European Court of Human Rights

 

THIRD SECTION

 

CASE OF LAZAREVA v. RUSSIA

(Application no. 22298/11)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

28 January 2020

 

This judgment is final but it may be subject to editorial revision.

In the case of Lazareva v. Russia,

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

          Georgios A. Serghides, President,
          Erik Wennerström,
          Lorraine Schembri Orland, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 7 January 2020,

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

PROCEDURE

1.  The case originated in an application (no. 22298/11) 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, Ms Valentina Kondratyevna Lazareva (formerly Ms Luzyanina) (“the applicant”), on 5 March 2011.

2.  The applicant was represented by Mr A.D. Peredruk, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  On 10 November 2016 the Government were given notice of the application.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1966 and lives in Severomorsk, Murmansk Region.

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

6.  On 12 May 2009 the applicant’s son, K.L., was called up for mandatory military service. He served in military unit no. 55751-2 based in Glebychevo in Vyborgskiy district in Leningrad Region.

7.  On 8 December 2009 K.L. was found at a sentry post with a gunshot wound to his head. On the wall the following notes were written: “[Ks.], I love you”, “Family, forgive me” and “I do not want to live”.

8.  On 11 January 2010, after a pre-investigation inquiry into the circumstances of K.L.’s death, the investigator, Capt. S., found no elements of a crime and refused to open a criminal case. He held that K.L. had committed suicide owing to problems in his relationship with his girlfriend. The investigator relied on the onsite inspection report, the examination of K.L.’s belongings, the ballistics analysis, statements by K.L.’s girlfriend Ks., the post-mortem report, the expert report on the psychological state of K.L. before his death, and statements by military personnel. According to the post-mortem report, K.L. had a gunshot wound to the head and a bruise on his right shoulder. Regarding the bruise, two soldiers stated that five days before his death K.L. had fallen down some stairs and had complained of a pain in his right shoulder. The investigator also questioned twenty-four servicemen and women and found no evidence that K.L. had been subjected to bullying. According to the psychological report, K.L. could have had a depressive reaction, probably caused by difficulties with his girlfriend.

9.  The applicant only learnt of the decision of 11 January 2010 refusing to open a criminal case in March 2010. She complained to the military prosecutor’s office that the pre-investigation inquiry had not been thorough and that she had not been involved in it. The applicant pointed out that the investigator had failed to examine her statement that K.L. had been subjected to violence and financial extortion in his military unit. The applicant also pointed to the need to examine fingerprints on the weapon and the handwriting of the notes on the wall. In April and July 2010 the prosecution refused to reconsider the decision of 11 January 2010.

10.  On 5 July 2010 the applicant challenged the decision of 11 January 2010 before the courts. She repeated her arguments that the pre‑investigation inquiry had not been thorough and that she had not been involved in it. In particular, the investigator had failed to examine her allegations that K.L. had been subjected to violence and financial extortion in his military unit. The applicant also asked that the fingerprints on the weapon and the handwriting of the notes on the wall be examined.

11.  On 20 July 2010 the Vyborg Garrison Military Court found the contested decision lawful. Relying on evidential material from the pre‑investigation inquiry the court agreed that K.L. had committed suicide because of problems in his relationship with his girlfriend and not because of alleged bullying. On 9 September 2010 the Leningrad Regional Military Court upheld that judgment on appeal.

THE LAW

I. PRELIMINARY OBSERVATIONS

12.  In her observations the applicant raised an additional complaint under the substantive limb of Article 2 of the Convention that the State had failed to protect the life of her son. The Court will not consider this new aspect as it falls outside the scope of the notification of the case given to the respondent Government (see, mutatis mutandis, Pavlenko v. Russia, no. 42371/02, § 94, 1 April 2010, and Antonyuk v. Russia, no. 47721/10, §§ 93-94, 1 August 2013).

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

13.  The applicant complained that the investigation of her son’s death had been ineffective. She relied on Article 2 of the Convention, which reads, in its relevant part, 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.

...”

