CASE OF DAGALAYEVA v. RUSSIA

THIRD SECTION

CASE OF DAGALAYEVA v. RUSSIA

(Application no. 19650/11)

JUDGMENT

STRASBOURG

12 March 2019

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

In the case of Dagalayeva v. Russia,

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

Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 12 February 2019,

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

PROCEDURE

1. The case originated in an application (no. 19650/11) 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 Malika Dagalayeva (“the applicant”), on 15 March 2011.

2. The applicant was represented by Mr Saykhan Dzhamaldinov, a lawyer practising in Grozny. The Russian Government (“the Government” ) were represented initially by Mr Georgiy Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in the office, Mr Mikhail Galperin.

3. The applicant alleged, in particular, that State agents had killed her husband and that the authorities had failed to investigate the matter effectively.

4. On 16 February 2015 notice of the complaints concerning Articles 2 and 13 of the Convention was given to the Government, and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1961 and lives in Noviy Engenoy.

A. Killing of the applicant’s husband and the ensuing investigation

1. Killing of Mr Vakhid Magamedov

6. On 1 April 2006 the applicant’s husband, Mr Vakhid Magamedov (in the documents submitted also spelt as Magomadov), went fishing with his fellow villagers, Mr Z., Mr D. and Mr Yu., near the village of Sary-Su in the Shelkovskiy district of Chechnya. The four men arrived at the fishing spot in the VAZ-2107 car of Mr Z. Three of them then went to the other side of the pond (in the documents submitted also referred to as a “lake”), while the applicant’s husband fished near the car. Mr Z., Mr D. and Mr Yu. fished about 40 to 60 metres from each other and about two hundred metres or so from Mr Magamedov.

7. At about 9 p.m. Mr Z., Mr D. and Mr Yu. heard gunfire coming from the direction of the car. They went in that direction and saw six or seven men in military camouflage uniforms next to their car and heard them speaking Russian. Those men had arrived in armoured personnel carriers (“APCs”) and were using flashlights. Mr Z., Mr D. and Mr Yu. hid in the bulrushes. Then they saw the servicemen trying to push the car into the pond and, when their attempt failed, set it on fire. Then the perpetrators noticed the three men hiding in the bulrushes and opened gunfire in their direction.

8. Mr Z., Mr D. and Mr Yu. ran to the village of Sary-Su to warn the police. On the way they got lost in the dark and only arrived at the village at about 4 a.m. on 2 April 2006. They knocked at the door of the house of a local resident, Mr Kh.V., and told him about the incident. Mr Kh.V. took them by car to the local police station. Then Mr Z., Mr D. and Mr Yu. returned to the pond, accompanied by the police. They found Vakhid Magamedov’s burnt body in the car. At about the same time three cars and two APCs belonging to the federal military forces arrived at the scene. The servicemen told the police that they were carrying out a special operation in the area. Mr Yu. told to the policemen that he would be able to identify the servicemen who had killed Vakhid Magomedov.

2. The official investigation into the incident

9. In response to the Court’s request for a copy of the entire contents of the file of the criminal investigation into the killing of Mr Vakhid Magomedov, the Government furnished a copy of its contents, amounting to 378 pages, which could be summarised as follows.

10. On 2 April 2006 Mr Z., Mr D. and Mr Yu. were taken by the police to the prosecutors’ office and questioned about the incident. Each of them provided a statement similar to the applicant’s submission to the Court and stressed that the perpetrators had been in military camouflage uniforms and that they had opened fire on them without any warning.

11. On 2 April 2006 the Shelkovskiy district prosecutor’s office (“the investigators”) opened criminal case no. 61010 into the murder of Mr Vakhid Magomedov. Mr D., Mr Yu and Mr Z. were granted victim status in the proceedings and questioned. They reiterated the statements that they had previously given.

12. On 2 April 2006 the investigators also granted Mr Kh.M., the brother of Vakhid Magomedov, victim status in the criminal case.

13. On the same date, 2 April 2006, two other local residents, Mr A.A. and Mr S.A., were questioned by the police. Their submissions were similar: both of them stated that on the morning of 1 April 2006 they had gone to the lake to fish. On the way there they had stopped to change a flat tyre when two APCs with Russian-speaking servicemen had pulled over. The servicemen checked their identity documents. About five minutes later, another military-type vehicle, a light-coloured UAZ car, had also pulled over. The military servicemen who had arrived in it, requested identity documents and then ordered that both Mr A.A. and Mr S.A. go with them to Sury-Su for a further identity check.

