CASE OF TASUYEVA AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF TASUYEVA AND OTHERS v. RUSSIA

(Application no. 19809/11)

JUDGMENT
 

STRASBOURG

16 June 2020

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

In the case of Tasuyeva 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 19 May 2020,

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

PROCEDURE

1.  The case originated in an application (no. 19809/11) 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 the seventy-six applicants listed in the appended table (“the applicants”) on 25 February 2011.

2.  The applicants were represented by the Committee Against Torture, a non‑governmental organisation based in Nizhniy Novgorod. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

3.  On 30 August 2017 the Government were given notice of the complaints under Articles 2 and 13 and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4.  The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

5.  The applicants are Russian nationals, except for the sixth and the eighth applicants who are the nationals of Kazakhstan. The applicants’ personal details and their respective complaints are set out in the appended table.

6.  At the material time the applicants were resident in the village of Elistanzhi in the Vedeno district, the Chechen Republic. They submitted that they and their relatives were victims of the aerial attack by the Russian military on 7 October 1999. The Government did not contest the account of events as submitted by the applicants.Preliminary information

7.  Aerial attacks in Chechnya have been examined by the Court in a number of judgments, such as Isayeva v. Russia (no. 57950/00, 24 February 2005), Abuyeva and Others v. Russia (no. 27065/05, 2 December 2010), Kerimova and Others v. Russia (nos. 17170/04 and 5 others, 3 May 2011), and Abakarova v. Russia (no. 16664/07, 15 October 2015). Those applications were lodged by residents of settlements in Chechnya, who alleged that their relatives had been killed or wounded and that they themselves had suffered injuries during airstrikes in 1999 and 2000.Events of 7 October 1999 in the village of Elistanzhi

8.  Between midday and 1 p.m. on 7 October 1999 the village of Elistanzhi was subjected to an airstrike by Russian military forces. A number of buildings, including the local school, were destroyed in the attack. The applicants submitted a list of thirty-five residents of the village who were killed during the airstrike or died of wounds shortly afterwards, and a list of another sixty persons who survived the attack but sustained various injuries.Official investigation into the events

9.  On 14 December 2000 the Vedeno district prosecutor’s office (hereinafter “the district prosecutor’s office”) opened criminal case no. 36039 to investigate the circumstances of the bombing on 7 October 1999, which had resulted in the death of a relative of the fourth to seventh applicants, Mr Ramazan Appazov.

10.  From the documents submitted it is apparent that no steps were taken to investigate the case between 1999 and 2007 as the case file was either lost or destroyed by fire. According to some of the documents furnished to the Court, the district prosecutor’s office forwarded the criminal case file to the military prosecutor’s office of military unit no. 20102 for investigation on 14 December 2000, and it was subsequently lost there. According to other documents submitted to the Court, there was a fire on the premises of the district prosecutor’s office on 17 December 2002 which destroyed, amongst other things, the investigation file in the criminal case.

11.  On 24 November 2006 the Vedeno district prosecutor’s office requested the military prosecutor’s office that criminal case no. 36039 be restored. The letter referred to the enquiry of Mr B., a lawyer representing Mr Ramazan Appazov’s relative Ms A. Tasuyeva.

12.  On various dates in 2007 Mr B. asked the prosecutor’s office to provide information on the progress of the proceedings.

13.  On 5 September 2007 the case file was restored.

14.  On 6 September 2007 the investigation of the criminal case was transferred to the Shali inter-district investigations department of the Investigative Committee of the prosecutor’s office (hereinafter “the investigators”).

15.  On 9 September 2007 the investigators requested that the military commander of the Vedeno district and the Central Archive of Russian Ministry of Defence provide them with information indicating whether any special operations had been conducted in Elistanzhi on 7 October 1999 by the Russian military air force and, if so, which military units had been involved, and under whose command. No reply to these requests was forthcoming.

16.  On an unspecified date in 2007 Ms Tasuyeva was granted victim status in the criminal case.

17.  On 5 October 2007 the investigation was suspended for failure to identify the perpetrators.

18.  On 22 December 2007 Mr B. requested that the investigators allow him to access the contents of the investigation file. On 22 February 2008 his request was granted and he was allowed access to the file on an unspecified date in March 2008.

19.  On 2 April 2008 Mr B. lodged an appeal against the suspension of the proceedings with the investigators’ superiors, stating that it was unlawful and premature. In particular, he stated that the investigation had not established the full list of persons who had died as the result of the shelling and that numerous survivors had been neither questioned nor granted victim status in the proceedings nor informed of their progress. He pointed out that the only person questioned by the investigators had been Ms Tasuyeva and that neither the sixty-odd wounded persons nor the relatives of the more than thirty residents killed during the attack had been questioned. No information concerning the military units which had participated in the aerial attack had been provided, nor had their commanders been identified. He also pointed out that the medical documentation concerning the victims of the attack, certifying that their deaths and/or the injuries had been caused by bombing, had not been analysed and added to the investigation file. Referring to the Court’s case‑law concerning Article 2 of the Convention, the lawyer requested that the investigators take prompt steps to establish and prosecute those responsible for the aerial attack.

