CASE OF SULEYMANOV AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF SULEYMANOV AND OTHERS v. RUSSIA

(Application no. 35585/08)

JUDGMENT

STRASBOURG

24 March 2020

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

In the case of Suleymanov and Others v. Russia,

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

Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Olga Chernishova, Deputy Section Registrar,

Having deliberated in private on 3 March 2020,

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

PROCEDURE

1.  The case originated in an application (no. 35585/08) 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 three Russian nationals, Mr Shomsudin Suleymanov, Mr Said Suleymanov and Ms Zaret Suleymanova (“the applicants”), on 22 July 2008.

2.  The applicants were represented by Mr D. Itslayev and Ms M. Irizbayeva, lawyers practising in Russia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  On 23 September 2011 notice of the application was given to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The first applicant, Mr Shomsudin Suleymanov, was born in 1951. The second applicant, Mr Said Suleymanov, is the first applicant’s son, and was born in 1982. The third applicant, Ms Zaret Suleymanova, is the first applicant’s daughter, and was born in 1986. They live in Gudermes, Chechnya.

5.  The circumstances of the case as submitted by the parties can be summarised as follows.

A.  The applicants’ submission

1.  The attack on the applicants’ house on 3 December 2004

6.  Until December 2004 the applicants’ family lived in the village of Tazen-Kala in the Vedeno District in Chechnya. When the village was raided and bombed by the military, most of the inhabitants left. Only three families, including the applicants’ one, remained in the village by the autumn of 2004.

7.  On 3 December 2004 the first applicant and his wife were away staying with relatives. Their three children – their fourteen-year-old son, Saydan, and the second and third applicants – remained at home.

8.  At about 8.30 p.m. the second applicant heard a helicopter approaching the village and then a bomb exploding in the vicinity of their house. The windows of the house were blown out and the candles went out. The second applicant tried to calm down the third applicant and Saydan who were very frightened. He lit a candle and asked his brother and sister to lie down on the floor. He then ran out to open the door of the cowshed.

9.  Immediately after the second applicant returned to the house he heard the helicopter approaching again and a new explosion followed. He lost consciousness. When he regained consciousness his head ached, he was blinded and blood covered his face. He heard the third applicant screaming. He found her by the sound of her voice, pulled her out from the debris and carried her outside. He then returned to the house in search of Saydan. He found his body lying on the floor and carried it outside.

10.  The neighbours came to help them. One of them brought the second and third applicants to the doctor in the neighbouring village. They were transported to a hospital in Gudermes and then on to Grozny.

11.  The third applicant was diagnosed with an open craniocerebral injury, bruising on the brain, a penetrating head trauma and a trauma to the left eye. She had to follow a lengthy course of treatment. In January 2006 she had an ocular prosthesis fitted.

12.  The second applicant also suffered eye trauma and had to follow a lengthy course of treatment. He is now blind in his left eye and has a disability of the third degree.

13.  The applicants’ house completely burned down.

14.  The applicants submitted to the Court written statements made by their neighbours, confirming the above events.

2.  The official investigation into the incident

15.  On 4 December 2004 the first applicant complained to the prosecutor’s office about the bombing and destruction of his house, the death of his son Saydan and the wounding of his other children, the second and third applicants.

16.  On 9 December 2004 the police inspected the applicants’ house and questioned the neighbours.

17.  On an unspecified date in 2004, the second and third applicants were also questioned.

18.  By a letter of 14 January 2005 the local department of the Federal Security Service (“the FSB”) informed the military prosecutor’s office of military unit no. 20116 that the first applicant had never been suspected of membership of illegal armed groups and that there had been no anti-terrorist operations on 3 December 2004.

19.  By a letter of 21 January 2005 the Vedeno Military Commandant informed the prosecutor’s office that the military forces had not conducted any special operations involving helicopters on 3 December 2004.

20.  On 21 January 2005 the Vedeno district prosecutor opened criminal proceedings under Article 167 § 2 of the Criminal Code (premeditated destruction of property by way of arson, explosion or other dangerous method or which resulted in a person’s death or other serious consequences).

21.  By a letter of 26 January 2005 the Vedeno prosecutor informed the first applicant that the criminal investigation would be conducted by the Vedeno District Temporary Department of the Interior (“the VOVD”).

