AKHMADOV AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21586/02
by Abzat Abzotovich AKHMADOV AND OTHERS
against Russia

The European Court of Human Rights (First Section), sitting on
3 May 2007 as a Chamber composed of:

MrC.L. Rozakis, President,
MrL. Loucaides,
MrA. Kovler,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens,
MrG. Malinverni, judges,

and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 9 April 2002,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

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

Having deliberated, decides as follows:

THE FACTS

The applicants are relatives. They are:Mr Abzat (also spelled as Abzot) Abzotovich Akhmadov, born in 1943,Ms Marzhan Abdulayevna Mezhidova, born in 1947,Mr Amkhad Akhmedovich Mezhidov, born in 1949,Mr Vakha-Khazha Abubakarovich Gekhayev, born in 1963,Ms Ayna Abzotovna Gekhayeva, born in 1968,Mr Makhmud Abzotovich Akhmadov, born in 1978,Mr Magamed-Ali Makhmudovich Akhmadov, born in 1999Ms Iman Magomedovna Akhmadova, born in 2001.

The applicants are Russian nationals and live in the Gudermes District, Chechnya. They are represented before the Court by lawyers from the Stichting Russian Justice Initiative (“the SRJI”), an NGO based in the Netherlands with a representative office in Moscow, Russia. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

1. The events of 27 October 2001

(a) The applicants’ version

It does not appear that any of the applicants witnessed the events of 27 October 2001. The following account is based on eye-witness statements submitted by the applicants.

On 27 October 2001 a number of farmers from several villages of the Gudermes District, including two of the applicants’ relatives – Amkhad Vakha-Khadzhiyevich Gekhayev, born in 1986, and Zalina Amadovna Mezhidova, born in 1978 – were harvesting in a field near the village of Komsomolskoye. The farmers had obtained prior authorisation for their work from local authorities.

At 3 p.m. the farmers loaded the crop into a VAZ-2121 “Niva” vehicle belonging to the first applicant, in order to transport it to Komsomolskoye. Amkhad Gekhayev was driving and Zalina Mezhidova accompanied him, as she intended to return to the village to take care of her ailing grandmother and her two minor children – the seventh and eighth applicants, who were then three years and three months old and four months and twenty days old respectively.

At 3.10 p.m. a MI-8 and two MI-24 helicopters without clear hull numbers appeared in the sky over the field. One of the helicopters had the letters VVS RF (“the Air Forces of the Russian Federation”) on its side.

The MI-24 helicopters headed towards the field and started shooting above the heads of the people who remained there. Women and children were among their number.

The MI-8 helicopter attacked the “Niva” vehicle. After several warning shots the car stopped. The helicopter then landed nearby and several armed men in uniform approached the “Niva”, strafing it with machine guns. They took the applicants’ relatives out of the car and put them in the helicopter. According to the witnesses, Amkhad Gekhayev and Zalina Mezhidova appeared wounded or dead. The military blew the car up and the three helicopters then left.

Immediately after the incident the residents of Komsomolskoye made a video recording of the car. The “Niva” vehicle was blown up, its windows were missing and there were numerous bullet holes in its frame. There were blood traces on the car doors. Zalina Mezhidova’s shoes and Amkhad Gekhayev’s cap lay nearby. Police officers arrived shortly after the incident, inspected and took photographs of the incident scene, collected slugs and cartridges from bullets of various calibres and a casing for a signal flare, examined the bullet holes on the car frame and noted those findings in their report.

The applicants referred to statements by a resident of Komsomolskoye, who claimed that late in the evening of 27 October 2001 he had seen two armoured personnel carriers arrive at the scene of the incident and leave shortly afterwards.

(b) The Government’s version

According to the Government, since the beginning of the counter-terrorist operation within the territory of the Chechen Republic, the civil and military authorities had taken all necessary steps to secure the safety of civilians residing in the North Caucasus. The residents of the Chechen Republic had been notified of the actions they should perform when in the area of any special counter-terrorist operation so as to indicate that they did not belong to illegal armed formations. In particular, once they had established “visual contact” with representatives of the federal forces, residents were to stop moving, exit from their means of transport, demonstrate the absence of firearms or any other weapons in their hands and wait for the arrival of a group of servicemen for an identity check.

On 27 October 2001, pursuant to superiors’ order, a group of three federal military helicopters were patrolling the air space, trying to detect movements of all-terrain vehicles which were usually used by members of illegal armed formations.

