CASE OF UZHAKHOV AND ALBAGACHIYEVA v. RUSSIA

THIRD SECTION

CASE OF UZHAKHOV AND ALBAGACHIYEVA v. RUSSIA

(Application no. 76635/11)

JUDGMENT

STRASBOURG

23 June 2020

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

In the case of Uzhakhov and Albagachiyeva 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 2 June 2020,

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

PROCEDURE

1.  The case originated in an application (no. 76635/11) 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 two Russian nationals, Mr Tagir Uzhakhov and Ms Zalina Albagachiyeva (“the applicants”), on 26 October 2011.

2.  The applicants were represented by lawyers of Memorial Human Rights Centre in Moscow. 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 27 June 2017 notice of the application was given to the Government.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

4.  The first applicant, who was born in 1957, resides in the town of Karabulak, Ingushetia, and the second applicant, who was born in 1976, in Troitskaya, Ingushetia. They are the brother and wife of Mr Khamzat Uzhakhov, who was born in 1978.

5.  The circumstances of the case can be summarised as follows.Events of 25-26 November 2009The applicants’ submission

(a)   Search of the second applicant’s house

6.  At the material time Mr Khamzat Uzhakhov, the second applicant and their three minor children resided in the settlement of Troitskaya (also known as Troitskoye or Troitskiy), in the Sunzhenskiy district in Ingushetia. Khamzat Uzhakhov was working as a taxi driver in the nearby town of Karabulak. The two settlements were about nine kilometres apart.

7.  On 25 November 2009 the second applicant and her children were at home and Khamzat Uzhakhov was at work.

8.  At about 4 p.m. on that day an armoured personnel carrier (“APC”) broke down the gates of the second applicant’s house in Troitskaya and drove into the courtyard. The second applicant ran outside and saw that her house was surrounded by about twenty service personnel in camouflage uniforms with machine guns, snipers, several APCs, armoured UAZ-type vehicles and several GAZelle-type minivans. The street was cordoned off.

9.  The officer in charge of the group of service personnel ordered the second applicant to bring out the other residents of the house and present their passports. When the second applicant went inside to get the documents, a group of about ten service personnel broke in and started searching the premises.

10.  Without showing any documents authorising the search, the service personnel turned everything upside down. Then they tied the second applicant with a rope and lowered her into the basement with a video camera with orders to film everything in there. After that they pulled the applicant out and threw a grenade into the basement.

11.  After that the applicant and her children were taken outside. As it was cold, they went to wait inside a neighbours’ house. The service personnel continued the search.

12.  Meanwhile, the first applicant had learnt of the search of his brother’s house and went there. The house was surrounded by the service personnel; he was not allowed to enter the premises and had to wait for the end of the search together with the second applicant and her children at the neighbours’ house.

13.  According to the applicants, the search lasted for about an hour. The service personnel who conducted it took a number of belongings of the second applicant’s family, including two Korans, a DVD-player, a vacuum cleaner, binoculars, a notebook computer, a new mobile phone, a digital camera, a thermos, a tablecloth, the licence plate of the family’s Volvo car, three gold rings and 1,500 Russian roubles (RUB) in cash. In addition, a number of items of property were damaged or ruined, including the courtyard gates, the entrance door, ten roof slates, a sheepskin coat, a suitcase with a combination lock, eight house windows and the panels of the family’s Volvo car, which was parked in the courtyard. The explosion in the basement damaged the structure and blew up the potatoes stored inside.

14.  After the service personnel left the house, the applicants waited for Khamzat Uzhakhov to return home.

(b)   Death of Mr Khamzat Uzhakhov

15.  In the morning on 26 November 2009 the applicants started searching for Khamzat Uzhakhov and learnt that at about 3 p.m. on 25 November 2009 the Federal Security Service (“the FSB”) had conducted a special operation in Karabulak and killed a member of an illegal armed group, Mr T. A taxi driver who had picked him up had been killed as well. From the documents submitted to the Court, it is apparent that the special operation had been carried out by officers from the Ingushetia FSB and the special police unit of the Counter Terrorism Centre of the Ingushetia Ministry of the Interior (“the CTC”).

16.  The first applicant called his acquaintances who lived in the vicinity of the area where the special operation had been conducted and learnt that the bodies of two men killed during the special operation had been taken to a morgue in Nazran, Ingushetia.

17.  On 25 November 2009 a federal news website RIA Novosti (РИА Новости) published the news concerning the elimination by the authorities in Ingushetia of members of an illegal armed group, including the applicants’ relative Khamzat Uzhakhov.

18.  At about 11 a.m. on 26 November 2009 the first applicant went to the morgue and identified his brother’s body. On the same date, the body was released to the relatives and buried.

19.  On 26 or 27 November 2009 the first applicant went to the local police and the prosecutor’s office requesting that a criminal investigation be opened into the circumstances of Khamzat Uzhakhov’s killing and the search of the second applicant’s house. According to the applicants, the authorities refused to register his complaints as Khamzat Uzhakhov had been eliminated as a member of an illegal armed group during a special operation.