22.  On 26 January 2005 the second applicant was granted victim status. The decision stated, in particular, that the pecuniary damage sustained by him as a result of the destruction of his house amounted to more than 500,000 Russian roubles (RUB).

23.  On 12 February 2005 the Vedeno FSB issued a certificate stating that they did not have any information about any military helicopter operations in the relevant area.

24.  On 22 February 2005 the Vedeno Military Commandant informed the investigators in charge of the applicants’ case that he did not have any information about the helicopter which had flown over the Vedeno district on 3 December 2004. Nor did he know whether any illegal armed groups had helicopters at their disposal. He advised the investigators to request that information from the United Group Alignment (“the UGA”) in Khankala.

25.  On 24 February 2005 the investigators asked the UGA for information on military operations involving helicopters, conducted on 3 December 2004. They also asked whether any illegal armed groups were known to possess any helicopters. Despite several subsequent reminders, no response to those requests was received.

26.  On 1 March 2005 the third applicant was granted victim status. On the same day, she was questioned about the events of 3 December 2004.

27.  A medical certificate obtained by the investigators on 3 March 2005 from the Central District Hospital in Gudermes described the injuries sustained by the second and third applicants on 3 December 2004.

28.  On 4 March 2005 the investigators ordered an expert medical opinion in respect of the injuries sustained by the third applicant.

29.  On 15 March 2005 an expert examination of shell splinters found in the remains of the applicants’ house was carried out. It was established that the splinters were part of a 130 mm aircraft-launched unguided rocket‑propelled missile which had been industrially produced.

30.  On 18 May 2005 the investigators asked the Vedeno prosecutor to refer the case to a military prosecutor’s office, stating that the crime against the applicants had been committed by an identifiable helicopter pilot. Given that only the military forces possessed military helicopters, the case fell within the competence of a military prosecutor’s office.

31.  On 21 May 2005 the investigation was suspended for failure to identify the perpetrators.

32.  On 22 May 2005 the Vedeno prosecutor’s office sent the criminal case to the Chechnya prosecutor’s office for referral to a military prosecutor’s office.

33.  On 30 June 2006 the criminal case was sent to the military prosecutor of military unit no. 20116.

34.  On 28 July 2006 the criminal case was sent to the military prosecutor’s office of the UGA for a further transfer to the Chechnya prosecutor’s office and then back to the Vedeno prosecutor’s office.

35.  On 23 August 2006 the Chechnya deputy prosecutor overruled the decision of 22 May 2005, finding that there was no evidence that the applicant’s house had been bombed by the military, and that therefore the investigation could not be conducted by a military prosecutor’s office.

36.  On the same day the Chechnya deputy prosecutor revoked the suspension of the investigation of 21 May 2005. He stated that the investigation had not been conducted thoroughly and ordered that a number of steps be taken. In particular, the investigators were to obtain information on any special operations conducted on 3 December 2004 in the Vedeno District, identify military units possessing helicopters and study their flight records in order to determine which helicopter had destroyed the applicant’s house, and question the applicant’s neighbours and establish the pecuniary damage sustained by the applicants.

37.  The VOVD resumed the investigation. On an unspecified date in 2006, the investigators questioned the second applicant and the applicants’ neighbours.

38.  In November 2006 the first applicant found, near his destroyed house, a shell splinter bearing identification number 18-02-048-02. On 19 November 2006 he asked the investigators to commission an expert examination of that splinter to determine, with the aid of the identification number, the military unit to which the missile belonged. On the same day, the investigators ordered an expert examination of the splinter. However, they rejected the applicant’s request for identification of the military unit to which the missile belonged because that information was a State secret.

39.  On 19 November 2006 the expert examination issued its conclusion concerning the shell splinter found by the first applicant. Its report confirmed that the splinter was part of a 130 mm aircraft-launched unguided rocket-propelled military-use missile.

40.  On the same date, 19 November 2006, the investigators suspended the criminal proceedings for failure to identify the perpetrators.

41.  On 18 September 2007 the first applicant complained to the Vedeno District Court of the investigators’ failure to effectively investigate the criminal case.

42.  On 22 January 2008 the Vedeno District Court suspended the examination of his complaint as the criminal case file and the material evidence contained therein had been lost.