20.  On 14 April 2008 the investigation was resumed.

21.  On various dates between 14 April and 14 May 2008 seven applicants were granted victim status in the criminal proceedings and were questioned. They gave their account of the bombing of Elistanzhi and the losses they sustained in the attack of 7 October 1999.

22.  On 14 May 2008 the investigation was suspended again. Seven applicants were informed about the suspension.

23.  On an unspecified date between 15 May and 17 August 2008 the investigators received instructions from their superiors in the procedural control department of the Chechnya Investigative Committee ordering them to carry out a number of actions, including a crime-scene examination. Those orders were not complied with.

24.  On 18 August 2008 the investigators resumed the investigation and decided to transfer the file to military investigations department no. 506 of military unit no. 68798 on the basis that it was a criminal case against military service personnel which fell within the jurisdiction of military investigations departments.

25.  On 26 August 2008 the transfer of the investigation was overruled by the investigators’ superiors and the case file was returned to the investigators in view of their failure to carry out a number of essential actions, such as establishing the identity of all the village residents who had been killed during the bombing, obtaining medical documents certifying the injuries of those who had been wounded during the attack, questioning key witnesses, and the lack of forensic expert evaluations.

26.  On 18 September 2008 the investigators suspended the proceedings again.

27.  On 11 November 2008 (or on 19 November 2008, according to some documents) the Vedeno prosecutor criticised the investigation in the criminal case. He stated that it had been incomplete and that the decision to suspend the proceedings had been unlawful and premature. In particular, he stressed that the investigators had failed to execute their superiors’ orders, such as conducting a crime-scene examination, and ordered that the investigation be resumed. On 24 November 2008 it was resumed.

28.  On various dates in 2008-14 a number of individuals including twenty-five applicants were granted victim status in the criminal case.

29.  On 24 December 2008 the investigation was suspended again. Nine of the applicants were informed of the suspension. However, on 11 January 2009 it was resumed again on the orders of the investigators’ superiors, as it had been suspended prematurely. In particular, it was pointed out that the investigators had failed to carry out the actions ordered on 26 August 2008 such as establishing the identity of all the village residents who had been killed during the bombing, and obtaining medical documents certifying the injuries of those who had been wounded during the attack.

30.  On 14 February 2009 the investigation was suspended again. It appears that some of the applicants were informed thereof.

31.  On 25 March 2009 the deputy head of the Shali investigations department criticised the investigators for their failure to comply with the previously issued instructions and ordered that the proceedings be resumed. The relevant part of the decision stated as follows:

“ ... [A]lthough the investigation file contains information concerning the presence of an unexploded bomb, launched on the day of the attack from one of the aeroplanes, and lying on the property of Mr A. Artsuyev, at a depth of 2 metres below ground, the investigation has taken no steps to seize and examine that projectile; not all of the victims of the bombing have been identified and questioned, nor have expert forensic evaluations been commissioned in this regard. Moreover, the orders of 26 August 2008 have not been executed ...”

32.  On 27 April 2009 the investigation was suspended. Nine of the applicants were informed of the suspension.

33.  On 3 August 2009 the lawyer Mr B. appealed against the suspension of the investigation to the Vedeno District Court. He stated that the investigators had not established the identity of all of the thirty-five residents who had died as result of the attack or of the more than fifty people who had been injured; despite the fact that several residents had been granted victim status in the criminal case, they had not been informed of any of the developments in the proceedings. He further pointed out that the investigation had still neither examined the crime scene nor collected the unexploded projectiles lying in Mr Artsuyev’s (applicant no. 8) courtyard and the local school building. He pointed out that the victims of the attack had medical documentation confirming that their injuries had been sustained as a result of the bombing. Furthermore, referring to Article 2 of the Convention and the relevant case-law, the lawyer stated that the investigation had been ineffective, requested that it be resumed and the actions ordered by the investigators’ superiors be taken. Lastly, he stated that the victims would lodge an application with the Court should the authorities continue to fail to investigate the matter effectively.

34.  On 21 August 2009 the Vedeno District Court allowed the lawyer’s complaint and ordered the investigators to establish the identities of all of the victims of the bombing, both killed and injured. It also ordered that the investigators examine the crime scene, seize the unexploded projectiles and obtain information from the Central Archives of the Ministry of Defence, from the Ministry of Internal Affairs, and from the Federal Security Service concerning any special operation linked to the airstrike on Elistanzhi on 7 October 1999.

35.  On 21 August 2009 the investigation was resumed. Nine applicants were informed about it. It was suspended again on 21 September 2009, of which ten applicants were informed. It appears that none of the actions ordered by the court were carried out.

