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FIRST
SECTION
CASE OF NAKAYEV v. RUSSIA
(Application
no. 29846/05)
JUDGMENT
STRASBOURG
21
June 2011
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 Nakayev v. Russia,
The
European Court of Human Rights (First Section), sitting 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
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29846/05) 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 a Russian national, Mr Ibragim Nakayev (“the
applicant”), on 27 June 2005.
- The
applicant, who had been granted legal aid, was represented by Mr D.
Itslayev, a lawyer practising in Grozny, Chechnya. The Russian
Government (“the Government”) were represented by Mr G.
Matyushkin, Representative of the Russian Federation at the European
Court of Human Rights.
- The
applicant alleged principally that he had been wounded as a result of
the military action in December 1999 and that no effective
investigation had taken place. He referred to Articles 2, 3, 6 and 13
of the Convention.
- On
4 September 2008 the President of the First Section decided to grant
the application priority under Rule 41 of the Rules of Court and to
give notice of it to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
1. The applicant’s wounding in 1999
- The
applicant was born in 1979 and lives in Urus-Martan, Chechnya.
- In
1999 the Russian Government launched a counter-terrorist operation in
Chechnya.
- In
the autumn of 1999, because of the armed clashes, the applicant and
his family moved temporarily to the house of their relative,
Mr S. Kh., at 9 Trudovaya Street, Martan-Chu, in
Urus-Martan district. The village administration recorded the
applicant as an internally displaced person.
- According
to the applicant, on 4 December 1999 between 11 a.m. and 12 noon
advancing Russian federal forces subjected the area around Martan Chu
to indiscriminate shelling. He submitted that the army had used
“Grad” (“Град”)
or “Uragan” (“Ураган”),
multiple rocket launch systems, which were stationed about ten
kilometres from the village. Several projectiles hit the village. One
of them landed in the yard of Mr S. Kh. and hit a car which was
parked there. The applicant was standing next to the car and received
numerous splinter wounds, including to the head. According to the
applicant’s submissions made to the Court, in June 2005 a part
of the projectile which had wounded the applicant remained in Mr
S. Kh.’s yard.
- On
19 December 1999 the administration of Martan-Chu issued a paper
which stated that the applicant and his cousin had been wounded as a
result of the bombardment of the village on 4 December 1999 and that
on the same date they had been taken to the hospital in Novyie Atagi,
in Grozny district.
2. The effect of the applicant’s wounding on the
state of his health
- As
a result of the wounding the applicant’s health deteriorated;
he had become unable to work, which was recognised in 2001 by a
forensic examination as second-degree disability. He receives a
monthly disability pension.
- According
to the submitted documents, the applicant underwent several rounds of
treatment in connection with his injuries. Between 4 and 21 December
1999 the applicant was in Novyie Atagi hospital. On 2 February
2000 a splinter was removed from his head. Between 2 and 29 August
2001 the applicant received post-operative treatment.
- On
2 November 2004 the Urus-Martan district hospital summarised the
state of the applicant’s health. According to the document, the
applicant’s health had been monitored by the hospital since
2000; he required constant rehabilitation therapy.
- Between
25 and 29 April 2008 the applicant was examined by the experts of the
Chechnya Bureau of Forensic Expertise. According to their evaluation,
the applicant had a penetrating wound to the right part of the
frontal lobe with damage to the brain; such a wound could have been
caused by a shell splinter and was qualified as serious damage to the
applicant’s health.
3. The first round of the criminal investigation
- On
11 March 2002 the applicant’s mother wrote to the Russian
Ombudsman and asked for assistance in relation to the applicant’s
situation. She indicated that her son had been injured on 4 December
1999 as a result of the shelling of Martan-Chu and that the family
had been bearing the costs of complex medical interventions.
- On
28 May 2003 the applicant’s mother informed the Urus Martan
district prosecutor’s office (“the district prosecutor’s
office”) about the applicant’s injury received during the
bombardment on 4 December 1999. She alleged that the shelling of the
village had been carried out by the servicemen of the “245th
regiment”.
- On
14 August 2003 the applicant’s mother complained about the
applicant’s injuries to the Urus-Martan district police
department (“the ROVD”) and requested the authorities to
institute a criminal investigation into the events.