43.  On 4 February 2009 the Vedeno District Court examined another complaint lodged by the applicants concerning the investigators’ failure to effectively investigate the attack. The court allowed the complaint in full, recognised the failure of the investigators to take basic steps as unlawful and ordered that the investigation be resumed and transferred to the military prosecutor’s office as the case file materials confirmed the involvement of the military in the crime.

44.  On 7 March 2009 the investigation was resumed following a decision by the investigators’ superior, who found that the suspension had been unlawful and premature. It appears that subsequently, on an unspecified date in 2009, the criminal case file was found, but the material evidence obtained by the investigation between 2004 and 2009, including the fragments of the shell splinters, had gone missing.

45.  On 20 March 2009 the investigators requested that the chief of the headquarters of the UGA in Khankala inform them whether any military helicopters had been on a flying mission in Tazen-Kala on 3 December 2004 and whether they had a certain type of 130 mm calibre missile (Земля‑Воздух) in their armament.

46.  On 6 April 2009 the investigators issued a decision concerning the extension of the procedural time-limits for the proceedings. It, amongst other things, enumerated the procedural steps taken by them and, in particular, included the following:

“... the investigation has established that the death of Saydan Suleymanov, as well as the serious injuries of Z. Suleymanova and S. Suleymanov [the second and third applicants] and the destruction of the Suleymanov family’s house was the result of a missile strike from an unidentified military helicopter ...”

47.  On 24 April 2009 the headquarters of the UGA in Khankala replied to the investigators, stating that the relevant records for 2004 had been destroyed following the expiration of their retention period in 2006.

48.  On 26 August 2009 the investigators again suspended the investigation for failure to identify the perpetrators.

49.  On 7 October 2009 the investigators’ superior again overruled the suspension as premature and unlawful.

50.  On 20 October 2010, in accordance with the order given a year before, the investigation was resumed.

51.  On 20 December 2010, the investigators decided to terminate the investigation as a result of the expiration of the six-year statutory time-limit for prosecution. That time-limit concerned crimes of a medium level of severity, as the proceedings had been opened under Article 167 of the Criminal Code (premeditated destruction of property by way of arson, explosion or other dangerous method or which resulted in a person’s death or other serious consequences). The applicants were not informed of that decision.

52.  On 30 November 2011 the deputy Chechnya prosecutor overruled the above termination as unlawful. His decision criticised the investigation and stated, amongst other things, the following:

“... the fact of the involvement of military pilots in the crime has been confirmed by expert evaluation report no. 108 of 19 November 2006, according to which the shell splinters were part of a 130 mm aircraft-launched unguided rocket-propelled missile which had been industrially produced ...

In spite of the fact that the actions of the unidentified persons who fired missiles at the Suleymanov family’s house led to the death of [Saydan] Suleymanov and the serious injuries of S. Suleymanov [the second applicant] and Z. Suleymanova [the third applicant], and that those actions should fall under Articles 105 § 2 (e) and 111 § 2 of the Russian Criminal Code [murder and premeditated causing of particularly serious injuries, committed in a publicly dangerous way], no legal analysis of those elements of the crime has been carried out [by the investigation] which led to the concealment of this more serious crime from the relevant official record keepers ...”

53.  On 30 November 2011 the deputy Chechnya prosecutor decided to transfer the investigation of the criminal case to the military prosecutor’s office. It appears that the investigation is still ongoing.

B.  The Government’s submission

54.  The Government did not dispute the factual circumstances of the attack on the applicants’ house. In particular, they conceded that it had taken place on 3 December 2004 and that, as a result, the second and third applicants had been seriously wounded and their brother, Saydan Suleymanov, had been killed.

55.  As for the investigation into the incident, in their submissions of 16 January 2012 the Government stated, amongst other things, the following:

“... as for the effectiveness of the investigation, the examination of the criminal case file showed the following deficiencies:

(i) the criminal case was opened in violation of the relevant time-limits established in the Russian Criminal Procedure Code;

(ii) the fragments of the shell splinters found at the crime scene were lost;

(iii) there was neither internal nor prosecutorial control over the investigation ...

The examination of the criminal case file showed that the investigation had collected enough evidence to prove that the crime had been committed by military pilots (statements of the victims and witnesses and expert reports). Furthermore, the evidence collected established the elements of a crime under Article 105 § 2 (e) and Article 111 § 2 of the Russian Criminal Code (murder and the premeditated causing of particularly serious injuries, committed in a publicly dangerous way) in the pilot’s actions.

