977.

8. On 28 November 2008 he was promoted to chief of the Tsaritsino branch of the Moscow Department of the Interior.

9. On the evening of 26 April 2009 D.E. had a birthday party. Shortly after returning home from the venue, he left again.

10. Between 12.30 and 1.20 a.m. on 27 April 2009 D.E. took a taxi to the Ostrov shopping centre on Shipilovskaya Street in Moscow. He was wearing police uniform and was armed with a handgun.

11. Initially, he fired several gunshots at the driver, E., who died of his injuries in hospital.

12. After D.E. got out of the car, he walked between some apartment blocks. Near one of them he saw two people he did not know, Ms S. and Mr K. Without saying anything, he opened fire and shot Ms S. three times and Mr K. twice. After a while he saw Mr L. and shot at him, also without saying a word. Mr L. however managed to run away.

13. D.E. then walked towards the Ostrov shopping centre. As it was open twenty-four hours a day, there were always people inside. D.E. opened fire at a group of people who were near the entrance, firing at least two shots at the first applicant and at least one shot at the second and third applicants. Another person, Ms B., was also wounded.

14. D.E. entered the shopping centre and approached Mr T. and Ms P. Without saying a word, he shot Mr T. in the head. After he fell to the ground, D.E. took Ms P. by the arm, pointed the gun at her head and, holding her hostage, continued moving through the shopping centre. Eventually, Ms P. managed to break free and run away.

15. When he passed a checkout counter, D.E. shot at a cashier, Ms T., who was killed instantly.

16. Staff and customers of the shopping centre tried to hide from D.E. Some of them used the fire exit and found themselves in the service yard of the shopping centre. D.E. followed them and, threatening them with his gun, ordered all the women who were hiding behind some boxes to step forward. One of them, Ms F., was trying to protect her pregnant daughter who was hiding together with her. She obeyed and approached D.E. He then pointed the gun at her head and pushed her towards a wall. He apparently intended to shoot her, but was distracted by a police unit that arrived at the scene. The police ordred him to let the people go, and surrender. D.E. started shooting at the police and Ms F. was able to escape, as were the other people hiding in the service yard. D.E. was subsequently apprehended by the police.

17. In the course of the events D.E. killed two people and wounded several others.

18. The first applicant suffered injuries to his head and body. He had a bullet entrance wound to the side of the face (parotic region) and an exit wound near the nose. He also had concussion and fractures to the walls of the right maxillary sinus and lower jaw. He also had a penetrating wound to the lumbar region, a ruptured spleen, a penetrating wound to the liver and diaphragm ligaments and a foreign body in the mediastinum.

19. The second applicant suffered head wounds. She had a perforating wound to the left cheek and oral cavity with a fractured lower jaw.

20. The third applicant had a non-penetrating wound to the left of the neck, a fractured left shoulder blade and a foreign body in the neck muscles.

B. Criminal proceedings against D.E.

21. On 27 April 2009 criminal proceedings were instituted against D.E. on two counts of murder and twenty-six counts of attempted murder in and around the Ostrov shopping centre.

22. On 5 May 2009 D.E. was dismissed from the police with effect from 27 April 2009.

23. On 7 May 2009 the first applicant was granted victim status in the criminal proceedings.

24. On 14 May 2009 D.E.’s mother was questioned. She submitted, in particular, that as a child he had had head injuries. At the age of between eleven and twelve years old he had suffered from severe headaches and throughout his school years he had been under the supervision of a neuropathologist. After the seventh grade he had been transferred to a different school because he would frequently have disagreements with his schoolmates. After the ninth grade he had been exempted from his school examinations on medical advice.

25. Between 25 June and 23 July 2009 a forensic psychological and psychiatric examination of Major D.E. was conducted by three psychiatrists and a psychologist. According to the conclusions set out in report no. 514 of 23 July 2009, D.E. did not suffer from any mental disorder, but had “accentuated” personality traits. The conditions he had suffered as a child and head injuries had led to the development of emotional instability, excitability, anxiety and demonstrative behaviour. This explained the difficulties in his adapting to school life and his behavioural deviations, which required psychiatric help. At the time of committing the offences he was accused of D.E. had not suffered from any temporary psychiatric disorder - that was apparent from the lack of evidence of his being in a psychotic state accompanied by delirium or hallucinations. He was able to understand the meaning of his actions and control them. He was neither a drug addict nor an alcoholic, although at the time of the events he had been in a moderate state of alcohol intoxication, as confirmed by an expert medical examination.

26. The psychologist who participated in the forensic examination stated that after his promotion in December 2008 until the time of the events D.E. had been in a “subjectively complex” situation. This had included an increased volume of work and management of a new team. D.E.’s qualities such as perfectionism, being highly demanding toward himself and others, needing to control all areas of professional activity and intolerance towards colleagues lacking diligence or competence had required, in the given situation, full use of his physical and personal resources. At the same time he had not been as enthusiastic about his new job as he had been about his previous job. Significant limitations on his independence and permanent accountability coupled with a lack of satisfaction from his work had led to emotional tension. D.E. had repeatedly wished to leave his job, but had felt responsibility for his duties and towards his subordinates. He had felt exhausted and had asked for leave, which his superiors had not granted him at the time. A complicated relationship with his wife had constituted another source of frustration. Furthermore, news of his direct supervisor leaving his job had constituted an additional traumatic factor, causing feelings of confusion unusual for D.E. The evening before the events D.E. had had his birthday party, which he had organised in the hope that he could relax in the company of his family and friends. However, on the morning of the party he had been busy at work and after leaving for the day, had expected to be called back. He had therefore been in a state of emotional tension. The fact that his wife and her father had been late for the party and the subsequent strained conversation he had had with her, coupled with his work-related anxiety and the feeling that the party had not gone as planned, had amplified the accumulated emotional tension and exhaustion. At the time of committing the offences D.E. had not been in an emotionally disturbed state.

27. In October 2009 (the exact date is illegible) the second applicant was granted victim status in the criminal proceedings.