14. On 2 April 2006 the investigators also questioned a local resident, Mr Z.Kh., who stated that at about 8 p.m. on 1 April 2006 he had been driving to the pond to go fishing when he had seen three APCs driving in the same direction and that about two hours later he had seen those APCs driving back.

15. On 2 April 2006 the investigators also questioned a resident of Sary‑Su, Mr Kh.V., and his neighbour, Mr Sh.K., whose statements were similar to the applicant’s submission before the Court. Both witnesses also confirmed that the night before they had taken the three men, who had arrived at their village in a shaken state, to the local police station. They had also gone with the three men and the police officers to the pond, where they had seen a burnt-out car with a human body in it.

16. On 2 April 2006 the investigators examined the crime scene at the lake. They found the car, which had been completely burnt out, with traces of gunshots in the boot and a burnt corpse on the front seat. As a result, a number of spent cartridges and one bullet were collected, among other things, as evidence.

17. On 2 April 2006 (in the documents submitted the date was also referred to as 12 April 2006) the investigators ordered a forensic examination of Vakhid Magamedov’s body (to be conducted as part of the crime-scene examination report). On 25 May 2006 the experts concluded that it was impossible to establish the exact cause of death owing to the forensic examination’s shortcomings in the description of the state of the corpse.

18. On 12 April 2006 the investigators ordered an expert ballistics examination of the evidence collected at the crime scene. On 28 April 2006 the experts concluded that the bullets and cartridges had most probably been shot from Kalashnikov machineguns and that that those guns – were they ever to be found – could be identified as those that had fired and contained, respective, those bullets and cartridges.

19. On 2 June 2006 the investigators suspended the investigation for failure to identify the perpetrators. Those granted victim status in the criminal case were informed thereof.

20. From the documents submitted it transpires that following the applicant’s complaint, on 22 January 2007 a prosecutor from the Chechnya prosecutor’s office requested that the investigators inform him of the reasons for the suspension of the criminal proceedings and the theories they had examined in order to identify the perpetrators; he also requested the entire contents of the relevant criminal case file. On 20 February 2007 the investigators forwarded the case file relating to criminal case no. 61010 to the Chechen prosecutor’s office. Neither the applicant, nor her relatives were informed thereof.

21. Between February 2007 and September 2009, the criminal case file remained with the Chechen prosecutor’s office to be checked by the prosecutor’s superiors.

22. On 3 July 2009 the applicant wrote to the investigators requesting information on the developments in the criminal proceedings. She complained that neither she nor her relatives had been kept informed about progress in the investigation and that she had not been granted victim status or questioned. On 9 July 2009 she sent a similar letter to the Chechen prosecutor’s office.

23. On 25 September 2009, following the applicant’s request of 9 July 2009 to the Chechen prosecutor’s office, the latter returned the file regarding criminal case no. 61010 to the investigators, together with a list of steps to be taken in the criminal case. Inter alia, the list stipulated that: amongst other things, for the followings steps:

“... it is necessary to:

1. Resume the proceedings in the criminal case;

2. Plan the investigation and have the head of the investigating authorities approve that plan;

3. Remedy the procedural violations committed during the crime-scene examination on 2 April 2006;

4. Examine the VAZ-2107 car in which the body of Mr Magomedov had been found...

6. Question Mr Kh.V., Mr Sh.K., Mr A.Sh. and Mr Z.;

7. Send requests to the law-enforcement agencies asking for their assistance in identifying the perpetrators of or witnesses to the crime;

9. Verify whether members of illegal armed groups could have been involved in the crime ...”

24. On 5 October 2009 the investigators informed the applicant that the investigation in the criminal case had been suspended on 2 June 2006 for failure to identify the perpetrators.

25. On 7 October 2009 the investigators’ supervisor allowed the applicant’s complaint of 3 July 2009, after finding that the investigation had been ineffective and ordering that it be resumed. The applicant’s complaint to the investigators of 3 July 2009 concerning her victim status remained unanswered until 2015 (see paragraph 54 below).

