FORMER FIRST SECTION
CASE OF KHASHIYEV
and
AKAYEVA v. RUSSIA
(Applications nos.
57942/00 and 57945/00)
JUDGMENT
STRASBOURG
24 February 2005
FINAL
06/07/2005
This judgment will
become final in the circumstances set out in Article 44 § 2 of the Convention.
It may be subject to editorial revision.
In the case of
Khashiyev and Akayeva v. Russia,
The European Court of
Human Rights (Former First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mr G. Bonello,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mr V. Zagrebelsky, judges
and Mr S. Nielsen, Section Registrar,
Having deliberated in
private on 14 October 2004 and 27 January 2005,
Delivers the
following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case
originated in two applications (nos. 57942/00
and 57945/00) 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, Mr Magomed Akhmetovich Khashiyev
and Mrs Roza Aribovna Akayeva (“the applicants”), on 25 May 2000 and 20 April
2000 respectively.
2. The applicants,
who had been granted legal aid, were represented by Mr Kirill Koroteyev, a
lawyer of Memorial, a Russian Human Rights NGO based in Moscow, and Mr William
Bowring, a lawyer practising in London. The Russian Government (“the Government”)
were represented by Mr P. A. Laptev, the Representative of the Russian
Federation at the European Court of Human Rights.
3. The applicants
alleged that their relatives were tortured and killed by members of the Russian
federal military in Chechnya in February 2000. They also submitted that the
investigation into their deaths was inefficient. They relied on Articles 2, 3
and 13 of the Convention.
4. The applications
were allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of
Court). Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. On 1 November
2001 the Court changed the composition of its Sections (Rule 25 § 1). This case
was assigned to the newly composed First Section (Rule 52 § 1).
6. The Chamber
decided to join the proceedings in the two applications (Rule 42 § 1).
7. By a decision of
19 December 2002, the Court declared the applications admissible.
8. The applicants
and the Government each filed observations on the merits (Rule 59 § 1).
9. A hearing took
place in public in the Human Rights Building, Strasbourg, on 14 October 2004 (Rule
59 § 3).
There appeared before
the Court:
(a) for the Government
Mr P. Laptev, Representative of the Russian Federation at the European Court of
Human Rights, Agent,
Mr Y. Berestnev, Counsel,
Mrs A. Saprykina, Adviser;
(b) for the applicants
Mr B. Bowring, Professor, Counsel,
Mr P. Leach,
Mr K. Koroteev,
Mr D. Itslaev, Advisers.
The Court heard
addresses by Mr Laptev, Mr Bowring, Mr Leach and Mr Koroteev.
THE FACTS
I. THE CIRCUMSTANCES
OF THE CASE
10. The applicants
were born in 1942 and 1955 respectively and were residents of Grozny, Chechnya.
The first applicant currently resides in Ingushetia, and the second applicant in
the Moscow Region.
A. The facts
11. The facts
surrounding the deaths of the applicants' relatives and the ensuing
investigation were partially disputed. In view of this the Court requested that
the Government produce copies of the entire investigation files opened in
relation to the applicants' relatives' deaths. The Court also requested that the
applicants produce additional documentary evidence in support of their
allegations.
12. The submissions
of the parties on the facts concerning the circumstances of the applicants'
relatives' deaths and the ensuing investigations are set out in Sections 1 and 2
below. A description of the materials submitted to the Court is contained in
Part B.
1. The killing of
the applicants' relatives
13. The first
applicant lived at 101 Tashkalinskaya Street in the Staropromyslovskiy district
of Grozny. After 1991 the first applicant, who is ethnic Ingush, attempted to
sell the house and leave because he felt threatened by the situation in Chechnya,
but could not find anyone to buy it. During the hostilities in 1994-1996 the
first applicant and his family stayed in Ingushetia, and on their return found
that all their property had been destroyed or looted.
14. In November 1999
the first applicant left Grozny because of the renewed hostilities. His
relatives decided to stay in Grozny to look after their houses and property.
They were his brother, Khamid Khashiyev (born in 1952), his sister Lidiya
Khashiyeva (born in 1943) and her two sons, Rizvan Taymeskhanov (born in 1977)
and Anzor Taymeskhanov (born in 1982). The first applicant's brother lived in
the street parallel to Tashkalinskaya Street, at 109 Neftyanaya Street, and his
sister lived in the neighbouring house at 107 Neftyanaya Street.
15. The second
applicant was a resident of the “Tashkala” quarter in the Staropromyslovskiy
district of Grozny. In October 1999 she left the city together with her mother
and sister because of the hostilities. Her brother, Adlan Akayev (born in 1953)
remained to look after their property and house, located at 24 4-th Neftyanoy
Lane.
16. In December 1999
the Russian federal army started an operation to take control of Grozny. Heavy
fighting lasted until the end of January 2000, when the central parts of the
city were finally taken. The exact date on which the Staropromyslovskiy district
of Grozny was taken by the federal forces is somewhat unclear. The applicants
submitted, referring to the Government RIA and Interfax news agencies, that by
20 January 2000 the Staropromyslovskiy district was under the Russian federal
forces' firm control. Several witness statements produced by the parties
indicate that the federal troops were in control of the district as from 27
December 1999. The Government disputed this allegation and referred to two
witness statements, allegedly contained in criminal investigation file no. 12038
which suggest that, although troops were present in the district as early as 1
January 2000, they still faced scattered resistance from the Chechen fighters (“boyeviki”).
However, no such testimonies are contained in the copy of the file submitted by
the Government to the Court, nor are they listed in the list of documents
attached to the criminal case-file.
17. At the end of
January 2000 the applicants learned that their relatives had been killed in
Grozny. On 25 January 2000 the first applicant, his sister Movlatkhan Bokova (maiden
name Khashiyeva), and one of their former neighbours from Grozny, Petimat (also
spelled Fatima) Goygova, travelled to Grozny to find out more about the state of
their relatives. At 107 Neftyanaya Street they found three bodies lying in the
courtyard with gunshot wounds and other marks. These were Lidiya Khashiyeva and
Anzor Taymeskhanov, the first applicant's sister and nephew, and Adlan Akayev,
the second applicant's brother. The second applicant's brother was holding his
identity card as Head of the Physics Department of the Grozny Teaching Institute.
Other documents were in a shirt pocket: his passport, identity card as
researcher for the Grozny Oil Institute and his driving licence. Identity
documents were also found on the two other bodies.
18. The first
applicant and the women had to return to Ingushetia on the same day, because of
the curfew imposed after 5 p.m. There they informed the family of Adlan Akayev,
including the second applicant, of his death. Having arranged for transport, on
28 January 2000 they went to Grozny to collect the bodies. Soldiers from a
roadblock in the Staropromyslovskiy district accompanied them to the house at
107 Neftyanaya Street and helped them to collect the bodies. The first applicant
brought the bodies to the village of Voznesenskoye in Ingushetia, where they
were buried on 29 January 2000.
19. The first
applicant submits that the bodies of his relatives bore marks of numerous stab
and gunshot wounds and bruises, and that some bones were broken. In particular,
the body of Lidiya Khashiyeva had 19 stab wounds, her arms and legs were broken
and teeth were missing. The body of Anzor Taymeskhanov had multiple stab and
gunshot wounds, and his jaw was broken (see § 51 below).
20. On 28 January
2000 the second applicant travelled to Voznesenskoye and saw the bodies of her
brother and of the first applicant's relatives. She saw numerous gunshot and
stab wounds and traces of beatings and torture on the body of her brother and on
the other bodies. In particular, she submits that her brother's body had seven
gunshot wounds to his skull, heart and abdominal area. The left side of his face
was bruised and his collar-bone was broken (see § 61).
21. Both applicants
submit that they did not contact a medical doctor or take photographs of the
bodies at that stage due to the state of shock caused by their relatives'
violent deaths.
22. On 2 February
2000 the village authorities of Psedakh, Ingushetia, issued a certificate to
confirm that the body of Adlan Akayev, brought from the Staropromyslovskiy
district of Grozny, was buried on 29 January 2000 in the village cemetery.
23. On 9 February
2000 the second applicant travelled to Grozny. In the courtyard of the house at
107 Neftyanaya Street she picked up machine-gun cartridges and her brother's hat.
On the same day she saw five other bodies in a nearby house. All had been shot.
She learned that a sixth woman from the same group, Elena G., had been wounded
but survived. The second applicant later traced her to Ingushetia. Elena G.
informed the second applicant that they had been shot at by soldiers and that
she had last seen the applicant's brother alive on the evening of 19 January
2000.
24. On 10 February
2000, the first applicant, together with his daughter and sister, travelled to
Grozny again, hoping to find his missing brother and nephew. With help from a
local resident they found three bodies lying between nearby garages. These were
the bodies of Khamid Khashiyev and Rizvan Taymeskhanov, the first applicant's
brother and second nephew. The third body belonged to Magomed Goygov, a
neighbour. The first applicant took photographs of the bodies. He then brought a
car to transport the bodies to Ingushetia, where they were buried the next day.
Goygov's body was collected by his relatives on 11 February 2000 for burial.
25. The first
applicant submits that Khamid Khashiyev's body was mutilated, half of his skull
was smashed and some fingers had been cut off. Rizvan Taymeskhanov's body was
grossly mutilated from numerous gunshots (see §§ 52 and 54).
26. On 10 February
2000 at the first applicant's request, the three bodies were examined by
officers of the Nazran Department of the Interior, who reported numerous wounds
to the head, body and extremities. The examination took place in the Malgobek
town morgue. The officers did not remove the clothes from the bodies, which were
frozen.
27. The second's
applicant's mother, Isit Akayeva, died on 29 April 2000 at the age of 65 of a
heart attack. The second applicant submits that her death was brought about by
the news of her only son's death.
2. The investigation
into the deaths
28. On 7 February
2000 the Malgobek Town Court in Ingushetia, acting on a motion by the second
applicant, certified the death of her brother, Adlan Akayev, which had occurred
in Grozny on 20 January 2000. The court based its decision on statements of the
applicant and two witnesses. They confirmed that his body had been found in
Grozny in the courtyard of the Khashiyevs' house with numerous gunshot wounds
and that he had been buried on 29 January 2000 in the village of Psedakh.
Following the court's decision, the civil registration office of the Malgobek
district in Ingushetia issued a death certificate for the second applicant's
brother on 18 February 2000.
29. On 14 March 2000
the office of the Malgobek Town Prosecutor issued a paper to the first applicant
certifying that on 10 February 2000 the dead body of his brother, Khamid
Khashiyev, had been found in Grozny and that, given the numerous gunshot wounds
to the head and body, his brother appeared to have died a violent death.
30. On 7 April 2000
the Malgobek Town Court in Ingushetia, at the first applicant's request,
certified the deaths of Khamid Khashiyev, Lidiya Khashiyeva, Rizvan Taymeskhanov
and Anzor Taymeskhanov, which had occurred in Grozny, Chechnya, on 19 January
2000. The court based its decision on statements by the applicant and two
witnesses. The court noted in the decision that a criminal case had been opened
and that an investigation was in progress (there is no evidence that a criminal
case had been opened at that time). Following the court decision, the civil
registration office of the Malgobek district in Ingushetia issued death
certificates for the first applicant's four relatives on 19 April 2000.
31. The Government
submitted a copy of investigation file no. 12038, opened on 3 May 2000 by the
Grozny Town Prosecutor's Office following a publication entitled “Freedom or
Death” in the Novaya Gazeta newspaper on 27 April 2000 about mass murder of
civilians by the “205th brigade” in the Novaya Katayama settlement in Grozny on
19 January 2000. The relevant documents, as submitted by the Government, are
listed below in Part B.
32. On 27 May 2000
the military prosecutor of military unit no. 20102 (the Russian federal military
headquarters in Chechnya) informed the first applicant, in response to a
complaint he had made on 5 April 2000 concerning the killing of his relatives,
that, after a review by the prosecutor, no decision to open a criminal
investigation had been taken for lack of corpus delicti in the actions of
federal servicemen.
33. On 6 June 2000
the Malgobek Town Prosecutor informed the first applicant that criminal case no. 20540020,
opened on 4 May 2000 into the deaths of Rizvan Taymeskhanov and Khamid Khashiyev,
had been transferred on 15 May 2000 to the Republican Prosecutor in Ingushetia.