- On
16 September 2003 the ROVD refused to institute criminal proceedings
in connection with the applicant’s wounding on 4 December
1999. The decision stated that the authorities had conducted an
inquiry, which had established the following: a number of armed
clashes, including exchanges of gunfire, had taken place between
Russian forces and illegal armed groups in the area of the
applicant’s residence in 1999. As a result of the bombardment
of Martan-Chu the applicant was injured, which had been confirmed by
the witness statements of Ms R. N., Mr R. Kh. and Mr B. The
projectile, which had hit the yard of Mr S. Kh. and wounded the
applicant, had been launched by one of the parties to the conflict.
However, it was impossible to establish which party had launched the
projectile. Thus, taking into consideration that the applicant had
been injured as a result of an accident, the request for the
institution of criminal proceedings was to be rejected pursuant to
Article 24 § 1 (2) of the Criminal Procedure Code
owing to the lack of corpus delicti.
- On
16 September 2003 the ROVD informed the applicant about their
decision concerning the refusal to institute criminal proceedings.
4. Proceedings for compensation for damage
- On
15 April 2004 the applicant brought proceedings against the Ministry
of Finance. The applicant stated that as a result of the wounding on
4 December 1999 he had become incapacitated and unfit for work.
He demanded compensation for pecuniary damage in the amount of
184,256 Russian roubles (RUB) and non-pecuniary damage in the
amount of RUB 1,500,000.
- In
response to the applicant’s specific request, on 19 November
2004 the Martan-Chu administration issued a note that they “had
no information about unprovoked artillery and air strikes” on
the village, except for the air strikes which had occurred on 5
December 1999 and hit the households of Mr L.I. and Mr S.E.
- On
2 December 2004 Urus-Martan Town Court (“the town court”)
rejected the applicant’s claim. It stated that although as a
result of the shelling on 4 December 1999 the applicant had been
wounded and became partially incapacitated, he had failed to provide
sufficient evidence which would allow the court to establish a causal
link between the actions of the artillery of the Russian armed forces
and the damage alleged by the applicant. In its ruling the court
referred to the decision of 16 September 2003 to refuse criminal
proceedings.
- On
8 December 2004 the Martan-Chu administration issued a note to
confirm that both on 4 and 5 December 1999 the village had been
subjected to indiscriminate bombardment from the direction of the
advancing Russian forces. On 4 December 1999 one of the projectiles
had hit Mr S. Kh.’s yard and had destroyed his property, as
confirmed by an official evaluation of damages and by witness
statements. The shelling was also confirmed by the villagers’
statements. At the relevant time the applicant had been registered as
an internally displaced person, was living with his relatives in
Martan Chu and had become partially incapacitated as a result of
the injury received on 4 December 1999.
- The
applicant appealed against the judgment of 2 December 2004 alleging
that the town court had been partial and had failed to assess the
evidence properly.
- On
28 December 2004 the Chechnya Supreme Court upheld the judgment. It
found that the applicant’s appeal concerned reassessment of the
evidence examined by the first-instance court and confirmed that the
applicant had failed to substantiate his allegations with appropriate
evidence. The Supreme Court also pointed out that the applicant had
failed to appeal against the authorities’ refusal to institute
criminal proceedings on 16 September 2003, and emphasised that
that decision was still valid and therefore had served legitimately
as the basis for the court’s findings.
5. The criminal proceedings after January 2005
- On
28 January 2005 the applicant asked the town court to set aside the
ROVD decision not to institute criminal proceedings and to oblige the
authorities to open a criminal investigation into his injuries.
- On
18 February 2005 the town court allowed the applicant’s
complaint and quashed the decision of 16 September 2003. The court
stated that the police had failed to carry out basic investigative
measures such as the examination of the crime scene, collection of
evidence and forensic assessment of the applicant’s health.
- On
29 May 2006 the applicant wrote to the ROVD and referred to the court
decision of 18 February 2005. He asked about the latest
developments in the case.
- On
15 June 2006 the ROVD referred to their previous decision of
16 September 2003 not to institute criminal proceedings.
- On
4 April 2008 the applicant again wrote to the ROVD and referred to
the town court decision of 18 February 2005.
- On
21 April 2008 the district prosecutor’s office remitted inquiry
file no. 1159/809 opened in connection with the applicant’s
complaint to the ROVD for additional examination and decision on the
merits. Following this development, the ROVD carried out a number of
investigative measures.
