Galina Vasilyevna FINOZHENOK v Russia - 3025/06 [2011] ECHR 1002 (31 May 2011)

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The European Court of Human Rights (First Section), sitting on 31 May 2011 as a Chamber composed of:

Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
George Nicolaou,
Mirjana Lazarova Trajkovska, judges,
and Søren Nielsen, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Ms Galina Vasilyevna Finozhenok, is a Russian national who was born in 1943 and lives in Dorogobuzh, Smolensk Region. The respondent Government are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

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

The applicant’s mother, Mrs Lidiya Vasilyevna Korzhavina, born in 1922, and brother, Mr Anatoliy Nikolayevich Korzhavin, born in 1952, lived in Grozny, Chechnya.

In 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic. The applicant lost contact with her relatives after November 1999.

It appears that in April 2000 the applicant, who tried to obtain information about her relatives through the local police department, was informed by the Ministry of the Interior that her relatives had died in Grozny in January 2000.

In July 2000 the head of the Oktyabrskiy district administration of Grozny informed the applicant that her relatives had been killed on 13 January 2000 as a result of a missile strike. The applicant was informed that the bodies of her relatives and of the third man who had died as a result of the same strike were buried in Grozny in July by the relatives of that man.

In June 2001 a hospital in Grozny issued death certificates in respect of Mrs Korzhavina and Mr Korzhavin and indicated that the deaths had occurred on 13 January 2000 as the result of a missile attack.

In March 2001 the applicant wrote to the prosecutor’s office and informed them about her relatives’ deaths. She sought the prosecutor’s assistance in obtaining the death certificates from Grozny. It appears that in June 2001 the Chechnya Prosecutor’s Office informed the applicant that they would examine her complaint about her relatives’ deaths and notify her of the results. They also sent her copies of the death certificates obtained in the hospital in Grozny (see above).

On 18 June 2001 the General Prosecutor’s Office informed the applicant that the Grozny Prosecutor’s Office had been instructed to establish the circumstances of her relatives’ deaths.

On 12 July 2001 the Grozny Town Prosecutor’s Office, having conducted a check, decided not to open a criminal investigation into the applicant’s relatives’ deaths. The investigator collected several statements and found it established that the house at 71 Dalnaya Street had burned down in January 2000 and that there had been no eyewitnesses to the deaths. He concluded that no crime had been committed. The information was sent to the Chechnya Prosecutor’s office in September 2001; it is unclear whether the applicant was notified at that time.

It does not appear that after that date the applicant sought or received any information concerning the investigation from the prosecutor’s office.

In August 2001 the applicant wrote to the Chechnya Prosecutor’s Office and sought their assistance in obtaining death certificates from the civil register office.

On 6 November 2001 the district court in the Smolensk region certified the applicant’s relatives’ deaths. The court took into account the medical death certificates issued in June 2001, the applicant’s statements and other evidence. On 27 November 2001 the district civil register office in the Smolensk region issued death certificates in relation of the applicant’s mother and brother.

On 22 September 2002 the Deputy Head of the North Caucasus Military Circuit wrote to the Head of the Chechen Republic Administration and to the applicant. According to him, a check had confirmed the applicant’s relatives’ deaths on 13 January 2000 during a missile strike.

On an unspecified date the applicant lodged an application with the Dorogobuzhskiy District Court, Smolensk Region to restore the time-limit for her to receive her inheritance. On 28 May 2003 the District Court granted the request. It held that the applicant was the sole heir of her mother and brother and extended the time-limit for her to receive her inheritance for six months. It does not appear that the applicant has ever formally accepted the inheritance through the notary.

In June 2004 she wrote to the Chechnya Prosecutor’s Office and asked whether the house situated at 71 Dalnaya Street had been included in the list of dwellings which had become uninhabitable as a result of the military campaign. It is unclear if she received any response.

The applicant then claimed compensation for the destroyed flat and other belongings under Government Decree no. 404 of 4 July 2003 (see below). Within the same proceedings the applicant also claimed non-pecuniary damages for the suffering caused by her relatives’ deaths from the Russian Government.

On 16 March 2005 the Presnenskiy District Court of Moscow issued its judgment. The court held that the compensation constituted a personal entitlement payable to the residents of Chechnya who had lost their houses and other property, but not to their heirs. In any event, the applicant had not applied to the Commission set up to consider compensation claims. The court further observed that the right to sue for compensation in respect of non-pecuniary damage inflicted to life or health was not heritable. The court reiterated that the applicant’s claim for non-pecuniary damages could not be directed against the Government, in the absence of a proven causal link between the actions of the Government and the damage claimed. It dismissed the applicant’s claims. It stressed that she was still able to bring a tort action against the State. On 4 August 2005 the Moscow City Court upheld that judgment.