34. On 30 June 2000
the office of the Chief Military Prosecutor, in response to a request by the
Memorial Human Rights Centre for information regarding the investigation into
the second applicant's brother's death, forwarded this request to the Military
Prosecutor of the Northern Caucasus.
35. On 17 July 2000
the second applicant was informed by a letter from the office of the Chief
Military Prosecutor, addressed to the special prosecutor's office in the
Northern Caucasus, that a “local prosecutor's office” was investigating the case
of her brother's death.
36. On 20 July 2000
the Chief Military Prosecutor, in response to an enquiry from the NGO Human
Rights Watch about violations of the rights of civilians in Grozny in December
1999 - January 2000, informed the NGO that the military prosecutors were
investigating only one case - that of the murder and injury of two women – which
was unconnected with the applicants. That investigation was still ongoing and
was being supervised by the office of the Chief Military Prosecutor.
37. In September
2000 the two criminal cases opened at the applicants' requests were joined in
the Grozny Town Prosecutor's Office with investigation no. 12038. This
investigation was adjourned and reopened several times. The last document in the
file submitted by the Government is dated 22 January 2003; in it the Deputy to
the Chechnya Republican Prosecutor extended the period of investigation until 27
February 2003. The investigation carried out by the Grozny Town Prosecutor's
Office focused on the version initially submitted by the applicants and by all
witnesses whose statements had been produced, alleging that the killings were
committed by a military detachment. The investigation failed to identify the
detachment which was responsible and no one was charged with the crimes (see
Part B below for a description of the documents in the investigation file).
38. In November 2000
the Presidium of the Supreme Court in Ingushetia rejected a request for
supervisory review (protest) by the Republican Prosecutor, in which he
sought to quash the decision of the Malgobek Town Court of 7 February 2000.
Another request for supervisory review was made by the Deputy Chairman of the
Supreme Court of the Russian Federation, and on 1 October 2001 the Supreme Court
quashed the decision. The Supreme Court referred to Article 250 of the Russian
Code of Civil Procedure, which states that those who request courts to establish
facts of legal significance must indicate the reasons for that request. It found
that the second applicant had failed to set out the reasons for which she sought
“legal certification” of her brother's death. The case was remitted back to the
Malgobek Town Court. On 27 November 2001 the Malgobek Town Court decided not to
consider the case on the merits, since the second applicant had twice failed to
appear for a hearing without valid reasons. The second applicant submits that
she was not informed of the new set of proceedings in the Malgobek Town Court
and that the summonses were not delivered to her.
39. At the end of
2002 the first applicant applied to a district court in Ingushetia seeking
pecuniary and non-pecuniary damages from the Ministry of Finance. The applicant
stated that his four relatives had been killed in Grozny in January 2000 by the
military. He had found their bodies and had transported them with great
difficulty to Ingushetia, where they were buried. A criminal investigation was
opened, but failed to establish the servicemen responsible for the killings.
Witness Nikolay G. testified to the court that he lived in the
Staropromyslovskiy district not far from the applicant's family. In January
2000, about a month after the federal troops had established firm control over
the district, he saw the servicemen leading Khamid Khashiyev and two of his
nephews towards the garages. They were walking in front of an armoured personnel
carrier (APC); armed soldiers were sitting on its hull. Soon afterwards he heard
automatic rifle shots from the garages. When he attempted to go there, soldiers
threatened him. He also submitted that he was threatened by someone from the
prosecutor's office to “keep his mouth shut”. Other witnesses testified about
the circumstances in which the bodies were discovered in Grozny, transported to
Ingushetia and buried, and about the state of the bodies prior to burial.
40. On 26 February
2003 the Nazran District Court in Ingushetia partially granted the first
applicant's claim and awarded him pecuniary and non-pecuniary damages in the
amount of 675,000 roubles.
41. The court noted
that it was common knowledge that the Staropromyslovskiy district was under the
firm control of the Russian federal forces by the material time, and that this
did not need to be proved. At that time only federal soldiers were able to
travel about town on an APC and to conduct identity checks. That Lidiya
Khashiyeva and Anzor Taymeskhanov had been killed during an identity check was
corroborated by the fact that their bodies were found in the courtyard of their
house with identity documents in their hands. The court further noted that the
exact military unit responsible for the killings had not been established by the
investigation, which had been adjourned on 8 June 2002. However, all military
units were State bodies and therefore pecuniary damage should be paid by the
State.
42. The decision was
upheld at the final instance by the Ingushetia Supreme Court on 4 April 2003,
and on 23 April 2003 the applicant was issued the writ of execution. The
decision was not executed immediately because, as the Government submit, the
applicant failed to present details of his bank account. On 29 December 2004 the
applicant received the award in full.
43. In their
submissions on the merits the Government stated that investigative measures
continued in 2003. On 18 March 2003 the second applicant was recognised as a
victim in the criminal proceedings. On 15 April 2003 additional forensic reports
were prepared on the bodies of Khamid Khashiyev and Rizvan Taymeskhanov (presumably,
on the basis of the existing descriptions of the bodies). Certain additional
witnesses were questioned. The Government did not, however, submit copies of
these documents to the Court.
44. The Government
submit that the investigation into criminal case no. 12038 found itself in a “deadlock”,
since it proved impossible to identify eye-witnesses to the killings.
B. Documents
submitted by the parties
45. The parties
submitted numerous documents concerning the investigation into the killings. The
main documents of relevance are as follows:
1. Documents from
the investigation file
46. The Government
submitted a copy of the investigation file in criminal case no. 12038, which
comprises two volumes, and a list of documents contained therein. According to
the list, the file contained 130 documents, of which 88 were submitted to the
Court. On 7 March 2003 the Court reiterated its request to the Russian
Government to submit a copy of the complete investigation file. The Government
responded that the documents withheld were not relevant to the circumstances of
the present case.
47. The most
important documents contained in the file are as follows:
a) Decision to open
a criminal investigation
48. On 3 May 2000,
following the publication of an article entitled “Freedom or Death” in the
Novaya Gazeta newspaper on 27 April 2000, the investigator of the Grozny Town
Prosecutor's Office opened a criminal investigation under Article 105 (a), (d),
(e) and (j) of the Criminal Code “concerning mass murder by the '205th brigade'
of civilian population in the Novaya Katayama settlement in Grozny on 19 January
2000”.
b) Statements by
the first applicant and his sister
49. The case file
contains the first applicant's brief statements of facts concerning his
relatives' deaths and requests to conduct an investigation, dated 10 February
2000 (addressed to the Malgobek Town Prosecutor) and of 1 March 2000 (addressed
to the Russian President).
50. In their further
testimonies dated 5 May 2000 the first applicant and his sister Movlatkhan
Bokova (born Khashiyeva) gave details concerning the discovery of their
relatives' bodies. Both stated that on 25 January 2000 they had travelled to
Grozny with Petimat Goygova, their neighbour from Grozny. On Ipronovskaya Street
they met a local resident, Viskhan, who told them that their relatives had been
taken away by federal soldiers. After discovering the three bodies at 107 Neftyanaya
Street they returned to Ipronovskaya Street, where they met a group of soldiers
who were taking things from a house and stacking them in a lorry. The first
applicant asked the soldiers' help to remove the bodies, but one of them, who
introduced himself as the commander, Dima, who was aged about 19 and dressed in
camouflage, refused. When the applicant insisted and said that his sister and
nephew had been killed, Dima said that the fighters had killed 32 soldiers and
that the murders were an act of revenge on their part. The applicant lost his
temper and started to curse, but one of the soldiers raised his gun and
Movlatkhan stepped forward to protect him, then led him away. Both certified
that they could have identified the house and “commander Dima”. They returned to
Grozny on 28 January with a car, removed the bodies with the assistance of
soldiers from a nearby roadblock and transported them to Ingushetia.
51. Movlatkhan
Bokova further testified that she had washed Lidiya Khashiyeva's body before
burial, and had seen numerous (about 20) stab and gunshot wounds on her body.
Her left arm was broken and front teeth were missing. She further testified that
Anzor Taymeskhanov's head bore numerous blow marks and that his jaw had been
broken.
52. The first
applicant and his sister also testified about their return to Grozny on 10 February
2000. They stated that they again met Viskhan, who told them that their
relatives had been led away by soldiers towards the garages. They followed his
directions and found three bodies, all frozen to the ground and with heavy
wounds to the head. The first applicant took photographs of the bodies at the
spot and went to fetch a car. On the same day they delivered the bodies to
Ingushetia, where they were buried the following day, on 11 February 2000. They
also stated that they had collected cartridges in the yard of 107 Neftyanaya
Street which were still in their possession.
c) Statement by
Raykhat Khashiyeva
53. The first
applicant's daughter, Raykhat Khashiyeva, accompanied her father and aunt on
their trip to Grozny on 10 February 2000. In her statement of 10 May 2000 she
confirmed their accounts regarding the discovery of the bodies of Khamid
Khashiyev, Rizvan Taymeskhanov and Magomed Goygov.
d) Description of
the bodies and forensic expertise
54. An examination
of the bodies of Khamid Khashiyev and Rizvan Taymeskhanov was conducted by an
investigator from the Malgobek Town Prosecutor's Office in the municipal morgue
on 10 February 2000. The bodies were frozen, and the examination was conducted
without removing the clothes. On 14 February 2000 two forensic reports were
prepared by a forensic expert, based on the investigator's descriptions and
without examining the bodies. The report stated that Khashiyev's body had eight
gunshot wounds and that his death had been caused by a gunshot wound to the head.
Taymeskhanov's body had eight gunshot wounds and his death also appeared to have
been caused by numerous gunshot wounds to the head and body.
55. On 7 and 8 May
2000 the Malgobek Town Prosecutor's Office made a report and took photographs of
other evidence in the case – identity documents of the deceased persons,
photographs of the bodies taken by the first applicant and Rizvan Taymeskhanov's
and Khamid Khashiyev's clothes.
e) Decision to
recognise the first applicant as a victim
56. On 5 May 2000
the first applicant was recognised as a victim in the criminal proceedings and
he signed the notification thereof in the Malgobek Town Prosecutor's Office. On
15 June 2000 the same notification was signed at the Grozny Town Prosecutor's
Office.
f) Statements by
local residents
57. On 14 May 2000
U. and Y., two women residents of the Staropromyslovskiy district of Grozny,
made statements. Both witnesses confirmed that they had seen the bodies of
people who had been shot and that, at the relevant time, the district had been
under the control of federal forces. Neither of them had witnessed the
executions but referred to the “rumours” that the murders had been committed by
federal troops. Both witnesses testified that they had seen soldiers looting
abandoned houses in the district.
g) Statements by
Magomed Goygov's relatives
58. Two female
relatives of Magomed Goygov, Petimat Goygova and M., made statements related to
the circumstances surrounding the discovery of the bodies of Maryam Goygova,
Magomed's mother, on 19 January 2000 at the intersection of Neftyanaya Street
and 4th Lane, and Magomed Goygov, on 10 February 2000. Petimat testified that a
man from the neighbourhood named Viskhan told her that their relatives had been
killed by soldiers from the 205th infantry brigade from Budennovsk, and referred
to two soldiers who had told him the same thing – one named Oleg, the other Dima.
She also testified that on 21 January 2000, when they were taking Maryam
Goygova's body to Ingushetia, they took along a wounded woman, Elena G., who had
survived an attack by soldiers on 19 January and who was later taken to the
Sunzhenskiy hospital in Ingushetia.
h) Evidence related
to Yuriy Zh.