At about 3.30 p.m., while patrolling over the area in the vicinity of the village of Komsomolskoye, the pilots of the helicopters saw an all-terrain VAZ-2121 “Niva” vehicle moving at high speed. The pilots fired warning shots using a light machine-gun at a spot situated 20-30 metres away from the car in order to make it stop. In the Government’s submission, the “Niva” vehicle sped up. The pilots again fired warning shots using the same firearms and aiming at the same distance from the car. The “Niva” vehicle then stopped and the helicopters landed. Servicemen from the helicopters saw a man rushing out of the car and hiding in thick bushes along the road. According to the Government, the people who remained in the car did not get out and demonstrate the absence of weapons. The servicemen started approaching the “Niva” but when they were at a distance of 10 metres from the car, it suddenly drove off. The officer in command of the servicemen assessed the situation as life-threatening and ordered that lethal fire be opened at the car, with the result that Amkhad Gekhayev and Zalina Mezhidova were shot dead.

The servicemen further inspected the “Niva” vehicle and found an
F-1 grenade and a RPG-26 hand-held grenade launcher. The servicemen then took those weapons and the bodies of the deceased to the helicopter and delivered them to the competent authorities.

2. Discovery of the bodies of Amkhad Gekhayev and Zalina Mezhidova

Immediately after the detention of Amkhad Gekhayev and Zalina Mezhidova the applicants started searching for them.

On 28 October 2001 the first applicant applied in writing to various officials of the Gudermes District seeking their assistance in establishing the whereabouts of his grandson and daughter-in-law.

According to the applicants, on 29 October 2001 the corpses of Amkhad Gekhayev and Zalina Mezhidova, wrapped in plastic sheeting, were brought by a helicopter to the military commander’s office of the Gudermes District. The bodies were severely mutilated – the upper half of the body was missing from Zalina Mezhidova’s corpse and Amkhad Gekhayev’s corpse had no lower limbs.

On 30 October 2001 the remains were taken to Makhachkala, the Republic of Dagestan, for an independent forensic examination. In the applicants’ submission, they were denied access to a report on the results of this examination.

On the same date the bodies were returned to the applicants, who buried them.

On 7 December 2001 a civil registration office of the Gudermes District issued death certificates for Zalina Amkhadovna Mezhidova, born in 1978, and Amkhad Vakha-Khazhiyevich Gekhayev, born in 1986. The dates of death were recorded as 1 and 27 November 2001 respectively and the place of death was indicated as the village of Komsomolskoye, Gudermes District.

3. Criminal investigation

Since 27 October 2001 the applicants have repeatedly applied in person and in writing to various public bodies, including prosecutors at different levels, the Administration of the Chechen Republic (Администрация Чеченской Республики), the Special Envoy of the Russian President for Rights and Freedoms in Chechnya (Специальный представитель Президента Российской Федерации по соблюдению прав и свобод человека в Чеченской Республике) and the President of the Supreme Court of Chechnya (Председатель Верховного Суда Чеченской Республики). In their letters to the authorities the applicants referred to the facts of their relatives’ detention and killing and asked for assistance and details of an investigation. These enquiries remained largely unanswered, or only formal responses were given, stating that the applicants’ requests had been forwarded to various prosecutors’ offices. The applicants also applied to a number of intergovernmental organisations and mass media.

On 27 October 2001 the Gudermes prosecutor’s office (прокуратура Гудермесского района) commenced an investigation in connection with the shooting at the “Niva” vehicle and the detention of Amkhad Gekhayev and Zalina Mezhidova. The case file was assigned the number 21176. In the applicants’ submission, neither they nor any other relatives were formally notified of the initiation of the investigation or granted victim status.

On 3 November 2001 the Gudermes prosecutor’s office referred the case to the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) for investigation. The latter received the case on 17 November 2001 and assigned it the number 14/33/0741-01. According to the Government, in view of the re-organisation of the system of military prosecutor’s offices, the case file number was subsequently replaced with that of 34/33/0741/01.

On 30 November 2001 the military prosecutor’s office of military unit no. 20102 discontinued the investigation, in the absence of evidence of a crime in the actions of the servicemen who had taken part in the events of 27 October 2007. According to the applicants they were not apprised of this decision until much later.

In a letter of 28 December 2001 the military prosecutor’s office of military unit no. 20102 notified the applicants, in response to their query, that:

“The preliminary investigation established that the use of firearms by the servicemen on 27 October 2001 in the vicinity of the village of Komsomolskoye had been lawful and justified. There are no grounds to bring criminal proceedings against them.

Besides, during the examination of the “Niva” vehicle [the servicemen] discovered weapons and ammunition which had been kept there and carried unlawfully.”

