CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 mars 2008

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They are Russian nationals and live in the village of Chechen-Aul, Chechnya. The applicants are represented before the Court by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The first and second applicants are husband and wife. They had a son – Mr Kazbek Taysumov, born in 1972, who was married to Ms Zulpat Eskirkhanova, born in 1978. Kazbek Taysumov and Zulpat Eskirkhanova had two daughters – Ms Ayshat Eskirkhanova, born in 1999, and the third applicant. They all lived in a private house at Molodezhnaya Street, Chechen-Aul. 1.     Attack of 7 September 2002 and death of the applicants’ relatives (a)     The applicants’ account On 7 September 2002, at about 10.10 p.m., Kazbek Taysumov, Zulpat Eskirkhanova and their elder daughter Ayshat were having dinner in the courtyard of the Taysumovs’ house. Their neighbour, Mr D., who had come to visit Kazbek Taysumov, was also in the courtyard and was about to leave. The first applicant was with the then six-month-old third applicant inside the house. The second applicant was not at home. At about 10.20 p.m. artillery fire commenced from three directions – from the federal military base of Khankala, from the village of Starye Atagi, in which a detachment of the Shali regiment was stationed, and from zone no. 56. The first applicant heard a shell fall and burst near the house. The electricity was cut off. The first applicant took hold of the third applicant, rushed outside and hid in a ditch in the courtyard. Immediately thereafter he saw another shell hit the house and one of the walls collapsed. Part of the house, including the room which the first and third applicants had left a moment before, was ruined. In total 15 to 18 shells were fired; three of them hit the applicants’ house. The attack lasted some 20 minutes. When the gunfire ceased, the first applicant started moving slowly across the wreckage-strewn courtyard and stumbled on his daughter-in-law’s dead body. She had been hit in the head. The first applicant saw his son nearby. The latter was seriously wounded and died half an hour later. The first applicant did not manage to find his elder granddaughter and shouted to his neighbours for help. When the neighbours arrived, they and the first applicant started searching for other victims. They carefully examined the courtyard using torches. Ayshat Eskirkhanova was found under the ruins not far away from her parents. The three-year-old girl was mortally wounded with several pieces of shrapnel in the abdomen. She died on her way to hospital. Mr D. was found seriously wounded and admitted to hospital. Eventually he survived, but lost his eyesight. As a result of the attack of 7 September 2002 the applicants’ house and a minibus KavZ 685 belonging to the first applicant were severely damaged. The applicants submitted a valuation report which had been drawn up by the head of the administration of Chechen-Aul and reflected the poor state of the applicants’ property. The applicants further presented a hand-drawn plan of their house indicating the three directions, from which the village had been shelled, and photographs of the destroyed house, the minibus and several shell craters around their house. The first applicant examined the shell craters and found several shell fuses. He wrote down the serial numbers of the fuse housings and delivered them to the prosecutor’s office. One of the numbers was RGM-216-82. On 8 September 2002 investigators of the prosecutor’s office of the Groznenskiy District (“the district prosecutor’s office”) arrived at Molodezhnaya Street and inspected the scene of the incident and the dead bodies. However, no forensic medical examination of the bodies was performed. Instead the investigators suggested that they should take the bodies with them. The applicants refused and buried Kazbek Taysumov, Zulpat Eskirkhanova and Ayshat Eskirkhanova the same day. On 26 September 2002 medical death certificates were drawn up in respect of Kazbek Taysumov, Zulpat Eskirkhanova and Ayshat Eskirkhanova. The document stated that the said persons had been killed on 7   September 2002 in the village of Chechen-Aul. On 11 December 2002 the civil registry office of the Groznenskiy District certified the death of the applicants’ relatives. The date and the place of death were recorded as 7 September 2002, Chechen-Aul. (b) The Government’s account The Government submitted that the Prosecutor General’s Office had established that on 7 September 2002 at about 9.30 p.m. explosive devices had been blown up in the immediate vicinity of the first applicant’s house at Molodezhnaya Street, in the village of Chechen-Aul. The explosion had led to the deaths of Kazbek Taysumov, Zulpat Eskirkhanova, and Ayshat Eskirkhanova. Mr D. had sustained grave bodily injuries while Ms and Mr   Yu. had received minor injuries. The explosion had also caused partial destruction of the first applicant’s house. 2.     