28. On an unspecified date the third applicant was also granted victim status in the criminal proceedings.

29. On 19 February 2010 the Moscow City Court convicted D.E. of two murders, twenty-two counts of attempted murder, including the attempted murder of the applicants and law-enforcement officials, and the unlawful use of firearms. He was sentenced to life imprisonment. The court also stripped him of the rank of major.

30. When questioned in court D.E. pleaded partially guilty. He submitted that he had no recollection of the events and could not explain where and how he had come into possession of the handgun or cartridges. However, he did recognise himself on the footage of the CCTV at the shopping centre and therefore admitted that he had killed a man and tortured a woman, although he could not explain why he had done so. He pleaded not guilty with regard to all the other charges.

31. The court questioned numerous witnesses, who confirmed the account of events given in the preceding paragraphs. In particular, D.E.’s wife submitted that on returning from his birthday party he had behaved strangely. After he had left, she had called his parents and they had started to search for him. Police officers F. and Ya., who had apprehended D.E. at the Ostrov shopping centre, submitted that when they had asked him why he had done it, he had responded that “[you] should live [your] life in such a way that [you] would not want to live it again”. According to police officer Ya., D.E. also said that if he had had a machine gun “[it] would have been more fun” and, in response to a question about where he had got the firearms, he responded that, being police officers, they should know.

32. The court also noted that D.E. had had a 1968 Makarov ShI 3192 handgun and at least thirty-three cartridges. It further referred to information provided by the Tula Cartridge Factory on 26 August 2009 to the effect that the cartridges used by D.E. had been manufactured at the factory in 2002 and 2004. It had supplied cartridges to, in particular, the Moscow Department of the Interior. There had been no instances of cartridge theft reported. The court also referred to information provided by the Moscow Department of the Interior to the effect that the handgun used by D.E. had been reported stolen from the arms store of the North Caucasus Department of the Interior for the Rostov Region. It also referred to a judgment issued by the Proletarskiy District Court of Rostov-on-Don on 19 March 2001 convicting two officials of the theft of 128 handguns from that arms store in the period between June 1998 and April to May 2000, which included the handgun used by D.E.

33. According to the Government, on 23 March 2010 a criminal investigation into arms trafficking was instituted under Article 22 of the Criminal Code with respect to the sale of the handgun and ammunition to D.E. However, it was subsequently suspended as the culprit could not be identified.

34. On 8 June 2010 the Supreme Court of Russia upheld D.E.’s conviction and sentence on appeal.

C. Recommendation of the Investigative Committee to the Ministry of the Interior

35. On 17 September 2009 M., an investigator from the Investigative Committee at the Prosecutor’s Office of the Russian Federation, addressed the Minister of the Interior with a recommendation on measures to be taken with a view to rectifying the circumstances that had been conducive to the crime being committed. The recommendation noted that according to the forensic psychiatric examination, D.E. had been found to be of sound mind. However, since childhood he had been under the supervision of a neuropathologist on account of his psycho-emotional instability, but this had not been taken into account by the military medical panel which had found him fit to serve in the police. In the course of the psychological examination it had been established that one of the reasons for his psychologically traumatic situation had been his promotion to the position of chief of the Tsaritsino branch of the Moscow Department of the Interior. Referring to the findings of the forensic examination (see paragraph 26 above), the recommendation mentioned that D.E. had not been as interested and enthusiastic about his new duties as he had been about his previous work in the criminal police. Significant limitations on his independence and permanent accountability together with a lack of satisfaction from his work had led to emotional tension.

36. The recommendation went on to say that on 14 November 2008 D.E. had undergone an appraisal. The Appraisal Board had decided that he corresponded to the position he held and considered his promotion a possibility. However, the investigation established that D.E. had not been fit for the position of chief of the Tsaritsino branch of the Moscow Department of the Interior due to his moral and professional qualities. In particular, he had a poor knowledge of police service in the domain of public security and was irritable with his subordinates. The Appraisal Board had therefore had a very perfunctory attitude towards its duties, and the appraisal had not corresponded to the objectives set by the applicable regulations. Improper performance of duties by staff members of the human resources services of the agencies of the interior and their perfunctory attitude towards recruitment and the promotion of staff had led to persons unfit due to their personal and professional qualities being promoted to senior positions. Furthermore, the Ministry of the Interior had failed to conduct explanatory work with its staff to ensure respect for the rule of law, despite its functioning being based precisely on the principles of respect for human rights and humanism. The actions of D.E. had thus discredited the police.

37. The recommendation concluded that the above-mentioned failures on the part of the agencies of the interior had contributed to D.E committing serious crimes. It advised that measures should be taken aimed at their rectification.

D. Special ruling of the Moscow City Court

38. On 19 February 2010, the date D.E. was convicted, the Moscow City Court also issued a special ruling. It stated that in the course of the trial it had been established that in his childhood D.E. had been treated for conditions related to mental disorders and disorders of the central nervous system in medical institutions of agencies of the interior. However, those circumstances had not been taken into account when D.E. had been accepted to serve in the police and subsequently promoted to chief of the Tsaritsino branch of the Moscow Department of the Interior, even though the relevant medical data had been available at the institutions that provided medical care to the staff of the agencies of the interior. There had thus been a breach of section 19 of the Police Act, sections 130 and 131 of the Order of the Ministry of the Interior of 14 July 2004 and section 9.7 of the Order of the Ministry of the Interior of 14 December 1999.

39. Furthermore, the court noted that in the course of the trial it had been established that when committing the offence D.E. had used cartridges that had been manufactured in the Tula Cartridge Factory which had supplied cartridges to, in particular, the Moscow Department of the Interior. According to information submitted by the factory, no instances of cartridge theft were reported. The court thus concluded that, while holding the position of chief of the Tsaritsino branch of the Moscow Department of the Interior, D.E. had obtained the cartridges in breach of the Instruction concerning the storage of firearms established by Order of the Ministry of the Interior no. 13 of 12 January 2009 and had later used them for committing particularly serious offences.