The letter further stated that the criminal proceedings instituted in connection with causing death to the applicants’ relatives had been discontinued, and informed the applicants that they could challenge this decision in court and also file a civil claim for compensation for pecuniary damage.

According to the applicants, they were not furnished with a copy of the decision to discontinue criminal proceedings referred to in the letter of 28 December 2001, and therefore were unable to challenge it.

On 28 January 2002 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики, “the republican prosecutor’s office”) informed the fourth applicant, father of Amkhad Gekhayev, that his complaint concerning the lack of an effective investigation into the murder of Amkhad Gekhayev and Zalina Mezhidova had been transmitted to the military prosecutor’s office of military unit no. 20102 for examination.

On the same date the Chief Military Prosecutor’s Office (Главная военная прокуратура) informed the fourth applicant that his application of 5 December 2001 concerning the investigation into the abduction and murder of Amkhad Gekhayev and Zalina Mezhidova had been transferred to the Military Prosecutor’s Office of the Northern Caucasus Military Circuit (“the Northern Caucasus Military Prosecutor’s Office”, Военная прокуратура Северо-Кавказского военного округа) and to the Government of the Chechen Republic (Правительство Чеченской Республики).

In a letter of 28 January 2002 the Administration of the Chechen Republic notified the fourth applicant that his application concerning the abduction and murder of Amkhad Gekhayev and Zalina Mezhidova had been forwarded to the Commander of the United Group Alignment (Командующий ОГВ (с)) for investigation.

By a letter of 15 February 2002 the Northern Caucasus Military Prosecutor’s Office responded to the fourth applicant that his application of 5 December 2001 had been transmitted to the military prosecutor’s office of military unit no. 20102 for examination.

In its letter of 14 March 2002 the Northern Caucasus Military Prosecutor’s Office reported that:

“Criminal case no. 14/33/0741-01 was closed on 30 November 2001 by the military prosecutor’s office of military unit no. 20102 ... in the absence of evidence of crime in the actions of [servicemen] of an air-borne search and attack group (воздушно-поисковая штурмовая группа) of military unit no. 20706, who had been carrying out their combat mission of searching for and apprehending leaders of armed gangs on the territory of Chechnya. The ground for the decision to discontinue the criminal proceedings was the failure by Gekhayev A.V., who had been driving the vehicle VAZ-2121,... to comply with the group’s order to stop in order to permit the inspection of the car, with the result that the group opened fire on the vehicle. Gekhayev A.V. and Akhmadova (Manayeva) Z.A., who were sitting in the car, died as a result of their wounds. During the inspection of the vehicle boot [the servicemen] found an F-1 grenade and a RPG-26 hand-held grenade launcher.”

The letter also stated that the Northern Caucasus Military Prosecutor’s Office was studying the case file and would inform the applicants of the results of this examination.

On 20 March 2002 the sixth applicant – Amkhad Gekhayev’s uncle and Zalina Mezhidova’s husband – sent a complaint to the Prosecutor General’s Office of Russia (Генеральная прокуратура Российской Федерации). He referred to the events of 27 October 2001 and requested that the criminal proceedings in connection with the abduction and murder of his relatives be resumed. He also complained that his applications to the military prosecutor of Chechnya had remained unanswered.

In reply, on 23 April 2002 the Chief Military Prosecutor’s Office referred the sixth applicant’s complaint to the Northern Caucasus Military Prosecutor’s Office for examination.

On an unspecified date in June 2002 the sixth applicant requested the Northern Caucasus Military Prosecutor’s Office to inform him of developments in the case, stating that for a month and a half he had received no information regarding the results of the investigation.

In its letter of 21 June 2002 the Northern Caucasus Military Prosecutor’s Office notified the sixth applicant that the decision of 30 November 2001 had been quashed on 21 June 2002 on the ground that the investigation had been incomplete. The letter further stated that the case had been transmitted to the military prosecutor’s office of military unit no. 20102 for a fresh investigation, and that the Northern Caucasus Military Prosecutor’s Office would closely supervise the course of the investigation.

On 27 July 2002 the sixth applicant again applied to the Northern Caucasus Military Prosecutor’s Office, seeking information about the results of the investigation. On 29 August 2002 the Northern Caucasus Military Prosecutor’s Office transmitted their application to the military prosecutor’s office of military unit no. 20102.

In early September 2002 the sixth applicant applied both to the Northern Caucasus Military Prosecutor’s Office and to the military prosecutor’s office of military unit no. 20102 for information regarding the results of the investigation. It does not appear that those applications were ever answered.

