CASE OF KARAMOVY v. RUSSIA

THIRD SECTION

CASE OF KARAMOVY v. RUSSIA

(Application no. 51952/08)

JUDGMENT
 

STRASBOURG

29 June 2021

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

In the case of Karamovy v. Russia,

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

Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 51952/08) 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 two Russian nationals, Ms Olga Aleksandrovna Karamova and Mr Oleg Damirovich Karamov (“the applicants”), on 26 August 2008;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the alleged defects of the investigation into the killing of the applicants’ daughter;

the parties’ observations;

Having deliberated in private on 8 June 2021,

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

INTRODUCTION

1.  The application concerns the lack of an effective criminal investigation into the killing of the applicants’ daughter.

THE FACTS

2.  The applicants were born in 1960 respectively and live in the town of Sterlitamak, in the Republic of Bashkortostan. They are represented before the Court by Mr W. Bowring, Mr P. Leach and Ms J. Evans, lawyers with the European Human Rights Advocacy Centre, based in London, the United Kingdom; and Mr G. Avetisyan, Ms N. Deyeva and Ms T. Chernikova, lawyers with the Human Rights Centre Memorial, based in Moscow, Russia.

3.  The Government were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.The events of 5 march 2002

5.  The applicants are husband and wife.

6.  At 2 a.m. on 5 March 2002 the body of the applicants’ daughter, S.K., was found in the grounds of a boarding school by a passer-by, who called an ambulance and the police. The ambulance doctor certified S.K.’s death, noted bruises and abrasions on her face and body and took samples of liquid from her vagina and anus. The police examined the crime scene and drew up a report.

7.  On the same day a preliminary medical examination of the body was conducted. The examination established that death had been caused by strangling. The following injuries were also noted: fractures of the breastbone and rib; lung, kidney, liver and pancreas haemorrhages; and bruises on the chest and stomach.Subsequent proceedingsFirst round of criminal investigation

8.  On the same day the Sterlitamak prosecutor’s office opened criminal proceedings on suspicion of murder. Mr Sh., the victim’s boyfriend, was arrested.

9.  During this round of investigation, which lasted between 5 March and 5 May 2002, the investigation performed the following investigative actions:

-  the investigator questioned the second applicant, who testified that in the evening of 4 March 2002 S.K. had gone to a party with her brother, and her boyfriend Mr Sh. Her brother had returned home at about 11 p.m., while S.K. had remained with Mr Sh. He had not seen her since;

-  the biological examination confirmed that the liquid found in the victim’s vagina and anus was semen and the investigator ordered a blood sample to be obtained from Mr Sh., Mr M., the passer-by who had found the victim’s body, and Mr Kh., a police officer in the private-security department of the Sterlitamak Interior Department, who was on patrol duty on the night of 4 March 2002. The experts found that the semen found on the victim’s body did not belong to Mr Sh., Mr M. or Mr Kh.;

-  a witness, Mr A., testified to the investigator that a friend of his had told him that while the victim and Mr Sh. were on their way home late at night on 4 March 2002, they had been attacked by several men who had beaten Mr Sh. and had forced S.K. into their car;

-  a comparative expert examination of paint traces found on the victim’s coat and on Mr M.’s clothes returned negative results.

10.  On 5 May 2002 the Sterlitamak prosecutor’s office suspended the criminal investigation because the main suspect, Mr Sh., had been exonerated by biological evidence and no other suspects could be found. It does not appear that any further actions took place in the case until 4 November 2003, that is over almost eighteen months later.Second round of criminal investigation

11.  On 4 November 2003 the Sterlitamak prosecutor’s office revoked the decision of 5 May 2002 and ordered a further investigation.

12.  The inquiry was started in respect of several new suspects, namely former police officers in the private-security department of the Sterlitamak Interior Department Mr S., Mr G., Mr P., Mr E., Mr D. and Mr Sf. and a new biological examination was ordered in order to establish whether the traces of semen found on S.K.’s body could belong to them. On 28 November 2003 the experts found that the semen found on S.K.’s body could belong to Mr G., Mr P., Mr S. and Mr Sf. together. The semen could not, however, belong to any of them separately. Moreover, it could not be ruled out that the semen belonged to either Mr E.; to Mr Sh., the victim’s boyfriend; to Mr M., who had found the victim’s body; or to Mr Kh., the police officer who had been on duty on the night of the murder.

13.  Several more persons were questioned in November 2003, but their testimony did not reveal any new information and on 4 December 2003 the Sterlitamak prosecutor’s office suspended the criminal investigation because the perpetrators could not be identified.Third round of criminal investigation

14.  In response to the applicants’ complaint of the ineffectiveness of the investigation, the Sterlitamak prosecutor’s office revoked, on 15 April 2004, the decision of 4 December 2003 and ordered a further inquiry.