40. Having regard to the irregularities in the functioning of the Ministry of the Interior which had contributed to the offences committed by D.E., the court ruled that it would draw the attention of the Minister of the Interior to the said irregularities and invite him to take measures aimed at their rectification.

E. Proceedings against D.E. for damages

41. The first and second applicants sued D.E. for damages. The first applicant claimed compensation for medical expenses in the amount of 114,609 roubles (RUB), and the second applicant in the amount of RUB 27,631. Each applicant also claimed RUB 2,000,000 as compensation for non-pecuniary damage.

42. On 31 July 2012 the Nagatinskiy District Court of Moscow partially allowed the claims. The court established that D.E. had been responsible for causing injuries to the first and second applicants. The court awarded RUB 19,980 (approximately 500 euros (EUR)) to the first applicant and RUB 27,631 (approximately EUR 691) to the second applicant for pecuniary damage. It stated, in particular, that whereas the first applicant’s medical expenses in the amount of RUB 19,980 had been necessarily incurred, he had also claimed RUB 94,629 in respect of surgery he would have to undergo in order to extract a bullet from his anterior mediastinum. However, according to the forensic expert examination conducted, such surgery was not recommended since the bullet was separated from the tissue and did not pose a danger to the first applicant’s health, whereas any attempt to extract it might lead to unexpected complications. Having regard to the defendant’s financial situation and making its assessment on an equitable basis, the court also awarded RUB 350,000 (approximately EUR 8,750) to the first applicant and RUB 250,000 (approximately EUR 6,250) to the second applicant for non-pecuniary damage.

43. On 4 December 2012 the Moscow City Court upheld the judgment on appeal.

F. The first and second applicant’s proceedings against the State for damages

44. On an unspecified date the first and second applicants instituted proceedings against the Ministry of the Finance, the Federal Treasury and the Moscow Department of the Finance for damages, arguing that they had suffered injuries as a result of the unlawful actions of a State official. D.E. participated in the proceedings as a third party.

1. The first applicant’s claim

45. On 29 July 2009 the Nagatinskiy District Court of Moscow dismissed the first applicant’s claim. The court stated that under Articles 52 and 53 of the Constitution and Articles 1064 § 1 and 1069 of the Civil Code, the State was liable for the unlawful actions of a State official performed in the course of his duties. However, if a State official caused damage as a result of activities unrelated to exercising the duties of the State service, he was liable under Article 1064 § 1 of the Civil Code. The court found that in the case at hand D.E.’s unlawful actions that had caused damage to the first applicant had taken place between 12.30 and 1.20 a.m. at the Ostrov shopping centre, outside D.E.’s working hours and the territorial jurisdiction of the Tsaritsino branch of the Moscow Department of the Interior. They had therefore been unrelated to his duties as a State official. The fact that at the relevant time he had held the position of chief of the Tsaritsino branch of the Moscow Department of the Interior and had had the rank of major did not constitute grounds for the State’s liability under Article 1069 of the Civil Code, as it had been established that D.E. had caused damage as a result of activities unrelated to the duties of his service. The court also dismissed the first applicant’s arguments that the State should be held liable for the damage because (i) at the time of the events D.E. had been dressed in police uniform; (ii) he had used cartridges that had belonged to the Tsaritsino branch of the Moscow Department of the Interior; (iii) under Section 18 of the Police Act a police officer carried out his or her duties irrespective of the time, place or his or her position; and (iv) D.E. had been dismissed from service for discrediting the police. The court held that under section 18 of the Police Act, as a general rule a police officer carried out his or her duties taking into account his or her position, duty hours and whereabouts. Exceptions to that rule were provided in section 18(3) and (4) and concerned instances where a police officer had to take urgent measures to provide assistance to victims of offences, save lives, prevent a crime being committed or apprehend a person suspected of committing an offence. In such cases a police officer had to perform his or her duties irrespective of his or her position, duty hours and whereabouts. However, this was not the situation at hand and therefore D.E. had not been acting in the exercise of his State duties and there were no grounds to hold the State liable for his actions. The fact that he had been wearing police uniform and had used cartridges that had belonged to the Tsaritsino branch of the Moscow Department of the Interior had no bearing. The fact that D.E. had been dismissed for discrediting the police meant that his actions had been incompatible with the status of a police officer, but not that he had performed the actions that had caused damage to the first applicant in the course of his duties.

46. On 6 October 2009 the Moscow City Court upheld the judgment. It noted that there was no evidence that would unequivocally confirm that the actions in question had been performed by D.E. in the course of his duties as a civil servant.

2. The second applicant’s claim

47. On 23 September 2009 the Nagatinskiy District Court of Moscow dismissed the second applicant’s claim. The court’s reasoning was identical to that in its judgment of 29 July 2009 in respect of the first applicant’s claim.

48. On 1 December 2009 the Moscow City Court upheld the judgment. As in its decision of 6 October 2009, it noted that there was no evidence that would unequivocally confirm that the actions in question had been performed by D.E. in the course of his duties as a civil servant.

3. Requests to reopen the proceedings

49. Subsequently, having regard to the special ruling of the Moscow City Court of 19 February 2010, the first and second applicants applied for the civil proceedings to be reopened in the light of newly discovered circumstances.

50. On 9 April 2010 the Nagatinskiy District Court of Moscow dismissed their requests in two separate rulings. It held that there were no significant new circumstances that would warrant reopening the proceedings.

G. The third applicant’s proceedings against the State for damages

51. On 15 November 2010 the third applicant underwent a polygraph test to assess her perception of the police officers after the events of 27 April 2009. According to the results of the test, on 27 April 2009 she had taken D.E. for a police officer and, as a result of the events, had developed feelings of fear and apprehension towards police officers.