Investigation into the attack (a)     Information submitted by the applicants After the killing of their relatives the applicants repeatedly complained both in person and in writing to prosecutors’ offices at different levels. They were supported in their efforts by the SRJI. In their letters to the authorities the applicants referred to the facts of their relatives’ deaths and asked for assistance and details of an investigation. Mostly these enquiries remained unanswered, or only formal responses were given by which the applicants’ requests were forwarded to various prosecutor’s offices. At some point the first applicant was informed that he had been granted victim status in case no. 56136. On 16 December 2002 the first applicant requested the prosecutor’s office of the Chechen Republic (“the Chechnya prosecutor’s office”) and the military prosecutor of military unit no. 20102 (“the unit prosecutor’s office”) to inform him of developments in the case. On 15 January 2003 the Chechnya prosecutor’s office forwarded the first applicant’s request to the unit prosecutor’s office “for including it in the file of criminal case no. 34/33/0621-02 instituted under Article 109 § 2 of the Russian Criminal Code and replying” to the applicant. On 22 January 2003 the first applicant asked the district prosecutor’s office about the results of the investigation. By letter of 13 March 2003 the Chechnya prosecutor’s office sent the first applicant’s query, described as “erroneously transmitted to them”, to the unit prosecutor’s office. The letter also stated that criminal case no.   34/33/0621-02 received by the Chechnya prosecutor’s office on 9   December 2002 had been returned to the unit prosecutor’s office for “an additional investigation” on 11 December 2002. On 25 March 2003 the Chief Military Prosecutor’s Office forwarded the first applicant’s letter concerning the death of his family and destruction of his property to the South Federal Circuit Department of the Prosecutor’s General Office. On 31 March 2003 the unit prosecutor’s office notified the first applicant that on 8 September 2002 the district prosecutor’s office had initiated criminal proceedings in connection with the deaths of his family members on 7 September 2002. They further noted that on 14 February 2003 the case file had been received by the unit prosecutor’s office and given no.   34/33/0621-02, and that currently various investigative measures were being taken in order to establish those responsible. On 4 April 2003 the first applicant asked the unit prosecutor’s office for updated information on the results of the investigation. He also requested that he be granted victim status, stating that as of the date on which the criminal proceedings had been brought he had received no news regarding the course of the investigation. By letter of 6 May 2003 the unit prosecutor’s office informed the first applicant that on 8 September 2002 the district prosecutor’s office had instituted criminal proceedings under Article 105 § 2 of the Russian Criminal Code (aggravated murder) in connection with “a series of explosions” in Chechen-Aul on 7 September 2002, and that on 28   September 2002 the case file had been transferred to the unit prosecutor’s office and given no. 34/33/0621-02   D. The reason for the transfer was the assumption that “the series of explosions” had been caused by the shelling of the village of Chechen-Aul by the federal troops. The letter next referred to the results of expert examination no. 615-C conducted on 12 September 2002 and stated that the above hypothesis had proved to be unfounded. The experts had found fragments of detonating devices for artillery shells of 122-mm calibre in the shell craters, but it had been established that those shells had been transformed into home-made explosive devices and dug into the ground by members of illegal armed groups rather then launched from artillery ordnance. Moreover, the federal troops stationed in Khankala had not conducted any artillery shelling on 7   September 2002 and, in any event, they had no shells of 122-mm calibre. The letter concluded that “the series of explosions” in Chechen-Aul was due to “terrorist activities of members of illegal armed groups, who had buried and then blown up the explosive devices”, but not to artillery shelling by the federal military. In the absence of any evidence of the involvement of military personnel in the crime, the case file had been transmitted to the Chechnya prosecutor’s office on 27 May 2003. The letter also informed the first applicant about the decision of 9 September 2002, by which he had been granted victim status, and enclosed a copy of that decision. According to the first applicant, he first became aware of the expert examination of 12 September 2002 upon receipt of the above letter but had no access to the results of that examination. On 4 June 2003 the Chechnya prosecutor’s office transmitted a complaint by the first applicant to the unit prosecutor’s office. On 9 July 2003 the SRJI, acting on the first applicant’s behalf, asked the unit prosecutor’s office about the development in the criminal proceedings instituted in respect of the killing of the Taysumov family and requested that the first applicant be admitted to the proceedings as a victim. On 14 August 2003 the unit prosecutor’s office replied that by decision of the district prosecutor’s office of 9 September 2002 the first applicant had been granted