ABDULKHADZHIYEVA AND ABDULKHADZHIYEV v. RUSSIA - 40001/08 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 793 (04 October 2016)

In the case of Abdulkhadzhiyeva and Abdulkhadzhiyev v. Russia,

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

          Luis López Guerra, President,
          Helen Keller,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 6 September 2016,

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

PROCEDURE

1. The case originated in an application (no. 40001/08) 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 two Russian nationals, Ms Malika Abdulkhadzhiyeva (“the first applicant”) and Mr Ramzan Abdulkhadzhiyev (“the second applicant”), on 29 July 2008.

2. The applicants were represented by Mr I.Y. Timishev, a lawyer practising in Nalchik, the Republic of Kabardino-Balkariya. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicants alleged, in particular, that in October 1999 they had been wounded by State servicemen and that the authorities had failed to effectively investigate the matter.

4. On 8 November 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1953 and 1957 respectively and live in the village of Savelyevskaya, in the Naurskiy District of the Chechen Republic. The second applicant is the first applicant’s brother-in-law.

6. The facts of the case, as submitted by the parties, may be summarised as follows.

The events of 8 October 1999

1. Background information

7. At the material time, a counterterrorist campaign - involving intense military clashes between federal troops and local rebels - was taking place in the Chechen Republic. The law-enforcement bodies and the courts were not functioning. Upon the arrival of the military in Savelyevskaya, the local residents did not flee but remained in their homes. The village and the area around it were under the control of federal troops that were stationed in the vicinity.

8. At the beginning of October 1999 the outskirts of the village came under artillery fire, which forced the residents to seek the military’s permission to evacuate their cattle.

2. Wounding of the applicants

9. After permission to evacuate the cattle was obtained, on 8 October 1999 (in the documents submitted the date was also referred to as 8 October 2000), at around noon, the applicants and their neighbours, Mr R.M. and Mr M.R., arrived at the agreed spot at a copse of trees next to Savelyevskaya and approached the Russian federal servicemen who were stationed in the vicinity. The servicemen agreed to let them pass through to the field where their cattle were pastured to retrieve them. However, after the applicants, Mr R.M. and Mr M.R., had walked about several dozen metres away in the direction of the pasture, the servicemen opened fire on them. As a result, both applicants received wounds to the upper extremities (верхние конечности) and fell on the ground. Having witnessed the attack, a civilian, Mr D., tried to approach the servicemen, but was shot dead in the presence of the applicants and Mr M.R. Meanwhile, Mr R.M. managed to crawl away and inform the local authorities about the incident.

10. Both applicants and Mr M.R. remained on the ground for several hours; each time they tried to get up they were subjected to gunfire. Then three military servicemen approached, blindfolded them and took them to the premises of military unit no. 54262. In the meantime, after Mr R.M. informed the authorities of the incident, the head of the local administration, Mr Kh.S., arrived at the military unit, spoke to the servicemen and had the detainees released. As a result of the injuries she had sustained during the attack the first applicant was left with a permanent disability of the third degree.

11. The applicants’ cattle remained under the control of the servicemen and were never returned. According to the first applicant, as a result of the incident she lost sixteen head of cattle and the second applicant four head of cattle. In November 1999, after military unit no. 54262 had changed its stationing location from the vicinity of Savelyevskaya to a site elsewhere, the applicants and their relatives found the remains of seven cows whose meat had been consumed by the military unit; nine head of cattle were missing completely.

12. In July 2000, as soon as the local law-enforcement bodies had begun functioning again in their district, the applicants lodged an official complaint in respect of the events of 8 October 1999 with the local police (see paragraph 15 below). Towards September 2000 the law-enforcement bodies in other parts of Chechnya started to function again.

13. In support of their account of the events of 8 October 1999 the applicants furnished the Court with statements from witnesses Mr M.R. and Mr R.M., both dated 10 July 2008.

14. The Government did not contest the applicants’ account of the attack against them on 8 October 1999 and the loss of their cattle, but stressed that the perpetrators had not been identified. In their observations on the admissibility and merits of the application of 9 April 2012, they stated, in particular, the following:

“... the damage to the applicants’ health occurred as a result of unidentified persons opening fire on them on 8 October 1999 in the village of Savelyevskaya in the Naurskiy District. After the shooting the unidentified persons stole cattle belonging to the applicants ...”

3. The official investigation and related court proceedings

(a) The official investigation

15. On 17 July 2000 the first applicant complained in writing of the infliction of bodily injuries and the theft of her livestock to the Naurskiy district temporary department of the interior (Наурский Временный Отдел Внутренних Дел) (hereinafter “the Naurskiy VOVD”).