52. Between 19 November and 5 December 2010 an expert psychological examination was conducted with a view to establishing how the fact that at the time of the events D.E. had been wearing police uniform had affected the third applicant’s psychological state. According to the results of the examination, police uniform affects a person’s behaviour as in general people tend to display loyalty and obedience towards symbols of authority due to the latter’s legitimacy and conventionality and their fear of reprisal in the event of their refusal to obey. The fact that the perpetrator had been wearing police uniform had undoubtedly affected the third applicant’s behaviour and psychological state and had limited her ability to choose a behavioural pattern aimed at protecting her life and health. At the time of the examination the third applicant felt an uncontrollable fear of officials wearing police uniform. When she saw one she felt anxiety, apprehension and panic. There was a direct connection between the events and the third applicant’s psychological state characterised by depression, emotional tension and instability, negative feelings, the tendency to avoid new experiences, a pessimistic outlook on life and a change in moral values.

53. On 29 September 2011 the third applicant instituted proceedings against the Ministry of Finance for damages. She argued that damage had been caused as a result of a police officer’s unlawful exercise of his powers. She argued, in particular, that (i) D.E. had used firearms that he had obtained in the course of his service in the police; (ii) any judicial decision recovering damages from D.E. would remain unenforced since, being convicted to life imprisonment, he would have no sources of income and therefore no assets to recover the judgment debt from; (iii) the polygraph test had proven that on the night of the events the third applicant had taken D.E. for a police officer; and (iv) according to the results of the expert psychological examination, the fact that D.E. had been wearing police uniform had affected the third applicant, rendering her defence difficult.

54. On 7 December 2012 the Tverskoy District Court of Moscow dismissed the claim. Relying on Articles 150, 151, 1064 § 1 and 1069 of the Civil Code and referring to D.E.’s conviction, the court found no evidence that damage had been caused to the third applicant by the unlawful actions of a law-enforcement officer. The court found that the claim had been brought against the wrong defendant and that it should have been brought against D.E. It dismissed the argument that any judgment against D.E. would remain unenforced as speculative. The third applicant’s reference to the fact that D.E. had used cartridges that had belonged to the Moscow Department of the Interior was also dismissed as “being based on a wrong assessment of the facts established by the court”. The court also stated that the third applicant’s personal perception of the perpetrator dressed in police uniform did not constitute grounds for allowing the claim. It further noted that the reference to the Court’s case-law in the statement of claim constituted an arbitrary interpretation of judicial decisions irrelevant to the case.

55. On 16 April 2012 the Moscow City Court upheld the judgment on appeal.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Constitution

56. The relevant provisions of the Constitution read as follows:

Article 52

“Rights of victims of crimes and of abuse of power are protected by law. The State shall provide victims access to justice and compensation for the damage caused.”

Article 53

“Everyone has a right to compensation from the State for damage caused by the unlawful actions (or inaction) of State authorities or their officials.”

B. Civil Code

57. Under Article 150 § 1, non-pecuniary assets include life, health and personal inviolability. Under Article 150 § 2, non-pecuniary assets are protected in accordance with the Code and other laws.

58. Article 151 provides that if a person suffers non-pecuniary damage (such as physical or mental suffering) as a result of actions violating his or her non-pecuniary rights or encroaching on his or her non-pecuniary assets, the court may impose on the tortfeasor an obligation to provide monetary compensation for the damage caused.

59. Under Article 164 § 1, damage caused to a person or property is to be compensated in full by the person who caused it. The law may impose on a person who is not the tortfeasor an obligation to pay compensation.

60. Article 1069 provides that damage caused to a person or a legal entity as a result of unlawful actions or inaction of State agencies, agencies of local self-government or their officials is to be compensated. Such compensation is to be paid from the Federal Treasury or the treasury of a constituent unit of the Russian Federation or municipal entity.

61. Under Article 1070 § 1, damage caused to an individual as a result of an unlawful conviction, unlawful institution of criminal proceedings, unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave his or her place of residence, or an unlawful administrative penalty in the form of detention or community service is to be compensated in full, irrespective of any fault on the part of the officials or agencies, from the Federal Treasury or, in instances provided for by law, from the treasury of a constituent unit of the Russian Federation or municipal entity. Article 1070 § 2 further provides that damage sustained by an individual as a result of unlawful actions of investigation and prosecution agencies which did not entail the consequences set out in paragraph 1 is to be compensated on the grounds and in accordance with the procedure provided for in Article 1069.

C. Police Act

62. Section 3 of the Police Act (Law no. 1026-I of 18 April 1991), in force until 1 March 2011, provided that the functioning of the police was based on principles of respect for human rights and liberties, the rule of law, humanism and publicity. Sections 1 and 2 stated that the aim of the police was protection of life, health, rights and freedoms, property, interests of the society and the State from criminal or other unlawful acts and that their tasks were to ensure security of persons, prevent and investigate crimes, guard public order and public security, protect property, and assist natural and legal persons in the protection of their rights and lawful interests.

63. Section 4 provided that the police acted on the basis of the Constitution, the Police Act, other federal laws and international treaties of the Russian Federation, as well as on the basis of constitutions and laws of the constituent units of the Russian Federation adopted within their powers.

64. Section 18 provided that a police officer fulfilled the duties and exercised the rights of the police provided for by the Police Act, within his or her competence and in accordance with the position held. A police officer within the territory of the Russian Federation, irrespective of the position held, his or her whereabouts and the time, had the following duties:

(i) to provide first aid and other types of assistance to victims of crimes, administrative offences or accidents, as well as to individuals in a helpless or other state that posed a danger to their lives; and

(ii) where individuals reported to him or her information on events threatening personal or public security, or in the event that he or she discovered the events themselves, to take measures to save people, prevent or repress the offence, apprehend the person suspected of committing the offence, secure the scene of the events and inform the nearest police department accordingly.

65. In order to fulfil the above duties the police officer could use the rights of the police provided for by the Police Act.