- The
Government, in response to the Court’s request, submitted
thirty-five pages from the investigation file dated between April and
July 2008. They argued that the remaining documents (no list or
number of which has been provided) could not be disclosed, in the
absence of guarantees by the Court to protect the data containing
State secrets. Referring to Article 161 of the Criminal Procedural
Code, the Government stated that the remaining documents could not be
divulged without harming the interests of the investigation and the
interests of the participants to the proceedings. The submitted
documents and the parties’ submissions may be summarised as
follows.
- On
23 April 2008 the investigator examined Mr S.Kh.’s household
and noted marks of shrapnel on some walls. Nothing of relevance to
the investigation was collected.
- According
to the Government’s submissions, in April 2008 the local police
in Martan-Chu had questioned two neighbours and the applicant’s
cousin, who confirmed the circumstances in which the applicant was
wounded on 4 December 1999. The police also questioned Mr M., who at
the relevant time had headed the local administration in Martan-Chu.
He corroborated the applicant’s submissions and testified that
he had inspected Mr S.Kh.’s household shortly after the
explosion and recorded the destruction. None of these statements were
made available to the Court.
- The
police also obtained copies of the applicant’s medical file
from the Achkhoy-Martan hospital.
- According
to the documents submitted, Mr S.Kh. died in May 2004.
- The
criminal investigation file was eventually opened by the ROVD on
2 May 2008 under Article 111 part 2 of the Criminal Code –
causing of serious injuries by universally dangerous means.
- The
applicant was questioned on 23 April and 18 June 2008 (only the
record of the latter has been submitted to the Court). He explained
that on 4 December 1999 at about noon he and his cousin had been
wounded as a result of a shell exploding in the courtyard of Mr S.
Kh.’s house.
- On
13 May 2008 the Chechnya Bureau of Forensic Expertise concluded that
the applicant’s injuries could have been caused by a piece of
shrapnel and that they constituted grievous bodily harm.
- On
18 June 2008 the applicant was accorded the status of a crime victim
in the proceedings.
- On
18 June 2008 the applicant’s mother was questioned. She gave
similar account about the applicant’s wounding and about the
treatment he had to undergo. She indicated that she was not aware who
exactly had shelled the village, but she had heard that these were
troops headed by General Shamanov.
- On
26 June 2008 the applicant sought an award of RUB 1,500,000 in
compensation for damage to his health against the perpetrators of the
crime. On the same day the investigator accorded the applicant the
status of a civil claimant.
- On
2 July 2008 the investigation was adjourned for failure to identify
the culprits. The decision stated that in order to identify the
persons who had committed the crime the investigator had sent a
number of requests for information to the various bodies of the
Ministry of Defence and the Ministry of the Interior. Nothing of
relevance to the investigation was obtained. No copies of any such
requests or answers have been submitted to the Court.
- On
5 November 2008 the investigative department of the Ministry of the
Interior of Chechnya ordered that the investigation be resumed. The
reason for the decision was that unspecified investigative measures
had not been taken.
- In
February 2009 the applicant collected additional statements from his
cousin, two neighbours and his mother and submitted them to the
Court. These detailed statements concern the shelling and subsequent
developments. In particular, the applicant’s cousin stated that
the attack had been carried out from the north and with the use of
multiple-launch rocket systems. He further stated that for several
years after the event parts of the “Grad” rockets could
be found in the village and described the one found in their
courtyard. He alleged that on 4 December 1999 twenty-eight rockets
(“Grad” is designed to launch forty projectiles) had hit
the village and listed other households and places where the
explosions had taken place. He alleged that in early December 2008 an
investigator had collected one part of the projectile from the
village for an expert evaluation. The applicant’s mother
alleged that the investigator had informed her on the telephone that
the expert report had identified the metal object collected in autumn
2008 in Martan-Chu as the tail part of the “Grad”
missile. It appears that the investigation is still pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained that the attack of 4 December 1999 constituted a
violation of the right to life. He also alleged that no effective
investigation of the attack was carried out, in breach of Article 2
of the Convention, which reads as follows:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. Arguments of the parties
1. The Government
- The
Government considered that the complaint should be dismissed as
inadmissible. First, they pointed out that the applicant had failed
to exhaust domestic remedies. They considered that the applicant had
failed to make full use of his procedural position in the criminal
proceedings, which conferred on him the right to submit requests,
motions and complaints against the actions of the investigative
authorities. He could also claim damages from the investigating
authorities in civil proceedings. The Government referred to a number
of complaints about the actions of the investigative authorities
lodged by the victims in Chechen courts where such complaints had
been granted. At the same time, the Government conceded that the
applicant had made partial use of these remedies.