16. In her complaint she described the circumstances of the attack and stated, in particular, that she had been wounded by military servicemen, who had then blindfolded her and taken her and two other men to the premises of their military unit. She further stated that after her release the cattle had remained in the hands of the military and that all her efforts to recover them had been to no avail.

17. On 20 July 2000 the investigators questioned the first applicant, who stated that on 8 October 1999 she, the second applicant and Mr M.R. had gone to the pasture where cattle had been grazing, including a number of cows belonging to her. On the way there, at around noon, she had seen one of her cows lying shot and dying on the ground. The first applicant had approached her cow, but had been stopped by a group of military servicemen in light-coloured camouflage uniform, armed with machine guns, standing next to an armoured personnel carrier (hereinafter “the APC”). The first applicant had asked for their permission to drive the cattle home; one of the servicemen had gone to the APC and spoken to someone on the radio. After that he had returned and said that the applicants and Mr M.R. could proceed and collect their cattle. The applicant had walked just several metres away when she and her two companions had been subjected to gunfire, as a result of which she had been wounded in the left arm and the second applicant in the right arm. They had fallen to the ground and stayed there for about three to five hours; each time they had tried to get up, shots had been fired in their direction. Then three military servicemen had approached them, ordered them to put their hands behind their heads, blindfolded them and taken them in the APC to the premises of military unit no. 54262. The applicant provided the investigators with a detailed description of those three servicemen’s appearance. At the military unit the applicants had been given medical assistance. The applicant had asked the unit commander to drive her cattle over to pasture land lying closer to the village. The commander had promised to do that but he had not kept his promise and her cattle had gone missing. Then the head of the village administration had arrived and taken the applicants and Mr M.R. home. The applicant provided the investigators with a detailed description of the unit commander. She further stated that after the military unit had left the place where it had been stationed, she had gone to the field and found an envelope with the address of one of the servicemen who had been stationed there and that she still had the envelope and could provide it to the investigators. Subsequently the unit commander, Vadim, had visited her at home with a nurse to assist with the treatment of her wounded arm. Between August 1999 and February 2000 the applicant had not been able to seek official medical assistance, as hospitals in Chechnya had not been functioning. In February 2000, when the local hospital had resumed its activities, she had gone there and sought medical assistance for her wounded arm; she had stayed in the hospital for one month but had been left with a disability.

18. On 20 July 2000 the investigators questioned the second applicant and Mr M.R., both of whom stated that on 8 October 1999 they and the first applicant had gone out to drive their cattle home. On their way to the pasture they had met military servicemen who had given them permission to take their cattle home. However, after they and the applicant had then walked a dozen metres away from the servicemen the latter had opened fire. The first applicant had fallen to the ground, bleeding. Then the second applicant and Mr M.R. had screamed, asking the servicemen to stop firing, but to no avail. As a result, the second applicant had been shot in the upper extremities. Then they had fallen to the ground and after several hours had been found by the servicemen and taken to the military unit.

19. On 12 October 2000 the Naurskiy VOVD opened criminal case no. 30471 on account of the infliction of minor bodily injuries on the applicants (Article 112 § 2 of the Criminal Code). The decision stated:

“... on 8 October 1999 during the day unidentified persons intentionally inflicted bodily injuries on [the applicants] ...”

20. On 20 October 2000 the investigators granted the first applicant victim status in the criminal case and questioned her again. She reiterated her earlier statement (see paragraph 17 above) and added that the unit commander’s name had been Vadim and that he had had the rank of lieutenant-colonel. She also provided a detailed description of her disappeared cattle and reiterated that as a result of the incident she had lost sixteen cows.

21. On 20 October 2000 the investigators seized the envelope found by the applicant on the former premises of the military unit (see paragraph 17 above).

22. On 23 October 2000 the investigators granted the second applicant victim status in the criminal case and questioned him again. His statement was similar to that of the first applicant (see paragraph 17 above). In addition, he stated that after the servicemen had taken him, the first applicant and Mr M.R. to the military unit’s premises, they had provided him with medical assistance for his wounded arm and that the unit commander, a lieutenant-colonel named Vadim, had given him his apologies for his soldiers’ actions. Subsequently, the officer had visited him at home with a nurse to assist with the treatment of his wounds, as the local hospitals had not been functioning at that time. The second applicant also provided the investigators with a detailed description of his four cows, which had disappeared as a result of the incident.

23. On 24 October 2000 the investigators granted Mr M.R. victim status in the criminal case and questioned him. His statement concerning the incident was similar to the ones given by the applicants (see paragraphs 17 and 18 above). In addition, he provided a detailed description of the three servicemen who had approached him and the applicants after the shooting. He also stated that the commander’s name had been Vadim and that his military rank had been that of lieutenant-colonel. Two days after the events, on 10 October 1999, he had gone to the place of the incident and found the corpses of two of his cows, which had been shot. Two other cows had gone missing.