26. On 8 and 9 October 2009 the investigators questioned Mr Sh.K. and Mr Kh.V., who reiterated their previous statements (see paragraph 15 above).

27. On 2 November 2009 the investigators questioned Mr Z., who reiterated his previous statement (see paragraph 10 above) and added that the perpetrators had completely burnt out his car.

28. On 3 November 2009 the investigators questioned Mr Kh.M., the brother of Vakhid Magamedov, who stated that he had not witnessed the incident and had only learnt of his brother’s murder on 2 April 2006.

29. On 7 November 2009 the investigators suspended the investigation for failure to identify the perpetrators (see paragraph 32 below).

30. On 10 and 13 December 2009 the applicant again wrote to the investigators and the Chechen prosecutor’s office asking for information about the progress in the investigation and the outcome of the examination of her previous request, and complaining that she had not been kept informed about progress in the proceedings.

31. On 21 December 2009 the investigators informed the applicant that the investigation had been resumed on 2 October 2009.

32. On 15 January 2010, in reply to the applicant’s request for information, the investigators informed her that they had suspended the proceedings on 7 November 2009.

33. On 1 and 6 March 2010 the applicant complained to the investigators and the Russian Prosecutor General that the investigation had been ineffective and that she had not been kept informed of progress in the proceedings.

34. On 26 March 2010 the investigators informed the applicant that her complaint had been rejected as the criminal case file had been transferred to the Southern Federal Circuit Investigative Committee.

35. On 7 June 2010 the applicant again complained to the investigators of the lack of information in respect of the proceedings. On 30 June 2010 they replied that the suspension of the investigation on 7 November 2009 has been overruled as unlawful and that she would be informed of any further decision taken.

36. On 30 June 2010 following the applicant’s above-mentioned complaint, the investigators’ supervisor (the deputy prosecutor of the Shelkovskiy district) criticised the investigators and ordered that a number of shortcomings in the criminal proceedings be remedied. In particular, he requested that the previously-given orders should be carried out (see paragraph 23 above).

37. On 5 July 2010, following the above instructions, the investigators resumed the investigation.

38. Between 13 and 26 July 2010 the police questioned several neighbours of Vakhid Magamedov, all of whom stated that they had either no information about the incident or had heard about it from others.

39. On 16 July 2010 the investigators questioned two police officers, G. and T., who stated that they had been on duty at the police station when they had been informed about the incident at the pond. They had not gone to the crime scene and therefore had no information concerning “either the spent cartridges found at the scene or the three APCs there”.

40. On 7 July 2010 Mr Z. and Mr Yu. sent to the investigators written affidavits describing the events of 1 April 2006. Copies of those documents were not furnished to the Court with the copy of the criminal case file.

41. On 5 August 2010 the investigators again questioned Mr Kh.M., the brother of Vakhid Magamedov, who reaffirmed his previous statement.

42. On 7 August 2010 (in the documents submitted the date was also referred to as 7 August 2013) the investigators again suspended the investigation for failure to identify the perpetrators.

43. On 3 July 2013 the applicant requested information on the progress of the investigation in respect of case no. 61010. No reply was forthcoming.

44. On 27 November 2013, following a complaint lodged by the applicant, the deputy prosecutor of the Shelkovskiy district again criticised the investigators and ordered that a number of shortcomings in the proceedings be remedied. In particular, he instructed that the previously-given orders should be carried out (see paragraphs 23 and 36 above).

45. On 25 December 2013 the investigators resumed the investigation.

46. On 31 December 2013 the investigators again suspended the investigation for failure to identify the perpetrators.

47. On 20 October 2014 the investigators’ supervisor ordered that the investigation be resumed, having found that it had been suspended unlawfully, without the prescribed steps having been taken.

48. On 31 October 2014 the investigators resumed the investigation.

49. On 1 November 2014 the investigators questioned Mr Kh.M., the brother of Vakhid Magamedov, who reaffirmed his previous statement and added that his relatives had refused to allow the exhumation of his body as it had been burnt and it had been clear that he had died from gunshot wounds.

50. On 8 November 2014 the investigators questioned several residents of Sary-Su who stated that between 1999 and 2008 the federal military forces and law enforcement agencies had been based in their village.

51. On 15 November 2014 the investigators again questioned Mr Z. and Mr Yu. and Mr D., who reiterated their previous statements (see paragraph 10 above).