36.  On an unspecified date in October or November 2009 Mr B. appealed against that suspension to the Vedeno District Court. On 29 December 2009 the investigation was resumed again and on 30 December 2009 the Vedeno District Court therefore rejected the appeal as unsubstantiated.

37.  On 28 January 2010 the investigation was suspended again.

38.  On 31 March 2010 the lawyer Mr B. requested that the investigators allow him access to the investigation file. On 1 April 2010 his request was granted.

39.  On an unspecified date between April and August 2010 Mr B. again appealed against the suspension of the proceedings, but this time to the head of the Chechnya investigations committee. He requested that the investigators’ supervisors examine the lawfulness and the grounds for the suspension. His complaint was left without examination.

40.  On 25 August 2010 the investigation was resumed yet again and the case file was forwarded to the Chechnya investigations committee for a decision regarding its transfer to the military investigators.

41.  On 17 December 2010 Mr B. requested that the investigators inform him of the outcome of his complaint concerning the unlawfulness of the suspension of the criminal proceedings.

42.  On 22 December 2010 Mr B. was informed that the investigation of the criminal case had been transferred to military investigations department no. 506 of military unit no. 68798.

43.  On 12 March 2011 the investigations committee transferred the criminal case no. 36039 for further investigation to the military investigations department of the Southern Military Circuit in Khankala (case file no. 14/90/0053-11).

44.  On 14 March 2011, in reply to his request of 31 January 2011, Mr B. was informed by military investigations department no. 506 that on 11 January 2011 they had transferred the criminal case for further investigation to the 3rd military investigations department of the Southern Military Circuit in Khankala.

45.  On 28 March 2011 Mr B. requested that the military investigations department of the Southern Military Circuit in Khankala inform him of the progress made in the investigation of the criminal case.

46.  On 31 March 2011 the military investigations department in Khankala refused to provide any information concerning the investigation as the criminal case file did not contain an authority form certifying that the lawyer could represent victims of the bombing.

47.  On 4 April 2011 the investigation in the criminal case was suspended again.

48.  On unidentified dates in 2014 Major N., an investigator of the military investigations department of the Southern Military Circuit, ordered the forensic examination of several victims in criminal case no. 14/90/0053‑11, including some of the applicants. On 13-21 May 2014 the experts issued the respective forensic reports confirming the injuries sustained during the airstrike of 7 October 1999. These forensic reports were relied on in the civil proceedings brought by the applicants indicated in the appended list.

49.  On 28 March 2014 the Leninskiy District Court of Groznyy allowed a civil claim brought by Ms Gekhayeva (applicant no. 36), having established the circumstances of the airstrike of 7 October 1999. On various dates between 22 May and 5 June 2014 the same court examined civil claims for damages brought by a number of individuals including the applicants indicated in the annex. It referred to its judgment of 28 March 2014 as regards the circumstances of the airstrike, and on the basis of the death certificates it established that the plaintiffs had either lost close family members in the airstrike on 7 October 1999, or had been injured, or both. They were awarded compensation of between 400,000 Russian roubles (RUB) and RUB 1,400,000 on the basis of the Countering Terrorism Act and the Government’s Decree of 15 February 2014 no. 10 regulating budgetary allocations for disaster relief.

50.  On 23 July 2014 criminal case file no. 36039 was classified as confidential. It appears that the investigation into the circumstances of the bombing of Elistanzhi on 7 October 1999 is still pending.RELEVANT DOMESTIC LAW

51.  For a summary of the relevant domestic law and international regulations see Abakarova, cited above, §§ 59-70.

THE LAWLocus standi

52.  The heirs of several applicants indicated in the appended list informed the Court of those applicants’ deaths and, as their close relatives, expressed the intention to pursue the application in their stead. The Government did not object to this. Having regard to the close family ties with the heirs and their legitimate interest in pursuing the application concerning fundamental human rights, the Court accepts that the deceased applicants’ heirs, also indicated in the appended list, may pursue the applications in their stead (see Murray v. the Netherlands [GC], no. 10511/10, § 79, 26 April 2016; Maylenskiy v. Russia, no. 12646/15, § 27, 4 October 2016; Sultygov and Others v. Russia, nos. 42575/07 and 11 others, §§ 381-86, 9 October 2014; and Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, § 474, 13 April 2017). It will therefore continue to deal with the deceased applicants’ complaints, at the heirs’ request.ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

53.  The applicants alleged that there had been a violation of the right to life in respect of themselves and their relatives who had died as a result of the aerial attack. They also complained of the ineffectiveness of the investigation. Article 2 of the Convention reads:

“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.”Admissibility

54.  The Government put forward a number of objections to the admissibility of the applications. In particular, they challenged the victim status of the applicants who pursued civil remedy, alleged the non‑exhaustion of domestic remedies by those who did not avail themselves of this remedy and questioned the applicant’s compliance with the six‑month time-limit.Alleged loss of victim status

(a)   The parties’ submissions

55.  The Government claimed that several applicants were no longer victims of the alleged violations, because the domestic courts had awarded them pecuniary compensation in connection with the disappearance of their relatives (see paragraph 49 above).