A.    Admissibility

14.  The Court notes that the application 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.

B.     Merits

15.  The applicant asserted that the authorities had only carried out a pre‑investigation inquiry and not a fully-fledged criminal investigation into the circumstances of her son’s death. She noted that the Court’s case-law stated that pre-investigation inquiries had a number of shortcomings. In particular, if a pre-investigation inquiry was not followed by a criminal investigation, it alone was incapable of leading to the punishment of those responsible (she cited Zelenin v. Russia, no. 21120/07, §§ 56-57, 15 January 2015). Also, only a proper criminal investigation allowed for the whole range of investigative measures to be carried out, including questioning, confrontations, identification parades, searches, seizures and crime reconstructions (citing Lyapin v. Russia, no. 46956/09, § 132, 24 July 2014). A refusal to initiate a criminal investigation was found to be sufficient for a finding of a violation of Article 2 of the Convention under its procedural limb (citing Fanziyeva v. Russia, no. 41675/08, § 53, 18 June 2015). The applicant noted some of the deficiencies of the pre-investigation inquiry performed in her case. Firstly, the witnesses’ explanations of the origin of the bruise on K.L.’s shoulder had not been “witness statements” in the sense that the witnesses had not been potentially criminally liable if they had given false testimony. The same was true for experts whose reports had been obtained within the framework of the pre-investigation inquiry. Furthermore, the pre-investigation inquiry had not examined K.L.’s father’s statements that following a request by the latter he had had to buy him cigarettes to give to senior officers and to send him money and that he had seen a bruise on his face. Those facts could have indicated that K.L. had been subjected to extortion and bullying and should have been properly investigated.

16.  The Government submitted that the circumstances of K.L.’s death and all potential leads had been thoroughly examined within the framework of the pre-investigation inquiry. The investigator had not found any evidence of bullying or other ill-treatment in respect of K.L. He had questioned K.L.’s close relatives, friends and fellow service personnel, and ordered forensic examinations. Those actions had allowed the establishment of all the relevant facts. K.L. had apparently been suffering from depression owing to difficulties in his relationship and had committed suicide. Based on the results of the pre-investigation inquiry the investigator had found no elements of a criminal offence and had refused to initiate a criminal investigation. A copy of the above refusal decision had been sent to the applicant and she had had access to all the material of the pre-investigation inquiry. The refusal to initiate a criminal investigation had also been found lawful by the national courts.

17.  The Court reiterates that similarly to persons in police custody, conscripts are entirely in the hands of the State and any events in the army lie wholly, or in large part, within the exclusive knowledge of the authorities. Therefore, the State is also under an obligation to account for any injuries or deaths occurring in the army (see Beker v. Turkey, no. 27866/03, §§ 41-42 with further references). The Court has previously held that the failure to open a criminal investigation in a situation where an individual has died or has been seriously injured while in police custody is in itself a serious breach of domestic procedural rules capable of undermining the validity of any evidence which had been collected (see Fanziyeva, cited above, § 53 with further references, and Trapeznikova and Others v. Russia, no. 45115/09, §§ 34-36, 1 December 2016)). The present case is similar to such situations. As a result of the refusal to open a criminal investigation into K.L.’s death, the investigating authorities never conducted a proper criminal investigation in which the whole range of investigative measures could be carried out, including questioning, confrontations, identification parades, searches, seizures and incident reconstructions. The Court has previously ruled that in the context of the Russian legal system a “pre-investigation inquiry” alone is not capable of leading to the punishment of those responsible, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators which may then be examined by a court (ibid.). Regard being had to the above and to the materials in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to come to a different finding in the present case. Accordingly, the Court does not consider it necessary to analyse every alleged deficiency in the domestic proceedings. The absence of a criminal investigation in the present case leads it to the conclusion that the Russian authorities did not take all reasonable steps to ascertain the circumstances in which K.L. died.

18.  There has therefore been a violation of Article 2 of the Convention under its procedural limb.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  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.    Damage

20.  The applicant claimed compensation in respect of non-pecuniary damage in the amount to be determined in accordance with the Court’s case‑law.

21.  The Government submitted that if the Court finds a violation of the applicant’s rights, she should be awarded just satisfaction based on the Court’s case-law.

22.  The Court awards the applicant 26,000 euros (EUR) in respect of non‑pecuniary damage.

B.     Default interest

23.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

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

3.      Holds

(a)   that the respondent State is to pay the applicant, within three months EUR 26,000 (twenty six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 28 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Stephen Phillips                                                              Georgios A. Serghides
       Registrar                                                                              President