In 2005 the applicant attempted to sue the Ministry of Finance for pecuniary and non-pecuniary damages caused by the actions of State agents. On 12 April 2005 the Smolensk Regional Court, as the final level of jurisdiction, refused to accept the claim, for lack of territorial jurisdiction. On 1 July 2005 the Promyshlenny District Court in Smolensk refused to consider a similar claim, for lack of substantiating documents and failure to pay a reduced court fee of 500 roubles (RUB). The applicant did not appeal.

The Government submitted 117 pages from the criminal investigation file opened into the deaths of Mrs Korzhavina and Mr Korzhavin. These documents can be summarised as follows.

Following the communication of the applicant’s complaint to the Government, on 26 February 2009 the Chechnya Prosecutor’s Office quashed the decision of 12 July 2001 not to open a criminal investigation. On 9 June 2009 the Investigating Committee of the Chechnya Prosecutor’s Office decided to open a criminal investigation into the applicants’ relatives’ deaths. The applicant was informed the same day.

In August 2009 the applicant was questioned and granted victim status in the proceedings.

The investigators identified and questioned several neighbours and other witnesses, including the relatives of the third person who had died on 13 January 2000, together with the applicants’ relatives. They also examined the site of the house and found some metal objects there, which were identified by an expert report as parts of a mine. They sought information from various military and other agencies about the location and actions of military units in January 2000, but it does not appear that anything of relevance was obtained. On 9 November 2009 the investigation was adjourned for failure to identify the culprits; the applicant was informed on the same day but did not appeal against that decision. It appears that on 17 November 2009 the investigation was reopened, of which the applicant was informed.

1. Decisions of an investigator or prosecutor concerning their refusal to initiate a criminal investigation...or any other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions....

3. The court examines the lawfulness and the grounds for the impugned decisions or acts ...within five days from the receipt of the complaint...

5. As a result of the examination of the complaint the court delivers one of the following decisions:

1) Declaring the decisions, acts or omissions of the official unlawful or unsubstantiated and obliging the official to eliminate the defects;

The Government decree no. 404 of 4 July 2003 on payment of compensation for lost housing and possessions to citizens affected as a result of the resolution of a crisis in the Chechen Republic and residing permanently in the region (as in force at the relevant time), provided that persons who lived permanently in the Chechen Republic had the right to compensation for lost housing and property. It established a Commission which was entitled to consider such claims.

The applicant complained under Article 2 of the Convention that her mother and brother had died in the bombing because the Russian Government had failed to evacuate civilians from the military action zone. She asserts that the deaths of her mother and brother disclosed a violation of her right to respect for family life.

The applicant complained under Article 1 of Protocol No. 1 to the Convention that she had not been compensated for the destroyed flat and belongings she had inherited from her mother and brother.

The applicant considers that there was no effective domestic remedy for the alleged violations of Article 2 of the Convention and Article 1 of Protocol No. 1.

The applicant complained of a violation of Articles 2 and 8 of the Convention and of Article 1 of Protocol No. 1 to the Convention as a result of the events of 13 January 2000 and the absence of compensation. The respective provisions, in so far as relevant, provide as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally .... ....”

“1. Everyone has the right to respect for his private and family life, his home and his correspondence. ....”

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

The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. In respect of Article 2, the Government stressed that the applicant had failed to appeal against any decisions of the investigating authorities. The domestic investigation has been pending and the applicant could have appealed against any decisions to a court under Article 125 of the Code of Criminal Procedure.

In respect of Article 1 of Protocol No. 1, the Government pointed out that no domestic court had ever considered the applicant’s civil claim in substance, in view of her failure to comply with the formal requirements. The decision of the domestic courts that Government Decree no. 403 was not applicable to the applicant did not preclude her from seeking compensation in civil proceedings. In support of their position, the Government appended ten judgments issued by district courts in Chechnya between 2001 and 2008, which awarded to private individuals various sums as compensation for pecuniary and non-pecuniary damage, against military units.

The applicant reiterated her complaints. She noted that she had applied to various bodies, but had received no compensation for the pecuniary and non-pecuniary damage caused to her. She considered that she had exhausted domestic remedies.

The Court observes that in a number of cases concerning ongoing investigations into the deaths of applicants’ relatives it has examined the period of time from which the applicant can or should start doubting the effectiveness of a remedy and its bearing on the six-month limit provided for in Article 35 § 1 of the Convention (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005; and Narin v. Turkey, no. 18907/02, § 50, 15 December 2009). The determination of whether the applicant in a given case has complied with the admissibility criteria will depend on the circumstances of the case and other factors such as the diligence and interest displayed by the applicants as well as the adequacy of the investigation in question (see Narin, cited above, § 43). The Court has found that in cases concerning instances of violent death the ineffectiveness of the investigation will generally be more readily apparent; the requirement of expedition may require an applicant to bring such a case to Strasbourg within a matter of months, or at most, depending on the circumstances, a very few years after the events (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009 ...).