victim status and then questioned. On 24 October 2003 the SRJI applied on the first applicant’s behalf to the district prosecutor’s office arguing that the expert examination of 12   September 2002 had been improperly conducted and its results were rather controversial. In that connection, the SRJI requested the investigating authorities to carry out a new expert examination in the presence of the first applicant, his representative and an independent expert. According to the first applicant, at some point a group of investigators visited his house and examined the destroyed minibus, but did not explain their actions. On 20 November 2003 the district prosecutor’s office informed the first applicant and the SRJI that the investigation into the deaths of the applicants’ relatives had been instituted on 8 September 2002 and that case file no. 56136 had been referred to the unit prosecutor’s office on 15   October 2002. On 3 October 2005 the SRJI requested the unit and Chechnya prosecutors’ offices to carry out a new expert examination in the presence of the first applicant, his representative and an independent expert. (b)     Information submitted by the Government On 8 September 2002 the district prosecutor’s office opened a criminal investigation into the deaths of Kazbek Taysumov, Zulpat Eskirkhanova and Ayshat Eskirkhanova under Article 109 § 2 of the Russian Criminal Code (manslaughter by improper performance of one’s professional duties). The case file was assigned the number 56136. In so far as relevant, the decision read as follows: “At 9.25 p.m. on 7 September 2002 17 or 18 shots were fired from the village of Khankala [aiming] at the outskirts of the village of Chechen-Aul of the Groznenskiy District of the Chechen Republic. As a result of the direct hit [of a shell] at the unnumbered house at Molodezhnaya Street that belonged to the Taysumov family three persons died: K. Taysumov, his wife Z. Eskirkhanova and their daughter Ayshat.” On 8 September 2002 the applicants requested the district prosecutor’s office not to carry out an autopsy of the dead bodies of their relatives for religious reasons. On 9 September 2002 the district prosecutor’s office granted the first applicant victim status in case no. 56136 and questioned him. On the same date they granted victim status to two of Kazbek Taysumov’s neighbours, Ms B. and Mr Yu., and questioned them. On 10 September 2002 the district prosecutor’s office decided to transfer the case file to the unit prosecutor’s office pursuant to the subject-matter jurisdiction rules. In so far as relevant, the decision read as follows: “The case materials collected in the course of the preliminary investigation fully proved that the crime had been committed by servicemen of the federal military. The witnesses ... submitted that the shellfire had come from the village of Khankala and the location of the guard-post at the crossroads of the route Baku-Rostov-Grozny-Shatoy and from the direction of the village of Starye Atagy of the Groznenskiy District. Units of the federal troops that were stationed there had artillery pieces and mortars. All witnesses questioned submitted that flashes at the time of the shelling had been seen exactly where the military units had been located. Identical fragments of shell fuse housings marked “RMG-2 16-82” found at the scene of the incident confirm in full the fact that Chechen-Aul was shelled by the military. Only military units are equipped with shells bearing such marks. Shell craters at the scene of the incident indicated that the shells had been sent exactly from the places where the above mentioned military units of the Russian Federation had been located. Units of the Ministry of the Interior located in the vicinity of Chechen-Aul had no artillery pieces or mortars.” On receipt by the unit prosecutor’s office, the case file was assigned the number 14/33/0621-02. At some point the number was changed to 34/33/0621-02. On an unspecified date in 2002 a commission composed of senior officers of the United Group Alignment and officers of the Ministry of the Interior carried out an inquiry into the explosions in Chechen-Aul. The commission established that no aeroplanes, artillery ordnance or engineering weapons had been used there. It further concluded that the explosions had been presumably caused by spontaneous detonation of several landmines, which had been placed by illegal armed groups in the Chechen-Aul area in order to damage the federal troops. The explosive devices had been home-made and probably radio-controlled. On 26 November 2002 the unit prosecutor’s office decided that the explosions of 7 September 2002 had been caused by spontaneous detonation of landmines installed by members of illegal armed groups and suspended the investigation in case no. 34/33/0621-02 for failure to identify those responsible. At some point the case file was transferred to the Chechnya prosecutor’s office. On 11 December 2002 the case was transferred to the prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”). On 15 May 2003 the unit prosecutor’s office resumed the investigation in case no. 34/33/0621-02 in order to establish precisely the nature and origin of the explosive devices. On 16 May 2003 