On 16 September 2002 the sixth applicant sent another query to the military prosecutor’s office of military unit no. 20102. He complained that none of the relatives of Amkhad Gekhayev and Zalina Mezhidova had ever been questioned by the investigating bodies.

On 18 November 2002 the SRJI, acting on the applicants’ behalf, applied to the republican prosecutor’s office and the Gudermes prosecutor’s office, seeking to ascertain what measures had been taken so as to establish the circumstances of the crime and the identities of the culprits. The SRJI also requested the authorities to furnish the applicants with the forensic examination report of 30 October 2001.

The republican prosecutor’s office referred the above application to the Military Prosecutor’s Office of the United Group Alignment in the Northern Caucasus (военная прокуратур объединенной группировки войск на Северном Кавказе).

The latter informed the SRJI on 6 January 2003 that, during the preliminary investigation in criminal case no. 34/33/0741/01, opened in relation to the abduction and murder of Amkhad Gekhayev and Zalina Mezhidova, the identities of the servicemen involved had been established and that the criminal proceedings had been discontinued on 30 November 2001 on account of the lack of evidence of a crime. The Military Prosecutor’s Office of the United Group Alignment in the Northern Caucasus was at that stage unable to review the lawfulness of the decision of 30 November 2001, since the case file had been transferred on 28 March 2002 to a prosecutor of the Northern Caucasus Military Prosecutor’s Office who had been studying it since that date.

On 27 January 2003 the military prosecutor’s office of military unit no. 20102 informed the SRJI that the investigation had identified all the servicemen involved in shooting and abducting Amkhad Gekhayev and Zalina Mezhidova. In order to establish the events of 27 October 2001 in detail, all the persons involved in the incident, including the helicopter pilots, had been questioned and three ballistic expert studies had been carried out. A number of forensic examinations had also been conducted, but reports on their findings had not yet been obtained from an expert body in Makhachkala. The letter provided assurances that the forensic examination reports would be obtained on demand from the expert body in Makhachkala and that the victims would have access to them. The investigation was pending.

On 26 March 2003 the SRJI requested the military prosecutor’s office of military unit no. 20102 to inform the applicants on the latest developments in the case and on the exact number of criminal cases instituted in relation to the abduction and murder of Amkhad Gekhayev and Zalina Mezhidova. The SRJI also enquired as to the possibility for the applicants to obtain access to forensic examination reports and requested that the applicants be notified of the names of the relatives who had been granted victim status in the present case and to furnish them with a copy of the respective decision.

On 17 May 2003 the military prosecutor’s office of military unit no. 20102 stated that they were unable to reply to the SRJI’s queries as case file no. 34/33/0741-01 had been transferred to the Military Prosecutor’s Office of the United Group Alignment for examination.

Following the receipt of this letter, on 27 July 2003 the SRJI submitted a query similar to that sent on 26 March 2003 to the Military Prosecutor’s Office of the United Group Alignment. The latter transmitted this query to the military prosecutor’s office of military unit no. 20102 on 17 September 2003.

On 20 July 2003 the sixth applicant addressed a letter to the Gudermes prosecutor’s office. He complained that he had on numerous occasions requested the investigating authorities to update him on the results of the investigation into the deaths of his wife and nephew but had never been provided with any information. He also complained that neither he nor the fourth and fifth applicants – Amkhad Gekhayev’s parents – had so far been declared the victims of a crime.

In a letter of 11 August 2003 the South Federal Circuit Department of the Prosecutor General’s Office (Управление Генеральной прокуратуры РФ в Южном федеральном округе) replied to the sixth applicant, informing him that his complaint had been forwarded to the republican prosecutor’s office “for examination on the merits”. The latter forwarded the sixth applicant’s complaint to the Gudermes prosecutor’s office on 25 August 2003.

On 21 October 2003 the military prosecutor’s office of military unit no. 20102 replied to the SRJI’s letter of 27 July 2003, forwarded by the Military Prosecutor’s Office of the United Group Alignment, stating that they were unable to provide any information concerning the investigation, as the case file had been sent to the Northern Caucasus military prosecutor’s office for study.

On 20 December 2003 the SRJI complained to the Chief Military Prosecutor’s Office that their queries addressed to various military prosecutors remained unanswered.