24. On 24 October 2000 the investigators questioned two of the first applicant’s neighbours, Ms S.G. and Ms P.Kh., both of whom stated that they had not witnessed the incident in October 1999, but that they had been told that the first and second applicants had been shot and wounded by the military servicemen and one man had been shot dead by them and that as a result of the incident the applicants’ cattle had been lost.

25. On 30 October 2000 an expert examination ordered by the investigator took place; the examination identified the scars on the first applicant’s left forearm as likely to have resulted from a perforating firearms wound in the circumstances described by her and categorised them as bodily harm of “medium gravity”.

26. On the same day, 30 October 2000, the second applicant was also examined by the expert. The examination identified the scars on his right forearm and the fingers of the left hand as likely to have resulted from perforating firearms wounds and categorised them as bodily harm of “minor gravity”.

27. On 20 and 23 October 2000 respectively both applicants were granted victim status in the criminal case. The relevant decisions stated, amongst other things, that:

“... on 8 October 1999 unidentified persons ... inflicted bodily injuries on [the applicants] and stole [their] cattle ...”

28. Two months later, on 12 December 2000, the investigation was suspended for failure to identify the perpetrators. The applicants were not informed of that suspension.

29. On an unspecified date between January 2001 and May 2005 the first applicant complained to a supervising prosecutor about the delays in the investigation. On 29 July 2005 the Naurskiy VOVD replied to the complaint, stating that the investigation had been suspended for failure to identify the perpetrators.

30. On an unspecified date in 2005, the first applicant also lodged an official complaint about his lack of access to the investigation file. On 28 December 2005 the Naurskiy district prosecutor’s office (hereinafter “the district prosecutor’s office”) replied to her, stating that she could access the file only upon the completion of the criminal investigation.

31. In 2005 the first applicant lodged several complaints about the delays in the investigation with the Prosecutor General’s office, which forwarded them to the district prosecutor’s office. The complaints remained unanswered.

32. It appears that as a result of the first applicant’s complaints, the investigation was resumed on 18 January 2006 and the applicants were informed accordingly.

33. On 28 January 2006 the investigators examined the envelope seized from the first applicant (see paragraph 21 above). As a result, the name and the address of officer B. (to whom it had been sent at an address in the town of Kostroma) were established.

34. On 6 February 2006 the investigators examined the crime scene in the vicinity of the village of Savelyevskaya. No evidence was collected.

35. On 20 February 2006 the investigators again questioned the first applicant, whose statement was similar to the ones she had given previously (see paragraphs 17 and 20 above).

36. On 22 February 2006 the investigators questioned the second applicant, who reiterated his earlier statements (see paragraphs 18 and 22 above). In addition, he stated that the body of the man who had been shot dead during the incident had been recovered by the villagers about a week after the events and buried shortly afterwards.

37. On 22 February 2006 the investigators questioned Mr Z. Kh., who stated that in October 1999 he had assisted in negotiating the applicants’ and Mr M.R’s release from the premises of the military unit. Mr Z. Kh. stated that he did not know what military unit it was.

38. On 22 February 2006 the investigators questioned Mr Kh.S., who stated that since 1999 he had been the head of the local administration. His statement was similar to those given by the applicants. In addition, he stated that the commander of the military unit had promised to drive the cattle back to the village, but that this had not happened.

39. On 22 February 2006 the investigators again questioned Mr M.R., whose statement was similar to the ones he had previously given (see paragraphs 18 and 23 above).

40. On 26 February 2006 the investigators terminated the investigation of criminal case no. 30471 because of the expiry of the time-limits for prosecution under Articles 78 and 112 of the Criminal Code.

41. On the same date (26 February 2006) the investigators refused (in the light of the expiry of the time-limit) to initiate a new criminal investigation into the injuries sustained by the applicants on 8 October 1999.

42. On 17 March 2006 investigators in Kostroma questioned officer B., who stated that in October 1999 he had been serving in military unit no. 54262, which had been stationed in the Naurskiy District, Chechnya. He had no information concerning the attack on the applicants and had no idea who had been the commander of the military unit at the material time. Officer B. stated that in December 2000 (while he had been in Chechnya) he had been questioned about the incident, but he could not remember by whom and under what circumstances.

43. On 26 April 2008 the head of the Naurskiy VOVD overruled the decision to terminate the criminal investigation as unsubstantiated and premature and ordered that the proceedings be reopened and the case file be transferred to another law-enforcement body, in accordance with the rules of jurisdiction. The reasoning for the decision stated, inter alia, the following:

“... The investigation established that an unidentified person had opened fire and wounded in the arm [the first and the second applicants], causing them medium and minor gravity bodily harm, respectively [...]

... it was also established that unidentified persons had committed the theft of sixteen cows belonging to [the applicants] and of two cows belonging to Mr M.R.