15.  On 22 April 2004 the first applicant was granted victim status and questioned.

16.  On 15 May 2004 the Forensic Centre of the Bashkortostan Republic Interior Department performed a DNA analysis of the semen found on S.K.’s body. The experts found that the semen belonged to two or more men. The semen found in the vagina could not belong to any of the suspected police officers, that is to Mr S., Mr P., Mr G., Mr E., Mr D. or Mr Sf.

17.  On the same day the Sterlitamak prosecutor’s office suspended the criminal investigation because the perpetrators could not be identified.Fourth round of criminal investigation

18.  On 17 June 2004 the Sterlitamak prosecutor’s office revoked the latest decision to suspend the criminal investigation, finding that it had disregarded the expert report of 15 May 2004. The prosecutor’s office ordered the investigator to question Mr S. and Mr P., to obtain additional expert opinions, and to question the first applicant.

19.  On 30 July 2004 the investigation was suspended because the perpetrators could not be identified.Fifth round of criminal investigation

20.  On 5 August 2004 that decision had been revoked by the acting prosecutor of Sterlitamak and the investigator drew up the investigation schedule. He noted that five scenarios for the murder had to be examined and indicated the investigative measures to be carried out.

21.  During this round of proceedings the following investigative measures were carried out:

-  Mr P. was arrested on suspicion of S.K.’s murder. During the identification parade the victim’s brother did not recognise Mr P. as one of the men whom had seen on the night of the murder. On 14 August 2004 Mr P. was charged with murder, but on unspecified date these proceedings were discontinued;

-  the investigator questioned Mr K., who stated that his acquaintance Mar. had worked as a vendor at a street stand. She had told him that late at night on 4 March 2002 she had seen the victim and Mr Sh. get into a car with a girl and three or four men. Mr Sh. had been beaten by the men in the car and had left. The men had bought beer from Mar. and had driven off to a neighbouring block of flats. They had then raped the victim and had thrown her personal belongings onto the boarding school site;

-  Mr G., another police officer suspected of S.K.’s murder, was arrested and questioned. He denied his involvement and the victim’s brother did not recognise Mr G. during the identification parade. The proceedings in respect of him were later discontinued for the lack of evidence;

-  Mr Zh., the ambulance doctor who had examined the victim’s body on 5 March 2002, stated that when he had asked the police officers about what had happened to the victim, one of them had told him that the security guard at the boarding school had seen someone dragging her body out of the Moskvich 2141 car;

-  Mr D., the police officer on duty on the night of the murder, told the investigator about the circumstances in which the victim’s body had been found;

-  Mr S. was arrested. He stated that he had an alibi. In particular, on the night of the murder he had been with his family in their country house. His grandmother had broken her leg and he had taken her to hospital. Mr S. was charged with murder;

-  the Forensic Centre of the Bashkortostan Republic Interior Department performed a DNA analysis of the semen found on S.K.’s body. The experts found that the semen found in the anus belonged to one person. Its profile did not match the DNA profile of Mr P., Mr S. or any other police officer under suspicion. Nor did it match the profile of S.K.’s boyfriend Mr Sh.

22.  On 20 August 2004 a deputy prosecutor of Sterlitamak found that the investigation was ineffective. The deputy prosecutor ordered, in particular, that the investigator should find Mar., the vendor who had allegedly witnessed the rape of S.K., and also find the red Moskvich 2141 car with the number plate indicated by S.K.’s brother.

23.  On 5 November 2004 the investigator discontinued the criminal proceedings against Mr S. because there was no evidence against him. He had an alibi and S.K.’s brother had not recognised him. On the same day the investigation was suspended. It does not appear that any further actions took place in the case until 28 March 2005, that is over five months later.Sixth round of criminal investigation

24.  On 11 February 2005 the Bashkortostan Republic prosecutor’s office found that the necessary investigative measures had not been carried out. In particular, the investigator had not identified the owner of the Moskvich 2141. It ordered the decision suspending the investigation to be revoked.

25.  On 28 March 2005 the investigation was resumed and on 28 April 2005 it was again suspended.Subsequent events in the case

26.  Following the applicants’ complaint of an ineffective investigation, in May 2005 the case was transferred to the Bashkortostan Republic prosecutor’s office. The investigation was resumed, but on 9 August 2005 it was again suspended because the perpetrators could not be identified.

27.  On 10 April 2006 a deputy prosecutor of the Bashkortostan Republic ordered the investigation to be resumed, but on 18 May 2006 the investigation was suspended because the perpetrators could not be found.

28.  The first applicant complained about the allegedly ineffective investigation before the Kirovskiy District Court of Ufa and on 24 November 2006 it ordered that the first applicant be given copies of all of the decisions suspending the investigation, and rejected the remainder of her complaint.