- They
further argued that the applicant’s complaint under Article 2
should be dismissed as manifestly ill-founded, since he had failed to
adduce any relevant evidence to prove that the attack had been
carried out by State agents. They argued that the witnesses
questioned within the framework of the investigation, including the
applicant, had failed to indicate who had carried out the shelling of
Martan-Chu or to indicate the type of weapons used. The examination
of Mr S.Kh.’s household had not produced any results and no
fragments of explosive devices had been found there. They further
underlined the discrepancies between the three documents issued by
the administration of Martan-Chu in 2004 as to the date of shelling –
4 or 5 December 1999. Thus, in their view, the applicant’s
allegation was not supported by any additional, independent evidence.
- Finally,
in respect of the investigation, the Government argued that it had
complied with the standards set by the national legislation and by
the Convention. They pointed out that the establishment of the facts
had been hampered by the applicant’s turning to the
law-enforcement authorities in May 2003, which was three and a half
years after the events. By that time the material evidence of the
crime had been lost and it had become impossible to identify the
military units which had been stationed in the vicinity of
Martan-Chu. Nevertheless, the Government stressed that the
investigators had taken all steps possible in such situation: they
had questioned a number of witnesses, inspected the scene and ordered
a forensic expert assessment of the applicant’s injuries. They
had sent requests to various military and law-enforcement bodies in
order to check the version advanced by the applicant. The
investigation had also taken steps to check other possible versions
of the event – that Trudovaya Street in Urus-Martan had been
mined or shelled by illegal armed groups. They stressed that the
investigation was ongoing and that measures aimed at elucidating the
circumstances of the crime were continuing to be taken.
2. The applicant
- The
applicant argued that he had exhausted domestic remedies, but that
they had turned out to be ineffective. His attempt to obtain
compensation through civil proceedings had been rendered futile by
the absence of conclusions from the criminal investigation. The
investigation remained passive, and the decision of Urus-Martan Town
Court to open the investigation of 18 February 2005 remained
unenforced for several years. Finally, he argued that he had applied
to the Court within the six-month limit, which was to be calculated
from the date when his civil claim had finally been rejected (28
December 2004).
- He
further argued that he had submitted sufficient evidence that lethal
force had been used against him by the State on 4 December 1999 and
that the Government had failed to justify it. He considered that he
had proven that the attack had been carried out by multiple rocket
launch systems such as “Grad”, which could not have been
available to illegal armed groups. The Government failed to submit
another explanation of the events or to disclose the documents from
the investigation file, which could allow the Court to draw negative
inferences.
- The
applicant then argued that the authorities had failed to carry out an
investigation into the attack. The authorities were aware of the
crime prior to his application to the police in May 2003, in view of
the obligation for medical institutions to report victims of violent
crimes to the police. In any event, since May 2003 no criminal
investigation has been carried out, despite sufficient evidence and
witness statements. The applicant pointed out that in December 2008
the investigator had collected a rocket part from the household of Mr
N.M. in Martan-Chu, but had failed to question the latter to find out
how this object had ended up in his courtyard. Finally, the applicant
noted that since the investigation had been adjourned, he had no
access to the entire file and therefore could not effectively appeal
against further decisions.
B. Admissibility
1. Exhaustion of domestic remedies
- The
Government argued that the applicant had failed to exhaust domestic
remedies.
- The
Court notes that the Russian legal system provides, in principle, two
avenues of recourse for the victims of illegal and criminal acts
attributable to the State or its agents, namely civil and criminal
remedies.
- As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, the
Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention (see
Khashiyev and Akayeva v. Russia, nos. 57942/00 and
57945/00, §§ 119-121, 24 February 2005, and Estamirov
and Others, cited above, § 77). Nevertheless, the
applicant sought to obtain such compensation, but on 28 December 2004
his claim was dismissed in the final instance, at least partially due
to the absence of conclusions from the criminal investigation. The
Government’s objection in this regard is thus dismissed.
- As
regards criminal-law remedies, the Court observes that the applicant
complained to the law-enforcement authorities and that an
investigation is pending. The parties dispute the effectiveness of
the investigation.
- The
Court considers that the Government’s objection raises issues
concerning the effectiveness of the investigation which are closely
linked to the merits of the applicant’s complaints. Thus, it
decides to join this objection to the merits of the case and
considers that the issue falls to be examined below.