On 26 February 2006 the investigation of the criminal case was terminated for failure to identify the perpetrators.

The examination of the contents of the criminal case file demonstrated that the victims [the applicants] had been shot at with firearms, from a distance ... and the location of their wounds showed that life-threatening damage could have been caused to them ... In addition, according to the information in the case file, Mr D. had been shot and killed on the spot in [the applicants’] presence.

In the light of the above, the investigation of the criminal case failed to establish in full whether an attempt on the lives of [the applicants] had been made by the unidentified persons who [were responsible for] their gunshot wounds ...”

44. On 29 April 2008 the re-opened criminal case file no. 30471 was forwarded to the Naurskiy Inter-district Investigations Department of the Chechnya Prosecutor’s office (hereinafter “the investigations department”) for investigation.

45. On 7 May 2008 the investigations department refused to institute criminal proceedings, noting that:

“... [the applicants] had been injured in non-vital parts of their bodies, which was confirmed by expert examinations. Therefore, there are no grounds for thinking that the alleged perpetrators intended to commit ... ‘attempted murder’,.. as argued by [the applicants] ...”

The decision did not mention anything about the applicants’ cattle.

46. On 14 May 2008 the investigations department adopted a decision terminating the investigation in criminal case no. 30741 because of the expiry of the time-limits for prosecution.

47. From the documents submitted it appears that on 10 July 2008 the supervising prosecutor overruled the above decision to terminate the criminal investigation as unsubstantiated and premature.

48. On 14 March 2012 the deputy Chechnya district prosecutor overturned the investigations department’s decision of 7 May 2008 to refuse to open a criminal case (see paragraph 45 above) as unlawful and unsubstantiated. The applicants were informed thereof.

49. On the same date (14 March 2012) the deputy Chechnya prosecutor also ordered that the criminal case file be sent to the Chechnya Investigations Committee for further investigation. The decision criticised the investigators’ failure to take basic steps and stated, amongst other things, the following:

“... at the same time, the investigation established that the shooting had been aimed at them [the applicants, Mr M.R., Mr R.M. and Mr D.] and had been carried out with automatic firearms simultaneously, from the same place next to the forest; as a result [the applicants] had received gunshot wounds of varying gravity and [Mr D.] had been shot dead.

Therefore, the above information provides grounds for concluding unequivocally that the unidentified person had the clear intention of killing [the applicants and Mr D.]; ... thus, the actions of the unidentified person should be deemed to constitute murder under parts 1 and 2 (subparagraph “a”) of Article 105 of the Russian Criminal Code, and the case file in respect of criminal case no. 30471 should be transferred to the Chechnya Investigations Committee for investigation and joined with criminal case no. 60012 [concerning the killing of Mr D.].

In addition, up until the present, no request for information concerning the exact place where military unit no. 546262 was stationed has been sent. Neither has any request for information concerning the possible stationing of a military unit next to Savelyevskaya in the Naurskiy District been forwarded.

The military commander of the Naurskiy District, officer A.S. Kalugin, has not been questioned about the circumstances of the incident.”

50. As can be seen from the documents submitted, the investigation is still pending.

(b) Proceedings against the investigators

51. On 12 April 2008 the first applicant lodged a complaint before the Naurskiy District Court (hereinafter “the District Court”) challenging the decision of 26 February 2006 to terminate the investigation. She argued, inter alia, that she had been both the target of an attempted murder and a victim of theft and asked for the case to be transferred to the Military Prosecutor’s Office for a proper investigation.

52. On 26 April 2008, shortly before the scheduled start of the first-instance court hearing (see paragraph 43 above), the prosecutor quashed the decision of 26 February 2006 and as a result, by a decision of 28 April 2008 the District Court rejected the first applicant’s complaint as groundless.

53. On 19 June 2008 each applicant lodged a complaint before the District Court challenging the investigations department’s refusal of 7 May 2008 to initiate a criminal investigation.

54. On 10 July 2008 the District Court rejected the complaints, as the impugned decision had already been quashed earlier on the same date (see paragraph 47 above).

55. On an unspecified date between January and March 2009 the applicants lodged a complaint before the District Court about the defects in the investigation and the investigators’ failure to act with expedition.

56. On 8 April 2009 the District Court examined and partly rejected their complaint. It ruled that the investigators could only be criticised for their failure to inform the applicants in a timely manner about the procedural decisions in the criminal case. The decision stated, among other things, the following:

“... the court has no legal rights to impose obligations on the investigation bodies concerning the order and direction of the conduct of the investigation.

... The complaint should be allowed only in part and only in so far as the investigator ... failed to inform [the applicants] in a timely manner about the decisions taken in the case ...”.