the unit prosecutor’s office suspended the investigation. In June 2003 the UGA prosecutor’s office studied the case file and recommended measures to be taken to solve the crime. On 1 July 2003 the UGA prosecutor’s office returned the case file to the unit prosecutor’s office for the reason that the investigation had been prematurely suspended. On 14 August 2003 the unit prosecutor’s office suspended the investigation as the relevant time-limits had expired, and indicated that the Groznenskiy department of the interior (“the ROVD”) should take investigative measures to find the perpetrators. On 6 October 2003 the unit prosecutor’s office quashed the decision of 14 August 2003 and resumed the investigation. On the following day it was again suspended. On 14 October 2003 the unit prosecutor’s office granted victim status in case no. 34/33/0621-02 to the Taysumovs’ neighbours, Mr and Ms Yu., and questioned their two minor children. On 17 November 2003 the unit prosecutor’s office granted Mr D. victim status and questioned him. On 6 December 2003 the unit prosecutor’s office suspended the investigation in case no. 34/33/0621-03 because the time allowed for a preliminary investigation had lapsed, and ordered the ROVD and the Groznenskiy district department of the Federal Security Service to take investigative measures to find the perpetrators. On 27 April 2005 the UGA prosecutor’s office quashed the decision of 6   December 2003 because not all requisite investigative measures had been taken and forwarded the case file to the unit prosecutor’s office. On 21 June 2005 the unit prosecutor’s office resumed the proceedings. On 21 July 2005 the unit prosecutor’s office suspended the investigation in case no. 34/33/0621-02D for failure to identify those responsible. On 28 December 2005 the UGA prosecutor’s office quashed the decision of 21 July 2005 because not all requisite investigative measures had been taken and forwarded the case file to the unit prosecutor’s office. On 15 February 2006 the unit prosecutor’s office received the case file. COMPLAINTS 1.     The applicants complained under Article 2 of the Convention of a violation of the right to life in respect of Kazbek Taysumov, Zulpat Eskirkhanova and Ayshat Eskirkhanova as a result of the shelling of their village by federal troops on 7 September 2002. The applicants also claimed that the State had failed to discharge its positive obligation to protect their relatives’ lives and that no proper investigation had been conducted into their deaths. 2.     The applicants stated that they had suffered severe mental distress and anguish in connection with the attack on their village and the deaths of their close relatives as well as on account of the State’s failure to conduct a thorough investigation into the matter. They claimed in particular that the first and third applicants had suffered when being bombed on 7   September 2002, that the first applicant had watched his son and three-year-old granddaughter dying and his house and other possessions being destroyed by the shelling, and that the third applicant had lost her parents and sister at the age of six months. Against this background the applicants claimed to have been subjected to inhuman treatment, contrary to Article 3 of the Convention. 3.     The applicants alleged that they had had no effective remedies in respect of their complaints under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 1, contrary to Article 13 of the Convention. 4.     In their initial application the applicants also submitted complaints under Article 6 of the Convention about their lack of access to a court, under Article 14 of the Convention about alleged discrimination on the grounds of ethnic origin and under Article 1 of Protocol No. 1 about destruction of their property. However, in their observations on the admissibility and merits of the application they specified that they did not wish to maintain these complaints. In those circumstances, the Court finds no reason to proceed with their examination. 5.     Finally, in their observations of 7 April 2006 the applicants submitted that the Government’s failure to disclose the documents from the criminal investigation file at the Court’s request constituted a failure to comply with their obligations under Article 38   §   1   (a) of the Convention. THE LAW I. The Government’s objections A.     Validity of the applicants’ observations The Government doubted the validity of the applicants’ observations dated 7 April 2006 because they bore the stamps of the applicants’ representatives and had not been signed by hand. The Court observes that the applicants’ observations bore two stamp and two handwritten signatures of their representatives. In such circumstances the Court finds no grounds to doubt the validity of the applicants’ observations. Accordingly, the Government’s objection must be dismissed. B.     Exhaustion of domestic remedies The Government contended that the application should be declared inadmissible pursuant to Article 35 § 1 of the Convention since the applicants had not availed themselves of the domestic remedies which they had unreasonably considered ineffective. They argued that it had been open to the applicants to claim damages in the course of civil proceedings and to challenge in court any actions or omissions of any authorities during the investigation. The applicants contested the Government’s argument and reiterated that they had no remedies to exhaust. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies. The Court recalls that, as regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, it has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults, still less to establish their responsibility (see Khashiyev and Akayeva v.   Russia , nos.   57942/00 and 57945/00, §§   119-121, 24 February 2005, and Estamirov and Others v. Russia , no.   60272/00, §   77, 12 October 2006). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The objection in this regard is thus dismissed. The Court considers that the question of exhaustion of domestic criminal-law remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this part of the objection to the merits. II.     Merits of the application 1.     The applicants complained under Article 2 of the Convention of a violation of the right to life in respect of their relatives and of the authorities’ failure to conduct a proper investigation. Article 2 of the Convention reads as follows: “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.” The Government submitted that the death of the applicants’ relatives had been caused by the detonation of an explosive device in the immediate vicinity of the applicants’ house. They further insisted that the federal troops’ involvement in the incident had not been proven. The applicants’ neighbours had thought that Molodezhnaya Street had been shelled by the artillery. The expert had concluded that the fragments found at the scene of the incident had been parts of a 122-mm calibre artillery shell. However, on 7   September 2002 artillery units of the federal troops had not carried out any operations in the area and they did not have 122-mm ammunition. At the incident scene the investigators had found fragments of electromagnetic relay and wires that had been used by illegal armed groups for production of home-made explosive devices. The Government further submitted that the investigators were working on the hypotheses of spontaneous or deliberate detonation of a home-made explosive device placed by members of illegal armed groups and of erroneous use of weapons by the federal troops. In the Government’s view any conclusions as to the identification of those responsible for the explosions would be premature because the investigation was still pending. Further, numerous investigative measures had been and were being taken and, accordingly, the investigation was compatible with the guarantees of Article 2 of the Convention. The applicants argued that it was beyond reasonable doubt that their relatives had been killed by members of the federal forces. The applicants stressed that only the military had had artillery shells and that the craters proved that the shots had been fired from the military base in Khankala. The applicants also claimed that the authorities had failed to discharge their obligation to carry out an effective investigation into the circumstances of their relatives’ deaths. They argued that the investigation had fallen short of the requirements of domestic law and Convention standards. In particular, it had been repeatedly suspended and then resumed. The applicants also noted that the authorities had failed to promptly update them on the progress in the investigation. The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 2. The applicants complained that the anguish and distress suffered by them as a result of the shelling of their house, their relatives’ deaths and the authorities’ reaction amounted to treatment in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Government submitted that perception of the events was a subjective factor dependent upon the individual emotional characteristics of each person. The applicants had been granted victim status and thus had all rights provided for by domestic law. The applicants maintained their complaint. The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 3.     The applicants complained under Article 13 of the Convention that they had had no effective remedies in respect of the alleged violations of the Convention. Article 13 of the Convention 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.” The Government contended that the applicants had had effective domestic remedies as required by Article 13 of the Convention. For instance, they could have complained about the investigators’ actions both to higher prosecutors and to the courts. Their access to such remedies had not been restricted. The applicants contested the Government’s submissions. They argued that the operation of the legal system in Chechnya had been disrupted and that there existed an administrative practice of ineffective investigation into alleged abuses of power on the part of the Russian military, which, in their view, rendered all potential remedies ineffective. The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies; Declares the application admissible, without prejudging the merits of the case.   Søren Nielsen   Christos Rozakis   Registrar   President