59. Several
documents refer to a certain Yuriy Zh., whose family had resided at 130 Neftyanaya
Street. From the witnesses' testimonies it appears that Yuriy Zh. left Grozny at
the end of 1980s, while his parents (or aunt and uncle) lived at the said
address. They had been killed in 1997 by Chechen fighters and their house had
been occupied. The witnesses referred to “rumours” that Yuriy Zh. was among the
soldiers involved in the killings and that he was motivated by revenge. The
house at 130 Neftyanaya was destroyed during the fighting. Several requests for
information about Yuriy Zh. were sent by the investigators to the military
authorities and to the civil authorities of the neighbouring regions, but the
answers to these requests were either negative or were not provided by the
Government.
i) Testimony by
Anna Politkovskaya
60. The journalist
Anna Politkovskaya, author of the article “Freedom or Death”, was questioned on
several occasions by the investigators. She testified that in February 2000 she
was in Ingushetia and in the Staropromyslovskiy district of Grozny, where she
had interviewed several witnesses of the massacre and the relatives of the
deceased. In their interviews, several witnesses had referred to the “205th
brigade” as being responsible for the murders.
j) The second
applicant's statement
61. In her statement
by 12 July 2000, addressed to the Chief Military Prosecutor, the second
applicant testified that on 25 January 2000 her brother's body had been found in
the courtyard of the Khashiyevs' house by Magomed Khashiyev and his sister
Movlatkhan. The second applicant saw her brother's body in Ingushetia and noted
several gunshot wounds to his face, heart and abdomen. His left collar-bone was
broken. His identity card from the Grozny Teaching Institute had been found in
his hand, and his passport and other identity documents and two 50-rouble notes
were in his pocket.
62. On 9 February
2000 the second applicant travelled to Grozny. In the courtyard at 107 Neftyanaya
Street she picked up several cartridges from an automatic weapon and her
brother's hat. On the same day the second applicant saw five dead bodies in a
nearby garage, belonging to three women and two men. A sixth person from that
group, Elena G., had survived the massacre and later told the applicant, who
found her in a hospital in Ingushetia, that they were shot on 19 January by
soldiers from the 205th brigade from Budennovsk. She also said that she had seen
Adlan Akayev and the Khashiyevs in the evening of 19 January 2000 and that they
were alive. On the same day she was picked up by the Goygovs, who had come to
collect their dead, and taken to Ingushetia to a hospital. On 22 February 2000
the second applicant met with Omar S., who was at the material time living in
Grozny, who had heard the members of the military talking in the commendatura of
the Staropromyslovskiy district after 20 January that they had shot a “professor”.
Omar's story was related in the article “Freedom or Death”.
k) Decision to join
the investigations
63. On 22 August
2000 the Grozny Town Prosecutor's Office opened a criminal investigation into
the killing of the second applicant's brother. On 5 September 2000 this
investigation was joined with criminal case no. 12038 related to the mass murder
in the Staropromyslovskiy district. On 5 September 2000 the deputy Grozny Town
Prosecutor created an investigating group, made up of three investigators, to
work on the case.
l) Documents
relating to identification of the relevant military units
64. On 19 November
2000 the headquarters of the United Group Alignment (UGA) of the Ministry of
Defence (based in Khankala) replied to the prosecutor's request and submitted a
list of military units identified by five-digit numbers only, which had been
deployed in Grozny between 5 January and 25 February 2000.
65. On 4 March 2001
an investigator from the Chechen Republican Prosecutor's Office sent a request
to the military prosecutor of military unit no. 20102 (Khankala), asking to
identify the exact temporary location of the military units at the relevant time,
to identify the commanding officers and retrieve notes referring to operations
in the Staropromyslovskiy district. The file reviewed by the Court contained no
reply to that request.
m) The prosecutor's
orders
66. At different
stages of the proceedings several orders were produced by the Chechen Republican
Prosecutor's Office enumerating the steps to be taken by the investigators. The
order of 14 August 2001 listed ten persons whose bodies had been discovered in
Novaya Katayama, including the applicants' relatives. On 16 January 2003 the
same prosecutor's office ordered the investigators to establish possible places
of burial of other civilians, to identify further witnesses and victims and to
identify military units possibly responsible for the crimes.
67. A summary of the
main steps of the investigation is given in the order by the Grozny Town
Prosecutor dated 22 January 2003, which is the last document in the case-file.
Criminal investigation file no. 12038 was started by the Grozny Town
Prosecutor's Office on 3 May 2000 following the publication of the article
“Freedom or Death” about mass murder in the Staropromyslovskiy district. On 4 May
2000 the Malgobek Town Prosecutor's Office in Ingushetia opened a criminal
investigation following the first applicant's complaint concerning the killing
of his relatives. On 23 July 2000 both criminal cases were joined as no. 12038.
On 22 August 2000 the Grozny Town Prosecutor's Office opened a criminal
investigation following the second applicant's complaint concerning the killing
of her brother. On 5 September 2000 it was joined to criminal case no. 12038.
68. The case was
adjourned seven times and the investigation was renewed on eight occasions. The
file was transferred four times between the Grozny Town Prosecutor's Office and
the Chechen Republican Prosecutor's Office. The document concludes with a list
of tasks that should be carried out by the investigation team, including
identification of the military units deployed in the Staropromyslovskiy district
of Grozny at the relevant dates, identification of the burial places of
civilians in the Novaya Katayama settlement, identification of witnesses and the
victims of the crimes, etc.
2. Additional
documents submitted by the applicants
69. The applicants
submitted a number of additional documents relating to the circumstances of the
killings and discovery of the bodies. The main documents of relevance are as
follows:
a) Forensic report
70. The applicants
submitted a statement by Christopher Mark Milroy, registered medical
practitioner, Professor of Forensic Pathology at the University of Sheffield and
Consultant Pathologist to the British Home Office. The statement was prepared on
the basis of the applicants' submissions concerning the circumstances of their
relatives' deaths and of eight colour photographs taken by the first applicant
when the bodies of Khamid Khashiyev, Rizvan Taymeskhanov and Magomed Goygov were
found.
71. The expert
concluded that “the photographs show injuries in keeping with bullets fired from
a high velocity rifle. ... High velocity rifles can cause significantly
destructive injuries. Those unused to looking at injuries caused by these
weapons may mistake the cause of injuries produced by these weapons.” He further
listed a number of procedural steps normally taken in an examination of a body
of a person who has died in suspicious circumstances. In the expert's opinion,
these should include an x-ray of the body to identify and recover the
projectiles and detailed examination and photographing of the external injuries,
“as the pattern of injuries may indicate whether the victims were shot at close
range or they had been tortured”.
b) Information from
the Office of the General Prosecutor
72. In his letter
dated 25 April 2003, Deputy General Prosecutor Mr Fridinsky replied to a request
for information sent by Mr Kovalev, a member of the State Duma. The letter
contains information relating to the prosecution of army servicemen in Chechnya
for crimes committed against civilians. Since the beginning of the
“counter-terrorist operation”, 58 indictments have been forwarded to the courts
by the military prosecutors and 74 persons have been indicted. Of those, 12
cases concerned murder, 13 – theft, four – abuse of power, five – careless
driving of military vehicles, etc. 51 persons were found guilty, of whom seven
were officers, 22 were professional soldiers and sergeants, 19 were conscript
soldiers and three were non-commissioned officers. In addition, the Chechen
Republican Prosecutor's Office brought 17 charges against 29 servicemen of the
Ministry of Interior for crimes against the civilian population. From the
description attached to the letter it follows that, in the majority of cases,
the sentences were conditional or were lifted in application of an amnesty.
3. Documents
relating to the establishment of facts in the domestic courts
73. A number of
documents submitted by the applicants relate to the proceedings initiated by
them in the domestic courts in order to have the facts of their relatives'
deaths established.
a) The first
applicant's statement
74. On 5 April 2000
the first applicant submitted an application to the Malgobek Town Court in
Ingushetia, seeking to have certified the facts of the deaths of his brother
Khamid Khashiyev, his sister Lidiya Khashiyeva and his two nephews, Rizvan
Taymeskhanov and Anzor Taymeskhanov. The first applicant submitted that his
relatives had remained in Grozny during the winter of 1999 – 2000, while he and
the rest of the family escaped the hostilities to Ingushetia. On 17 January 2000
the soldiers of the “205th battalion” of the federal army entered
Staropromyslovskiy district and “committed outrages”. On 19 January 2000 they
entered his sister's household and killed his relatives in a brutal fashion,
causing numerous firearms and stab wounds. The first applicant learnt the
details of the killings when he attended the funeral of a neighbour, Maryam
Goygova. His relatives were buried in Ingushetia. A criminal investigation had
been opened and was ongoing. The declaration of deaths was required to obtain
death certificates from the civil registration office.
b) Transcript of
the court proceedings of 5 – 7 April 2000
75. From the
transcript of the hearing of 5 April 2000 it follows that the court heard the
applicant, who repeated his statement, and two witnesses to the burial from the
village of Voznesenskoye. They merely confirmed that the bodies had been brought
to Voznesenskoye for burial and that they were aware that the killings had been
committed by the federal soldiers. The court issued its decision on 7 April
2000.
c) The second
applicant's statement
76. On 3 February
2000 the second applicant submitted an application to the Malgobek Town Court,
seeking to establish the fact of her brother's death. She submitted that her
brother's body had been found in Grozny on 21 January 2000 in the vicinity of
his house. His death was caused by numerous gunshot wounds. His body had been
brought from Grozny and buried in the village of Psedakh in Ingushetia on 28 January
2000. The court decision certifying his death was required to obtain a death
certificate from the civil registration office.
d) Transcript of
the court proceedings of 7 February 2000
77. From the
transcript of the hearing of 7 February 2000 it follows that the court heard the
second applicant and two witnesses. The second applicant testified that in
November 1999 she and her aunt (her mother's sister) had moved from Grozny to
Ingushetia and lived with her mother in the village of Psedakh. Her brother
Adlan remained in Grozny to look after the property. On 27 January 2000 Liza
Khashiyeva and Raya Khashiyeva came to them and said that three bodies had been
found in their family house in Grozny, and that one of them was her brother's.
Her relative D. went to Grozny with the Khashiyevs and brought the body back. On
28 January 2000 her brother was buried in Psedakh.
78. Witness D.
testified that she was a close relative of the second applicant's mother. On 27 January
2000 they were visited in Psedakh by the Khashiyevs who told them that the body
of Adlan Akayev was in the courtyard of their house in Grozny. They identified
him by his card from the Grozny Teaching Institute, where he had been the Head
of the Physics department. On 28 January 2000 they brought his body to Psedakh
and buried him. Another witness from Psedakh confirmed the fact of burial. The
court issued its decision on 7 February 2000.
II. RELEVANT DOMESTIC
LAW AND PRACTICE
a) The
Constitutional provisions
79. Article 20 of
the Constitution of the Russian Federation protects the right to life.
80. Article 46 of
the Constitution guarantees the protection of rights and liberties in a court of
law by providing that the decisions and actions of any public authority may be
appealed to a court of law. Section 3 of the same Article guarantees the right
to apply to international bodies for the protection of human rights once
domestic legal remedies have been exhausted.
81. Articles 52 and 53
provide that the rights of victims of crime and abuse of power shall be
protected by the law. They are guaranteed access to the courts and compensation
by the State for damage caused by the unlawful actions of a public authority.
82. Article 55 (3)
provides for the restriction of rights and liberties by a federal law, but only
to the extent required for the protection of the fundamental principles of the
constitutional system, morality, health, rights and lawful interests of other
persons, the defence of the country and the security of the state.
83. Article 56 of
the Constitution provides that a state of emergency may be declared in
accordance with federal law. Certain rights, including the right to life and
freedom from torture, may not be restricted.
b) The Law on
Defence
84. Section 25 of
the Law on Defence (Федеральный закон от 31 мая 1996 г. N 61-ФЗ "Об обороне")
provides that “supervision of adherence to laws and investigations of crimes
committed in the Armed Forces of the Russian Federation, other Forces, military
formations and authorities shall be exercised by the General Prosecutor of the
Russian Federation and subordinate prosecutors. Civil and criminal cases in the
Armed Forces of the Russian Federation, other forces, military formations and
authorities shall be examined by the courts in accordance with the legislation
of the Russian Federation.”
c) The Law on the
Suppression of Terrorism
85. The Law on the
Suppression of Terrorism (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О
борьбе с терроризмом») provides as follows:
“Section 3. Basic
Concepts
For purposes of the
present Federal Law the following basic concepts shall be applied:
... 'the suppression
of terrorism' shall refer to activities aimed at the prevention, detection,
suppression and minimisation of the consequences of terrorist activities;
'counter terrorist
operation' shall refer to special activities aimed at the prevention of
terrorist acts, ensuring the security of individuals, neutralising terrorists
and minimising the consequences of terrorist acts;
'zone of a
counter-terrorist operation' shall refer to an individual terrain or water
surface, means of transport, building, structure or premises with adjacent
territory where a counter-terrorist operation is conducted; ...