57. On 13 May 2009 this decision was upheld by the Supreme Court of the Chechen Republic on appeal.

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS

58. For a summary of the relevant domestic law and the relevant Council of Europe documents, see Abakarova v. Russia, no. 16664/07, §§ 59-62 and §§ 68-70, 15 October 2015.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

59. The applicants complained that the attack of 8 October 1999 constituted a violation of their right to life. They also alleged that no effective investigation of the incident had been carried out, in breach of Article 2 of the Convention, which reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

A. The parties’ submissions

1. The Government

60. The Government submitted that the applicants had failed to appeal against the decision to suspend the investigation of 12 December 2000, that they had remained passive during the subsequent suspension of the proceedings and that they had lodged their complaint with excessive delay. Therefore, the applicants had failed to demonstrate due diligence and to comply with the six-month requirement.

61. In the same submission, the Government also argued that the complaint was premature, as the criminal investigation - conducted in compliance with the national legislation - was still in progress. The applicants had failed to exhaust domestic remedies, as they had not appealed before the domestic courts against the investigators’ actions and omissions.

62. The Government further argued that the complaint should be dismissed as manifestly ill-founded and unsubstantiated, as there was no proof that the perpetrators of the attack on the applicants had been State agents.

2. The applicants

63. The applicants submitted that they had complied with the six-month rule as they had done everything possible to assist the authorities with the investigation and that there been no excessive delays in the submission of their application to the Court.

64. The applicants further alleged that the only remedy in their case - the criminal investigation - had proved to be ineffective. They stated that - contrary to the Government’s submission - they had complained about the inactivity of the investigators before the domestic courts, but to no avail.

65. The applicants alleged that the perpetrators of the attack on them had been State servicemen and that the use of lethal force against them had been unjustified.

B. The Court’s assessment

1. Admissibility

66. A summary of the principles concerning compliance with the six-month rule in cases involving violations of Article 2 allegedly perpetrated by military servicemen may be found in Kukavica v. Croatia (dec.), no. 79768/12, §§ 19-25, 2 June 2015 and, mutatis mutandis, Sultygov and Others v. Russia, nos. 42575/07, 53679/07, 311/08, 424/08, 3375/08, 4560/08, 35569/08, 62220/10, 3222/11, 22257/11, 24744/11 and 36897/11, §§ 369-74, 9 October 2014.

67. Turning to the circumstances of the case at hand, the Court notes that the criminal investigation was pending when the applicants lodged their application with the Court and is still in progress. The applicants complained about the events in question to the authorities in July 2000 - that is to say shortly after the law-enforcement bodies in the Chechen Republic had begun functioning again - and that was not contested by the Government. Furthermore, shortly after the beginning of the investigation in October 2000, the applicants provided detailed statements to the investigators, underwent expert medical examinations and handed over the piece of evidence found by the first applicant (see paragraphs 17 and 21 above). The steps taken by the authorities must have appeared to the applicants as a promising start to the investigation into the attack on them. However, from the documents submitted it can be seen that the investigation was suspended on 12 December 2000 and that the applicants were not informed of that suspension. Further, the documents submitted indicate that - unaware that the investigation had been suspended - on several occasions in 2005 (including in July 2005) the first applicant tried to obtain information on the progress of the proceedings; the documents further indicate that that upon her requests for information and access to the investigation file proceedings in respect of the criminal case were resumed in January 2006 (see paragraphs 29-32 above). Therefore, considering that the applicants lodged an offical complaint without undue delay and that they demonstated an active stance in the proceedings, the Court does not find that the lack of progress in the criminal proceedings during their five-year suspension should be held against the applicants or interpreted as a failure on their part to demonstrate due diligence and to comply with the six-month requirement (see, by contrast, Nasirkhayeva v. Russia (dec.), no. 1721/07, 31 May 2011, and Kukavica, cited above, §§ 5-6 and 32).

68. In the light of the foregoing, the Court finds that the applicants complied with the six-month time-limit.

69. As to the Government’s non-exhaustion plea, the Court considers that the question of whether the applicants exhausted domestic remedies is closely linked to the question of whether the domestic authorities carried out an effective investigation into their allegations. These issues relate to the merits of their complaint under Article 2 of the Convention. The Court therefore decides to join these issues to the merits, which are to be examined below, and declares the complaint admissible.

2. Merits

(a) Alleged violation of the right to life

70. At the outset, the Court should address the issue of the applicability of Article 2 of the Convention to the present case. It is true that the applicants did not lose their lives in the attack, but the Court has held before that the requirements of Article 2 apply to an attack where the victim survives but which, because of the lethal force used, by its very nature put his or her life at risk (see Makaratzis v. Greece [GC], no. 50385/99, §§ 49-55, ECHR 2004-XI; Makhauri v. Russia, no. 58701/00, § 117, 4 October 2007; Nakayev v. Russia, no. 29846/05, § 58, 21 June 2011; and Sašo Gorgiev v. the former Yugoslav Republic of Macedonia, no. 49382/06, § 29, ECHR 2012 (extracts)). Having regard to the circumstances of the attack on the applicants and the injuries sustained by them, the Court concludes that the degree and type of force used clearly bring the facts of the present case into the ambit of Article 2 of the Convention.

