FIRST SECTION

CASE OF ABDULKHANOV AND OTHERS v. RUSSIA

(Application no. 22782/06)

JUDGMENT

STRASBOURG

3 October 2013

FINAL

20/01/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Abdulkhanov and Others v. Russia,

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

Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 10 September 2013,

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

PROCEDURE

1. The case originated in an application (no. 22782/06) 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 the thirteen Russian nationals listed in the annex (“the applicants”), on 15 May 2006.

2. The applicants were represented by Mr I.Y. Timishev, a lawyer practising in Nalchik, Kabardino-Balkariya, Russia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicants alleged that in 2000 their relatives had been killed, and some of the applicants had been injured, as a result of air and artillery strikes by the Russian military forces. They relied upon Articles 2, 6 and 13 of the Convention.

4. On 17 November 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1) and to grant priority to the application (Rule 41 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants are natives or residents of the village of Aslanbek-Sheripovo, Shatoy district, situated in the Chechen Republic (Chechnya). The village is situated in a mountainous area about 60 kilometres to the south of Grozny.

A. The attack on Aslanbek-Sheripovo on 17-20 February 2000

6. The second military operation in Chechnya started in autumn of 1999. The applicants submitted that in the first months of the hostilities they had not been affected by the fighting. A large number of refugees from Grozny and other places had come to stay in the village, as it was considered “safe”. According to the applicants, in the beginning of 2000 the elders of the village had gone to meet with the commanders of the Russian army in the village of Day and had received assurances that there would be no strikes on the village if no armed fighters were present there. According to the applicants, no fighters had come to Aslanbek-Sheripovo.

7. The applicants thus submitted that the strikes that occurred at about 2 p.m. on 17 February 2000 had come as a surprise to the residents. As a result, on that day thirty people were killed and twenty-five wounded. After that, the villagers remained in their cellars during the day. Nevertheless, two people were killed on 19 and 20 February 2000, as the strikes continued. Those wounded on the first day of the attack could not receive medical assistance until some days later, and a number of them died.

8. Eighteen of the applicants’ relatives died as a result of the attack; other relatives and three of the applicants themselves were wounded. According to the medical certificates presented to the Court, some injuries sustained as a result of the attack necessitated complex and prolonged treatment. The list of the injured and dead is contained in the annexed table (see Annex).

9. The applicants submitted that once the strikes had ended they made a video recording and numerous photos of parts of rockets and missiles which had fallen on the village, some of which they identified as cluster bombs.

10. Most of the death certificates for their relatives were issued in summer 2000 by the Shatoy district civil registration office. The reasons for the deaths were recorded as “fatal injuries”, and some certificates indicated that the injuries were received during a “bombing/missile attack” at Aslanbek-Sheripovo.

11. The applicants submitted three statements by eyewitnesses to the attack, taken in March 2009, and a number of photographs.

B. The criminal investigation

12. The applicants submitted that they had applied to the domestic law-enforcement authorities sometime in 2001. However, for a long period there had been no reply to their complaints. The applicants had not kept any copies of this correspondence. The applicants submitted that no one from the law-enforcement authorities had ever come to the village to question them or to examine the site of the attack.

13. On 13 May 2002 an investigator from the military prosecutor’s office of military unit no. 20119 (“the military prosecutor’s office”) decided not to open a criminal investigation into the attack on Aslanbek-Sheripovo. The decision stated that on 17, 19 and 20 February 2000 troops of the Northern Caucasus United Group Alignment (UGA) had carried out bombing/missile strikes in the area of Aslanbek-Sheripovo. The decision listed sixteen people who had died as a result of the strike and eleven persons who had been injured, including some of the applicants and their relatives. The decision also recorded damage caused to houses and other property. It stated that the actions of the military servicemen who had carried out the attack contained the elements of the crimes of manslaughter, involuntary causing of injuries and destruction of property. However, “the servicemen had been forced to cause the damage to the civilians and they had operated within reasonable risk [limits]”. The strikes had been aimed at suppressing terrorism and the village had been located in the area of a counter-terrorist operation. Under section 21 of the Suppression of Terrorism Act 1998 the servicemen were absolved of criminal liability. The military prosecutor concluded that there had been no corpus delicti in the servicemen’s actions.

14. Letters sent to the second, eighth and eleventh applicants on 13 and 21 May 2002 informed them of the decision. A copy of it had been sent to the administration of Shatoy district, which was instructed to inform all interested parties. Furthermore, the letters informed the applicants of the possibility of appealing to the military courts or seeking civil compensation from the State Treasury under the Suppression of Terrorism Act.

15. Following the letters, the applicants sought compensation through civil proceedings. However, they were ultimately unsuccessful (see paragraphs 35-40 below) and in 2007 they renewed their efforts to have a criminal investigation into the events of 17-20 February 2000 opened.

16. On 7 June 2007 Mr Timishev, the applicants’ representative, submitted a complaint to the Grozny Military Court on behalf of eleven of the applicants. He challenged the conclusions of the military prosecutor of 13 May 2002 as erroneous, asserting that on 17-20 February 2000 there had been no fighters in the village and therefore the bombing had not been justified. He referred to the applicants’ failure to obtain redress in civil proceedings.

17. On 18 June 2007 the Grozny Military Court quashed the decision of 13 May 2002. On 16 August 2007 the North Caucasus Circuit Military Court confirmed the ruling of 18 June 2007. The courts concluded that the military prosecutors had failed to investigate the events properly, that they had failed to identify the military units involved or to state the justification for the air and rocket strikes. The investigation by the military prosecutor was considered to be “superficial”, “not supported by the documents in the case file and based on suppositions”.