In connection with the above, on 30 November 2011 the decision concerning the termination of criminal case no. 53007 was overruled by the deputy Chechnya prosecutor and the criminal case file was forwarded to the military prosecutor’s office of the Southern Military Circuit for further investigation by military investigators.”

II.  RELEVANT DOMESTIC LAW

56.  For a summary of the relevant domestic law see Abuyeva and Others v. Russia (no. 27065/05, §§ 165-68, 2 December 2010).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

57.  The applicants complained that because of the helicopter attack perpetrated by State agents on their house on 3 December 2004 their relative Saydan Suleymanov, had been killed and the second and third applicants had been seriously wounded and also that the authorities had failed to properly investigate the matter. They relied on Article 2 of the Convention, which reads as follows:

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

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.”

A.  The parties’ submissions

58.  The Government submitted in general terms that the investigation was still pending completion and therefore it was premature to conclude whether “the attack on the applicants’ house had been lawful and justified” and that the perpetrators had not yet been identified. They further stated that the “deficiencies revealed in the investigation of criminal case no. 53007 [had] not had a significant negative influence on the outcome of the investigation.” The investigation “[had taken] all the necessary steps to establish the circumstances of the attack ... therefore, the authorities of the Russian Federation [did] not consider the investigation of criminal case no. 53007 to [have been] ineffective.”

59.  The applicants submitted that they had been attacked by State agents and that the Government had failed to provide any evidence showing that that attack on their house had been “absolutely necessary”. The investigation had proved to be ineffective which had been confirmed by the domestic authorities in their procedural orders and by the Government themselves in their observations.

B.  The Court’s assessment

1.  Admissibility

60.  The Court notes that the issue of potential effectiveness of the criminal investigation is closely linked to the question of the effectiveness of the pending criminal proceedings, and therefore should be joined to the merits of the applicants’ complaint under Article 2 of the Convention. It further notes that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

(a)  Substantive aspect under Article 2 of the Convention

61.  For a summary of the relevant principles see Isayeva and Others v. Russia (nos. 57947/00 and 2 others, §§ 169-71, 24 February 2005, with further references) and Kerimova and Others v. Russia (nos. 17170/04 and 5 others, §§ 238-40, 3 May 2011).

62.  In the present case, it is common ground between the parties that the second and third applicants were attacked in their home by a helicopter on 3 December 2004 and that as a result of that use of force both applicants were seriously wounded and their brother, Saydan Suleymanov, was killed. The Government denied that the State’s responsibility had been engaged on the basis that the perpetrators of the attack had not been identified.

63.  The Government did not advance any theories concerning either the perpetrators of that crime or other relevant circumstances, such as the possible possession of a helicopter by a group other than the military.

64.  The Court, having regard to the fact that the attack of 3 December 2004 was carried out by helicopter, does not find the Government’s argument that the identity of that helicopter and its pilot remained unknown to be convincing, as presumably military aircraft are held in the exclusive possession of the State, and, more specifically, of the Russian Armed Forces. Moreover, the expert’s reports confirmed that the metal fragments found at the scene of the incident near the applicant’s house were splinters from an exploded aerial missile (see paragraphs 29 and 39 above), a type of weapon that would also presumably be held in the exclusive possession of the State. It is furthermore clear from the adduced documents that the domestic investigation established military involvement in the crime and requested that the investigation be carried out by military investigators (see paragraphs 30 and 53 above). Finally, the Government in their initial submission before the Court stated that the “crime had been committed by military pilots” (see paragraph 55 above). The Court therefore finds it established that the attack of 3 December 2004 was carried out by aircraft belonging to the federal armed forces (see also paragraphs 30, 46 and 52 above).

65.  The Court further observes that, as a result of the attack of 3 December 2004, the second and third applicants were seriously wounded and their brother Saydan was killed. These facts bring the relevant complaint, in respect of both of the applicants and their deceased relative, within the ambit of Article 2 of the Convention. It is therefore for the State to account for the use of lethal force, and, in particular, to demonstrate that that force was used in pursuit of one of the aims set out in paragraph 2 of Article 2 of the Convention and that it was absolutely necessary and therefore strictly proportionate to the achievement of one of those aims.