71. The Court reiterates that Article 2 of the Convention, which safeguards the right to life and sets out the circumstances where deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention. In the light of the importance of the protection afforded by Article 2 of the Convention, the Court must subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the State agents who actually administer the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-50, Series A no. 324; Andronicou and Constantinou v. Cyprus, 9 October 1997, § 171, Reports of Judgments and Decisions 1997-VI; and Oğur v. Turkey [GC], no. 21594/93, § 78, ECHR 1999-III). The same applies to an attack where the victim survives but which, because of the lethal force used, amounted to attempted murder (see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 171, 24 February 2005, with further references).

72. It is not disputed by the parties that on 8 October 1999 the applicants were the victim of an attack during which they were wounded and one person killed. The Government did not dispute the circumstances of the incident but denied that State servicemen had been responsible for the incident. At the same time, the Government did not put forward any alternative version of the events or suggest that the exceptions set forth in the second paragraph of Article 2 of the Convention could be applicable in the present case. The question remains as to whether the respondent State may be held responsible for this attack.

73. The Court notes in this connection that the applicants and at least two other persons, Mr R.M. and Mr M.R., were subjected to gunfire by the servicemen and that from the very beginning of the official investigation all of them were consistent in their allegation of an attack by military servicemen and provided a detailed description of the perpetrators and their military unit (see paragraphs 17, 18, 20, 22 and 23 above). As can be seen from the documents submitted, the forensic reports corroborated the applicants’ allegations (see paragraphs 25 and 26 above); further the domestic investigators must have accepted the applicants’ submissions because they attempted to take (albeit unsuccessfully) some steps to identify the military unit that had been stationed in Savelyevskaya at the relevant time (see paragraphs 21, 33, 42 and 49 above).

74. Furthermore, the Government did not deny that federal military troops had been stationed at the place in question at the material time and did not dispute the circumstances of the incident. They submitted, however, that it had been impossible to establish the identity of the perpetrators of the attack (see paragraphs 14 and 49 above) and that the allegation of the involvement of State agents in the attack was groundless. At the same time, in their submission the Government did not advance any explanation for the events or any other version of the incident.

75. The Court observes that all of the witnesses questioned by the investigators supported the applicants’ version of the events (see paragraphs 18, 23, 24, 37 and 37 above). Moreover, from the documents submitted it does not appear that the investigators made any attempts to identify other witnesses to the attack, such as the servicemen who had driven the applicants in the APC to the premises of the military unit after the wounding or the nurse who had tended their injuries (see paragraphs 17 and 22 above).

76. In such circumstances, the Court accepts the applicants’ argument that they were attacked in the circumstances described by them and considers that the applicants have made a prima facie case that State servicemen attempted to kill them on 8 October 1999 in Savelyevskaya.

77. In the absence of any justification put forward by the Government in respect of the use of lethal force by their agents, the Court finds that there has been a violation of Article 2 of the Convention under its substantive limb.

(b) Alleged ineffectiveness of the investigation

78. 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”, 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 Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 169-82, 14 April 2015). The authorities must take whatever reasonable steps they can to secure evidence concerning such an incident. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 301, ECHR 2011). What form of investigation will achieve the purposes of Article 2 of the Convention may vary depending on the circumstances. However, whatever mode is employed, the authorities must act of their own motion once a matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 165, ECHR 2011).

79. The Government submitted that the official investigation into the incident of 8 October 1999 had been carried out in accordance with the national legislation and that the applicants could have appealed before domestic courts against the investigators’ actions and omissions, but had failed to do so. In any event, the effectiveness of the investigation had been largely undermined by the lateness of the submission of their complaint - eight months after the attack had occurred - which had impeded the investigation into the incident.

80. The Court observes that it is uncontested by the Government that at the material time and at least until July 2000 the law-enforcement bodies in the Chechen Republic were not functioning due to violent confrontations between the federal armed forces and rebel fighters (see paragraphs 7 and 12 above). There was a delay of eight months between the attack on the applicants and their lodging of an official complaint in July 2000, when the relevant authorities resumed their functioning (see paragraph 15 above). It is for the Court to assess whether the delay hampered the progress of the proceedings and affected their effectiveness.