As to the exhaustion of domestic remedies, the Court reiterates that it has found on several occasions in Russian cases that where the prosecutor’s office refuses to institute criminal proceedings a court’s power to quash that decision and indicate the defects to be addressed appears to be a substantial safeguard against the arbitrary exercise of powers by the investigating authority (see Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003; Medvedev v. Russia (dec.), no. 26428/03, 1 June 2006; and Slyusarev v. Russia (dec.), no. 60333/00, 9 November 2006). Therefore, in the ordinary course of events such an appeal might be regarded as a possible remedy where the prosecution decided not to investigate a claim.

Turning to the present case, the Court notes that the applicant complained about events which had occurred in January 2000. On 12 July 2001 the Grozny Town Prosecutor’s Office decided not to open a criminal investigation into the matter. It is unclear whether at that time the applicant was informed about this development; however she did not seek any information about the proceedings after June 2001 and consequently did not appeal against this decision. She brought her complaint to the Court on 8 December 2005. Following the Court’s communication of the applicant’s complaint, the prosecutors’ office opened the investigation in February 2009 of its own motion. Thus, no domestic proceedings were pending between July 2001 and February 2009, a period of seven and a half years. The second round of investigation produced no results and it was again adjourned in November 2009. The applicant was made aware of these decisions, but did not appeal against them either.

The Court first observes that the applicant failed to obtain a judicial review of the decision not to open criminal investigation of 12 July 2001, which the Court normally considers a remedy in the Russian context. As noted above, the reasons for this failure are not clear; however even if it is assumed that the applicant could be absolved from the requirement to exhaust domestic remedies on account of their ineffectiveness or unavailability, her complaint under Article 2 should in any event be declared inadmissible for the following reasons.

As it follows from the case-law referred to above, the Court has refrained from indicating a specific period for establishing when an investigation has become ineffective for the purposes of assessing when the six-month period runs from. The determination of such a period by the Court depends on the circumstances of each case and other factors such as the diligence and interest displayed by the applicants. In the case at issue, even though the applicant made some initial steps, she never contacted the law-enforcement authorities in the subsequent years. The Court recalls, in particular, that in June 2001 the applicant received the last letter from the General Prosecutor’s Office, which informed her that her complaint had been transmitted to the Grozny Town Prosecutor’s Office. She was not made aware of any other steps taken by the prosecutor’s office at the time and thus had no grounds to believe that an investigation was on-going. Since she failed to pursue her grievances before the law-enforcement bodies for several years, the Court concludes that she could or should have started doubting the effectiveness of this remedy. The Court finds that in the present case this has occurred well before 8 December 2005, when her complaint under Article 2 was lodged. This complaint must therefore be dismissed as lodged outside of the six-month limit.

As to the round of investigation which had occurred in 2009 in the wake of the communication of the present complaint, it is apparent that in view of passage of considerable time since the event in question it was unable to establish the causes of the applicant’s relatives’ death or to identify the perpetrators of the impugned acts. In particular, it does not appear that the gaps resulting from the absence of the most basic investigative steps at the initial stages of the proceedings could be filled in at that point. Nor does it appear that at this stage the applicant has submitted any new information, which could have warranted a different conclusion. In such circumstances the Court does not consider that this round of proceedings constituted a new development which could have revived the procedural obligation under Article 2 and therefore bring the complaint within the scope of the Court’s temporal jurisdiction (see, a contrario, Brecknell v. the United Kingdom, no. 32457/04, § 70-71, 27 November 2007; and Gasyak and Others v. Turkey, no. 27872/03, § 60, 13 October 2009).

In the light of the foregoing the Court considers that the applicant has failed to comply with the six-month rule in respect of her complaints under Articles 2 and 8 of the Convention. This aspect of the case must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

In so far as the applicant complained about the violation of her property rights, the Court will not exclude that the applicant had a “legitimate expectation” of obtaining effective enjoyment of a right to property in respect of her deceased relatives’ estate in Grozny. At the same time, it does not appear that the applicant has actually accepted the inheritance or that the state of that property has been ascertained.

In any event, the Court notes that the applicant failed to appeal against the first-instance court decision or to comply with formal rules of jurisdiction in her tort action against the State in 2005. As to the applicant’s attempt to obtain compensation within the scheme established by the Government Decree no. 403, the Court notes that this procedure provided ex gratia payments to individuals who had lost property as a result of the counter-terrorist operations in Chechnya, but did not extend to their heirs. Thus, the procedure under this act could not have been considered an effective remedy in the applicant’s situation.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. Article 13 in conjunction with Article 2 of the Convention and Article 1 of Protocol No. 1

The applicant finally complained that she had no effective domestic remedies in relation to the violations alleged. However, in the light of the above findings it follows that this part of the application is inadmissible and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Galina Vasilyevna FINOZHENOK v Russia - 3025/06 [2011] ECHR 1002 (31 May 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1002.html Cite as: [2011] ECHR 1002