52. On 23 November 2014 the investigators questioned the head of the Shelkovskiy district police, who stated that he had participated in the crime‑scene examination in 2006 but could not recall the details, owing to the passage of time.

53. On 31 November 2014 the investigators again suspended the investigation for failure to identify the perpetrators.

54. On 20 April 2015 the investigators resumed the investigation in order to take a number of steps, including granting the applicant victim status in the criminal case and questioning her.

55. On 17 April 2015 the investigators’ supervisor ordered that a number of steps be taken, including the questioning again of the witness who had seen the APCs in the vicinity of the crime scene on the day of the incident.

56. On 20 May 2015, in reply to a request lodged by the applicant for information, the investigators informed her that on 20 May 2015 the proceedings had been suspended for failure to identify the perpetrators.

57. There is no further information on the criminal proceedings. They appear to be still pending.

II. RELEVANT DOMESTIC LAW

58. For a summary of the relevant domestic regulations see Kosumova v. Russia, no. 2527/09, §§ 66-72, 16 October 2014. For a summary of relevant Council of Europe material concerning the execution of judgements delivered against the Russian Federation in respect of actions of the security forces in the Chechen Republic see Khadzhimuradov and Others v. Russia, nos. 21194/09 and 16 others, § 48-49, 10 October 2017.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

59. The applicant complained under Article 2 of the Convention that State agents had killed her husband and that the investigation into the incident had been ineffective. Article 2 of the Convention reads as follows:

“1. Everyone’s right to life shall be protected 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.”

60. The Government contested that argument. They submitted that there was no evidence proving the State agents’ involvement into the killing as “nothing in the present case speaks of a possible violation of Article 2 of the Convention in its substantive limb”. They further contended that the investigation into the incident was effective as the authorities “discharged their procedural obligation under Article 2 of the Convention.

61. The applicant reiterated her complaint.

A. Admissibility

62. The Government stated that the applicant failed to submit her complaint within the six-month time-limit set out in Article 35 § 1 of the Convention. They pointed out that the investigation into the events had been initiated in April 2006 whereas the application was lodged in March 2011. Within the period of almost five years, the investigation had been suspended and resumed on multiple occasions and the applicant had been informed of these decisions. However, she remained inactive and demonstrated passive attitude towards the pending proceedings by failing to maintain “effective communication”, such as lodging of her initial information request with the investigators only in July 2009.

63. The Government further stated that in the applicant had failed to exhaust domestic remedies as the investigation into her husband’s death was still pending. She had not applied for victim status in the criminal case, which would have enabled her to appeal against the investigators’ alleged inaction to domestic courts.

1. The applicant

64. The applicant submitted that she complied with the admissibility criteria. He stressed, in particular, that the authorities failed to keep her abreast of the developments in the investigation, and that it only due to her own efforts and resolve to obtain any information from them, had she been informed of some of their steps in the proceedings. She had complained to the Court as soon as she had realised that the pending proceedings were ineffective, in spite of the fact that at the material time the local law-enforcement bodies had dealt with considerable amount of work due to the numerous instances of killing and disappearance, which had occurred in the region.

65. The applicant further stated that the criminal investigation into her husband’s murder had been ineffective and any judicial appeals against the investigators’ inaction would be to no avail.

2. The Court’s assessment

(a) Compliance with six-month criteria

66. A summary of the principles concerning compliance with six‑month criteria in cases concerning alleged killings by State agents see Khadzhimuradov and Others v. Russia, nos. 21194/09 and 16 others, §§ 61‑67, 10 October 2017.

67. The Court notes that the application was lodged with the Court less than five years after the killing and the initiation of the criminal investigation. The investigation was still formally pending and had not identified any suspects or attained any other tangible results.

68. From the documents submitted by the parties it can be seen that contrary to the Government’s submission, the applicant took active steps to inform herself of the proceedings by enquiring about progress in the investigation and by requesting that steps be taken to prosecute the perpetrators (see paragraphs 20, 22, 30, 32, 33, 35, 43 and 56 above). Moreover, her persistent requests, which she had begun lodging in 2007, galvanised the proceedings and prompted the authorities to take steps to investigate her husband’s death (see paragraphs 20, 22, 25, 36 and 44 above). In such circumstances, it is not unconceivable that she expected the investigation to yield results, as she took all steps possible to induce the investigators to identify and prosecute the perpetrators. It was only after waiting for several years that she realised that the proceedings had no realistic prospects of success.