81. The Court observes that once the complaint was lodged on 17 July 2000, a few days later - on 20 July 2000 - the police questioned the applicants, who gave detailed statements about the attack and the loss of their livestock, described the military servicemen and named the witnesses to the events. However, the criminal investigation into the incident was only initiated almost three months later, on 12 October 2000. Within the following couple of weeks, the investigators obtained from the applicants and from Mr M.R. a detailed description of the alleged culprits and the piece of evidence found by the first applicant and carried out an expert examination of the wounds the applicants had sustained as a result of the attack (see paragraphs 20-26 above). However, in December 2000, without any examination of the crime scene or the evidence obtained and without questioning key witnesses such as Mr Kh.S. (who had negotiated the applicants’ release from the military unit) or any attempt to establish the identity of the lieutenant-colonel named Vadim - the proceedings were suspended; and the applicants were not informed of that suspension. It appears that - being unaware proceedings had been suspended - the applicant lodged requests for information with the investigators and that those efforts to obtain information galvanised the investigators into resuming the suspended proceedings in January 2006; basic steps were taken, such as an examination of the crime scene (see paragraphs 29-31 above). Considering the inactivity on the part of the investigators after the initiation of the official investigation in 2000 and the fact that they took important steps only several years after the events, it is doubtful that the delay of eight months in the lodging of the complaint with the authorities could have hampered the investigation to such an extent as to undermine its overall progress. Moreover, the Court also notes that a number of important steps were taken only after the applicants spurred on the proceedings (see paragraphs 32 and 43 above) and reiterates in this connection that the authorities cannot leave it to the initiative of the next of kin to conduct an investigative procedure (see Al-Skeini and Others, cited above, § 165).

82. The Court further notes the criticism of the investigation by the supervisory authorities (see paragraphs 43 and 49 above) and the Court’s findings concerning the ineffectiveness of investigations into similar incidents in which applicants were wounded by State servicemen in the region at the material time (see, for example, Goncharuk v. Russia, no. 58643/00, § 82, 4 October 2007; Makhauri, cited above, § 125; and Umayeva v. Russia, no. 1200/03, § 81, 4 December 2008).

83. Turning to the Government’s non-exhaustion plea, the Court notes that the applicants, contrary to the Government’s submission, did lodge complaints before domestic courts challenging the investigators’ decisions (see paragraphs 51-57 above) and that their complaints were rejected as groundless in the light of the quashing of the impugned decisions just prior to their judicial examination (see paragraphs 52 and 54 above) or the inability of the court to order which steps the investigators were to take (see paragraph 56 above). In such circumstances, the remedy referred to by the Government was incapable of remedying shortcomings in the criminal investigation and was therefore ineffective.

84. The Court concludes that the applicants should be considered to have exhausted the domestic remedies available to them within the context of the criminal investigation. It therefore dismisses the Government’s preliminary objection in this respect.

85. The Court finds on the basis of what has been established above that the authorities failed to carry out an effective investigation into the circumstances of the applicants’ wounding. There has therefore been a violation of the procedural aspect of Article 2 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

86. The applicants complained of the loss of their cattle as a result of the incident of 8 October 1999. Article 1 of Protocol No. 1 to the Convention provides, in particular:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...”

A. The parties’ submissions

87. The Government submitted that the complaint should be declared inadmissible for the applicants’ failure to exhaust domestic remedies within the criminal investigation. In their observations on the admissibility and merits of the application, the Government stated that “after the attack on [the applicants] unidentified persons had stolen the applicants’ cattle” but that the investigators had not established the identity of the perpetrators and that the applicants should have appealed before the domestic courts against the investigators’ actions.

88. The applicants argued that they had lodged complaints before the domestic courts challenging the investigators’ decisions and that the attackers had deprived them of their property, in breach of the provisions of Article 1 of Protocol No. 1 to the Convention.

B. The Court’s assessment

1. Admissibility

89. The Court considers, in the light of the parties’ submissions, that the applicants’ complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 69 above). The complaint under Article 1 of Protocol No. 1 to the Convention must therefore be declared admissible.

2. Merits

90. As to the Government’s objection that the applicants failed to exhaust available domestic remedies, the Court points out that on several occasions the applicants reported the events of 8 October 1999 to the domestic authorities and mentioned, in particular, the seizure of their cattle by military servicemen (see paragraphs 15-18 above). In the absence of any domestic findings of State responsibility for the alleged attack on the applicants and the seizure of their cattle, the Court is not persuaded that the court remedy referred to by the Government was accessible to the applicants and would have had any prospects of success (see Betayev and Betayeva v. Russia, no. 37315/03, § 112, 29 May 2008, and Khutsayev and Others v. Russia, no. 16622/05, § 151-55, 27 May 2010). The Government’s objection concerning the non-exhaustion of domestic remedies must, therefore, be dismissed.