66. Under section 19, individuals no younger than eighteen and no older than thirty-five years old who had a secondary-level education and who were capable due to their personal and business qualities, physical training and state of health to fulfil the duties of police officers could be accepted for service in the police irrespective of their gender, race, ethnic origin, language, property status or official capacity, place of residence, religious and other convictions and membership in public organisations.

D. Letter of the Supreme Court on Certain Aspects of Judicial Practice in Civil Cases

67. In a Letter published in the Bulletin of the Supreme Court (no. 10 of 1997) the Supreme Court stated that where civil claims for damages are brought against the State under Articles 1069 and 1070 of the Civil Code, the Ministry of Finance should act as the defendant on behalf of the Federal Treasury. Decisions have to state that the amount due is to be recovered from the Federal Treasury, and not from the property and monetary assets transferred under the operative management of the Ministry of Finance acting in the capacity of a federal executive agency.

E. Orders of the Ministry of the Interior

68. The Instruction on the Conduct Military and Medical Expert Examinations in the Agencies of the Interior of the Russian Federation and Troops of the Ministry of the Interior of the Russian Federation, adopted by an Order of the Ministry of the Interior of 14 July 2004, in force until 14 July 2010, provided that expert examinations of individuals who applied to serve in the agencies of the interior were to be conducted by the following medical experts: a surgeon, a physician, a neurologist, a psychiatrist, an ophthalmologist, an otolaryngologist, a dentist and a dermatovenerologist (section 130). Prior to the expert examination the expert military and medical panel had to request medical institutions depending on the applicant’s place of residence, study, work or service, to provide information on, in particular, his or her having been placed under supervision for mental disorders, drug, alcohol or inhalant addiction or the abuse of drugs or other toxic substances (sections 131 and 131.1).

69. Section 9.7 of the Instruction on Implementation of the Regulation on Service in the Agencies of the Interior of the Russian Federation, adopted by an Order of the Ministry of the Interior of 14 December 1999, in wording that remained valid until 7 May 2012, provided that staff appraisals had to be conducted in writing. They had to fully and objectively reflect the staff member’s knowledge and skills and his or her compliance with the requirements of the position, including his or her:

(i) professional qualifications and ability to deal with operational tasks in accordance with the position held;

(ii) quality and timely fulfilment of duties of service;

(iii) level of intellectual and cultural development, including breadth of outlook, creative activity and erudition; and

(iv) operational, physical, emotional and volitional readiness to deal with operational tasks and take justified risks; a degree of self-control in extreme situations and composure in relations with other people.

70. After the appraisal the staff member would be given recommendations on how to improve his or her service and rectify any shortcomings. The appraisal report was to be concluded by an assessment of the staff member’s correspondence to the position held, the possibility of promotion or the necessity of downgrading.

71. The Instruction on Organising the Supply, Storage, Control, Distribution and Security of Weapons and Ammunition in the Agencies of the Interior of the Russian Federation, adopted by Order of the Ministry of the Interior no. 13 of 12 January 2009 provides, inter alia, that the head of an agency of the interior is responsible for the safety of arms and ammunition in the subordinate agencies (section 2). His responsibilities include controlling security, stocktaking, storage, distribution and using arms and ammunition in such a manner that would exclude the possibility of loss, theft or damage (section 3.2).

THE LAW

I. JOINDER OF THE APPLICATIONS

72. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

73. The applicants complained under Article 2 of the Convention that the State had failed to protect their lives by accepting D.E. into the police and providing him with access to weapons despite his being unfit for service on account of his neurological and psychiatric condition. Article 2, in so far as relevant, 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.”

A. The Government’s submissions

74. Firstly, the Government stated that the first and second applicants had lodged the present application before D.E.’s conviction and before they had instituted civil proceedings against him for damages. They had therefore failed to exhaust the available domestic remedies. Furthermore, as their claims against D.E. for damages had been allowed, they could no longer be considered “victims” for the purposes of Article 34 of the Convention. With regard to the third applicant, the Government pointed out that she had instituted civil proceedings two years after D.E.’s conviction and had thus procrastinated the domestic proceedings. Moreover, she had instituted them against an “improper defendant”, namely the State as opposed to D.E. Furthermore, she had lodged the present application over a year after D.E.’s conviction had become final, in breach of the six-month rule.

75. The Government distinguished the present case from the cases of Đurđević v. Croatia (no. 52442/09, ECHR 2011 (extracts)) and Sašo Gorgiev v. the former Yugoslav Republic of Macedonia (no. 49382/06, ECHR 2012 (extracts)). They pointed out that in Đurđević one of the police officers had identified himself as such by shouting “Stop! Police!” and that, furthermore, both police officers had had no other reason to intervene in the situation in question than in their official capacity (cited above, § 75). At the same time, in Sašo Gorgiev the police officer in question had left his place of duty without the authorisation of his superiors during working hours and, while intoxicated, had engaged in dangerous behaviour putting the applicant’s life at risk. Furthermore, he had been wearing his uniform and had therefore been perceived by the public as a law-enforcement agent. He had also used his police gun, which had been provided to him by the authorities (cited above, § 49).

76. The Government argued that, in contrast to the two above-cited cases, in the case at hand D.E. had committed the offence outside his working hours and in a district different from that within the jurisdiction of the Tsaritsino branch of the Moscow Department of the Interior. He had not been on duty at the time of the events and, furthermore, had not used his police gun but a gun that had been stolen from a different agency of the Department years earlier. In the Government’s view, the fact that the domestic investigation had failed to establish how D.E. had acquired that gun had no bearing on the State’s compliance with its obligations under Article 2.

77. The Government further maintained that the Court’s approach as to whether or not the State was responsible for police officers’ actions off duty could not be based merely on the public’s perception of them. In particular, numerous crimes were committed by civilians wearing police uniform but that did not make the State responsible for their actions.

78. Lastly, the Government contended that the State had fully complied with its obligations under Article 2 of the present case as D.E. had been convicted and, furthermore, the first and second applicants’ claims against him for damages had been allowed by the domestic courts.