Section 13. Legal
regime in the zone of an anti-terrorist operation
1. In the zone of an
anti-terrorist operation, the persons conducting the operation shall be entitled:
... 2) to check the
identity documents of private persons and officials and, where they have no
identity documents, to detain them for identification;
3) to detain persons
who have committed or are committing offences or other acts in defiance of the
lawful demands of persons engaged in an anti-terrorist operation, including acts
of unauthorised entry or attempted entry to the zone of the anti-terrorist
operation, and to convey such persons to the local bodies of the Ministry of the
Interior of the Russian Federation;
4) to enter private
residential or other premises ... and means of transport while suppressing a
terrorist act or pursuing persons suspected of committing such an act, when a
delay may jeopardise human life or health;
5) to search persons,
their belongings and vehicles entering or exiting the zone of an anti-terrorist
operation, including with the use of technical means; ...
Section 21. Exemption
from liability for damage
In accordance with
and within the limits established by the legislation, damage may be caused to
the life, health and property of terrorists, as well as to other
legally-protected interests, in the course of conducting an anti-terrorist
operation. However, servicemen, experts and other persons engaged in the
suppression of terrorism shall be exempted from liability for such damage, in
accordance with the legislation of the Russian Federation.”
d) The Code of
Civil Procedure
86. Articles 126-127
of the Code of Civil Procedure (Гражданский процессуальный Кодекс РСФСР)
), in force at the material time, contained general formal requirements
governing an application to a court, including, inter alia, the
defendant's name and address, the exact circumstances on which the claim was
based and any documents supporting the claim.
Article 214 part 4
provided that the court had to suspend consideration of a case if it could not
be considered until completion of another set of civil, criminal or
administrative proceedings.
87. Article 225 of
the Code provided that if in the course of reviewing a complaint against the
actions of an official or a civil claim a court came across information
indicating that a crime had been committed, it was required to inform the
prosecutor.
88. Chapter 24-1
established that a citizen could apply to a court for redress in respect of
unlawful actions by a state body or official. Such complaints could have been
submitted to a court, either at the location of the state body or at the
plaintiff's place of residence, at the latter's discretion. Under the same
procedure, the courts could also rule on an award of damages, including
non-pecuniary damages, where they concluded that a violation had occurred.
e) The Code of
Criminal Procedure
89. The 1960 Code of
Criminal Procedure (Уголовно-процессуальный Кодекс РСФСР 1960г. с изменениями
и дополнениями), in force at the material time, contained provisions
relating to criminal investigations.
90. Article 53
stated that where a victim had died as a result of a crime, his or her close
relatives should be granted victim status. During the investigation the victim
was entitled to submit evidence and bring motions. Once the investigation was
complete the victim had full access to the case-file.
91. Article 108
provided that criminal proceedings could be instituted on the basis of letters
and complaints from citizens, public or private bodies, articles in the press or
the discovery by an investigating body, prosecutor or court of evidence that a
crime had been committed.
92. Article 109
provided that the investigating body was to take one of the following decisions
within a maximum period of ten days after notification of a crime: open or
refuse to open a criminal investigation, or transmit the information to an
appropriate body. The informants were to be informed of any decision.
93. Article 113
provided that, where an investigating body refused to open a criminal
investigation, a reasoned decision was to be provided. The informant was to be
made aware of the decision and could appeal to a higher-ranking prosecutor or to
a court.
94. Article 126
provided that the military prosecutor's office was responsible for the
investigation of crimes committed by military servicemen in relation to their
official duties or within the boundaries of a military unit.
95. Article 195
provided that a criminal investigation could be suspended, inter alia, if
it was impossible to identify the persons who could be charged with the crime.
In such cases, a reasoned decision was to be issued. No investigative actions
were to be carried out once a case had been suspended. A suspended criminal case
could be closed on expiry of the limitation period.
96. Articles 208
and 209 contained information relating to the closure of a criminal
investigation. Reasons for closing a criminal case included the absence of
corpus delicti. Such decisions could be appealed to a higher-ranking
prosecutor or to a court.
f) Situation in the
Chechen Republic
97. No state of
emergency or martial law has been declared in Chechnya. No federal law has been
enacted to restrict the rights of the population of the area. No derogation
under Article 15 of the Convention has been made.
g) Amnesty
98. On 6 June 2003
the State Duma adopted Decree no. 4124-III by which an amnesty was granted in
respect of criminal acts committed by the participants to the conflict on both
sides in the period between December 1993 and June 2003. The amnesty does not
apply to serious intentional crimes, such as murder.
THE LAW
I. THE GOVERNMENT'S
PRELIMINARY OBJECTION
A. Arguments of the
parties
1. The Government
99. The Government
requested the Court to declare the applications inadmissible on the grounds that
the applicants had failed to exhaust the domestic remedies available to them.
They submitted that the relevant authorities had conducted and continued to
conduct criminal investigations into civilian deaths and injuries and the
destruction of property in Chechnya, in accordance with the domestic
legislation.
100. The Government
also submitted that, although the courts in Chechnya had indeed ceased to
function in 1996, civil remedies were still available to those who moved out of
Chechnya. Established practice allowed them to apply to the Supreme Court or
directly to the courts at their new place of residence, which would then
consider their applications. In 2001 the courts in Chechnya had resumed work and
had reviewed a large number of civil and criminal cases.
a) The Supreme
Court
101. The
availability of the Supreme Court remedy was supported, in the Government's
view, by the possibility for the Supreme Court to act as a court of first
instance in civil cases. The Government referred to two Supreme Court decisions
of 2002 and 2003, by which the provisions of two Government decrees were found
null and void following individual complaints. They also referred to the case of
K., at whose request his claim for non-pecuniary damages against a military unit
was transferred from a district court in Chechnya to the Supreme Court of
Dagestan because he insisted on the participation of lay assessors in the
proceedings, and such assessors were not available in Chechnya.
b) Application to
other courts
102. The possibility
of applying to a court at their new places of residence was supported by the
fact that the applicants successfully applied to the Malgobek District Court in
Ingushetia for verification of their relatives' deaths.
103. The
effectiveness of this avenue was further strengthened by the fact that the first
applicant had successfully applied to the Nazran District Court in Ingushetia,
which on 26 February 2003 awarded him substantial pecuniary and non-pecuniary
damages for the deaths of his relatives. This decision was upheld at final
instance and executed, thereby proving that an application to a relevant
district court is an effective remedy in cases such as the applicants'.
2. The applicants
104. The applicants
submitted that they had complied with the obligation to exhaust domestic
remedies, in that the remedies referred to by the Government would be illusory,
inadequate and ineffective. In particular, the applicants based this assertion
on the following arguments.
a) The violations
were carried out by State agents
105. The applicants
submitted that the anti-terrorist operation in Chechnya, run by agents of the
State, was based on the provisions of the Law on the Suppression of Terrorism
and was officially sanctioned at the highest level of State power.
106. The applicants
referred to the text of the Law on the Suppression of Terrorism. This Law
allowed anti-terrorist units to interfere with a number of important rights,
without setting clear limits on the extent to which such rights could be
restricted and without providing remedies for victims of violations. Nor did it
contain provisions regarding officials' responsibility for possible abuses of
power.
107. They also
submitted that although the officials who mounted the anti-terrorist operations
in Chechnya should have been aware of the possibility of wide-scale human rights
abuses, no meaningful steps had been taken to stop or prevent them. They
submitted press-cuttings containing praise for the military and police
operations in Chechnya by the President of the Russian Federation, and suggested
that prosecutors would be unwilling to contradict the “official line” by
prosecuting agents of the law-enforcement bodies or the military.
108. The applicants
alleged that there was a practice of non-respect of the requirement to
investigate abuses committed by army servicemen and members of the police
effectively, both in peacetime and during conflict. The applicants based this
assertion on four principal grounds: impunity for the crimes committed during
the current period of hostilities (since 1999), impunity for the crimes
committed in 1994-1996, impunity for police torture and ill-treatment all over
Russia, and impunity for the torture and ill-treatment that occur in army units
in general.
109. As to the
current situation in Chechnya, the applicants cited human rights groups, NGO and
media reports on violations of civilians' rights by federal forces. They also
referred to a number of the Council of Europe documents deploring lack of
progress in investigations into credible allegations of human rights abuses
committed by the federal forces.
b) Ineffectiveness
of the legal system in the applicants' case
110. The applicants
further argued that the domestic remedies to which the Government referred were
ineffective due to the legal system's failure to provide redress. They invoked
the Court judgment in the case of Akdivar and Others v. Turkey and argued
that the Russian Federation failed to satisfy the requirement that the remedy
was “an effective one, available in theory and in practice at the relevant time,
that is to say, that it was accessible, was one which was capable of providing
redress in respect of the applicant's complaint and offered reasonable prospects
of success” (see the Akdivar and Others v. Turkey judgment of 30 August
1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 68).
111. In the
applicants' view, the Government had not satisfied the criteria set out in the
Akdivar judgment, as they provided no evidence that the remedies that exist in
theory are or were capable of providing redress, or offered any reasonable
prospects of success. The applicants challenged both of the remedies mentioned
by the Government.
112. So far as civil
proceedings were concerned, the applicants submitted that they did not have
effective access to the remedies suggested by the Government. An application to
the Supreme Court would plainly be useless, since it had only limited
jurisdiction as a court of first instance, e.g. to review the lawfulness of
administrative acts. The Supreme Court's published case-law did not contain a
single example of a civil case brought against the state authorities by a victim
of the armed conflict in Chechnya. As to a possible transfer of cases by the
Supreme Court, the applicants referred to a decision by the Constitutional Court
of 16 March 1998, which found that the relevant provisions of the then Code of
Civil Procedure, permitting higher courts to transfer cases from one court to
another, were unconstitutional. As to the possibility of applying to a district
court in a neighbouring region or in Chechnya, the applicants submitted that
this would have been impractical and inefficient.
113. In respect of a
civil claim, the applicants argued that, in any event, it could not have
provided an effective remedy within the meaning of the Convention. A civil claim
would ultimately be unsuccessful in the absence of a meaningful investigation,
and a civil court would be forced to suspend consideration of any such claim
pending investigation under Article 214 (4) of the Code of Civil Procedure. They
further argued that civil proceedings could only lead to compensation for
pecuniary and non-pecuniary damages, whereas their principal objective was to
see the perpetrators brought to justice. Finally, they pointed out that although
civil claims to obtain compensation for the military's illicit actions had been
submitted to the courts, almost none had been successful.
114. The applicants
submitted that criminal proceedings were alone capable of providing adequate
effective remedies and that compensation could be awarded to them in the course
of criminal proceedings as victims of the crimes. The applicants questioned the
effectiveness of the investigation into their case.
B. The Court's
assessment
115. In the present
case the Court made no decision about exhaustion of domestic remedies at the
admissibility stage, having found that this question was too closely linked to
the merits. The same preliminary objection being raised by the Government at the
stage of consideration on the merits, the Court should proceed to evaluate the
arguments of the parties in view of the Convention provisions and its relevant
practice.
116. The Court
recalls that the rule of exhaustion of domestic remedies referred to in
Article 35 § 1 of the Convention obliges applicants first to use the remedies
that are normally available and sufficient in the domestic legal system to
enable them to obtain redress for the breaches alleged. The existence of the
remedies must be sufficiently certain, in practice as well as in theory, failing
which they will lack the requisite accessibility and effectiveness.
Article 35 § 1 also requires that the complaints intended to be brought
subsequently before the Court should have been made to the appropriate domestic
body, at least in substance and in compliance with the formal requirements laid
down in domestic law, but that no recourse should be had to remedies which are
inadequate or ineffective (see the Aksoy v. Turkey judgment of 18
December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52, and the Akdivar
and Others v. Turkey judgment cited above, p. 1210, §§ 65-67).