91. The Court further notes that the information concerning the loss of the cattle was communicated promptly to the domestic law-enforcement authorities and that the latter considered the actions of the perpetrators as theft (see paragraphs 27 and 43 above). Further, it observes that although the Government denied their responsibility for the alleged violations of the applicants’ rights under Article 1 of Protocol No. 1 to the Convention, they conceded that the perpetrators of the attack had taken the applicants’ cattle (see paragraphs 14, 27 and 43 above). In their submission to the Court, the Government neither questioned the applicants’ title to the livestock nor disputed the circumstances of its seizure, as submitted by the applicants; they only denied State responsibility for it.

92. In the light of the fact that the Court has already found above that the men who attacked the applicants on 8 October 1999 were State servicemen, it therefore finds that the loss of the applicants’ cattle was imputable to the respondent State. Accordingly, there was an interference with the applicants’ right to respect for the protection of their property.

93. In the absence of any justification on the part of the State for its agents’ actions in that regard, the Court finds that there has been a violation of the applicants’ right to protection of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

94. The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties’ submissions

95. 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 those remedies. The applicants had had an opportunity to challenge any acts or omissions on the part of the investigating authorities in court. In sum, the Government submitted that there had been no violation of Article 13 of the Convention.

96. The applicants reiterated their complaint.

B. The Court’s assessment

1. Admissibility

97. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2. Merits

98. The Court reiterates that in circumstances where, as here, a criminal investigation has been ineffective and the effectiveness of any other remedy that might have existed has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention (see Umayeva, cited above, § 103).

99. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.

100. As to the applicants’ complaint under Article 13 of the Convention, in conjunction with Article 1 of Protocol No. 1 to the Convention, the Court considers that given that the authorities denied involvement in the attack on the applicants and the taking of their cattle and that the domestic investigators failed to effectively investigate the matter, the applicants did not have access to any effective domestic remedies in respect of the alleged violations of their rights under Article 1 of Protocol No. 1 to the Convention. Accordingly, there has been a violation on that account.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

101. 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

102. The first applicant claimed 480,000 Russian roubles (RUB), about 12,000 euros (EUR) for the loss of sixteen head of cattle, that is RUB 30,000 per head, and RUB 33,200,000 (about EUR 830,000) in lost profits in respect of the cattle. The second applicant claimed RUB 120,000 (about EUR 3,000) for the loss of four head of cattle, that is RUB 30,000 per head, and RUB 11,670,000 (about EUR 292,000) in lost profits in respect of the cattle. The applicants’ calculations were based on their own estimate of the value of the livestock and projections concerning potential income from breeding. No other documents, other than calculation sheets, were enclosed.

103. The Government submitted that the applicants’ claim for pecuniary damages was not supported by any documents and invited the Court to reject it as unsubstantiated.

104. Having regard to its conclusions above under Article 1 of Protocol No. 1 to the Convention and the parties’ submissions, the Court awards EUR 12,000 to the first applicant and EUR 3,000 to the second applicant in respect of pecuniary damage, plus any tax that may be chargeable on these amounts.

B. Non-pecuniary damage

105. The first applicant claimed EUR 50,000 under this head. In support of her claim, she enclosed a translation of a medical statement dated 3 November 2004 certifying that she suffered from permanent disability of the third degree. The second applicant claimed EUR 40,000 under this head.

106. The Government stated that the finding of a violation would constitute adequate satisfaction in the applicants’ case, but submitted that any award should be determined on an equitable basis.

107. The Court observes that it has found a violation of the procedural and substantive limbs of Article 2 and a violation of Article 13 of the Convention. The Court accepts that the applicants have suffered non-pecuniary damage which cannot be compensated solely by the finding of violations. It awards the first applicant EUR 30,000 and the second applicant EUR 10,000, plus any tax that may be chargeable on that amount.

C. Costs and expenses

108. The applicants did not make any claim under this head.

D. Default interest

109. 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 to the merits the Government’s objection as to non-exhaustion of criminal domestic remedies and dismisses it;

2. Declares the application admissible;

3. Holds that there has been a substantive violation of Article 2 of the Convention in respect of the applicants;

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

5. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

6. Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Article 2 of the Convention and Article 1 of Protocol No. 1 to the Convention;

7. Holds

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

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

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, to the second applicant in respect of pecuniary damage;

(iii) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, to the first applicant in respect of non-pecuniary damage;

(iv) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, to the second applicant in respect of non-pecuniary damage;

(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;

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

Done in English, and notified in writing on 4 October 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 >> ABDULKHADZHIYEVA AND ABDULKHADZHIYEV v. RUSSIA - 40001/08 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 793 (04 October 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/793.html Cite as: [2016] ECHR 793, ECLI:CE:ECHR:2016:1004JUD004000108, CE:ECHR:2016:1004JUD004000108