2. Other issues as to the admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
C. Merits
1. Applicability of Article 2 of the Convention
- The
Court notes that the applicant’s injuries included a splinter
wound to the head damaging brain tissue and resulting in a permanent
serious disability (see paragraphs 10-13 above). This is sufficient
to bring the complaint within the ambit of Article 2, which protects
the right to life in situations where potentially lethal force is
employed, notwithstanding the fact that as a result of subsequent
medical interventions the applicant’s life has been saved (see
Makaratzis v. Greece [GC], no. 50385/99, §§ 49-55,
ECHR 2004 XI; Isayeva and Others v. Russia,
nos. 57947/00, 57948/00 and 57949/00, § 174, 24 February
2005; Goncharuk v. Russia, no. 58643/00, § 74, 4
October 2007).
2. Alleged ineffectiveness of the investigation
- The
Court will first examine the applicant’s complaint concerning
the effectiveness of the investigation of the potentially lethal
attack against him.
- The
Government stressed that the investigation of the applicant’s
complaint within the criminal-law procedure had been carried out in
accordance with the national legislation. The applicant had been made
fully aware of the progress of the investigation and had not appealed
against the actions of the law-enforcement agents. The applicant
could have appealed against any decision on the basis of Article 46
of the Constitution and Article 125 of the Code of Criminal
Procedure, but had failed to do so. In any event, the effectiveness
of the investigation was largely undermined by the applicant’s
late submission of his complaint – three and a half years after
the attack had occurred – by which time the establishment of
the facts had become impossible.
- The
Court reiterates that the obligation to protect the right to life
under Article 2 of the Convention, read in conjunction with the
State’s general duty under Article 1 of the Convention to
“secure to everyone within [its] jurisdiction the rights and
freedoms defined in [the] Convention”, requires by implication
that there should be some form of effective official investigation
when individuals have been killed as a result of the use of force
(see McCann and Others v. the United Kingdom, 27 September
1995, § 161, Series A no. 324, and Kaya v.
Turkey, 19 February 1998, § 86, Reports of Judgments
and Decisions 1998 I). Relevant principles developed by the
Court on this subject, including situations where the victim has
survived, may be found in the Isayeva and Others (cited above,
§§ 209 213).
- In
the present case the parties disputed the effectiveness of the
investigation carried out by the Urus-Martan ROVD. The Government
argued that the late application to the authorities lay at the heart
of the investigation’s failure to establish the circumstances
of the crime. The Court observes first of all that even though the
applicant’s mother wrote to the Russian Ombudsman in 2002, it
was not until May 2003 that a proper complaint about the attack was
submitted to the prosecutor’s office (see paragraphs 15 and 16
above). Thus, there was a delay of three and a half years before the
matter was brought to the attention of a competent domestic
authority. The applicant argued that this delay was attributable to
the Government, since the medical services should have transmitted
the information about his injuries to the relevant bodies in 1999 or
in 2000. The applicant also submitted that he had undergone extensive
treatment for his injuries (see paragraphs 16-17 above), which could
partially explain that delay.
- The
Court has previously considered situations where the authorities were
found to be under the obligation to conduct the investigation on
their own motion if there were serious reasons to believe that they
were aware of the allegations at the time, in the absence of a formal
complaint (see Goncharuk, cited above, § 68).
Turning to the present case, the Court accepts that the authorities
were required to conduct an investigation into the potentially lethal
attack upon the applicant. However the question as to when this
information became available to them remains open.
- The
Court notes that the wounding occurred in December 1999 in the
Urus-Martan district, during a period characterised by significant
civil strife in the Chechen Republic and in the area, which, at the
time, had been the scene of a violent confrontation between the
federal armed forces and rebel fighters (see Isayeva and Others,
cited above, § 178, and Umarov v. Russia (dec.),
no. 30788/02, 18 May 2006). The applicant was treated in the
Novye Atagi hospital of Grozny district between 4 and 21 December
1999, and then again in February 2000 and August 2001. It thus
appears reasonable that if the applicant had considered that a crime
had been committed, he should have informed the law-enforcement
authorities in one of these locations at the time, or at the latest
when their normal functioning was resumed. In the absence of such
initiative on the part of the applicant, the Court is unable to
conclude that the authorities were at that time made aware of the
alleged crime.
- In
any event, even if one were to assume that the authorities had been
apprised of the applicant’s injury and were thus under an
obligation to act on their own motion, the total passiveness of the
law-enforcement authorities prior to May 2003 should have been
apparent to the applicant. However, it does not appear that he had
questioned the effectiveness of the proceedings prior to this date.