66.  The Court notes that in addition to the lack of any explanation for the events in question (see paragraph 63 above), the Government provided no explanations concerning any goals of or reasons for the military operation, the planning and control over the attack on the applicants’ house, the actions of the federal servicemen who actually administered the lethal force, and the legal or regulatory framework in place.

67.  Given the Government’s failure to put forward any explanations for the helicopter strike on the applicants’ house, the Court cannot perceive any justification for the use of lethal force in the circumstances of the present case (see, for a similar situation, Abdulkhanov and Others v. Russia, no. 22782/06, §§ 51-54, 3 October 2013, and Khatsiyeva and Others v. Russia, no. 5108/02, §§ 129-39, 17 January 2008).

68.  There has accordingly been a violation of Article 2 of the Convention in this connection.

(b)  Procedural aspect under Article 2 of the Convention

69.  For a summary of the relevant principles see Kerimova and Others (cited above, §§ 263-66).

70.  The Court observes that the investigation into the attack has been ongoing for more than ten years and the identity of the perpetrators has yet to be established. The parties dispute the effectiveness of the criminal proceedings.

71.  The Court notes that the criminal proceedings in connection with the attack of 3 December 2004 were not initiated until 21 January 2005 – that is more than one and half months after the incident. The authorities were under an obligation to enquire into the results of that attack and to institute criminal proceedings in that connection without undue delay. The Court finds that their failure to act for several weeks undermined the effectiveness of the investigation. Once underway, the investigation was plagued with inexplicable delays and shortcomings in respect of the most trivial steps. In particular, evidence which was directly relevant to the attack in question – such as records of orders given and received, records of combat air missions, records of military actions, combat orders, reports on executed combat missions, photographs and tape recordings – was not requested and obtained shortly after the opening of the criminal case in the beginning of 2005 but requested only three years later, in March 2009, when the relevant evidence had already been destroyed owing to the expiration of the retention period (see paragraphs 45 and 47 above). Furthermore, the critical evidence that would potentially have allowed for the identification of the helicopter and its pilot was lost by the investigators (see paragraphs 38, 39, 42 and 44 above).

72.  The ineffectiveness of the investigation, the incompetence and the manifest failure of the investigators to take meaningful steps to resolve the crime were acknowledged by their superiors and the domestic court on several occasions (see paragraphs 36, 43, 44 and 52 above). Even the Government, in their initial submission on the admissibility and merits of the application, enumerated a number of its deficiencies (see paragraph 55 above).

73.  The Court also notes that the applicants were not kept duly informed of the progress of the investigation. Moreover, it does not appear that the applicants, or their representative, were ever furnished with a copy of the decision of 20 December 2010 by which the criminal proceedings regarding the attack were discontinued.

74.  Against that background and in so far as the Government’s submission regarding the pending investigation is concerned, the Court considers that in a situation where the effectiveness of the investigation was undermined from a very early stage by the authorities’ failure to take the necessary investigative measures (see paragraphs 71 and 72 above), where it was repeatedly suspended and reopened, and where the applicants were not duly informed of the most important procedural decisions (see paragraphs 51 above), it is highly doubtful that the investigation would have had any prospects of success at a later stage.

75.  In the light of the foregoing, the Court concludes that the authorities failed to carry out a thorough and effective investigation into the circumstances of the attack of 3 December 2004 on the applicants’ house in which the second and third applicants were seriously wounded and their brother Saydan died. There has therefore been a violation of Article 2 of the Convention on that account.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

76.  The applicants complained that the incident of 3 December 2004 involving the helicopter attack on their house, destruction of their property, the wounding of the second and third applicants, the death of their relative Saydan Suleymanov and the ineffective investigation into the events, caused them mental suffering and represented inhuman and degrading treatment within the meaning of Article 3 of the Convention, which reads:

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

77.  The Government submitted that no treatment of the applicants proscribed by Article 3 had taken place.

78.  The applicants reiterated their complaints.

79.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

80.  Having regard to its findings relating to Article 2 of the Convention, the Court considers that in the circumstances of the case no separate issues arise beyond those already examined above (see paragraphs 68 and 75 above, and see, for example, Tangiyeva v. Russia, no. 57935/00, §§ 104-05, 29 November 2007).