117. The Court
emphasises that the application of the rule of exhaustion of domestic remedies
must make due allowance for the fact that it is being applied in the context of
machinery for the protection of human rights that the Contracting States have
agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be
applied with some degree of flexibility and without excessive formalism. It has
further recognised that the rule of exhaustion is neither absolute nor capable
of being applied automatically; for the purposes of reviewing whether it has
been observed, it is essential to have regard to the circumstances of the
individual case. This means, in particular, that the Court must take realistic
account not only of the existence of formal remedies in the legal system of the
Contracting State concerned but also of the general context in which they
operate, as well as the personal circumstances of the applicant. It must then
examine whether, in all the circumstances of the case, the applicant did
everything that could reasonably be expected of him or her to exhaust domestic
remedies (see the Akdivar and Others judgment cited above, p. 1211, § 69,
and the Aksoy judgment cited above, p. 2276, §§ 53 and 54).
118. The Court
observes that Russian law provides, in principle, two avenues of recourse for
the victims of illegal and criminal acts attributable to the State or its
agents, namely civil procedure and criminal remedies.
119. As regards a
civil action to obtain redress for damage sustained through alleged illegal acts
or unlawful conduct on the part of State agents, the Court recalls that the
Government have relied on two possibilities, namely to lodge a complaint with
the Supreme Court or to lodge a complaint with other courts (see §§ 98-101
above). The Court notes that at the date on which the present application was
declared admissible, no decision had been produced to it in which the Supreme
Court or other courts were able, in the absence of any results from the criminal
investigation, to consider the merits of a claim relating to alleged serious
criminal actions. In the instant case the applicants are not aware of the
identity of the potential defendant, and so, being dependent for such
information on the outcome of the criminal investigation, did not initially
bring such an action.
120. It is true that
the first applicant, after receiving the Government's assertion that a civil
remedy existed, brought an action before the Nazran District Court in
Ingushetia. That court was unable to pursue any independent investigation as to
the person or persons responsible for the fatal assaults, nor did it do so, but
it did award damages to the first applicant on the basis of common knowledge of
the military superiority of the Russian federal forces in the Staropromyslovskiy
district at the relevant time, and a general liability of the State for actions
by the military.
121. The Court does
not consider that the decision by the Nazran District Court confirms the
effectiveness of a civil action as regards exhaustion of domestic remedies.
Despite a positive outcome for the first applicant in the form of a financial
award, these proceedings confirm that a civil action is incapable, without the
benefit of the conclusions of a criminal investigation, of making any meaningful
findings as to the perpetrators of fatal assaults, and still less to establish
their responsibility. Furthermore, a Contracting State's obligation under
Articles 2 and 13 of the Convention to conduct an investigation capable of
leading to the identification and punishment of those responsible in cases of
fatal assault might be rendered illusory if, in respect of complaints under
those Articles, an applicant would be required to exhaust an action leading only
to an award of damages (see Yaşa v. Turkey, judgment of 2 September 1998,
Reports 1998-VI, p. 2431, § 74).
122. In the light of
the above the Court finds that the applicants were not obliged to pursue the
civil remedies suggested by the Government in order to exhaust domestic
remedies, and the preliminary objection is in this respect unfounded.
123. As regards
criminal law remedies, the Court observes that the applicants notified the
authorities about the killings of their relatives at a sufficiently early stage.
On 10 February 2000 the first applicant requested the Malgobek Department of
Interior to conduct an examination of his brother's and nephew's bodies, at the
same time requesting that an investigation be conducted. The second applicant
applied to a court in Malgobek, which on 7 February 2000 certified her brother's
death from firearm wounds. In July 2000 the second applicant wrote to a
prosecutor requesting an investigation into her brother's death (see §§ 26,
28-30 and 61 above). Upon their complaints the investigation was started, albeit
after a delay, and lasted for three and a half years. No charges were brought
against any individuals. The applicants argued that the investigation has proven
ineffective and that they were not properly informed of the proceedings in order
to be able to participate or to challenge its results. The Government maintained
that the relevant authorities had conducted, and continued to conduct, criminal
investigations in accordance with the domestic legislation.
124. The Court
considers that this limb of the Government's preliminary objection raises issues
concerning the effectiveness of the criminal investigation in uncovering the
facts and responsibility for the killings of the applicants' relatives, which
are closely linked to the merits of the applicants' complaints. Thus, it
considers that these matters fall to be examined under the substantive
provisions of the Convention invoked by the applicants. In view of the above, it
is not necessary for the Court to decide whether there was indeed a practice of
non-investigation of crimes committed by police or military officials, as
claimed by the applicants.
II. ALLEGED VIOLATION
OF ARTICLE 2 OF THE CONVENTION
125. The applicants
alleged that their relatives were killed by the agents of the State in violation
of Article 2. They also submitted that the authorities failed to carry out an
effective and adequate investigation into their deaths. They relied on Article 2
of the Convention, which provides:
“1. Everyone's right
to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of
life shall not be regarded as inflicted in contravention of this article when it
results from the use of force which is no more than absolutely necessary:
(a) in defence of any
person from unlawful violence;
(b) in order to
effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action
lawfully taken for the purpose of quelling a riot or insurrection.”
A. The alleged
failure to protect the right to life
1. Arguments of the
parties
a) The applicants
126. The applicants
alleged that it was established beyond reasonable doubt that their relatives had
been intentionally killed by federal soldiers. They submitted that there existed
sufficiently strong, clear and concordant evidence to satisfy the established
evidentiary standard.
127. In particular,
they referred to the evidence to the effect that the first applicant's
relatives, Khamid Khashiyev and Rizvan Taymeskhanov, were seen by the
eye-witnesses detained by federal servicemen on 19 January 2000, and that their
bodies were later discovered with bullet wounds and signs of beatings. They also
submitted that there existed overwhelming and compelling evidence that acts of
torture and extra-judicial killings by soldiers were widespread in Grozny at the
beginning of 2000. They pointed at the domestic courts' decisions, by which the
first applicant's claim for damages against the State was granted on the ground
that his relatives had been killed by unidentified servicemen.
128. The applicants
also pointed to the Government's failure to produce all the documents contained
in the case-file related to the investigation of their relatives' deaths. In
their opinion, this should lead the Court to draw inferences as to the
well-foundedness of their allegations.
b) The Government
129. In their
submissions related to the admissibility of the complaint, the Government
submitted that the circumstances of the applicants' relatives' deaths were
unclear. The Government provided several alternative explanations, submitting
that they could have been killed by Chechen fighters in retribution for not
joining their forces, or by robbers. The Government also suggested that the
notion that the applicants' relatives were executed by the Russian federal
troops could be a part of the propaganda war waged by Chechen armed groups,
aimed at discrediting the federal army. Finally, the Government suggested that
the applicants' relatives could have been participating in armed resistance to
the federal troops and were killed in action.
130. The Government
maintained that the exact circumstances of the applicants' relatives' deaths
remained unclear. A criminal investigation was initiated at the applicants'
requests, in the course of which all their arguments were duly checked but were
not corroborated by the evidence gathered.
2. The Court's
assessment
a) General
considerations
131. The Court
reiterates that Article 2, which safeguards the right to life and sets out those
circumstances in which deprivation of life may be justified, ranks as one of the
most fundamental provisions in the Convention, to which no derogation is
permitted. Together with Article 3, it also enshrines one of the basic values of
the democratic societies making up the Council of Europe. The circumstances in
which deprivation of life may be justified must therefore be strictly construed.
The object and purpose of the Convention as an instrument for the protection of
individual human beings also requires that Article 2 be interpreted and applied
so as to make its safeguards practical and effective (McCann and Others v.
the United Kingdom judgment of 27 September 1995, Series A no. 324, §§
146-147).
132. In the light of
the importance of the protection afforded by Article 2, the Court must subject
deprivations of life to the most careful scrutiny, taking into consideration not
only the actions of state agents but also all the surrounding circumstances
(see, amongst other authorities, Avsar v. Turkey, no. 25657/94, § 391,
ECHR 2001).
133. Where the
events in issue lie wholly, or in large part, within the exclusive knowledge of
the authorities, as in the case of persons within their control in detention,
strong presumptions of fact will arise in respect of injuries and death
occurring during that detention. Indeed, the burden of proof may be regarded as
resting on the authorities to provide a satisfactory and convincing explanation
(Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; Çakici v.
Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Ertak v. Turkey, no.
20764/92, § 32, ECHR 2000-V, and Timurtaş v. Turkey, no. 23531/94, § 82,
ECHR 2000-VI).
134. As to the facts
that are in dispute, the Court recalls its jurisprudence confirming the standard
of proof “beyond reasonable doubt” in its assessment of evidence (Avsar v.
Turkey, cited above, § 282). Such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar unrebutted
presumptions of fact. In this context, the conduct of the parties when evidence
is being obtained has to be taken into account (Ireland v. the United Kingdom
judgment of 18 January 1978, Series A no. 25, p. 65, § 161).
135. The Court is
sensitive to the subsidiary nature of its role and recognises that it must be
cautious in taking on the role of a first instance tribunal of fact, where this
is not rendered unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April
2000). Nonetheless, where allegations are made under Articles 2 and 3 of the
Convention the Court must apply a particularly thorough scrutiny (see,
mutatis mutandis, the Ribitsch v. Austria judgment of 4 December
1995, Series A no. 336, § 32, and Avsar v. Turkey, cited above, § 283)
even if certain domestic proceedings and investigations have already taken
place.
b) Application in
the present case
136. In order to be
able to assess the merits of the applicants' complaints and in view of the
nature of the allegations, the Court requested the Government to submit a copy
of the complete criminal investigation file in the present case. The Government
submitted about two-thirds of the file, because the remaining documents were, in
the Government's view, irrelevant. No other explanation has been provided for
the failure to produce the remaining documents.
137. The Court
recalls in this respect that it is of utmost importance for the effective
operation of the system of individual petition instituted under Article 34 of
the Convention that states should furnish all necessary facilities to make
possible a proper and effective examination of applications (Tanrikulu v.
Turkey [GC], no. 23763/94, § 70, ECHR 1999-IV). It is inherent in
proceedings related to cases of this nature, where an individual applicant
accuses State agents of violating his rights under the Convention, that in
certain instances solely the respondent Government have access to information
capable of corroborating or refuting these allegations. A failure on the
Government's part to submit such information which is in their hands without a
satisfactory explanation may give rise to the drawing of inferences as to the
well-foundedness of the applicants' allegations. It may also reflect negatively
on the level of compliance by a respondent State with its obligations under
Article 38 § 1 (a) of the Convention (Timurtaş v. Turkey, cited above, §§
66 and 70).
138. The Court is
not persuaded by the Government's explanation for a failure to produce the
entire investigation file on the pretext of some documents being not relevant to
the case. Where an application contains a complaint that there has not been an
effective investigation, and where, as in the instant case, a copy of the file
is requested from the Government, the Court considers it incumbent on the
respondent State to furnish all necessary documentation pertaining to that
investigation. The question of whether certain documents are relevant or not
cannot be unilaterally decided by the respondent Government. Moreover, the Court
notes that the Government referred in their observations to documents copies of
which were not submitted to the Court.
139. Accordingly,
the Court finds that it can draw inferences from the Government's conduct in
this respect. The Court does not find it necessary, however, to draw separate
conclusions under Article 38 of the Convention as to whether the Government
complied with their obligations, in view of the submission of the large part of
the case-file.
140. As to
the merits of the complaint, it is undisputed that the applicants' relatives
died in circumstances falling outside the exceptions set out in the second
paragraph of Article 2. The Government did not suggest in their observations
that the exceptions of the second paragraph of Article 2 could be applicable in
the present case (see §§ 129-130 above). The question remains whether the
Government may be held responsible for their deaths.
141. The domestic
authorities indicated on a number of occasions that the deaths had been
unlawful. In particular, the criminal investigation in case no. 12038 was an
investigation into “mass murder” of civilians.