- Once
the complaint was lodged, on 16 September 2003 the prosecutor’s
office decided not to open a criminal investigation due to the
absence of evidence of a crime. On an appeal by the applicant, in
February 2005 a court found that the decision had been taken without
any serious probing into the allegations, and ordered that a new set
of proceedings take place (see paragraph 26 above). Despite this
order, it was not until April 2008 that the new round of
investigating actions took place.
- The
Court has stated on many occasions that speediness is an important
element of a criminal investigation. It thus accepts that the
effectiveness of the investigation was hindered by the initial delay.
It also agrees that the initial delay in the present case has been
unusually protracted and that it was attributable to the applicant.
The question is whether this delay was such as to render all the
subsequent investigation ineffective.
- In
previous cases the Court concluded that the delays in the opening of
proceedings which could have been attributable to the applicant were
insignificant in view of the subsequent protractions of the
investigation (see, for example, Mezhidov v. Russia, no.
67326/01, § 69, 25 September 2008, where the maximum delay
attributable to the applicant constituted nine months) or that there
existed special reasons such as medical treatment which could have
explained a delay of two years and one month in submitting the
complaint (see Umayeva v. Russia, no. 1200/03, § 88,
4 December 2008).
- Turning
to the present case, the Court notes that the applicant’s
reference to the medical treatment as well as other possible factors
such as the feelings of insecurity and vulnerability (see, mutatis
mutandis, Menteş and Others v. Turkey, 28 November 1997,
§ 59, 1997 VIII) are relevant and account for some part of
the time in question. However, they fall short of explaining why the
information about a crime so serious as the applicant alleges reached
the prosecutor’s office with a delay of three and a half years.
The Court thus accepts that at least some of the investigation’s
eventual problems resulted from the applicant’s failure to
raise his complaint in due time.
- At
the same time, it is important to note that the authorities have not
directly cited the passage of time as the reason for their subsequent
inactivity, nor was the applicant reproached for this in court or
later in the proceedings. Furthermore, the delays which occurred
after May 2003 in the taking of the most important steps are not
attributable to the applicant. In particular, it remains unexplained
as to why the order of the Urus Martan district court to resume
the investigation was not complied with for more than three years.
- As
to the substance of the investigation, the Court notes that despite
the delays, some important investigative steps were taken in 2003 and
then in 2008. Thus, a number of eyewitnesses gave accounts of the
circumstances of the attack. The applicant was questioned on three
occasions. A forensic expert report was ordered, carried out and
confirmed the applicant’s statements about the time and nature
of his injuries. The applicant was granted the status of a victim in
the proceedings.
- However,
the Court also notes that although the applicant brought forward a
serious complaint – that of an attack at the village by a
powerful and non-discriminatory weapon – a number of elements
in the documents submitted from the investigation file, taken
together, produce an impression of a series of grave and unexplained
failures to act.
- First
and foremost, the Court is concerned that, on the one hand, in his
submissions before the Court the applicant consistently mentioned
that parts of the missiles which had hit the village were still
present in 2003 and 2008 in some of the houses in Martan-Chu. In
their submissions to the Court in February 2009 the applicant, his
mother and cousin insisted that parts of one such device had been
collected by the investigator in the autumn of 2008 and submitted for
an expert examination. On the other hand, it notes the absence of any
reference to this in the documents produced by the Government. To the
contrary, the Government allege that the materials of the case file
contain no reference to the “Grad” projectiles or any
other clue as to the nature of the explosive device which had injured
the applicant. The Court assumes that the documents made available to
it have been selected so as to demonstrate to the maximum extent
possible the effectiveness of the investigation in question. It can
therefore be said that no steps were taken to collect and examine the
parts in question, which should be regarded as a major failure of the
investigation.
- In
view of its above findings about the failures of the investigation,
as well as their disregard for several years of the court order which
followed the applicant’s complaint, the Court concludes that
the applicant should be considered to have exhausted the domestic
remedies available to him within the context of the criminal
investigation. It therefore dismisses the Government’s
preliminary objection in this respect.
- Furthermore,
regardless of the initial delay attributable to the applicant, the
Court finds on the basis of what has been established above that the
authorities failed to carry out an effective investigation into the
circumstances of the applicant’s injuries. There has therefore
been a violation of Article 2 in this respect.