81.  In these circumstances, while the Court does not doubt that the death of Mr Saydan Suleymanov caused the applicants profound suffering (see, for example, Arapkhanovy v. Russia, no. 2215/05, §§ 152-53, 3 October 2013, and Zabiyeva and Others v. Russia, no. 35052/04, §§ 134-35, 17 September 2009), it nevertheless finds no basis for finding a violation of Article 3 in this context.

III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

82.  The applicants complained that they had been deprived of effective remedies in respect of the alleged violations under Article 2 of the Convention, contrary to Article 13 of the Convention, which provides as follows:

“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.”

A.  The parties’ submissions

83.  The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention, and that the authorities had not prevented them from using them. They had had an opportunity to challenge any acts or omissions on the part of the investigating authorities in court or before supervising prosecutors. In sum, the Government submitted that there had been no violation of Article 13.

84.  The applicants reiterated their complaint.

B.  The Court’s assessment

85.  The Court observes that the complaint made by the applicants under this Article has already been examined in the context of Article 2 of the Convention. Having regard to the finding of a violation of Article 2 in its procedural aspect (see paragraph 75 above), the Court considers that, whilst 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 Shaipova and Others v. Russia, no. 10796/04, § 124, 6 November 2008, and Kagirov v. Russia, no. 36367/09, § 130, 23 April 2015).

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

86.  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

1.  Pecuniary damage

87.  The second applicant claimed 23,070 euros (EUR) in respect of pecuniary damage. He submitted that, as a result of the injuries caused by the attack of 3 December 2004, he had lost one of his eyes and has had a disability ever since.

88.  The Government did not dispute the state of the second applicant’s health, but submitted that it represented a partial disability which did not preclude him from being gainfully employed. Moreover, his calculations had been made on the basis of the monthly minimum salary and he had not provided any information on his factual earnings or employment prior to the incident. Finally, upon completion of the criminal investigation into the attack, the second applicant could claim civil damages and would be eligible for a disability pension.

89.  The Court discerns a causal link between the violation found and the pecuniary damage alleged by the second applicant, and it therefore awards him EUR 15,000 in respect of pecuniary damage.

2.  Non-pecuniary damage

90.  As to their claim for non-pecuniary damage, the applicants left the determination of the amount of compensation to the Court’s discretion.

91.  The Government submitted that the claim should be rejected, as there had been no violation of the applicants’ rights.

92.  Regard being had to the documents in its possession and its findings in the present case, and making its assessment on an equitable basis, the Court finds it reasonable to award the applicants EUR 80,000 jointly and EUR 50,000 to the second and third applicants each, in respect of non‑pecuniary damage, plus any tax which may be chargeable.

B.  Costs and expenses

93.  The applicants also claimed EUR 8,639 for the costs and expenses incurred before the Court. The amount claimed was split as follows:

(i) EUR 2,440 for 15.25 hours of legal work by Ms M. Irizbayeva,

(ii) EUR 5,784 for 36.3 hours of legal work by Mr D. Itslayev,

(iii) EUR 95 for administrative expenses,

(iv) EUR 320 for the translation of the observations before the Court from Russian into English.

94.  The Government stated that the claim was exaggerated and unreasonable, as the case had not required the amount of research and preparation claimed.

95.  The Court has to establish, firstly, whether the costs and expenses were actually incurred and, secondly, whether they were necessary and reasonable (see Fadeyeva v. Russia, no. 55723/00, § 146, ECHR 2005-IV).

96.  In view of its conclusions, the principles enumerated above and the parties’ submissions, the Court awards the applicants EUR 2,000, plus any tax that may be chargeable to them. The award in respect of costs and expenses is to be paid into the representatives’ bank accounts, as specified by the applicants.

C.  Default interest

97.  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.  Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies as regards the ongoing criminal investigation and rejects it;

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

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

4.  Holds that there has been no violation of Article 3 of the Convention;

5.  Holds that no separate issue arises under Article 13 in respect of the violation of Article 2 of the Convention;

6.  Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, to the second applicant in respect of pecuniary damage;

(ii)  EUR 80,000 (eighty thousand euros), plus any tax that may be chargeable, to the applicants jointly, in respect of non-pecuniary damage;

(iii)  EUR 50,000 (fifty thousand euros), plus any tax that may be chargeable, to the second and third applicants each, in respect of non-pecuniary damage;

(iv)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank accounts as specified by the applicants;

(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;

7.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 24 March 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Alena Poláčková
Deputy RegistrarPresident

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