In a letter of 15 April 2004 the military prosecutor’s office of the United Group Alignment informed the SRJI that the investigation in criminal case no. 34/33/0741-01 had been discontinued on 15 April 2004 in the absence of evidence of crime in the servicemen’s actions and that the said prosecutor’s office was at present studying the case file so as to establish whether the decision of 15 January 2004 had been lawful. The letter further stated that the applicants would be apprised of the results of that study and that they could have access to the case file at the military prosecutor’s office of military unit no. 20102 in Khankala.

On 5 May 2004 the military prosecutor’s office of the United Group Alignment further notified the SRJI that the criminal case had been transmitted to the military prosecutor’s office of military unit no. 20102 for additional investigation. The applicants were invited to address their further queries to the military prosecutor’s office of military unit no. 20102.

Referring to the information provided by the Prosecutor General’s Office, the Government submitted in their memorials dated 25 August and 27 September 2005 that, on 27 October 2001, the authorities had commenced an investigation into the abduction of the applicants’ relatives. On numerous occasions the investigation had been suspended, as there had been no evidence of a crime in the servicemen’s actions, but then resumed by superior prosecutors in view of the incomplete nature of the investigation. The investigation had been reopened most recently on
7 May 2005 and was now pending. According to the Government, the applicants were duly informed about all decisions taken during the investigation.

Despite specific requests made by the Court on two occasions, the Government did not submit a copy of any of the documents from the criminal investigation file. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file in the premises of the preliminary investigation, with the exception of “those documents [disclosing military information and the personal data of the witnesses], and without the right to make copies of the case file and transmitting it to others”.

The Government did, however, submit a report containing a list of investigative measures taken in the context of the investigation in case no. 34/33/0741-01. It can be ascertained from this document that the scene of the incident and the “Niva” vehicle were examined on 27 October and 9 November 2001 respectively, that a number of expert examinations were carried out and that a number of witnesses, including the third applicant, were questioned. The report reveals the names of some of those witnesses, whilst the other witnesses, apparently the servicemen involved in the events of 27 October 2001, are identified only by the first letter of their surnames. It is clear that all the witnesses were questioned during the first few days following the events in question. The report also states that “a male and female corpse were examined” on 29 October 2001 and that a forensic expert examination of the remains of the applicants’ relatives was ordered on 30 October 2001; however, it is unclear when this examination was performed. The report further states that the results of the forensic examination of the bodies of the deceased “were received on 29 June 2004”. It can also be ascertained from the report that at some point criminal proceedings were brought against the officer in command of the servicemen who strafed the ”Niva” vehicle on 27 October 2001, but these were discontinued on 21 July 2005 due to the application of an amnesty act.

4. Proceedings against the investigating authorities

On 13 October 2003 the first applicant lodged a complaint with the Military Court of the North Caucasus Military Circuit (военный суд Северо-Кавказского военного округа), alleging the inactivity of investigators from the military prosecutor’s office of military unit
no. 20102, those of the military prosecutor’s office of the United Group Alignment and those of the Northern Caucasus military prosecutor’s office. He described in detail the events of 27 October 2001, the circumstances of the discovery of the bodies of Amkhad Gekhayev and Zalina Mezhidova and the applicants’ fruitless efforts to have their relatives’ killings investigated. He further complained that the investigation had been plagued by serious defects which rendered it ineffective. The first applicant complained, in particular, that the investigation had been pending for almost a year and a half without any progress, that none of the numerous eye-witnesses to the events of 27 October 2001 had ever been questioned by the investigators, that the report on the forensic examination of the remains of Amkhad Gekhayev and Zalina Mezhidova had not been included in the case file and that none of the relatives of the deceased could gain access to this report, that none of the relatives of the deceased had been declared victims, that none of them had been furnished with a copy of the decisions to open the criminal proceedings or to discontinue the investigation or informed of what measures were being taken to investigate the events of 27 October 2001, and that their numerous requests and motions had remained unanswered or that only formal replies had been given. The first applicant requested the court to order the competent authorities to carry out a full and objective investigation capable of leading to the identification of those responsible for his relatives’ deaths.

The Military Court of the North Caucasus Military Circuit forwarded this complaint to the Grozny Garrison Military Court (Грозненский гарнизонный военный суд) on 13 November 2003.

In a letter of 1 December 2003 the Grozny Garrison Military Court notified the first applicant that a court hearing in connection with his complaint had been scheduled for 9 December 2003. The letter was sent to the SRJI’s address in Moscow rather than to the first applicant’s address in the Gudermes District of Chechnya. According to the SRJI, they received the above letter on 8 January 2004, and therefore neither the first applicant nor his representatives from the SRJI were able to attend the hearing.