B. The applicants’ submissions

79. The applicants submitted, firstly, that civil proceedings against D.E. did not constitute an effective remedy with regard to the State’s responsibility for the incident. While their claims against the State for damages had been dismissed, the Government had not suggested that there existed any other domestic remedies that could grant them redress for the State’s failure to prevent the incident in question. The applicants also pointed out that they had lodged the applications before the Court within six months of the delivery of the final domestic decisions concerning their claims against the State.

80. The applicants argued that the State was responsible for the incident for the following reasons: (i) at the time of the events D.E. had been wearing uniform and had been perceived by others to be a police officer; (ii) the ammunition he had used had belonged to the Moscow Department of the Interior - a fact established by the domestic courts that the Government had not commented on; (iii) although D.E. had not use his police gun but a gun previously stolen by third parties, it appeared that he had acquired it using his official powers (see paragraph 31 above); (iv) whereas the State had failed to establish how exactly he had come into possession of the gun, it had been established that it had been stolen from a different agency of the Department; (v) the State had failed to ensure control over the access to and use of official weapons, which had permitted D.E. to commit the offence; (vi) the State had accepted D.E. for police service despite his neurological history and had provided him with access to weapons and firearms training; (vii) having been promoted, D.E. had actually become the person in charge of controlling the weapons, which had facilitated his access to them; and (viii) in the recommendation of 17 September 2009 the Investigative Committee had explicitly stated that the Appraisal Board that had found D.E. to correspond to his position had failed to duly perform its functions (see paragraphs 35-37 above).

C. Admissibility

81. The Court notes that by a judgment of 19 February 2010 the Moscow City Court convicted D.E. of, inter alia, the attempted murder of the applicants. The conviction was upheld on appeal by the Supreme Court of Russia on 8 June 2010. The first and second applicants subsequently brought civil claims against D.E. for damages, which were partially allowed by the Moscow City Court in a final decision of 4 December 2012.

82. The Court observes, however, that the applicants’ complaint concerns neither criminal nor civil proceedings against D.E., but the State’s alleged responsibility for the incident. It notes that the applicants’ claims against the State for damages were rejected by the Moscow City Court in final decisions of 6 October 2009, 1 December 2009 and 16 April 2012 respectively. The Government did not suggest that the applicants had to have recourse to any other domestic remedies that could grant them redress for the State’s alleged failure to prevent the incident in question, civil proceedings against D.E. clearly not being such a remedy. Accordingly, the Court concludes that the applicants exhausted the available domestic remedies, as required by Article 35 § 1 of the Convention.

83. For the same reasons the Court rejects the Government’s objection concerning the loss of victim status by the first and second applicants on account of their civil claims against D.E. being partially allowed by the domestic courts.

84. In so far as the Government may be understood to raise a plea of non-exhaustion on account of the third applicant’s failure to institute civil proceedings against D.E., it is also dismissed for the reasons stated above.

85. As regards the Government’s objection concerning the third applicant’s failure to lodge the application within six months of D.E.’s conviction, the Court reiterates that her complaint does not concern the criminal proceedings against him, but the State’s alleged responsibility for the incident. Whereas her claim against the State for damages was dismissed by the final decision of the Moscow City Court of 16 April 2012, she lodged the present application with the Court on 6 October 2012, within six months of the date of the final domestic decision, in compliance with Article 35 § 1. The Government’s objection is therefore dismissed.

86. 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.

D. Merits

1. Applicability of Article 2 of the Convention

87. According to the Court’s case-law, it is only in exceptional circumstances that physical ill-treatment by State agents which does not result in death may disclose a violation of Article 2 of the Convention. Although the criminal responsibility of those concerned in the use of the impugned force is not in issue in the proceedings brought under the Convention, the degree and type of force used and the intention or aim behind the use of force may, among other factors, be relevant in assessing whether in a particular case State agents’ actions in inflicting injury but not death are such as to bring the facts within the scope of the safeguard afforded by Article 2 of the Convention, having regard to the object and purpose of that Article (see Sašo Gorgiev, cited above, § 36).

88. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 54, ECHR 2002-II). This positive obligation entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (see Paul and Audrey Edwards, cited above, § 54).

89. Turning to the facts of the present case, the Court notes that on 27 April 2009 D.E. killed two people and wounded the applicants and several others. The domestic courts convicted him of, inter alia, two murders and twenty-two counts of attempted murder, including the attempted murder of the applicants.

90. The Court finds no reasons to depart from the findings of the domestic courts in this respect and finds it established that D.E. intended to kill the applicants. Article 2 is therefore applicable in the instant case, given the degree and type of force used and the intention or aim behind it (see Makaratzis v. Greece [GC], no. 50385/99, § 51, ECHR 2004 XI; and Sašo Gorgiev, cited above, § 36).

2. The State’s responsibility under Article 2 of the Convention

(a) General principles

91. 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 (see Velikova v. Bulgaria, no. 41488/98, § 68, ECHR 2000-VI).

92. In keeping with the importance of Article 2 in a democratic society, the Court must subject allegations of a breach of this provision to the most careful scrutiny, taking into consideration not only the actions of the agents of the State who actually administered the force, but also all the surrounding circumstances (see McCann and Others v. the United Kingdom, 27 September 1995, § 150, Series A no. 324).

93. Article 2 does not solely concern deaths resulting from the use of force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see Makaratzis, cited above, § 57).

94. This positive obligation entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective prevention. This framework must include regulations geared to the special features of certain activities, particularly with regard to the level of the potential risk to human lives. The State must display the utmost diligence and define the limited circumstances in which law-enforcement officials may use firearms (see Abdullah Yilmaz v. Turkey, no. 21899/02, §§ 56-57, 17 June 2008; Makaratzis, cited above, § 59; and Sašo Gorgiev, cited above, § 42).

95. For the Court, and having regard to its case-law, the State’s duty to safeguard the right to life must also be considered to involve the taking of reasonable measures to ensure the safety of individuals in public places and, in the event of serious injury or death, having in place an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Ciechońska v. Poland, no. 19776/04, § 67, 14 June 2011, and Sašo Gorgiev, cited above, § 43).