56.  The applicants contested that allegation.

(b)   The Court’s assessment

57.  The Court reiterates that “a decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention. (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Rotaru v. Romania [GC], no. 28341/95, § 35, ECHR 2000-V). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see, for example, Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003).

58.  The Court notes at the outset that the compensation received by the applicants at the domestic level constituted a positive development in relation to the applicants who received them. However, the Court’s case-law provides that the mere payment of compensation in reaction to incidents of deprivation of life in circumstances such as those in the present case does not in itself constitute adequate redress (see Tagayeva v. Russia (dec.), no. 26562/07, § 476, 9 June 2015). To find that the payment of compensation alone entailed the loss of victim status under Articles 2 and 13 of the Convention would render the State’s obligations to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault illusory (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 121, 24 February 2005).

59.  In the civil proceedings referred to by the Government, the domestic courts, without the benefit of the conclusions of a criminal investigation, were incapable of making any meaningful findings as to the perpetrators of the fatal assaults, and still less to establish responsibility for them. Accordingly, the Government’s argument regarding the loss of victim status is also rejected.Compliance with the exhaustion rule

(a)   The parties’ submissions

60.  The Government argued that it had been open to all applicants to seek compensation for non-pecuniary damage in civil proceedings, but only some of them had done so. Accordingly, the remainder of the applicants indicated in the Annex had not exhausted domestic remedies.

61.  The applicants maintained that they had had no effective remedies to exhaust in relation to their Convention complaints.

(b)   The Court’s assessment

62.  As regards a civil claim for damages, the Court has already found above that this procedure could not ensure the conduct of an investigation capable of leading to the identification and punishment of those responsible for the violation of the right to life (see paragraph 58 above). Therefore it cannot be regarded as an effective remedy to be exhausted for the purposes of Article 35 § 1 of the Convention. Accordingly, the objection in this regard is dismissed.Compliance with the six-month rule

(a)   The parties’ submissions

63.  The Government stressed that the applicants had failed to submit their complaints within the six-month time-limit set out in Article 35 § 1 of the Convention. They pointed out that the material events complained of had occurred in October 1999. However, the complaints had only been lodged in 2011.

64.  The applicants submitted that they had complied with the six‑month rule. They referred to the scale of the events at stake, which concerned not an isolated incident, but major military action which had caused dozens of deaths and injuries among the civilian population, which had justified their expectation that the authorities’ response would be proportionate to their weight of the losses.

(b)   The Court’s assessment

65.  A summary of the principles concerning compliance with the six‑month rule in cases concerning violent death may be found in Khadzhimuradov and Others v. Russia (nos. 21194/09 and 16 others, 10 October 2017).

“61. In cases concerning the obligation to investigate under Article 2 of the Convention, the Court has held that, where a death has occurred, relatives who are applicants are expected take steps to keep track of an investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any appropriate redress, including effective criminal investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 158, ECHR 2009, with further reference therein).

62. At the same time, the Court has refrained from indicating a specific period for establishing when an ongoing investigation has become ineffective for the purposes of the six-month period. The determination of such a period by the Court depends on the circumstances of each case and other factors, such as the diligence and interest displayed by the applicants as well as the adequacy of the investigation in question (see Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005, and Narin v. Turkey, no. 18907/02, §§ 43 and 50, 15 December 2009). The Court has found that the ineffectiveness of an investigation will generally be more readily apparent in cases concerning violent death than in cases of disappearances which are characterised by uncertainty and confusion; the requirement of expedition may require an applicant to bring such a case to the Court within a matter of months, or, depending on the circumstances, a few years after the events at most (see Varnava and Others cited above, § 158).

63. Stricter expectations would apply in cases where there has been a complete absence of any investigation or progress in an investigation, or meaningful contact with the authorities. Where there is an investigation of sorts, even if plagued by problems, or where a criminal prosecution is being pursued, even by the relatives themselves, the Court accepts that applicants may reasonably wait longer for developments which could potentially resolve crucial factual or legal issues (ibid., § 166). It is in the interests of not only the applicant but also the efficacy of the Convention system that the domestic authorities, which are best placed to do so, act to put right any alleged breaches of the Convention.

64. To sum up, the Court has imposed a duty of diligence and initiative on the families of victims wishing to complain of a delayed or ineffective investigation, and they cannot wait indefinitely before bringing such complaints to the Court. However, the Court has held that as long as there is some meaningful contact between relatives and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in the investigative measures, considerations of undue delay by the applicants will not generally arise (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 269, ECHR 2014 (extracts)). Failure to comply with the duty of diligence may, however, result in an applicant losing his or her right to have the merits of an application examined (see, among recent authorities, Opačić and Godić v. Croatia (dec.), no. 38882/13, §§ 27‑30, 26 January 2016, with further references).