On 9 December 2003, in the absence of the first applicant or his representatives and in the presence of the defendants’ representatives, the Grozny Garrison Military Court examined the first applicant’s complaint of 13 October 2003 and dismissed it as unfounded. The court held, in particular:

“It has been established that the objective reason for the prolonged processing of the case was that the case file had been transmitted to various levels of the competent authorities by confidential mail.

The question of the necessity of questioning any witnesses falls within the competence of the investigator in charge or that of the supervising prosecutor.

The materials of the case also reveals that the report on the forensic examination of the bodies of Z. Mezhidova and A. Gekhayeva was not included in the case file, with the result that it was impossible for the [applicants] to gain access to it.

...

...On 22 July 2002 the decision to discontinue the criminal proceedings in connection with the abduction of Z. [Mezhidova] and A. Gekhayev by [the] servicemen was quashed and it was not until 8 December 2002 that the senior investigator of the military prosecutor’s office of military unit no. 20102 took up the case. As a result, the [applicants] have not been informed of the course of the investigation and so far [they] have not been granted the status of victims of a crime.

Accordingly, it has been established that there is no evidence of any breach of lawfulness in the [defendants’] actions.”

On 20 January 2004 the SRJI wrote to the Grozny Garrison Military Court stating that they had not received the court’s letter of 1 December 2003 until 8 January 2004. They requested the court to send them a copy of its decision of 9 December 2003, if any such decision had been taken on that date, and henceforth to inform them of court hearings in advance. They also pointed out to the fact that the first applicant’s address in Chechnya had been indicated on the front page of his complaint.

By two letters of 17 June 2004 the Grozny Garrison Military Court forwarded the first applicant and the SRJI a copy of its decision of 9 December 2003 without further explanations. According to the applicants, this letter never reached the first applicant, whilst the SRJI received it on 4 September 2004.

On 13 September 2004 the SRJI despatched a motion to have the time-limits for appealing against the decision of 9 December 2003 restored. The motion was sent by registered mail and received by the Grozny Garrison Military Court on 21 October 2004. No reply followed.

On 11 February 2005 the SRJI forwarded a copy of their motion of 13 September 2005 to the Grozny Garrison Military Court and asked the latter to provide them with reasons for its failure to reply to the motion received by the court on 21 October 2004. According to the applicants, they were informed in reply that the court had not received their letter of
13 September 2004.

B. Relevant domestic law

Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).

Article 161 of the new CCP stipulates that data from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator, but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission.

COMPLAINTS

1. The applicants complained under Article 2 of the Convention of a breach of the right to life in respect of their relatives – Amkhad Gekhayev and Zalina Mezhidova. They claimed in this respect that the circumstances of their relatives’ apprehension had clearly indicated that Amkhad Gekhayev and Zalina Mezhidova had been detained and then murdered by the federal servicemen. The applicants also complained that no proper investigation into their relatives’ deaths had been conducted.

2. The applicants further referred to Article 3 of the Convention, claiming that they had serious grounds to believe that Amkhad Gekhayev and Zalina Mezhidova had been subjected to torture and inhuman treatment before having been murdered and that no effective investigation had been conducted in this respect. Under this heading the applicants also submitted that they had suffered severe mental distress and anguish in connection with the killing of their relatives and on account of the State’s failure to conduct a thorough investigation in this respect.

3. The applicants next submitted that the provisions of Article 5 as a whole, relating to the lawfulness of detention and guarantees against arbitrariness, had been violated in respect of Amkhad Gekhayev and Zalina Mezhidova.

4. The applicants relied on Article 6 § 1 of the Convention, stating that, under national law, they were barred from filing a civil claim to obtain compensation for their relatives’ death pending the outcome of the criminal investigation. In their observations of 14 November 2005 the applicants also complained under this head of various irregularities in the proceedings brought by the first applicant against the investigators.

5. The applicants further alleged the absence of any effective remedies in respect of their complaints under Articles 2, 3 and 5, contrary to Article 13 of the Convention.

6. The applicants relied on Article 14 in conjunction with Articles 2, 3 and 6 § 1 of the Convention, stating that the above violations occurred because of their Chechen ethnic origin and residence in Chechnya.

7. Lastly, in their observations of 14 November 2005 the applicants complained that the Government’s refusal to submit a copy of the file of the investigation into their relatives’ murder was in breach of the State’s obligations under Article 38 § 1 of the Convention.

THE LAW

1. The applicants raised complaints set out above relying on Articles 2, 3, 5, 13 and 14 of the Convention The respective Articles, in their relevant parts, read as follows:

Article 2

“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.”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Article 13

“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.”