142. Although the
investigation was never completed and individuals were not identified and
indicted, it clearly follows from the case-file that the only version of the
events considered by the prosecution was that put forward by the applicants. The
documents contained in the criminal investigation file repeatedly refer to the
killings as having been committed by military servicemen. The investigator's
decision of 3 May 2000 to open a criminal investigation refers to the “mass
murder of the civilian population by the '205th brigade'” (see § 48 above). The
statements by the first applicant to the investigating authorities and to the
civil court refer to federal servicemen as the perpetrators of the killings. The
statements by the first applicant and his sister, of 5 May 2000, contain an
account of a meeting with soldiers on 25 January 2000. These soldiers apparently
acknowledged that the killings were committed by them as revenge. Testimony by
other witnesses all pointed to the servicemen as the perpetrators of the
killings (see §§ 50 - 62).
143. Certain steps
were undertaken – or ordered by the prosecutors – to attempt to identify the
military units stationed in the district at the relevant time, as well as their
commanders and operational plans. The investigation closely followed the trail
of a certain Yuriy Zh., who could have been among the soldiers responsible for
the killings (see § 59 above) and who may have been motivated by reasons of
personal revenge.
144. The Court has
also had regard to the reports by human rights groups and documents by
international organisations which have been submitted, and which support the
version of events submitted by the applicants.
145. Additional
strong evidence in respect of the identity of the perpetrators comes from the
decision by the Nazran District Court, which stated that the killings of the
first applicant's relatives were conducted by the servicemen and awarded the
first applicant damages against the State. The District Court did not make any
findings as to the individuals responsible for the killings, but considered it
established that at the material time the Staropromyslovskiy district of Grozny
had been under the firm control of the federal forces, and that only its
servicemen could have conducted identity checks. The Nazran District Court also
found that that the first applicant's relatives had been killed during an
identity check (see § 41 above).
146. Although no
similar findings were made in respect of the second applicant's brother, his
body had been found together with those of the first applicant's relatives, and,
presumably, he had been killed in the same circumstances.
147. On the basis of
the material in its possession the Court finds it established that the
applicants' relatives were killed by servicemen and that their deaths can be
attributed to the State. It observes that no explanation has been forthcoming
from the Russian Government as to the circumstances of the deaths, nor has any
ground of justification been relied on by them in respect of any use of lethal
force by their agents (see §§ 129-130 above). Liability for the
applicants' relatives' deaths is therefore attributable to the respondent State
and there has been accordingly a violation of Article 2 on that account.
B. The alleged
inadequacy of the investigation
1. Arguments of the
parties
a) The applicants
148. The applicants
maintained also that the respondent Government had failed to conduct an
independent, effective and thorough investigation into their relatives' deaths.
149. In this respect
the applicants submitted that the situation which had existed in Chechnya since
1999 was characterised by significant civil strife due to the confrontation
between the federal forces and Chechen armed groups. They referred to press
cuttings and NGO reports which, in their view, demonstrated that serious
obstacles existed to the proper functioning of the system for the administration
of justice and put the effectiveness of the prosecutors' work under serious
doubt. They submitted that the difficult circumstances in the Republic do not
dispense the Russian Government from their obligations under the Convention and
that the Government had failed to provide any evidence that any investigation
into abuses against civilians was effective and adequate.
150. Both applicants
submitted that they had good reason not to apply to the prosecutors immediately
when they learned of their relatives' deaths, because they felt vulnerable,
powerless and apprehensive of the State representatives. They also asserted that
the prosecutor's office failed to act with sufficient expediency with regard to
allegations of summary executions of the applicants' relatives and others in the
Staropromyslovskiy district in January 2000. They submitted that the
prosecutor's office must have known about the deaths of their relatives and
other people as early as the beginning of February 2000, and that the fact that
no criminal case was opened until May 2000 was a clear sign of a lack of
interest in the investigation. On 7 February 2000 the Malgobek Town Court
established the death of Adlan Akayev, the second applicant's brother. In
accordance with Article 225 of the Civil Procedural Code, the courts should have
notified the prosecutor's office of any facts brought to their attention
indicating that a criminal offence had been committed. On 10 February 2000, upon
the first applicant's request, examinations were carried out by officers of the
Nazran Department of the Interior on the bodies of his brother and nephew and of
Magomed Goygov. At the beginning of February 2000 Human Rights Watch issued
several press releases concerning the events in the Staropromyslovskiy district,
which contained information about the deaths and disappearance of the
applicants' relatives. In February and March 2000 these reports and press
releases were forwarded to the General Prosecutor's Office and handed over to
the President's Special Representative for Human Rights in Chechnya and to the
Chief Military Prosecutor. The first applicant applied to the prosecutor's
office with a written application on 5 April 2000, and on 7 April 2000 the
Malgobek Town Court certified the deaths of his four relatives.
151. The applicants
further claimed that once the investigation into the crimes had started, it was
inadequate and incomplete and could not be regarded as effective. They referred
to shortcomings in the investigation. They noted that the second applicant was
not granted victim status until March 2003, which made it impossible for her to
be involved in the procedure. They noted that forensic examinations had not been
properly performed, that relevant evidence had not been collected from the
relatives, that other witnesses and survivors had not been questioned, and
claimed that not enough had been done to identify the perpetrators of the crime
among the military.
b) The Government
152. The Government
disputed that there were failures in the investigation. They pointed out that
both applicants had been granted victim status and thus could have participated
in the proceedings and made appeals against the decisions with which they
disagreed. The allegations and statements made by the applicants during the
investigation had been thoroughly checked.
2. The Court's
assessment
a) General
considerations
153. The obligation
to protect the right to life under Article 2 of the Convention, read in
conjunction with the State's general duty under Article 1 of the Convention to
“secure to everyone within [its] jurisdiction the rights and freedoms defined in
[the] Convention”, also requires by implication that there should be some form
of effective official investigation when individuals have been killed as a
result of the use of force (see, mutatis mutandis, the McCann and
Others v. the United Kingdom judgment cited above, p. 49, § 161, and the
Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 329,
§ 105). The essential purpose of such investigation is to secure the effective
implementation of the domestic laws which protect the right to life and, in
those cases involving state agents or bodies, to ensure their accountability for
deaths occurring under their responsibility. What form of investigation will
achieve those purposes may vary in different circumstances. However, whatever
mode is employed, the authorities must act of their own motion once the 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 investigatory procedures (see, for example, mutatis mutandis,
İlhan v. Turkey [GC] no. 22277/93, § 63, ECHR 2000-VII). The Court
recalls that the obligations of the State under Article 2 cannot be satisfied
merely by awarding damages. The investigations required under Article 2 of the
Convention must be able to lead to the identification and punishment of those
responsible (see McKerr v. the United Kingdom, no. 28883/95, § 121, ECHR
2001-III).
154. For an
investigation into alleged unlawful killing by state agents to be effective, it
may generally be regarded as necessary for the persons responsible for and
carrying out the investigation to be independent from those implicated in the
events (see, for example, the Güleç v. Turkey judgment of 27 July 1998,
Reports 1998-IV, §§ 81-82, Ögur v. Turkey [GC], no. 21954/93, §§
91-92, ECHR 1999-III). The investigation must also be effective in the sense
that it is capable of leading to a determination of whether the force used in
such cases was or was not justified in the circumstances (for example, Kaya
v. Turkey judgment, cited above, p. 324, § 87) and to the identification and
punishment of those responsible (Ögur v. Turkey, cited above, § 88). This
is not an obligation of result, but of means. The authorities must have taken
the reasonable steps available to them to secure the evidence concerning the
incident, including inter alia eyewitness testimony, forensic evidence
and, where appropriate, an autopsy which provides a complete and accurate record
of injury and an objective analysis of clinical findings, including the cause of
death (with regard to autopsies, see, for example, Salman v. Turkey,
cited above, § 106; concerning witnesses, for example, Tanrikulu v. Turkey
[GC], no. 23763/94, ECHR 1999-IV, § 109; concerning forensic evidence, for
example, Gül v. Turkey, no. 22676/93, § 89, judgment of 14 December
2000). Any deficiency in the investigation which undermines its ability to
establish the cause of death or the person responsible will risk falling below
this standard.
155. In this
context, there must also be an implicit requirement of promptness and reasonable
expedition (see the Yaşa v. Turkey cited above, § 102-104; Çakici
v. Turkey, cited above, §§ 80, 87, 106; Tanrikulu v. Turkey, cited
above, § 109, Mahmut Kaya v. Turkey, no. 22535/93, ECHR 2000-III,
§§ 106-107). It must be accepted that there may be obstacles or difficulties
which prevent progress in an investigation in a particular situation. However, a
prompt response by the authorities in investigating the use of lethal force may
generally be regarded as essential in preserving public confidence in
maintenance of the rule of law and in preventing any appearance of collusion in
or tolerance of unlawful acts.
b) Application in
the present case
156. In the present
case, an investigation was carried out into the killings of the applicants'
relatives. The Court must assess whether that investigation met the requirements
of Article 2 of the Convention.
157. The Court finds
that the local Department of Interior and the courts in Ingushetia can be said
to have received detailed and serious allegations regarding the murder of
several persons as early as February 2000. Despite this, it was only after a
considerable delay - in May 2000 - that a criminal investigation was opened. The
Government submit that in the meantime the investigators had to conduct a check
at the place where the crime had been committed, i.e. in Chechnya. This does not
seem sufficient to explain a delay of three months in giving a prompt and
adequate response to the allegations of such a serious crime.
158. The Court is
struck by a series of serious and unexplained failures to act once the
investigation had commenced. Most notably, the Court has not been furnished with
evidence of any attempt to establish the location of the “205th brigade from
Budennovsk”, referred to extensively in the criminal investigation, and to
examine its possible involvement in the killings. It does not appear that the
investigators tried to establish the exact name and location of this military
unit, to contact its commanders or to try and identify the soldiers whom some
witnesses mentioned by name with the aim of at least questioning them in
relation to the crimes. In the absence of an attempt to establish any details of
the military unit which had been referred to by name, it is difficult to imagine
how the investigation could be described as efficient.
159. Further, the
Court would note that the investigation failed to obtain a plan of the military
operations conducted in the Staropromyslovskiy district of Grozny at the
material time, despite strong evidence that such an operation was taking place.
Such a plan could have constituted vital evidence in respect of the
circumstances of the crimes in question.
160. A further
element of the investigation which calls for comment is the failure to identify
other victims and possible witnesses of the crimes promptly and to take
statements from them. For example, the second applicant, whose brother's body
was discovered together with the bodies of the first applicant's sister and
nephew, was not accorded the status of a victim in the proceedings until March
2003, almost three years after the start of the investigation. She was not
questioned once in the course of the proceedings.
161. The copy of the
case-file contains two witness statements from local residents of the
Staropromyslovskiy district of Grozny concerning the events in question. There
is no indication that the investigators attempted to create a comprehensive
picture of the circumstances of the killings: for example there is no map or
plan of the district which might show the location of the bodies and important
evidence, and no attempt seems to have been made to establish a list of local
residents who remained in Grozny in winter 1999 - 2000. Few attempts were made
to identify and locate the witnesses directly identified by the applicants, such
as Viskhan, Elena G. and Omar S. (see §§ 50, 52, 58 and 62 above).
162. These omissions
were evident to the prosecutors in charge of the investigation, who on several
occasions ordered certain steps to be taken (see §§ 66-68 above). However, these
instructions were not followed.
163. No autopsies
were ordered or conducted in the course of the investigation. The descriptions
of the bodies of Khamid Khashiyev and Rizvan Taymeskhanov were prepared by the
officers of the local Department of the Interior without removing the clothes
from the bodies. These descriptions, together with photographs of the bodies
taken by the first applicant, served as the basis for the forensic reports.
Information derived from those descriptions is inevitably very limited, and the
Court considers that an earlier and more comprehensive forensic report,
including a full autopsy, would have provided substantially more details as to
the manner of death. There is no indication of any forensic examination whatever
having been carried out on the bodies of Lidiya Khashiyeva, Anzor Taymeskhanov
and Adlan Akayev, nor does it appear that an exhumation and autopsy were
ordered.
164. Finally, as to
the manner in which the investigation was conducted, the Court notes that
between May 2000 and January 2003 the investigation was adjourned and resumed
eight times. The applicants (notwithstanding the procedural status of the first
applicant) were not promptly informed of these steps and thus had no possibility
to appeal to a higher prosecutor. The investigation was transferred from one
prosecutor's office to another on at least four occasions, with no clear
explanation for those transfers and again without notification of the
applicants.