3. Alleged failure to protect the right to life
- The
Court reiterates that Article 2, which safeguards the right to life
and sets out the circumstances where deprivation of life may be
justified, ranks as one of the most fundamental provisions in the
Convention, from which in peacetime no derogation is permitted under
Article 15. 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, particularly where deliberate lethal force is used,
taking into consideration not only the actions of State agents who
actually administer the force but also all the surrounding
circumstances including such matters as the planning and control of
the actions under examination (see McCann and Others, cited
above, §§ 146 150; Andronicou and Constantinou
v. Cyprus, 9 October 1997, § 171, Reports 1997 VI;
and Oğur v. Turkey [GC], no. 21594/93,
§ 78, ECHR 1999 III). The same applies to an attack
where the victim survives but which, because of the lethal force
used, amounted to attempted murder (see Isayeva and Others,
cited above § 171).
- As
to the facts of the case, the Court notes that in order to be able to
assess the merits of the applicant’s complaints and in view of
the nature of the allegations, it requested the Government to submit
a copy of the complete criminal investigation file in the present
case. The Government submitted some thirty-five pages of the file
(see paragraph 31 above). The quantity and contents of the remaining
documents were not specified. The Court reiterates that the conduct
of the parties when evidence is being obtained has to be taken into
account (see Ireland v. the United Kingdom, pp. 64-65, §
161, Series A no. 25) and that it can draw inferences from the
Government’s conduct in this respect. In
so far as the Government mentioned Article 161 of the Code of
Criminal Procedure, the Court observes that in previous cases it has
found this explanation insufficient to justify the withholding of key
information requested by it (see Imakayeva
v. Russia, no. 7615/02, §
123, ECHR 2006 XIII).
- The
Court reiterates that, according to its settled case-law, the State
bears the burden of providing a plausible explanation for injuries
and deaths occurring to persons in custody or where individuals were
found injured or dead in areas under the exclusive control of the
authorities and there was prima facie evidence that State agents
could be involved. If in such situations the Court is prevented from
reaching factual conclusions owing to the lack of documents which are
in the Government’s exclusive possession, it is for the
Government to argue conclusively why the documents in question cannot
serve to corroborate the allegations made by the applicants, or to
provide a satisfactory and convincing explanation of how the events
in question occurred. The burden of proof is thus shifted to the
Government, and if they fail in their arguments issues will arise
under Article 2 and/or Article 3 (see Akkum and Others
v. Turkey, no. 21894/93, § 211, ECHR 2005 II;
Toğcu v. Turkey, no. 27601/95, § 95, 31
May 2005; Goygova v. Russia, no. 74240/01, § 94,
4 October 2007; and Goncharuk, cited above, § 80).
- However,
in the present case the Court notes that the applicant’s
contention of the attack in December 1999 being perpetrated by the
State was for the first time raised in March 2003. Even thought the
Government acknowledged that on 4 December 1999 the applicant
received splinter wounds, they denied that the State was responsible
for it, because it was impossible to establish the perpetrators of
the injuries. They also stressed that in their testimonies before the
investigator none of the witnesses had alleged that he or she had
been aware of the identities of the perpetrators or of the type of
weapons used. The Government denied that any other material traces of
the crime had been identified by the investigators once such
proceedings started. Finally, the Government questioned the
reliability of the information notes issued by the Martan-Chu village
administration, in view of the inconsistencies between them (see
paragraphs 20 and 22 above) and suggested that the applicant could
have been injured as the result of an explosion of a mine or of a
shell launched by an illegal armed group.
- The
Court reiterates that the investigation was unable to come up with
any definitive answers explaining the origins of the explosion.
Further more, having regard to the fact as established above that the
applicant significantly contributed to the investigation’s
delay, the Court does not find that he has made an arguable claim of
the State’s responsibility for the attack in question. In such
circumstances, it does not find it possible to shift the burden of
proof to the respondent Government. Nor does it find that the
evidence submitted by the parties is sufficient to make the findings
of a breach of Article 2 in its substantive limb to the requisite
standard of proof (see Zubayrayev v. Russia,
no. 67797/01, § 73, 10 January 2008, and Tovsultanova
v. Russia, no. 26974/06, § 88, 17 June 2010).
- Accordingly, the Court finds no violation of the
substantive limb of Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant argued that the situation disclosed a violation of
Article 3, in view of the suffering caused to him and also in
view of the Government’s failure to carry out a proper
investigation into his complaints. Article 3 provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government disputed this complaint.