Article 14

“The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A. Exhaustion of domestic remedies

1. Submissions by the parties

The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the death of the applicants’ relatives had not yet been completed. They further argued that it had been open to the applicants to challenge in court any actions or omissions of the investigating or other law-enforcement authorities or to seek compensation for the deaths of their relatives; in the Government’s opinion, however, the applicants had not availed themselves of any such remedy.

The applicants contested the Government’s statement as incorrect. They pointed out that in fact they had lodged a court complaint about the authorities’ failure to carry out an effective investigation into the events of 27 October 2001, which had yielded no results. The applicants contended in this connection that they were not required to pursue that remedy, since it was ineffective and, in particular, incapable of leading to the identification and punishment of those responsible, as required by the Court’s settled case-law in relation to complaints under Article 2 of the Convention.

2. The Court’s assessment

The Court considers that the question of exhaustion of domestic remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings.

The Court therefore decides to join this objection to the merits.

B. As to the merits of the applicants’ complaints

1. The Government

The Government conceded that the applicants’ relatives had been deprived of their lives by State agents. The Government argued however, that the applicants’ relatives had been killed in the course of a counter-terrorist operation carried out by the federal forces in order to effect the lawful detention of illegal paramilitaries and to prevent further criminal activity by the latter. When pursuing that operation, the federal servicemen, both commanding officers and their subordinates, had acted in full compliance with national legislation and regulations for securing the safety of the civilian population, as well as those relating to the use of lethal force. The Government further argued that the applicants’ relatives had failed to comply with the instructions in force, with the result that the federal servicemen had taken them for members of illegal armed formations. In particular, they had failed to stop and get out of the car after the first warning shots. Moreover, after the vehicle had stopped an unidentified man had rushed off and hidden in the bushes. The Government also insisted that it was not until the “Niva” vehicle had suddenly driven off that the servicemen had fired at the said vehicle, leading to the death of the applicants’ relatives. The Government thus contended that the use of lethal force in the present case was no more than absolutely necessary for the purposes of Article 2 § 2 (a) and (b).

They also claimed, relying on the opinion of the Prosecutor General’s Office, that the investigation carried out in the present case had met the Convention requirement of effectiveness, given that it had been opened on the date on which the applicants’ relatives had been killed and that all the decisions to suspend the investigation had been subsequently set aside by superior prosecutors and the proceedings had been resumed. The length of the investigation, in the Government’s view, could be explained by the complicated situation in Chechnya and the particular circumstances of the events of 27 October 2001.

According to the Government, the circumstances of the death of the applicants’ relatives, as established by the investigation, clearly indicated that the latter had not been subjected to treatment prohibited by Article 3 of the Convention or detained in breach of the provisions of Article 5 of the Convention.

The Government further submitted that “the perception of events is a very personal matter depending on emotional and other specific features of an individual’s personality and relates in fact to the field of psychology”, and that therefore “it is impossible to assess the degree of the applicants’ mental suffering from the views of the investigating officers”, the latter being responsible only for investigating criminal offences. They also pointed out that, under national legislation, a victim of a crime was entitled to compensation for non-pecuniary damage; however, given that the investigation in the case concerning the death of the applicants’ relatives was still pending, it was premature to decide whether any damage had been caused to the applicants.

In the Government’s submission, the applicants had had effective remedies at their disposal as required by Article 13 of the Convention, and the authorities had not prevented them from using those remedies. In particular, the authorities had opened a criminal investigation on the date on which the applicants’ relatives had been killed, and in the context of that investigation the applicants had had an opportunity to appeal against the actions or omissions of the investigating authorities before military prosecutors at various levels or before the Prosecutor General’s Office, and also before the different instances of the military courts and the Supreme Court of Russia. The Government insisted that the applicants had been “regularly informed of the developments in the investigation and the decisions taken” in the context of the criminal proceedings. The Government also stated that the applicants would be able to gain access to the case file as soon as the investigation was completed and the case was referred to a court for trial.

The Government corroborated their submissions regarding the existence of effective domestic remedies in Russia with copies of domestic court decisions taken in unrelated sets of civil or criminal proceedings. These included four first-instance judgments by which federal servicemen, privates or junior officers, had been convicted of criminal offences committed in the Republic of Ingushetia or the Chechen Republic, as well as a first-instance judgment and appeal decision awarding compensation for omissions on the part of the investigating authorities during the investigation into an individual’s abduction in the Republic of Karachayevo-Cherkessia, the person in question having subsequently been released.