69. The Court furthermore notes that were no significant gaps in the communication between the applicant and the authorities that could have spoken to a lack of proper diligence on her part (see, by contrast, Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, and Gisayev and Others v. Russia (dec.), no. 27240/09). The documents submitted show that the applicant took a very active stance in the proceedings and made genuine efforts to cooperate with the authorities and to acquaint herself with and influence the progress of the investigation (compare Dudayeva v. Russia, no. 67437/09, § 73, 8 December 2015). She also, contrary to the Government’s submission, asked to be granted victim status in the criminal case, but her request was granted only after she had lodged her application with the Court (see paragraphs 22, 30, 1 and 54 above). The Court thus considers that an investigation, albeit a sporadic one, was being conducted during the period in question, and that the applicant explained the delay in her application to the Court by pointing to the way in which the domestic proceedings had developed and the steps she had taken to maintain regular contact with the authorities. In the light of the foregoing, the Court finds that the applicant complied with the six-month time-limit.

(b) The Government’s non-exhaustion plea

70. In so far as the Government’s objection concerning the applicant’s failure to exhaust domestic remedies by awaiting the outcome of the pending criminal investigation, the Court notes that it raises issues concerning the effectiveness of the pending investigation. The Court finds that the objection is closely linked to the substance of the complaint and should be joined to the merits of the case.

(c) Conclusion as to admissibility

71. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

72. The Government stated that the pending criminal investigation into the killing of Mr Vakhid Magamedov had not yet identified the perpetrators and that there was no evidence proving the involvement of State agents in the incident. According to the Government, the domestic investigation had complied with the criteria of an effective investigation under Article 2 of the Convention.

73. The applicant submitted that State agents had killed her husband, that the Government had advanced neither any explanation nor any justification for the use of lethal force against him, and that the ensuing investigation failed to meet the requirements of a procedural obligation under Article 2 of the Convention.

2. The Court’s assessment

(a) Alleged violation of the substantive aspect of the right to life

74. A summary of the general principles relating to the establishment of matters in dispute, in particular when faced with allegations of violations of fundamental rights, can be found in El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012.

75. At the outset, the Court observes that the Government neither contested the applicant’s version nor advanced any plausible alternative version of the events in question.

76. The Court notes that it has already adjudicated a number of cases concerning allegations of killings in the Chechen Republic. Applying the above-mentioned principles, it has concluded that it would be sufficient for the applicant to make a prima facie case that the killing was perpetrated by State agents; it would then be for the Government to discharge their burden of proof, either by disclosing documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, for example, Gandaloyeva v. Russia, no. 14800/04, §§ 95-96, 4 December 2008; Dangayeva and Taramova v. Russia, no. 1896/04, § 83, 8 January 2009; Khachukayev v. Russia, no. 28148/03, §§ 117-119, 23 April 2009; and Dudayeva, cited above, §§ 81-82, 8 December 2015). If the Government failed to rebut this presumption, this would entail a violation of Article 2 of the Convention in its substantive part. Conversely, if the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shakhgiriyeva and Others v. Russia, no. 27251/03, §§ 158-159, 8 January 2009; Abdurashidova v. Russia, no. 32968/05, §§ 71-72, 8 April 2010; and Udayeva and Yusupova v. Russia, no. 36542/05, § 79, 21 December 2010).

77. In view of the parties’ submissions concerning the circumstances of the killing of Mr Magamedov, the Court concludes that the material in its possession demonstrates the validity of the applicant’s allegation, for the following reasons. The applicant’s husband was killed in an area that was under the full control of the State, and the manner in which the killing was carried out showed that the perpetrators were not afraid of drawing the attention of the local law-enforcement agencies; what is more, they did not hesitate to open fire on the eyewitnesses (see paragraphs 7, 10, 11 and 51 above). From the documents submitted it can be seen that eyewitnesses maintained that Vakhid Magamedov had been killed by State agents, and the domestic investigation did not duly examine any other theories on the perpetrators’ possible identities, and even obtained concordant witness statements, which it did not, for some reason, investigate further (see paragraphs 10, 13 and 14 above).