65. In Abuyeva and Others v. Russia (no. 27065/05, 2 December 2010), where the applicants had applied to the Court five years after the events in question, and where there had been a three-and-a-half year gap in communication between the applicants and the investigating authorities, the Court found [applying the test as formulated in Varnava and Others, cited above, § 162, that the applicants indeed applied to Strasbourg ‘within a matter of very few years’ after the events.

66. In 2014 the Court considered that, in instances of violent death, periods lasting between one year and eight months and seven years between the final relevant procedural step on the part of national authorities and the lodging of applications with the Court were too lengthy to comply with the admissibility criterion in question (see Orić v. Croatia, (dec.), no. 50203/12, § 38, 13 May 2014).

67. However, the Court considers that in some cases information purportedly casting new light on the circumstances of a killing may come into the public domain at a later stage. The issue then arises as to whether, and in what form, the procedural obligation to investigate is revived. To that end, the Court considered in its judgment in the case of Brecknell v. the United Kingdom (no. 32457/04, § 71, 27 November 2007) that, where there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further measures. Such an investigation may in some cases reasonably be restricted to verifying the credibility of the source, or of the purported new evidence. The steps which it would be reasonable to take will vary considerably according to the facts of the situation. The lapse of time will, inevitably, be an obstacle as regards, for example, the location of witnesses and the ability of witnesses to recall events reliably (for a recent application of this principle, see Cerf v. Turkey, no. 12938/07, §§ 65-67, 3 May 2016). New developments, occurring after a lull of several years, and which amount to no more than a mere formality, or do not produce any noticeable developments in the investigation, will not be accepted as providing a new starting point for the purposes of calculating the six-month time-limit (see Finozhenok v. Russia (dec.), no. 3025/06, 31 May 2011; Nasirkhayeva v. Russia (dec.), no. 1721/07, 31 May 2011; Dzhamaldayev v. Russia (dec.), no. 39768/06, § 35, 22 January 2013; and Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, § 47).”

66.  In the aforementioned case the Court found that the complaint relating to the murders committed in 2000 in relation to which there had been no significant investigative steps taken until 2007 was time-barred in relation to the events which preceded 2007, in the absence of information as regards the applicants’ contact with the authorities during that period (see Khadzhimuradov and Others, cited above, §§ 73-74 and 77). On the other hand, the Court declared admissible the part of application relating to the period after 2007 on the basis that those significant developments appeared to have revived the authorities’ obligations to investigate those murders and, justifiably, the applicants’ hopes for an effective outcome to the domestic criminal investigation. The Court attached particular importance to the applicants’ genuine efforts to cooperate with the authorities, to acquaint themselves with the investigation and influence its progress in the period after 2007 (ibid., § 76).

67.  In the present case, the Court notes that over eleven years passed between the airstrike on Elistanzhi in 1999 and the lodging of the complaints with the Court in 2011. In line with the above-cited case-law, such a long period in itself is bound to raise questions of compliance with the six-month time-limit. The Court will also need to examine whether, in the meantime, the applicants maintained meaningful, even if sporadic, contact with the investigation, which could indicate that they had reasonable faith in the effectiveness of the domestic remedies and thus explain the delay in the submission of their complaints.

68.  There is no evidence that any of the applicants, except Ms Tasuyeva, maintained any contact with the investigating authorities, however sporadic, nor is there any other indication of their attempts to acquaint themselves with the state of the proceedings or challenge their progress. It is clear that Mr B. represented only Ms Tasuyeva before the investigating authorities, and there is nothing in the parties’ submissions to suggest that he had acted on behalf of any other applicants. In response to a specific question about compliance with the six-month time-limit, no information has been submitted by those applicants about their involvement with the investigation. Like in Khadzhimuradov and Others (cited above, § 72), the Court does not consider the granting of victim status, or the formal notices received by some of the applicants about the closure and the resumption of the investigation sufficient to demonstrate that the applicants, for their part, engaged in the correspondence. It does not appear that these seventy-five applicants ever attempted to clarify the state of the proceedings or influence their progress, either before or after lodging their application with the Court.

69.  The Court further notes that this case must be distinguished from the exceptional situation examined in Abuyeva and Others (cited above, §§ 179‑81) where the applicants pursued a joint action through their membership of a victims’ organisation and thus formed a “restricted group”. On that basis the Court considered that all applicants had complied with the six-month time-limit in respect of their complaint under the procedural limb of Article 2. No such organised structure or joint action may be observed in the present case.