With regard to the applicants’ complaint under Article 14 of the Convention, the Government contended that the applicants had never been discriminated against in the enjoyment of their Convention rights on any ground.

2. The applicants

The applicants disagreed with the Government and maintained their complaints. They insisted that their deceased relatives had been civilians and posed no danger either to the civilian population or to servicemen. The applicants contended that the use of force by the State which had led to the loss of their relatives’ lives had been clearly disproportionate in the circumstances of the case and could not be regarded as justified under Article 2 § 2 of the Convention. They stressed in this respect that the Government had not submitted any convincing arguments or documentary evidence to the contrary. The applicants also insisted that the investigation into the death of their relatives had clearly been inadequate and had fallen short of the Convention standards. It had been pending since 27 October 2001, having been repeatedly suspended and resumed, and had produced no tangible results.

The applicants further disputed that Government’s submission that Amkhad Gekhayev and Zalina Mezhidova had been killed when the federal servicemen fired at the “Niva” car. The applicants argued, with reference to the eye-witness statements, that their relatives could have been wounded rather than dead when taken out of the car and put into the military helicopter and that they could have died while in the hands of the authorities. The applicants submitted in this respect that the domestic authorities had never allowed them access to the report on the forensic examination of their relatives’ remains, nor had the Government presented this document to the Court. They stressed that, although the examination had been ordered on 30 October 2001, its outcome had not been included in the criminal case file until 29 June 2004. The applicants thus argued that their relatives had been detained in violation of Article 5 of the Convention and subjected to ill-treatment, contrary to Article 3 of the Convention, and that no effective investigation had been carried out in this latter respect.

The applicants also insisted that their mental suffering in connection with the events of 27 October 2001 and the lack of response by the authorities to their numerous queries and requests had fallen within the ambit of Article 3 of the Convention.

Relying on Article 13 of the Convention, the applicants argued that an administrative practice consisting in the authorities’ continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya rendered any potentially effective remedies inadequate and illusory in their case. In this connection they relied on applications submitted to the Court by other individuals claiming to be victims of similar violations, documents from human rights NGOs and media reports. The applicants also referred to the general disruption in the functioning of the judicial system in Chechnya during the period of hostilities.

With regard to the copies of the court decisions produced by the Government in support of their assertion as to the existence of effective remedies in Russia, the applicants contended that the decisions given in civil cases were irrelevant, as, according to the Court’s well-established practice, alleged violations of Article 2 and 3 of the Convention could not be remedied merely by an award of damages to the relatives of the victims in civil proceedings. In so far as the Government relied on judgments given in criminal cases, the applicants submitted that they were irrelevant, since in the applicants’ case the investigation had failed to establish those responsible.

Lastly, the applicants maintained, referring to Article 14 of the Convention, that the aforementioned violations of their rights had occurred because they were ethnic Chechens.

3. The Court’s assessment

The Court considers, in the light of the parties’ submissions, that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants complained under Article 6 § 1 of the Convention that they were unable to bring civil proceedings for compensation for their relatives’ death until the investigation had been completed. The respective provision, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

In the Government’s submission, it had been open to the applicants throughout the investigation to bring civil proceedings for compensation for their relatives’ deaths and they had therefore had access to a court, as required by Article 6 § 1 of the Convention. The Government also argued that the applicants’ complaint concerning the alleged absence of access to a court to obtain compensation was speculative since, in practice, they had never attempted to file such a claim in a domestic court.

The applicants maintained their complaint.

The Court observes that the applicants submitted no information which would prove their alleged intention to apply to a domestic court with a claim for compensation. It follows that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

3. In their observations of 14 November 2005 the applicant also raised complaints concerning the violation of their rights secured by Article 6 § 1 of the Convention in the proceedings against the investigating authorities instituted by the first applicant in October 2003.

Leaving aside the question of the applicants’ compliance with the requirements set out in Article 35 § 1 of the Convention, the Court finds that Article 6 § 1 of the Convention is, in principle, inapplicable to the proceedings in question, as they clearly have not involved the determination of the applicants’ civil rights or obligations or a criminal charge against the applicants, within the Convention meaning.

It follows that these complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof.

For these reasons, the Court unanimously

Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies in respect of the complaints submitted under Articles 2, 3, 5, 13 and 14 of the Convention;

Declares admissible, without prejudging the merits, the applicants’ complaints under Articles 2, 3, 5, 13 and 14 of the Convention;

Declares inadmissible the remainder of the application.

Søren NielsenChristos Rozakis
RegistrarPresident

 

Full & Egal Universal Law Academy