78. This being so, in the absence of any justification or plausible explanation of the use of lethal force being put forward by the Government, the Court finds that the death of the applicant’s husband can be attributed to the State and that there has thus been a violation of the substantive aspect of Article 2 of the Convention in respect of Mr Vakhid Magamedov.

(b) Alleged violation of the procedural aspect of the right to life

79. A summary of the principles concerning the effectiveness of the investigation into an alleged violation of Article 2 of the Convention may be found in McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324, and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 169-82, 14 April 2015.

80. The Court has already found that a criminal investigation into disappearances in Chechnya between 1999 and 2006 constitutes a systemic problem in Convention terms (see Aslakhanova and Others v. Russia, nos. 2944/06 and 4 others, § 217, 18 December 2012). In the cases at hand, even though the incidents concerned the killing of the applicant’s husband, the Court observes a number of similar defects rendering the criminal proceedings in question ineffective. The investigation has been ongoing for a number of years without attaining any tangible results, despite the existence of evidence implicating the State agents (see paragraphs 10, 11, 13 and 14 above), as alleged by the applicant. However, the investigators failed to verify the allegations of the involvement of federal servicemen and identify and question the policemen who – according to the eyewitnesses – had directly spoken with the servicemen implicated in the killing of Mr Magamedov (see, for example, paragraphs 7, 8, 10, 39 and 52 above). It is noteworthy that the first real step in this direction was taken only in November 2014 – that is to say more than eight years after the beginning of the investigation. Furthermore, the contents of the investigation file, as submitted to the Court, show that the investigators failed to take the most basic steps, systematically failing to comply with repeated orders from their superiors (see paragraphs 23, 36, 44 and 55 above). Taking those steps would have played an important role in elucidating the circumstances of the crime. The investigators’ reluctance to take them led to the loss of precious time and negatively affected the overall conduct of the criminal proceedings (see, for example, Askhabova v. Russia, no. 54765/09, § 153, 18 April 2013). In such circumstances, the Court does not find it necessary to examine whether the investigation was sufficiently independent.

81. The material in the Court’s possession reveals that the failure of the investigators to act in a timely manner led to unnecessary delays and a loss of time, because steps that could have yielded results were either not taken or were only taken after significant delays. Therefore, it is highly doubtful that any further court appeals by the applicant against the investigators’ decisions or inaction would have had any prospects of effectively influencing its conduct. Accordingly, the Court dismisses the Government’s objection in that application as regards the applicant’s failure to exhaust domestic remedies within the context of the criminal investigation.

82. In the light of the foregoing, the Court finds that the authorities have failed to carry out an effective criminal investigation into the circumstances of the death of Mr Vakhid Magamedov. Accordingly, there has been a violation of Article 2 of the Convention in its procedural aspect.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

83. The applicant complained that she had no effective remedies in respect of the violation 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.”

84. 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 finding of a violation of Article 2 in its procedural aspect (see paragraph 82 above), the Court considers that, while 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 Nakayev v. Russia, no. 29846/05, § 90, 21 June 2011, and Khadzhimuradov and Others, cited above, § 102).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

85. 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

86. The applicant did not claim pecuniary damage. As for non-pecuniary damage, she left the determination of the amount thereof to the Court.

87. The Government stated that the claims should be examined in compliance with the Court’s case law.

88. Having regard to its conclusions and the parties’ submissions, the Court awards the applicant in respect of non-pecuniary damage 80,000 euros, plus any tax that may be chargeable on that amount.

B. Costs and expenses

89. The applicant did not make a claim under this head.

90. The Government did not comment on this part of the applicant’s submission.

91. In the absence of the parties’ submissions, the Court does not make any award under this head.

C. Default interest

92. 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. Joins to the merits the Government’s preliminary objection concerning the exhaustion of criminal domestic remedies and rejects it;

2. Declares the application admissible;

3. Holds that there has been a substantive violation of Article 2 of the Convention in respect of Mr Vakhid Magamedov;

4. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate the death of Mr Vakhid Magamedov;

5. Holds that there is no need to examine separately the complaint under Article 13 of the Convention;

6. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement EUR 80,000 (eighty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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 12 March 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıBranko Lubarda
Deputy RegistrarPresident

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