29.  On 29 February 2008 the investigation was resumed. However, soon afterwards it was again suspended for the same reasons as before. It was again resumed on 15 September 2008 and suspended on 23 January 2009. The applicants subsequently lodged several unsuccessful complaints with superior prosecutors asking that the investigation be resumed.

30.  On 14 September 2010 the Deputy President of the Investigative Committee of the Russian Federation noticed that the case raised issues with the quality of the investigation and transferred it to the Main Investigative Directorate of the Investigative Committee. The latter entity created a special investigative team headed by a senior investigator in charge of particularly important cases, in the office of the President of the Investigative Committee. The team drew up a plan aimed at dealing with previous shortcomings in the investigation and, among other things, conducted interviews with and took blood samples from over 2,500 people, conducted over 1,700 expert examinations, and took a massive number of investigative and operative measures. As a result, the team identified one Mr Sa., who was serving a prison sentence for an unrelated offence and who confessed to the murder and rape and gave extensive and detailed explanations regarding the events, including those at the scene of the crime.

31.  On 28 January 2013 Mr Sa. was charged with rape and murder in connection with the events of 5 March 2002. According to the authorities, at around 11 p.m. on 4 March 2002 Mr Sa., along with his two friends met S.K., who decided to join them at a party in a friend’s flat. At the party, S.K. refused the advances of Mr Sa., who raped, beat and strangled her, later getting rid of the body at a nearby school.

32.  At the preliminary hearing on 3 July 2014 the Sterlitamak Town Court applied the statute of limitations in respect of Mr Sa., having found that the defendant had been a minor at the time and that the prosecution had thus become time-barred seven and a half years after the events took place. That judgment was upheld on appeal by the Supreme Court of the Republic of Bashkortostan on 24 September 2014.Attempts of criminal proceedings against the investigators

33.  It appears that the authorities considered that the quality of the investigation in the case raised serious issues, and on 16 May 2012 an internal report was submitted to the superiors of the Investigative Committee of the Russian Federation, calling for a criminal investigation in this regard.

34.  On 18 June 2012 the deputy head of the Third Investigative Department of the Investigative Committee issued a decision not to bring criminal proceedings in respect of the investigators who had been in charge of the case between 2002 and 2004.

35.  The decision admitted the shortcomings of the investigation at the initial stages, in particular that the first examination of the scene of the crime had been superficial and poorly organised, possibly leading to the loss or deterioration of evidence, and that there had been unjustified delays and suspensions in the proceedings. At the same time, those shortcomings fell short of falling within the ambit of “criminal negligence”.

THE LAWALLEGED VIOLATION OF ARTICLES 2, 3 AND 13 OF THE CONVENTION

36.  The applicants complained that the authorities had failed to conduct an effective investigation of the rape, beatings and killing of their daughter, as required by Articles 2, 3 and 13 of the Convention, which read as follows:

Article 2

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

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”

37.  The applicants maintained that the investigation had been ineffective in that they had had limited access to the case file, that the authorities had failed to identify and question key witnesses, and that the authorities had failed to preserve and properly analyse critical evidence in the case.

38.  The Government argued that the domestic authorities had taken and continued to take all the procedural actions necessary in order to investigate the case effectively. The investigation had been started without delay and had been conducted in compliance with the domestic law. During the proceedings, various theories had been examined, criminal proceedings instituted and an investigation carried out, within the scope of which the applicants’ submissions had been examined; experts had been involved, and forensic medical examinations and other examinations had been carried out. The applicants had had sufficient access to the case file and had been able to participate effectively in the proceedings.Admissibility

39.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.MeritsAlleged violation of Article 2 of the Convention

40.  The Court reiterates that where death occurs under suspicious circumstances, leaving room for allegations to be made of the intentional taking of life, the State must ensure some form of effective official investigation (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 169-82, 14 April 2015).

41.  This is not an obligation of results to be achieved, but of means to be employed. The authorities must have taken all reasonable steps to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death or the persons responsible will risk falling foul of this standard (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002‑II).

42.  Turning to the case at hand, the Court observes that criminal proceedings into the circumstances of the applicants’ daughter’s death lasted for over twelve and a half years: from 5 March 2002 (see paragraph 6 above), until 24 September 2014, when the Supreme Court of the Republic of Bashkortostan applied the statute of limitations in respect of Mr Sa. and discontinued the criminal proceedings (see paragraphs 32-33 above).

43.  The Court reiterates that the protracted nature of proceedings is a strong indication that they were defective to the point of constituting a violation of the respondent State’s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify the length of the proceedings (see Mazepa and Others v. Russia, no. 15086/07, § 80, 17 July 2018).