96. However, the positive obligation is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (see Keenan v. the United Kingdom, no. 27229/95, § 90, ECHR 2001-III, and A. and Others v. Turkey, no. 30015/96, §§ 44-45, 27 July 2004). In particular, the choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means (see Ciechońska, cited above, § 65; Fadeyeva v. Russia, no. 55723/00, § 96, ECHR 2005-IV; and Sašo Gorgiev, cited above, § 44).

(b) Application of the foregoing principles to the present case

97. The Court notes that after midnight on 27 April 2009 D.E., at the time chief of the Tsaritsino branch of the Moscow Department of the Interior, took a taxi to the Ostrov shopping centre in Moscow. He was wearing police uniform and had a loaded handgun. Subsequently, in and around the shopping centre, D.E. killed two people using the gun and wounded several others, including the applicants. The Court observes that the present case therefore concerns a harmful action taken by a State agent outside his duties (see Sašo Gorgiev, cited above, § 47).

98. On 19 February 2010 the Moscow City Court convicted D.E. of, inter alia, two murders and twenty-two counts of attempted murder. He was sentenced to life imprisonment. On 8 June 2010 the Supreme Court of Russia upheld the conviction on appeal. The domestic courts found, in particular, that the cartridges used by D.E. had been supplied to the Moscow Department of the Interior. As for the handgun, it turned out not to be D.E.’s police gun, but a gun reported as stolen from the arms storage of the North Caucasus Department of the Interior for the Rostov Region in the period between June 1998 and April to May 2000, a theft for which two officials had been convicted in 2001 (see paragraph 32 above). The domestic authorities could not establish how D.E. had come into possession of the gun, and the investigation in this respect was discontinued (see paragraph 33 above).

99. The Court also notes that the domestic courts ordered a forensic psychological and psychiatric examination of D.E. According to the conclusions set out in report no. 514 of 23 July 2009, D.E. did not suffer from any mental disorder, but had accentuated personality traits. The conditions he had suffered as a child and head injuries had led to the development of emotional instability, excitability, anxiety and demonstrative behaviour. Furthermore, D.E.’s recent promotion to the post of chief of the Tsaritsino branch of the Moscow Department of the Interior had created a subjectively complex situation. He had not been as enthusiastic about his new job as he had been about his previous job and had repeatedly wished to leave it, but had felt responsibility for his duties and towards his subordinates (see paragraphs 25-26 above).

100. The Court observes that on 17 September 2009, having regard to report no. 514 of 23 July 2009, the Investigative Committee at the Prosecutor’s Office of the Russian Federation addressed the Minister of the Interior with a recommendation on measures to be taken with a view to rectifying the circumstances that had been conducive to the crime being committed. In the recommendation it was stated, in particular, that the Appraisal Board who had found D.E. fit for promotion had had a perfunctory attitude towards its duties. Furthermore, the Ministry of the Interior had failed to carry out explanatory work with its staff to ensure respect for the rule of law, and the actions of D.E. had thus discredited the police. The recommendation concluded that the above-mentioned failures on the part of the agencies of the interior had contributed to D.E. committing serious crimes and advised that measures should be taken aimed at their rectification (see paragraphs 35 and 37 above).

101. The Court further takes note of the special ruling issued by the Moscow City Court on 19 February 2010, the date of D.E.’s conviction. The court stated that the latter’s history of mental and neurological disorders had not been taken into account when he had been accepted for police service and subsequently promoted, in breach of the Police Act. It further stated that D.E., while holding the position of chief of the Tsaritsino branch of the Moscow Department of the Interior, had obtained the cartridges he had used on 27 April 2009 in breach of the applicable Order on the storage of firearms (see paragraph 71 above). The Moscow City Court found that the above irregularities in the functioning of the Ministry of the Interior had contributed to the offences committed by D.E., and invited the Minister of the Interior to take measures for their rectification (see paragraphs 38 and 40 above).

102. The Court thus observes that both the Investigative Committee at the Prosecutor’s Office of the Russian Federation and the Moscow City Court found that the above-mentioned failures of the agencies of the Department had contributed to the offences committed by D.E. Accordingly, although D.E.’s guilt in the attempted murder of the applicants cannot be denied, it was acknowledged by the national authorities on several occasions that his superiors had failed to appropriately assess his personality and, despite his history of mental and neurological disorders, had provided him with access to ammunition, which had led to the incident in question (see Gorovenky and Bugara v. Ukraine, nos. 36146/05 and 42418/05, § 35, 12 January 2012).

103. The Court reiterates that the States are expected to set high professional standards within their law-enforcement systems and ensure that the persons serving in these systems meet the requisite criteria and, in particular, when equipping police forces with firearms, not only must the necessary technical training be given but the selection of agents allowed to carry such firearms must also be subject to particular scrutiny (see Gorovenky and Bugara, cited above, § 38). It follows that in the present case the police officer, whose personality was not correctly assessed at the time of his recruitment and left without due supervision after promotion to a demanding post, attempted to murder the applicants with a gun loaded with cartridges to which he had access due to his service in the police.

104. In these particular circumstances the Court concludes that the State has failed to comply with its positive obligation under Article 2 to take appropriate steps to safeguard the lives of those within its jurisdiction jurisdiction by ensuring careful selection and supervision of State agents allowed to carry firearms (see Gorovenky and Bugara, cited above, § 40).

105. There has, accordingly, been a violation of Article 2 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

106. The applicants complained about the dismissal of their claim against the State for damages. They argued that as the offence had been committed as a result of the State’s negligence, they should be provided with a remedy that would enable them to obtain redress for the damage suffered. The applicants relied on Articles 2 and 6 of the Convention. The Court considers that substantively their complaint falls to be examined under Article 13 of the Convention, which reads 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.”