18. On 25 December 2007 the military prosecutor’s office informed Mr Timishev that it had been unaware of the results of the appeal against the decision of the Grozny Military Court.

19. On 7 January 2008 all thirteen applicants, represented by Mr Timishev, submitted a new complaint to the Grozny Military Court. They noted that the military prosecutor’s office had failed to comply with the previous court decisions or to reopen the investigation. They also complained of a lack of any communication with that office.

20. On 28 January 2008 Mr Timishev asked the Grozny Military Court to forward a copy of the decision of 16 August 2007 to the military prosecutor’s office.

21. On 3 March 2008 Mr Timishev asked the Grozny Military Court to update him on the status of its examination of the applicants’ complaint of 7 January 2008.

22. On 2 June 2008 an investigator from the military prosecutor’s office again refused to open a criminal investigation. It appears that the applicants were not informed of this decision and did not receive a copy of it.

23. On 24 June 2008 Mr Timishev asked the military prosecutor’s office to inform the applicants of any new decisions in their case.

24. On 25 July 2008 the military prosecutor’s office informed Mr Timishev that they could not send him any documents as the case file was under examination.

25. On 10 March 2009 Mr Timishev, on behalf of the thirteen applicants, again wrote to the military prosecutor’s office. He noted that they had still not been informed whether a criminal investigation into the attack had been opened. He asked the military prosecutor to open an investigation, to question the applicants and other witnesses, to examine the site of the attack, to establish the exact number and names of those who had been killed and wounded during the attack and to inform the applicants about the progress of the proceedings.

26. On 24 March 2009 the military prosecutor quashed the investigator’s decision of 2 June 2008 not to open criminal proceedings. The latter decision was considered to have been premature and taken without proper investigation. The prosecutor noted that the investigator had failed to obtain any information and documents relating to the attack on Aslanbek-Sheripovo; to identify the military units involved and to question their commanders; to collect medical documents; and to carry out the necessary expert reports.

27. Also on 24 March 2009 the Grozny Military Court refused to consider the applicants’ complaint about the military prosecutor’s office’s failure to act in view of the prosecutor’s decision of the same date. The applicants appealed to the North Caucasus Circuit Military Court, which on 21 May 2009 upheld the decision of 24 March 2009.

28. On 2 April 2009 the military prosecutor concluded that the actions of the unknown servicemen of 17-20 February 2000 contained elements of crimes of low or medium seriousness, as classified under the Criminal Code. The prescription periods for such crimes had constituted, accordingly, six and two years. Thus, criminal proceedings could not be opened. It does not appear that the applicants were informed of this decision.

29. On 20 April 2009 the applicants, represented by Mr Timishev, again brought a complaint before the Grozny Military Court about failure to act by the military prosecutor’s office. The military prosecutor’s office submitted that it had sent copies of the decision of 2 April 2009 to each applicant and that the latest round of proceedings had complied with the procedural rules established by national law. The applicants argued that they had never received the decision, and that in any event the prosecutor had failed to comply with the previous directions. On 8 May 2009 the Grozny Military Court rejected the applicants’ complaint.

30. Upon the applicants’ appeal, on 18 June 2009 the North Caucasus Circuit Military Court quashed and remitted the decision of 8 May 2009. The appeal court found that the military prosecutor’s office had failed to take any of the steps enumerated in their decision of 24 March 2009. In particular, it stressed the need to obtain additional information about the attack prior to drawing any conclusions about the qualification of the servicemen’s actions and the application of prescription periods.

31. On 28 August 2009 the Grozny Military Court reviewed and rejected another complaint brought by the applicants. The military prosecutor informed the court that on 27 August 2009 the decision of 2 April 2009 had been quashed and the matter had been returned to the investigator. The military prosecutor also submitted that in spring 2009 a number of actions had been taken and that further directions had been issued to the investigator. The court concluded that it was now for the military prosecutor’s office to carry out the necessary actions, and that the court was not empowered to instruct them as to the exact steps to take.

32. It appears that on 7 September 2009 the investigator resolved not to open a criminal investigation. It also appears that the applicants were not informed of this decision.

33. On 12 January 2010, the Grozny Military Court granted Mr Timishev’s complaint and found that the military prosecutor’s office had failed to comply with the directions contained in the supervising prosecutor’s decision of 27 August 2009. By the time of the review, the military prosecutor had failed to establish the military units involved in the operation, to find out the reasons for the attack, to record the damage caused, to examine the site and to collect the fragments of shells and projectiles which had fallen. The military prosecutor had explained in court that the military archives had not contained any information relevant to the investigation, and that the examination of the site and collection of fragments had been impossible due to the difficult security situation in the district. The court found that the failure to carry out any of the enumerated steps could not be explained by these factors. It also noted that the applicants had not been formally informed of this latest decision, in breach of domestic procedural rules. For this reason, the court refused to rule on the lawfulness of the military prosecutor’s decision of 7 September 2009, since it had not been brought to the applicants’ attention and they could not have appealed against it.

34. According to the Government’s submissions of 17 March 2010, the examination of the case by the military prosecutor’s office was ongoing. The Government noted that the preliminary qualification of the acts as falling under Articles 109, 118 and 168 of the Criminal Code (involuntary causing of death, injuries and harm to property) precluded the opening of criminal investigations after the expiration of the relevant prescription periods.

C. The applicants’ civil claims

35. On 22 December 2004 the first twelve applicants lodged civil complaints against the Ministry of Defence with the Moscow Presnensky District Court. They sought compensation for