70.  The Court concludes that no applicant other than Ms Tasuyeva has maintained meaningful contact with the investigation either through an individual or a collective action. Accordingly, they cannot claim that they had reasonable faith in the effectiveness of the domestic remedies that could explain the delay in the submission of their complaints. They should have drawn appropriate conclusion concerning the ineffectiveness of the investigation long before the lodging of their application with the Court. In the absence of any explanation on their part, the Court considers that these applicants failed to demonstrate the requisite diligence and to comply with the six‑month time-limit set out in Article 35 § 1 of the Convention.

71.  The Court therefore allows the Government’s objection as to the admissibility of the complaints under Article 2 of the Convention on the basis of the expiry of the six-month time-limit in relation to these seventy‑five applicants, and declares this part of application inadmissible.

72.  As regards Ms Tasuyeva, the Court observes that the investigation into the murder of Ramazan Appazov was opened in December 2000. However, no investigative steps followed and the case file went missing. Until 2006 she did not make any enquiries about the course of the investigation into his death. Only in November 2006 did her lawyer begin correspondence with the Vedeno district prosecutor’s office, which led to the restoration of the lost case file in September 2007. Like the other applicants, Ms Tasuyeva did not reply to the specific question about her compliance with the six-month time-limit, and no information has been submitted about her involvement with the investigation in the first six years after the institution of criminal proceedings.

73.  The Court observes, on the other hand, that in September 2007, the investigation file was restored and transferred to another investigating authority, which requested information from the military bodies concerning the operation in Elistanzhi carried out in 1999. This constituted a significant development in Ms Tasuyeva’s case, and it can be said that at that stage she could have believed that the authorities’ intended to conduct an effective investigation of Mr Appazov’s death. In the next three years before the lodging of this application the investigation was suspended and resumed several times, and Ms Tasuyeva’s lawyer wrote to the investigating authorities on multiple occasions to follow its course and to challenge the suspensions. The resumption of the proceedings was at least on some occasions due to his complaints. The Court therefore finds that Ms Tasuyeva’s involvement with the investigation in this later period constituted genuine efforts to cooperate with the authorities, and to acquaint herself with and influence the progress of the investigation (see Khadzhimuradov and Others, cited above, § 76) .

74.  For these reasons, the Court upholds the Government’s objection as to the admissibility of the complaints under Article 2 of the Convention on the basis of the expiry of the six-month time-limit in relation to Ms Tasuyeva in respect of the events that preceded September 2007, and dismisses the same objection in relation to Ms Tasuyeva in so far as it concerns the effectiveness of the investigation carried out after September 2007.Conclusion on admissibility

75.  The complaints of all applicants, except Ms Tasuyeva, were lodged out of time. They must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

76.  Ms Tasuyeva’s complaints concerning the substantive aspect of Article 2 of the Convention and the failure to investigate prior to September 2007 were also lodged out of time. They must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

77.  Ms Tasuyeva has complied with the six-month time-limit in lodging her complaint concerning the effectiveness of the investigation after September 2007. 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.Merits

78.  The applicant Ms Tasuyeva argued that the investigation into her relative’s death had been ineffective, and that the people responsible for it had not been identified and brought to justice.

79.  The Government submitted no observations on the merits. They informed the Court that criminal case file no. 36039 was classified as confidential (see paragraph 50 above), and therefore it was impossible to provide the Court with the list of the main investigative steps.

80.  The Court has stated on many occasions that Article 2 of the Convention contains a positive obligation of a procedural character: it requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by the authorities (see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324). The relevant principles applicable to the effective investigation have been summarised by the Court on many occasions (for a recent authoritative summary, see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §§ 229-39, ECHR 2016).

81.  In the present case the Court found inadmissible the complaints relating to the failure to conduct an effective investigation in the period before September 2007 (see paragraph 76 above). For the purposes of examining the admissible complaint it observes that prior to the restoration of the case file in 2007 the investigation had not actually started despite the institution of criminal proceedings. The Court notes that after the restoration of the case file in September 2007 the investigating authorities asked various military bodies to provide them with information concerning the air‑force operations in Elistanzhi on 7 October 1999, but their request was not answered (see paragraph 15 above). The freshly opened investigation was suspended (see paragraph 17 above), and in the three following years it was repeatedly resumed and suspended without any substantive progress being made. In that period several witnesses and victims were questioned (see paragraph 21 above), but no other steps identified by the authorities as necessary were taken. Every time the investigation was resumed, the decisions listed the actions to be carried out, such as establishing the full list of killed and injured persons, joining the medical certificates stating the causes of death and injuries to the case file, establishing which military units had participated in the aerial attack, examining the crime scene, obtaining forensic reports and collecting the unexploded projectiles from the attack left lying in specified locations (see paragraphs 23, 25, 27, 31 and 34 above). However, these actions were not carried out despite the repeated instructions of the investigator’s hierarchical supervisors to do so (see paragraph 35 above). Seemingly, the list of killed and injured people has still not been drawn up in the criminal case. After the unsuccessful enquiries in 2007 the investigators took no steps to identify the army and air force units involved in the operation, or to question their commanders.