107. The Government contested that argument. Having regard to D.E.’s conviction and the fact that the first and second applicants’ claims against him for damages had been allowed, the Government argued that the applicants had had effective domestic remedies, although the third applicant had failed to exhaust them.

108. The Court notes that the legal and factual basis for this complaint is substantively linked to the issues examined under Article 2 of the Convention and accordingly this complaint must be declared admissible. However, having regard to the above finding of a violation of Article 2 it does not appear necessary to examine separately the present complaint under Article 13 of the Convention (compare Enukidze and Girgvliani v. Georgia, no. 25091/07, § 311, 26 April 2011, and Gorovenky and Bugara, cited above, § 48).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

109. 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

110. The first applicant claimed 129,155.07 Russian roubles (RUB) for medical expenses. The breakdown of expenses provided by him include the RUB 19,980 awarded by the Nagatinskiy District Court of Moscow on 31 July 2012 and RUB 94,629 in respect of surgery he would have to undergo in order to extract a bullet from his anterior mediastinum. The Court notes that the total amount of expenses claimed thus constitutes RUB 114,706, which amounts to RUB 114,609 and not RUB 129,155.07 as indicated by the first applicant. The second applicant claimed RUB 27,631.20 for medical expenses. This amount was likewise awarded by the Nagatinskiy District Court of Moscow on 31 July 2012. The first and second applicants maintained that, since the domestic courts had awarded the compensation in the proceedings against D.E. and not against the State, the award was unenforceable as, being a prisoner, D.E. had no assets that could be subject to the enforcement. The third applicant made no claim in respect of pecuniary damage.

111. The Government pointed out that the first and second applicants had already been awarded compensation for the pecuniary damage caused by the domestic courts, and an award by the Court would lead to duplication of the compensation.

112. The Court observes that the amount of RUB 19,980, which constituted part of the amount claimed by the first applicant for pecuniary damage, and the amount of RUB 27,631.20 claimed by the second applicant under this head, were awarded by the Nagatinskiy District Court of Moscow on 31 July 2012 in proceedings that the applicants had instituted against D.E. The decision was upheld by the Moscow City Court on 4 December 2012 and became final (see paragraphs 41 and 43 above). The Court therefore finds that awarding the first and second applicant pecuniary damages would lead to duplication of the awards for compensation for the same expenses. In so far as the first and second applicants alleged that the decision of the domestic courts was unenforceable, the Court observes, firstly, that no evidence has been provided by them to support this argument and, in any event, the alleged enforceability of the decision is beyond the scope of the present case.

113. As regards the amount of RUB 94,629 claimed by the first applicant in respect of surgery he would have to undergo in order to extract a bullet from his anterior mediastinum, the Court observes that in the decision of 31 July 2012 the Nagatinskiy District Court of Moscow dismissed the claim in this part on the grounds that, according to the forensic expert examination conducted, such surgery was not recommended (see paragraph 42 above). The first applicant provided no cogent elements that could lead the Court to find otherwise.

114. For the above reasons the Court rejects the first and second applicants’ claims for pecuniary damage. As the third applicant did not claim compensation for pecuniary damage, the Court makes no award under this head either.

B. Non-pecuniary damage

115. The first and second applicants stated that they had suffered non-pecuniary damage as a result of the events of 27 April 2009 and asked to be awarded compensation in accordance with Article 41. They left the amount of the award to the Court’s discretion. The third applicant claimed 30,000 euros (EUR) for non-pecuniary damage.

116. As regards the claim made by the first and second applicants, the Government noted that their claims for compensation for non-pecuniary damage lodged against D.E. had been partially allowed by the domestic courts, and that an award by the Court would lead to duplication of the compensation. As regards the third applicant, the Government argued that, by failing to institute civil proceedings against D.E. she had not exhausted the available domestic remedies. As it remained open to her to do so, in the Government’s view the claim should be dismissed.

117. The Court observes that whereas it has dismissed the first and second applicants’ claims for compensation for pecuniary damage on the grounds that compensation for the medical expenses in question had already been awarded by the domestic courts, the situation with regard to their claim for compensation for non-pecuniary damage is substantially different. It is not based on the very fact that D.E. inflicted shotgun wounds attempting to murder them, but on the fact that by accepting him for police service and subsequently promoting him, the State has failed in its obligation under Article 2 of the Convention to safeguard the lives of those within its jurisdiction (see paragraph 104 above).

118. Having regard to the violation of Article 2 of the Convention found in the present case, the Court accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. The Court awards each applicant EUR 12,000 in respect of non-pecuniary damage.

C. Costs and expenses

119. The first and second applicants submitted that they had incurred costs and expenses before both the domestic courts and the Court. However, they neither specified the amount nor submitted any corroborating documents. The third applicant claimed EUR 2,000 for the costs and expenses incurred before the domestic courts and the Court. She provided a copy of a contract dated 1 January 2011, according to which she had to pay her representative RUB 100,000 (approximately EUR 2,470) for legal services.

120. The Government maintained that the applicants had failed to submit any documents that would corroborate the payment for their representatives’ services.

121. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

122. As regards the first and second applicants, the Court observes that they did not specify the amount of the expenses incurred, let alone provide any corroborating documents. Having regard to the above criteria, the Court rejects their claims for costs and expenses.

123. As regards the third applicant, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award her EUR 2,000 covering costs under all heads.

D. Default interest

124. The Court considers it appropriate that the default interest rate 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 join the applications;

2. Declares the complaints under Articles 2 and 13 of the Convention admissible;

3. Holds that there has been a violation of Article 2 of the Convention;

4. Holds that it is not necessary to examine separately the complaint under Article 13 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, to each applicant in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, to the third applicant in respect of costs and expenses;

(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;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 1 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> GERASIMENKO AND OTHERS v. RUSSIA - 5821/10 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 1066 (01 December 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/1066.html Cite as: [2016] ECHR 1066, ECLI:CE:ECHR:2016:1201JUD000582110, CE:ECHR:2016:1201JUD000582110