- The Court considers that the consequences described by
the applicant were a result of the use of lethal force the origins of
which cannot be established. Thus, whereas the Court considers that
the complaint is admissible, having regard to its above findings
concerning the right to life it does not find that any separate
issues arise under Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 about unfairness of the
proceedings concerning his compensation claim in 2004 and during the
review of his complaint in 2005.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of this
provision.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant submitted that he had no effective remedies in respect of
the violations alleged, contrary to Article 13 of the Convention.
This Article reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority, notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government disputed this complaint and argued that the applicant had
failed to use the domestic remedies available to him.
- The Court observes that the complaint made by the
applicant under this Article has been examined in the context of the
procedural obligation arising under Article 2 of the Convention.
Having regard to the findings of a violation of Article 2 in its
procedural aspect (see paragraph 75 above), the Court considers that,
whilst the complaint under Article 13 taken in conjunction with
Article 2 is admissible, there is no need for a separate examination
of this complaint on its merits (see Shaipova and Others
v. Russia, no. 10796/04, § 124, 6 November
2008; and Tovsultanova, cited above, § 115).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
- The
applicant claimed compensation for lost wages, as he had become
incapable of work as a result of the injuries. He claimed 2,069,740
Russian roubles (RUB) under this heading.
- The
Government regarded this sum as unsubstantiated and unreasonable.
- The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicant and the violation of the
Convention, and that this may, in an appropriate case, include
compensation in respect of loss of earnings. Having regard to its
above conclusions that there has been no violation of Article 2 in
its substantive aspect, the Court finds that there is no direct
causal link between the alleged violation of the applicant’s
right to life and the loss of income. Accordingly, it makes no award
under this head.
B. Non-pecuniary damage
- The
applicant claimed that he had been wounded as a result of the
unlawful use of lethal force by the State and that no proper
investigation of the incident had been carried out. He asked for
compensation for non-pecuniary damage, the amount of which he left to
the determination of the Court.
- The Government denied the violations alleged, but
considered that if the Court was minded to find the violations such
finding would be adequate just satisfaction in the applicant’s
case.
- The
Court has found a violation of the procedural aspect of Article 2,
and finds it appropriate to award the applicant EUR 24,000 in
respect of non pecuniary damage, plus any tax that may be
chargeable on this amount.
C. Costs and expenses
- The
applicant claimed EUR 9,110 for costs and expenses incurred
before the Court and before the domestic authorities. He submitted
that the lawyer had charged EUR 150 per hour of legal work. He
presented a breakdown of the time spent by his representative, which
included 60.5 hours of legal work. He claimed reimbursement of postal
and administrative costs in the amount of EUR 85. He also submitted a
copy of the legal representation agreement of 15 September 2008.
- The
applicant requested the Court to order the payment of the fees
awarded under this heading directly into the representative’s
account in Chechnya, Russia.
- The
Government did not contest those claims.
- The
Court may make an award in respect of costs and expenses in so far
that they have been actually and necessarily incurred and are
reasonable as to quantum (see Bottazzi v. Italy [GC], no.
34884/97, § 30, ECHR 1999 V, and Sawicka v. Poland,
no. 37645/97, § 54, 1 October 2002). Making its own
estimate based on the information available, the Court awards the
applicant the total sum of EUR 4,000, less the EUR 850 he
received in legal aid from the Council of Europe, together with any
value-added tax that may be chargeable to the applicant. The award
made under this heading is to be paid into the representative’s
bank account in Russia, as identified by the applicant.
D. Default interest
- 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 UNANIMOUSLY
- Joins to the merits the Government’s
objection as to the non-exhaustion of domestic remedies in respect of
the complaint brought under Article 2 of the Convention and rejects
it;
- Declares the complaints concerning the attack of
4 December 1999 and the absence of investigation thereof as submitted
under Articles 2, 3 and 13 of the Convention admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of
Article 2 of the Convention in respect of the failure to conduct
an effective investigation into the circumstances of the attack of
4 December 1999;
- Holds that there has been no violation of
Article 2 in respect of the attack on the applicant;
- Holds that no separate issues arise under
Article 3 of the Convention;
- Holds that no separate issues arise under
Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
on the date of settlement:
(i) EUR
24,000 (twenty-four thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
3,150 (three thousand one hundred and fifty euros), plus any tax that
may be chargeable to the applicant, in respect costs and expenses, to
be paid into the representative’s bank account in Russia, as
identified by the applicant;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić Registrar President