82.  Consequently, the circumstances of the aerial attack remained unestablished, and no effort was made to identify those responsible for the deaths and injuries caused by it. There appears to be no explanation for their persistent failure to carry out even the most basic steps to comply with the instructions of their own supervising body and the court. The Government did not inform the Court of any steps taken after 2014 when the criminal case file became confidential and submitted no material that would enable the Court to note any positive developments in the situation.

83.  Furthermore, in relation to the need to ensure public scrutiny of the investigation, the Court notes that it does not appear that any substantive information about the proceedings was communicated to the applicant, who was only notified about the suspensions and resumptions of the investigation without any details of the progress made or difficulties incurred. The Government did not provide any explanation in respect of this deficiency either before or after the case file was classified as confidential. The Court considers that this failure constituted a particularly grave breach of the requirement to effectively investigate the use of lethal force by State agents (see, for similar reasoning, Abuyeva and Others, cited above, § 214).

84.  Overall, the Court cannot but conclude that the inadequacy of the investigation into the deaths of the applicants’ family member was not the result of objective difficulties that can be attributed to the passage of time or the loss of evidence, but rather the result of the investigating authorities’ unwillingness to establish the truth and punish those responsible (see Benzer and Others v. Turkey, no. 23502/06, § 187, 12 November 2013, and Abakarova, cited above, § 98).

85.  There has accordingly been a violation of the procedural aspect of Article 2 of the Convention in relation to the death of Ms Tasuyeva’s relative, in respect of the proceedings occurring after September 2007.ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

86.  The applicants submitted that they had had no effective remedies in respect of the violations 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.”

87.  The Court refers to its finding above in relation to the applicants’ complaints under Article 2 that they failed to comply with the six-month rule, except for Ms Tasuyeva in relation to the period after September 2007 (see paragraphs 74-77 above). Their complaints under Article 13 were also lodged out of time. They must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

88.  The Court observes that the complaint made by Ms Tasuyeva under Article 13 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 85 above), the Court considers that, whilst the complaint under Article 13 taken in conjunction with Article 2 is admissible in relation to the period after September 2007, 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 Nakayev v. Russia, no. 29846/05, § 90, 21 June 2011).APPLICATION OF ARTICLE 41 OF THE CONVENTION

89.  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

90.  Ms Tasuyeva’s legal heir Isa Tasuyev requested that the Court make an award in respect of non-pecuniary damage, which it considers appropriate in the light of its case-law, and taking account of the serious consequences of the aerial attack, notably Mr Tasuyeva’s injuries and the loss of a family member.

91.  The Government submitted that Ms Tasuyeva’s successor should not be awarded just satisfaction in respect of pecuniary and non-pecuniary damage as the rights under Articles 2 and 13 were non-transferable.

92.  The Court notes that the information submitted in support of the claim relates to the injuries of Ms Tasuyeva and the deaths of her and Mr Tasuyev’s family member. This part of application has been declared inadmissible. This information is therefore irrelevant to the violation of Article 2 found in the present case, which concerns the lack of an effective investigation after September 2007. Accordingly, the Court finds it appropriate to award EUR 15,000 in respect of non‑pecuniary damage on account of the failures of the investigation to elucidate the circumstances of the crimes committed against Ms Tasuyeva and Mr Appazov. The award should be paid to the applicant’s heir, Mr Isa Tasuyev.Costs and expenses

93.  The applicants did not make any claims under this head. Accordingly, no award is called for.Default interest

94.  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,Holds that the legal heirs of seven deceased applicants have standing to continue the proceedings in those applicants’ stead;Declares the complaints of Ms Anisat Tasuyeva concerning the effectiveness of the investigation after September 2007 admissible, and the remaining parts of the application inadmissible;Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation after September 2007;Holds that there is no need to examine the complaint under Article 13 of the Convention;Holds

(a)  that the respondent State is to pay the applicant’s heir Mr Isa Tasuyev, within three months, EUR 15,000 (fifteen thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, 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 16 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Alena Poláčková
Deputy RegistrarPresident

APPENDIX

No.

Applicant’s Name

Birth year

Legal successor

Award made in civil proceedings

Victim status in criminal case granted

1

Ms Zarema ABAZOVA

1976

Yes

Yes

2

Ms Petimat AKHAZAYEVA

1972

3

Ms Umulkusum AKHAZAYEVA

1968

4

Ms Laura AKHMATKHANOVA

1986

5

Mr Khaseyn APPAZOV

1982

6

Mr Khuseyn APPAZOV

1982

7

Mr Rukman APPAZOV

1974

8

Ms Rumi APPAZOVA

1979

9

Mr Ali ARTSUYEV

1957

10

Mr Saykhan ARTSUYEV

1991

11

Mr Sheykh-Mansur ARTSUYEV

1999

12

Ms Luiza ARTSUYEVA

1992

13

Ms Raisa ARTSUYEVA

1969

Yes

Yes

14

Ms Razita ARTSUYEVA

1995

15

Ms Zura BADAYEVA

1966

16

Ms Milana BASHIROVA

1987

17

Ms Layla CHUMAKOVA

1948

18

Ms Zarema CHUMAKOVA

1971

Yes

19

Ms Aleta DAULETMURZAYEVA

1967

Applicant died on 25/05/2012

Legal successors:

Akhmed KHAMZATOV, 1966, husband;

Amnat KHAMZATOVA, 1997, daughter

20

Mr Islam DAVLETMURZAYEV

1994

21

Ms Zulay DAVLETMURZAYEVA

1947

Yes

Yes

22

Ms Zulpa DAVLETMURZAYEVA

1972

Yes

23

Mr Said-Magomed DUDAYEV

1937

Applicant died on 13/06/2016

Legal successor:

Azamat DUDAYEV, 1965, son

24

Ms Zura DUDAYEVA

1947

Yes

Yes

25

Ms Layla ELIKHANOVA

1966

26

Mr Akroman ETIYEV

1985

Yes

Yes

27

Ms Diana ETIYEVA

1983

Yes

Yes

28

Mr Bislan GABAYEV

1994

29

Mr Islam GABAYEV

1989

30

Mr Rasul GABAYEV

1980

31

Ms Marina GABAYEVA

1982

Yes

Yes

32

Mr Sharip GASTIYEV

1978

Yes

Yes

33

Mr Sirazhdin GASTIYEV

1970

34

Ms Khazan GATSAYEVA

1939

Applicant died on 01/11/2011

Legal successor:

Umarpasha GATSAYEV, 1934, brother

35

Ms Aminat GAZIYEVA

1965

Yes

Yes

36

Mr Magomed GEKHAYEV

1929

Yes

Yes

37

Mr Vakha GEKHAYEV

1973

Applicant died on 19/12/2011

Legal successors:

Yesita DUDAYEVA, 1969, wife;

Amadi GEKHAYEV, 1970, brother

38

Ms Roza GEKHAYEVA

1962

Yes

Yes

39

Ms Albina INDARBAYEVA

1998

40

Mr Tamirkhan INDERBAYEV

1993

41

Ms Atov INDERBAYEVA

1960

42

Mr Akhmed KHAMZATOV

1966

Yes

Yes

43

Mr Akhmad MEZHIDOV

1998

44

Mr Lomali MEZHIDOV

1967

Yes

Yes

45

Mr Mayrbek MEZHIDOV

1995

Yes

Yes

46

Mr Mukharbek MEZHIDOV

1989

Yes

Yes

47

Ms Irsana MEZHIDOVA

1996

Yes

Yes

48

Mr Khizir MUKHMADOV

1995

49

Mr Movladi MUKHMADOV

1964

50

Ms Tamara MUKHMADOVA

1940

51

Mr Aslan NADAYEV

1977

Yes

Yes

52

Mr Nurali NADAYEV

1986

Yes

Yes

53

Mr Ruslan NADAYEV

1991

Yes

Yes

54

Mr Turpal-Ali NADAYEV

1979

Yes

Yes

55

Mr Umar-Ali NADAYEV

1980

56

Mr Visadi NADAYEV

1952

57

Ms Sapet NADAYEVA

1953

Yes

Yes

58

Mr Ueys NANAGAYEV

1930

59

Ms Ramazi NANAGAYEVA

1968

60

Mr Lema OSUPOV

1973

Yes

Yes

61

Mr Baysangur PETIROV

1998

62

Ms Khamsar PETIROVA

1986

Yes

Yes

63

Ms Tamusa PETIROVA

1958

Yes

64

Mr Khavazh-Bauddi SAITOV

1980

65

Mr Soltakhan SHUYEV

1946

Yes

Yes

66

Ms Elina SHUYEVA

1990

67

Ms Natasha SHUYEVA

1946

Yes

Yes

68

Ms Anisat TASUYEVA

1952

Applicant died on 29/12/2016

Legal successor:

Isa TASUYEV, 1979, son

Yes

69

Ms Roza VISARIGOVA

1966

Yes

Yes

70

Mr Shiti YANGULBAYEV

1962

71

Ms Madina YANGULBAYEVA

1984

72

Ms Maryan YANGULBAYEVA

1975

Applicant died on 20/01/2016

Legal successor:

Yakha YANGULBAYEVA, 1950, mother

73

Ms Zarvani YANGULBAYEVA

1959

74

Mr Minkail YUNAYEV

1986

Yes

Yes

75

Mr Turpal-Ali YUNAYEV

1988

Applicant died on 11/09/2013

Legal successor:

Yakub YUNAYEV, 1988, brother

76

Ms Zalpa YUNAYEVA

1960

Yes

Yes

 

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