44.  Having observed the timeline of the proceedings and various decisions adopted by the investigative authorities, in particular the decision of the deputy head of the Third Investigative Department of the Investigative Committee of the Russian Federation dated 18 June 2012 (see paragraphs 34-35 above), the Court notes that the conduct of the criminal investigation in general, and during the first two rounds of investigation in particular, was tainted with a number of shortcomings, which had a serious negative impact on the overall effectiveness of the procedure.

45.  As pointed out in the decision of 18 June 2012 (see paragraph 35 above), the first examination of the site where the body was located had been superficial and poorly organised, possibly leading to the loss or deterioration of evidence. Furthermore, after having conducted initial interviews with witnesses, the investigation had clearly failed to display due rigour and to pay attention to all relevant matters, such as a theory that S.K. may have been abducted (see, for example, the statement by Mr A. in paragraph 9 and the statement of Mr K. in paragraph 21 above) or a theory that S.K. may have been attacked by police officers from the local police service (see, for example, paragraph 12 above). Those initial shortcomings, coupled with subsequent decisions taken on 5 May 2002 and 4 December 2003 to suspend the proceedings, and the resulting delays, seriously complicated all subsequent efforts of the investigation. Among other things, they adversely affected the investigation’s ability to investigate effectively the above-mentioned theories.

46.  As regards the later events, the Court observes that although the pace of the investigation became somewhat more regular starting from April 2004, the repeated remittals of the case for further investigation, along with the investigation authority’s reluctance to follow the recommendations of the higher authorities, point to serious defects in the investigation taken as a whole, as those failings adversely affected the capacity of the investigation to collect and assess evidence of relevance for the resolution of the case (see, for example, Ryabtsev v. Russia, no. 13642/06, § 80, 14 November 2013, with further references).

47.  Lastly, the Court notes with regret that the applicants’ access to the criminal investigation was seriously curtailed. The applicants were recognised as victims only in April 2004 (see paragraph 15 above) and were only able to gain partial access to the case file in 2006, after express authorisation from the court in this regard (see paragraph 28 above).

48.  Having regard to the considerations set out in the preceding paragraphs, the Court takes the view that the requirements of the procedural aspect of Article 2 of the Convention were not met in the present case. There has accordingly been a violation of the procedural limb of Article 2 of the Convention.Alleged violation of Articles 3 and 13 of the Convention

49.  Having regard to its findings and conclusion under the procedural limb of Article 2 of the Convention, the Court considers that no separate issue arises concerning the alleged breach of the procedural limb of Article 3, or Article 13 of the Convention.OTHER ALLEGED VIOLATIONS OF THE CONVENTION

50.  Lastly, the applicants complained under Article 3 of the Convention about the anguish and distress suffered by them on account of the attitude of the authorities towards their duty to investigate the circumstances of their daughter’s death.

51.  The Court considers that although the inadequacy of the investigation into the circumstances of their daughter’s death will obviously have caused the applicants feelings of anguish and mental suffering, it did not reach the threshold of “degrading treatment” within the meaning of Article 3 of the Convention (see, for example, Masneva v. Ukraine, no. 5952/07, § 77, 20 December 2011).

52.  It therefore concludes that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

53.  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.”Damage

54.  The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage.

55.  The Government considered that amount to be excessive.

56.  The Court observes that the prolonged failure of the authorities to give satisfactory answers to the questions raised by S.K.’s death must have caused the applicants acute mental suffering. At the same time, the Court’s findings under Article 2 of the Convention in the present case are of a procedural nature. In the light of all the material in its possession and making its assessment on an equitable basis, the Court awards the applicants jointly EUR 15,000 on account of non‑pecuniary damage, plus any tax that may be charged on this amount.Costs and expenses

57.  The applicants claimed 6,560 pounds sterling (GBP, approximately EUR 7,200), payable to the European Human Rights Advocacy Centre on account of the work performed by the European Human Rights Advocacy Centre and the Memorial Human Rights Centre, in respect of costs and expenses, including legal fees incurred by the applicants before the Court, the administrative expenses and the translation costs.

58.  The Government considered these claims excessive.

59.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,600 for the proceedings before the Court, to be paid into the representatives’ bank accounts, as indicated by the applicants, plus any tax that may be chargeable on that amount. It rejects the remainder of the claim for costs and expenses.Default interest

60.  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,Declares the complaints concerning the shortcomings of the criminal investigation into the killing of the applicants’ daughter admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 2 of the Convention under its procedural limb;Holds that there is no need to examine the merits of the complaint under the procedural limb of Article 3, or Article 13 of the Convention;Holds

(a)  that the respondent State is to pay the applicants jointly, within three months, the following amounts:

(i)  EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(ii)  EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement and to be paid into the representative’s bank account in the United Kingdom;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 29 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Darian Pavli
Deputy RegistrarPresident

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