165. The Government
pointed out in their submissions that the investigation was pending at the time
of the replies and that the applicants could have appealed its results. In the
Government's view, the failure to do so should have resulted in the dismissal of
the applications for non-exhaustion of domestic remedies. However, the Court is
not persuaded, in the light of the delays and omissions described above, that
such appeal would have been able to remedy the defects in the proceedings, even
if the applicants had been properly informed of the proceedings and had been
involved in it. The applicants must therefore be regarded as having complied
with the requirement to exhaust the relevant criminal-law remedies.
166. In the light of
the foregoing, the Court finds that the authorities failed to carry out an
effective criminal investigation into the circumstances surrounding the deaths
of Khamid Khashiyev, Lidiya Khashiyeva, Rizvan Taymeskhanov, Anzor Taymeskhanov
and Adlan Akayev. This rendered recourse to the civil remedies equally
ineffective in the circumstances. The Court accordingly dismisses the
Government's preliminary objection and holds that there has been a violation of
Article 2 also in this respect.
III. ALLEGED VIOLATION
OF ARTICLE 3 OF THE CONVENTION
167. The applicants
alleged that there existed overwhelming evidence to conclude that their
relatives were tortured before their deaths. They also submitted that the
authorities failed in their duty to investigate a credible allegation of
torture. They relied on Article 3 which provides
“No one shall be
subjected to torture or to inhuman or degrading treatment or punishment.”
A. The alleged
failure to protect from torture
1. Arguments of the
parties
a) The applicants
168. The applicants
alleged that it was established beyond reasonable doubt that the circumstances
in which their relatives had died disclosed a violation of Article 3 of the
Convention. They referred to the witnesses' testimonies that the bodies were
mutilated and bore numerous stab and firearm wounds. They also submitted that
there existed overwhelming and compelling evidence that acts of torture and
extra-judicial killings by soldiers were widespread in Grozny at the beginning
of 2000.
b) The Government
169. The Government
disputed that there were any marks of torture on the applicants' relatives'
bodies. They referred to the descriptions of the bodies and the results of the
forensic reports, which listed only firearm wounds on the bodies of Khamid
Khashiyev and Rizvan Taymeskhanov (see § 54 above).
2. The Court's
assessment
a) General
considerations
170. As the Court
has stated on many occasions, Article 3 enshrines one of the most fundamental
values of democratic societies. Even in the most difficult circumstances, such
as the fight against terrorism and organised crime, the Convention prohibits in
absolute terms torture and inhuman or degrading treatment or punishment. Unlike
most of the substantive clauses of the Convention and its Protocols, Article 3
makes no provision for exceptions and no derogation from it is permissible under
Article 15 § 2 even in the event of a public emergency threatening the life of
the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V,
and the Assenov and Others v. Bulgaria judgment of 28 October 1998,
Reports 1998-VIII, p. 3288, § 93).
171. Allegations of
ill-treatment must be supported by appropriate evidence (see, mutatis
mutandis, the Klaas v. Germany, judgment of 22 September 1993,
Series A no. 269, p. pp. 17-18, § 30). To assess this evidence, the Court adopts
the standard of proof “beyond reasonable doubt” but adds that such proof may
follow from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (see the Ireland v.
the United Kingdom, cited above, pp. 64-65, § 161 in fine).
b) Application in
the present case
172. It is not
disputed that the applicants' relatives were killed. The Court also finds it
established that they were killed by servicemen of the State, i.e. persons
acting in their official capacity. However, the way in which they died and
whether they had been subjected to torture or ill-treatment before death is not
entirely clear.
173. The Court
observes that the facts related to possible torture of the applicants' relatives
are not sufficiently established. Witnesses submitted that the bodies of Lidiya
Taymeskhanova, Anzor Taymeskhanov and Adlan Akayev bore torture marks (see
§§ 51, 61 above). However, the applicants did not contact the authorities or
medical doctors nor did they take photographs of the bodies at that stage, due
to a state of shock and general distrust of the authorities. The documents
relating to the description of the bodies of Khamid Khashiyev and Rizvan
Taymeskhanov bear reference only to firearm wounds. An additional statement by a
pathologist submitted by the applicants and prepared on the basis of the
photographs and a description of the bodies also refers only to injuries caused
by bullets fired from a high-velocity rifle (see § 71 above).
174. In conclusion,
since the evidence before it does not enable the Court to find beyond all
reasonable doubt that the applicants' relatives were subjected to treatment
contrary to Article 3, the Court considers that there is insufficient evidence
for it to conclude that there has been a violation of Article 3 of the
Convention on account of the alleged torture.
B. Concerning the
alleged lack of effective investigation
1. Submissions of
the parties
175. The applicants
also maintained that the respondent Government failed to conduct an independent,
effective and thorough investigation into the allegations of torture.
176. The Government
disputed that there were any failures in the investigation.
2. General
considerations
177. Procedural
obligations have been implied in varying contexts under the Convention, where
this has been perceived as necessary to ensure that the rights guaranteed under
the Convention are not theoretical and illusory but practical and effective. In
a number of judgments the Court found that where a credible assertion is made
that an individual has suffered treatment infringing Article 3 at the hands of
the police or other similar agents of the State, that provision, read in
conjunction with the State's general duty under Article 1 of the Convention to
“secure to everyone within their jurisdiction the rights and freedoms defined in
... [the] Convention”, requires by implication that there should be an effective
official investigation. As with an investigation under Article 2, such
investigation should be capable of leading to the identification and punishment
of those responsible. Otherwise, the general legal prohibition of torture and
inhuman and degrading treatment and punishment would, despite its fundamental
importance, be ineffective in practice and it would be possible in some cases
for agents of the State to abuse the rights of those within their control with
virtual impunity (see the Assenov and Others judgment cited above,
p. 3290, § 102; Labita v. Italy [GC], no. 26772/95, p. 138, §§ 131-136,
ECHR 2000-IV).
178. The procedural
limb of Article 3 is invoked, in particular, where the Court is unable to reach
any conclusions as to whether there has been treatment prohibited by Article 3
of the Convention, deriving, at least in part, from the failure of the
authorities to react effectively to such complaints at the relevant time (see
İlhan v. Turkey [GC], cited above, §§ 89- 92).
3. Application in
the present case
179. The Court notes
that the State authorities conducted certain investigations into the allegations
of the applicants that their relatives suffered torture and inhuman treatment
before their deaths. However, no autopsies and no appropriate forensic reports
were prepared, with the result that the exact nature and circumstances of the
deaths were not established. Failure to identify and question other possible
witnesses of the events that occurred in the Staropromyslovskiy district on 19
and 20 January 2000 and the servicemen of the military units deployed there at
the time also possibly prevented any concrete evidence of ill-treatment coming
to light and thereby the identification and punishment of those responsible.
Bearing in mind its findings about the efficiency of the investigation (see
§§ 156-166 above), the Court is not satisfied that those investigations were
sufficiently thorough and effective to satisfy the aforementioned requirements
of Article 3.
180. In these
circumstances, having regard to the lack of a thorough and effective
investigation into the credible allegations made by the applicants that their
relatives were victims of treatment contrary to Article 3, the Court dismisses
the Government's preliminary objection as to exhaustion of domestic remedies and
holds that there has been a violation of the procedural requirements of Article
3 of the Convention.
IV. ALLEGED VIOLATION
OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLES 2 AND 3 OF THE
CONVENTION
181. The applicants
complained that they had no effective remedies in respect of the violations
alleged under Articles 2 and 3. They referred to Article 13 of the Convention,
which states:
“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.”
1. General
considerations
182. The Court
reiterates that Article 13 of the Convention guarantees the availability at the
national level of a remedy to enforce the substance of the Convention rights and
freedoms in whatever form they might happen to be secured in the domestic legal
order. The effect of Article 13 is thus to require the provision of a domestic
remedy to deal with the substance of an “arguable complaint” under the
Convention and to grant appropriate relief, although Contracting States are
afforded some discretion as to the manner in which they comply with their
Convention obligations under this provision. The scope of the obligation under
Article 13 varies depending on the nature of the applicant's complaint under the
Convention. Nevertheless, the remedy required by Article 13 must be “effective”
in practice as well as in law, in particular in the sense that its exercise must
not be unjustifiably hindered by acts or omissions by the authorities of the
respondent State (Aksoy v. Turkey, cited above, § 95, and Aydin v.
Turkey judgment of 25 September 1997, Reports 1997-VI, § 103).
183. The scope of
the obligation under Article 13 varies depending on the nature of the
applicant's complaint under the Convention. Given the fundamental importance of
the rights guaranteed by Articles 2 and 3 of the Convention, Article 13
requires, in addition to the payment of compensation where appropriate, a
thorough and effective investigation capable of leading to the identification
and punishment of those responsible for the deprivation of life and infliction
of treatment contrary to Article 3, including effective access for the
complainant to the investigation procedure (cf. Avsar v. Turkey, cited
above, § 429; Anguelova v. Bulgaria, no. 38361/97, § 161, ECHR 2002-IV).
The Court further recalls that the requirements of Article 13 are broader than a
Contracting State's obligation under Article 2 to conduct an effective
investigation (see Orhan v. Turkey, no. 25656/94, § 384, 18 June 2002,
ECHR 2002).
2. Application in
the present case
184. In view of the
Court's findings above on Articles 2 and 3, these complaints are clearly
“arguable” for the purposes of Article 13 (Boyle and Rice v. the United
Kingdom judgment of 27 April 1988, Series A no. 131 § 52). The applicants
should accordingly have been able to avail themselves of effective and practical
remedies capable of leading to the identification and punishment of those
responsible and to an award of compensation, for the purposes of Article 13.
185. However, in
circumstances where, as here, the criminal investigation into suspicious deaths
was ineffective in that it lacked sufficient objectivity and thoroughness (see
§§ 156-166 above), and where the effectiveness of any other remedy that may have
existed, including the civil remedies suggested by the Government, was
consequently undermined, the Court finds that the State has failed in its
obligation under Article 13 of the Convention.
186. Consequently,
there has been a violation of Article 13 of the Convention.
V. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
187. 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. Non-pecuniary
damage
188. The applicants
did not submit any claims for pecuniary damages.
189. As to
non-pecuniary damages, the first applicant lost his four relatives – a brother,
a sister and two nephews. He had to take their bodies to Ingushetia and to
organise a burial. These events have deeply affected him. Although he
acknowledged that by the decision of the Nazran Town Court of 26 February 2003
he had been awarded RUR 675,000 (about EUR 20,000) for pecuniary and
non-pecuniary damage, he claimed EUR 15,000 as non-pecuniary damage
190. The second
applicant lost her brother, and also her mother, who suffered from a heart
attack after receiving the news of her son's death and who died in April 2000.
The second applicant claimed EUR 20,000 as non-pecuniary damage.
191. The Government
stated that the amounts claimed were exaggerated. They also referred to the
existing domestic decision to award damages in respect of the first applicant.
192. The Court
considers that an award should be made in respect of non-pecuniary damage
bearing in mind the seriousness of the violations it has found in respect of
Articles 2, 3 and 13 of the Convention. The Court will take into account the
amount of damage awarded to the first applicant by the domestic courts.
193. The Court notes
the modest nature of the applicants' requests and awards EUR 15,000 to the first
applicant. Although the Court does not find it established that the death of the
second applicant's mother had been caused by the violations found in the present
case, it awards EUR 20,000 to the second applicant as non-pecuniary damage. Both
sums are to be converted into Russian roubles at the rate applicable at the date
of payment.
B. Costs and
expenses
194. The applicants
claimed EUR 9,460 and GBP 1,605 for fees and costs involved in bringing the
applications. This included GBP 1,605 for the work of the London-based lawyers
from the European Human Rights Advocacy Centre; EUR 4,250 for the work of the
Moscow-based lawyers from the Human Rights Centre Memorial and EUR 5,210 for the
work of the human rights field staff in Moscow and in the Northern Caucasus and
for other relevant expenses incurred.
195. In addition,
the applicants claimed GBP 2,608 for costs and fees involved in respect of the
preparation for, and conduct of the hearing on the merits. This included
GBP 2,300 for the work of the London-based lawyers from the European Human
Rights Advocacy Centre and GBP 308 for the work of the Moscow-based lawyer.
196. The Government
did not submit any comments on the amount or substantiation of the claims under
this heading.
197. The Court
observes that only legal costs and expenses necessarily and actually incurred
and which are reasonable as to quantum can be reimbursed pursuant to Article 41
of the Convention. It notes that this case involved complex issues of fact and
law and gave rise to two sets of written observations and an adversarial
hearing. However, it considers excessive the total amount which the applicants
claim in respect of their legal costs and expenses and considers that it has not
been demonstrated that all of them were necessarily and reasonably incurred. In
particular, the Court finds excessive the amount of legal work claimed by the
applicants in the course of the preparation for the hearing in view of the
extensive written submissions already submitted by parties.
198. In these
circumstances, the Court is unable to award the totality of the amount claimed;
deciding on an equitable basis and having regard to the details of the claims
submitted by the applicants, it awards them the sum of EUR 12,000, less the
EUR 1,093 received by way of legal aid from the Council of Europe, together with
any value-added tax that may be chargeable.
C. Default interest
199. The Court
considers it appropriate that the default interest should be based on the
marginal lending rate of the European Central Bank, to which should be added
three percentage points.
FOR THESE REASONS, THE COURT
1. Dismisses by
six votes to one the Government's preliminary objection;
2. Holds
unanimously that there has been a violation of Article 2 of the Convention in
respect of the applicants' relatives' deaths;
3. Holds
unanimously that there has been a violation of Article 2 of the Convention in
that the authorities failed to carry out an adequate and effective investigation
into the circumstances of the applicants' relatives' deaths;
4. Holds
unanimously that there has been no violation of Article 3 of the Convention in
respect of the failure to protect the applicants' relatives from torture;
5. Holds
unanimously that there has been a violation of Article 3 of the Convention in
respect of the failure to carry out an adequate and effective investigation into
the allegations of torture;
6. Holds by
five votes to two that there has been a violation of Article 13 of the
Convention;
7. Holds
unanimously
(a) that the
respondent State is to pay the applicants, within three months from the date on
which the judgment becomes final according to Article 44 § 2 of the Convention,
the following amounts, to be converted into Russian roubles at the rate
applicable at the date of settlement:
(i) EUR 15,000
(fifteen thousand euros) to the first applicant and EUR 20,000 (twenty thousand
euros) to the second applicant in respect of non-pecuniary damage;
(ii) EUR 10,927 (ten
thousand nine hundred twenty-seven euros) in respect of costs and expenses;
(iii) any tax that may
be chargeable on the above amounts;
(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.
Done in English, and
notified in writing on 24 February 2005, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with
Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the
following separate opinions are annexed to this judgment:
(a) partly
dissenting opinion of Mr Kovler;
(b) partly
dissenting opinion of Mr Zagrebelsky.
C.L.R.
S.N.
PARTLY DISSENTING
OPINION OF JUDGE KOVLER
(Translation)
While sharing my
colleagues' conclusions with regard to the applicants' complaints under Articles
2 and 3 of the Convention, Articles which concern absolute rights and are not
open to any restriction or derogation, I regret that I cannot endorse their
findings with regard to the Government's preliminary objection on the exhaustion
of the available domestic remedies and to Article 13 of the Convention.
Rather than
dismissing that preliminary objection (although I understand the arguments,
which draw on a rich strand of the Court's case-law), I would prefer to accept
it, in order subsequently to demonstrate more convincingly the shortcomings in
the domestic proceedings (procedural aspects of Articles 2 and 3). I see no
contradiction in such an approach.
In contrast to the
other two cases (Isayeva, Yusupova, Bazayeva v. Russia and Zara
Isayeva v. Russia), where the investigation had been closed and victim and
civil party status had been withdrawn from the applicants, this case reflects a
different legal situation, firstly because victim status was granted to Mr
Khashiyev at the initial stage of the investigation (May 2000), as well as to Ms
Akayeva – albeit with considerable delay (March 2003) – and has never been
withdrawn from the two applicants. It follows that the applicants had and still
have the possibility of asserting their procedural rights, and in particular of
requesting that the criminal investigation be carried out in a more diligent and
effective manner: under Articles 208 and 209 of the Code of Criminal Procedure
of the RSFSR, as worded at the material time, or especially under Article 125 of
the Code of Criminal Procedure of the Russian Federation, which entered into
force on 1 July 2002, any decisions and actions (or failures to act) by
investigators, investigating judges or prosecutors with regard to a criminal
investigation could and may still be challenged before a more senior prosecutor
or a court.
The objectivity and
impartiality incumbent on any judge oblige me to concede that the rights in
question are for the time being merely theoretical. The Court is certainly right
to note: “... at the date on which the present application was declared
admissible, no decision had been produced to it in which the Supreme Court or
other courts were able, in the absence of any results from the criminal
investigation, to consider the merits of a claim relating to alleged serious
criminal actions” (see paragraph 119 of the judgment). While
acknowledging with bitterness the truth of those remarks, I should like
nonetheless to convey in this separate opinion a more encouraging “message”:
yes, the domestic legal order does provide for remedies, and although they are
not easily pursued, one must in any event attempt to use them.
The example of Mr
Khashiev and, to a lesser degree, that of Ms Akayeva, show that certain remedies
(particularly under civil procedure) are more effective than others. Admittedly,
the decisions of 7 April 2000 by the Malgobek District Court in Ingushetia
(which established as a matter of law that four of the first applicant's
relatives had died) and of 26 February 2003 by the Nazran District Court
(Ingushetia), awarding the first applicant compensation of 675,000 roubles for
pecuniary and non-pecuniary damage, afforded only partial reparation for the
losses sustained. It is true, as the Court emphasises in this judgment
(paragraph 121), that the Contracting States' obligation under the Convention to
conduct an investigation capable of leading to the identification and punishment
of those responsible in cases of fatal assault might be rendered illusory if an
applicant was required to exhaust an action leading only to an award of damages
(Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998 VI, p. 2431,
§ 74). However, I cannot share the Court's opinion that the decision of the
Nazran District Court does not have any bearing on the effectiveness of a civil
action for the purposes of the rule on the exhaustion of domestic remedies
(paragraph 121). Ultimately, the Nazran District Court took the criminal
investigation into account, despite the fact that it had been suspended, thus
displaying a certain legal realism. In its judgment in the Akdivar case,
the Court laid stress on the allocation of the burden of proof in the area of
the exhaustion of domestic remedies: “It is incumbent on the Government
claiming non-exhaustion to satisfy the Court that the remedy was an effective
one available in theory and in practice at the relevant time, that is to say,
that it was accessible, was one which was capable of providing redress in
respect of the applicant's complaints and offered reasonable prospects of
success. However, once this burden of proof has been satisfied it falls to the
applicant to establish that the remedy advanced by the Government was in fact
exhausted or was for some reason inadequate and ineffective in the particular
circumstances of the case or that there existed special circumstances absolving
him or her from the requirement” (Akdivar and Others v. Turkey, judgment of
16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1211, §
68). Should the domestic courts, as well as applicants, be discouraged from
commencing civil proceedings before completion of the criminal investigation? I
doubt very much that this would be the correct approach. I am reassured by the
fact that Article 413 of the Code of Criminal Procedure of the Russian
Federation obliges the judicial authorities to send a case back to the domestic
courts for re-examination where the Constitutional Court of the Russian
Federation or the European Court of Human Rights finds a violation of an
applicant's rights.
As to Article 13 of
the Convention, in the light of the grounds on which the Court held that there
had been a procedural violation of Articles 2 and 3 but also for the reasons set
out above, I come to the conclusion that no separate question arises under that
provision in this case.
PARTLY DISSENTING
OPINION OF JUDGE ZAGREBELSKY
I regret that I am
unable to share the opinion of the majority of the Court with regard to the
finding of a violation of Article 13 of the Convention.
In my view, there is
no room in this case for finding a violation of Article 13 on the ground that
there was no domestic remedy to redress the violation of Articles 2 and 3 of the
Convention. I believe that, in this case, the finding a violation of the
procedural aspect of those Articles covers all aspects of the shortcomings in
the domestic system concerned.
The applicants had an
effective domestic remedy for their right to compensation or to an indemnity,
and indeed Mr Khashiyev succeeded in obtaining such redress from the Nazran
District Court (§ 39-42). The successful conclusion of the civil procedure
brought by Mr Khashiyev is, in my opinion, a clear demonstration of the
effectiveness of that remedy, which was also open to the other applicant.
I consider that no
importance should be attached to the fact that the Nazran District Court ordered
the State to pay the indemnity, rather than a private citizen who might be held
personally responsible for the violations we are dealing with. The failure to
identify the perpetrators of the acts which led to the violation of the
applicants' rights had no bearing on the outcome of the civil proceedings
brought by Mr Khashiyev.
I accept that an
effective criminal investigation may, in some cases, be necessary in order to
allow the victims to vindicate their own rights before a civil court. For
instance, in the case of Isayeva, Yusupova and Bazayeva v. Russia
(applications nos. 57947/00, 57948/00 and 57949/00) and in the case of Zara
Isayeva v. Russia (application no. 57950/00) the criminal investigations
were closed for “lack of corpus delicti”, and I consider such an outcome
to be clearly detrimental to the chances of success of a civil action against
the persons responsible and/or the State.
In this case,
however, the ineffectiveness of the criminal investigation did not prevent a
successful outcome of the civil action.
In my view, the
Court's case-law, closely linked as it is to the particular facts of each case,
is far from unambiguous with regard to the relationship between the State's
procedural obligations under Articles 2 and 3 and the obligation under Article
13 to introduce into the domestic system an effective remedy for violations of
the Convention (see the different solutions recently adopted by the Court in
Öneryıldız v. Turkey ([GC], no. 48939/99, judgment of 30 November 2004), and
in Makaratzis v. Greece ([GC], no. 50385/99, judgment of 20 December
2004). This ambiguity arises because the introduction by the Court's case-law of
various positive procedural obligations under Articles 2 and 3 poses a problem
of coordination with the scope of Article 13.
We have first to take
into consideration the consistent case-law according to which the Court does not
recognise under Article 6 a victim's right to institute criminal proceedings and
to obtain punishment of the person who allegedly violated his or her rights.
It is only when
Articles 2 and 3 of the Convention are at stake that a criminal investigation
must be conducted ex officio, to identify and, where appropriate, to
punish the individuals responsible.
However, the State's
procedural obligations under Articles 2 and 3 give rise to victims' rights that
find their protection exclusively in the Court's supervision of the State
authorities' compliance with those obligations. In my view, therefore, when the
Court finds a violation of the procedural obligations of Articles 2 and 3, no
room is left for considering whether there has also been a violation of Article
13: no room, and no necessity in terms of securing effective protection of the
Convention's rights. As I have stated, an exception must be made where the lack
of an effective investigation hinders an effective domestic remedy which could
lead to an appropriate indemnity or compensation.
This not being the
case, and having found a violation of the procedural aspects of Article 2 and 3,
I conclude that no separate issue arises under Article 13 of the Convention.
KHASHIYEV and AKAYEVA v.
RUSSIA JUDGMENT
KHASHIYEV and AKAYEVA v.
RUSSIA JUDGMENT
KHASHIYEV and AKAYEVA v.
RUSSIA JUDGMENT
PARTLY DISSENTING
OPINION OF JUDGE KOVLER
KHASHIYEV and AKAYEVA v.
RUSSIA JUDGMENT
PARTLY DISSENTING
OPINION OF JUDGE KOVLER
KHASHIYEV and AKAYEVA v.
RUSSIA JUDGMENT
KHASHIYEV and AKAYEVA v.
RUSSIA JUDGMENT
KHASHIYEV and AKAYEVA v.
RUSSIA JUDGMENT
PARTLY DISSENTING
OPINION OF JUDGE ZAGREBELSKY
KHASHIYEV and AKAYEVA v.
RUSSIA JUDGMENT
PARTLY DISSENTING
OPINION OF JUDGE ZAGREBELSKY