20.  From the documents submitted it appears that on 8 December 2009 the neighbourhood police officer, Mr Kh., issued Khamzat Uzhakhov’s character reference, which was the only document containing information concerning his possible involvement with illegal armed groups. The document stated that the applicant’s relative had “leanings towards the extremist Wahhabi movement”, but he had never been arrested or detained by the police.The Government’s submission

21.  According to the Government’s submission of 15 November 2017, the factual circumstances of the case concerning the killing of Mr Uzhakhov can be summarised as follows: at the material time, the applicants’ relative Mr Uzhakhov and his accomplice Mr T. were under police surveillance for the following reasons:

“[They] were planning to carry out subversive activities in respect of counter‑terrorism officers ..., the police officers attempted to identify those in the car. As soon as its location was established, the police officers blocked its path. At that time the passengers in the chased car started shooting at the officers, who, on their part, started shooting back since their lives were threatened by such actions. After the shooting stopped, the two people were recognised as [Mr T.] and Mr Uzhakhov, who had an AK machinegun, a pistol and three homemade explosive devices”.

22.  According to the Government, no search of the second applicant’s home took place. The submission stated in general terms, without referring to the dates or to the identities of the persons interviewed, as follows:

“... [D]uring the investigation into the allegations of an unlawful search, [service personnel] of the Federal Security Service and a military unit were interviewed on account of the alleged search of the applicants’ house. None of them replied in the positive to the question on whether such activity had been carried out by them”.InvestigationThe applicants’ attempts to have an investigation initiated

23.  On 1 December 2009 and then on 13 January 2010, with the assistance of local human-rights organisations, the first applicant complained to the Prosecutor General of the Russian Federation and the Ingushetia prosecutor of his brother’s killing and requested that a criminal case be opened into the incident and the search of Khamzat Uzhakhov’s house. The applicant stated, in particular, that his brother had worked as a taxi driver and that he had not been involved in any criminal activity; he had been killed during the special operation only because he had just happened to take Mr T., who had been wanted by the authorities, as a passenger. The applicant provided a description of the search conducted on 25 November 2009 of Khamzat Uzhakhov’s house and listed the items stolen or damaged by the officers. As for the second applicant’s treatment by the officers during the search, the applicant stated as follows:

“ ... having tied his wife [the second applicant] around the waist with a rope, the service personnel made her go down into the new, recently constructed, basement, threatening and yelling: ‘bring out everyone you’re hiding there!’ Having found no one, they blew it up by throwing a grenade in ...”

24.  From the documents submitted it is apparent that on an unspecified date prior to 6 April 2010 the first applicant lodged a detailed complaint concerning his brother’s killing by the FSB officers, the unlawful search of the second applicant’s property, its destruction and theft, and her ill‑treatment by the officers who had carried out the search, with military investigators of military unit no. 68799.

25.  The applicants’ subsequent attempts to have a criminal investigation initiated into the death of Khamzat Uzhakhov, the second applicant’s ill‑treatment on 25 November 2009, the unlawful search of her home and destruction and theft of property are described below.Steps taken by the investigators from the Karabulak investigating department

(a)   First refusal to open a criminal case into the circumstances of the shooting

26.  At about 4 p.m. on 25 November 2009 the Karabulak investigating department of the Investigative Committee (“the Karabulak investigating department”) examined the scene of the shooting. Their report, amongst other things, stated that the car of Khamzat Uzhakhov had bullet holes from incoming fire in the back and outgoing fire at the front. A number of pieces of firearms and ammunition were found at the crime scene. From the documents submitted it appears that neither Khamzat Uzhakhov’s nor Mr T.’s fingerprints were subsequently found on that evidence. The documents submitted also show that none of the officers who had participated in the alleged exchange of fire sustained any injuries; their vehicles, belongings or equipment were also not damaged. No other evidence of bullets or gunfire was found in the vicinity of the alleged skirmish.

27.  On 25 November 2009, following an order by the Karabulak investigating department, the Ingushetia Forensics Bureau examined the bodies of Khamzat Uzhakhov and Mr T. According to their report, both bodies had multiple bullet wounds.

28.  On 5 December 2009 the Karabulak investigating department refused to initiate a criminal investigation into the circumstances of the shooting owing to the death of the suspects.

29.  On 22 December 2009 the superiors of the Karabulak investigating department overruled the refusal of 5 December 2009 as unlawful and ordered that a number of further steps be taken within new pre-investigation inquiry, including interviewing the second applicant and other members of Khamzat Uzhakhov’s family.

30.  On 28 December 2009 the Karabulak investigating department interviewed CTC Officer V.S., who stated that in November 2009 for several days he and his colleagues from the CTC had carried out surveillance of Mr T., who had been suspected of preparing terrorist attacks. On 25 November 2009 the officer and his colleagues had found out that the car they had been following had arrived in Karabulak. Then, he, his colleagues from the CTC and officers from the Ingushetia FSB had arrived in the town following the car. On Dzhabagiyeva Street, he and the other officers had tried to stop the suspects’ car by blocking its passage from the front. The suspects had opened fire; the officers had got out of their cars and returned fire. After the shooting had ended, the officers had found the body of Mr Uzhakhov in the driver’s seat with a pistol in his hands, and the body of Mr T. in the passenger seat with a machinegun and three explosive devices around his waist.

(b)   Second refusal to open a criminal case into the circumstances of the shooting

31.  On 11 January 2010 (in the documents submitted the date was also referred to as 10 January 2010) the Karabulak investigating department again refused to open a criminal case into the circumstances of the shooting for the death of the suspects. The document referred to undated statements of four local residents who had not observed the actual incident but had arrived at the scene afterwards. The document also referred to the statements of four FSB officers, Mr S.K., Mr Ya.Sh., Mr V.S. and Mr Kh.A., all of whom had participated in the skirmish. All of them gave very similar statements saying that a few days prior to the events, they and their colleagues had received information about the suspects’ car driving around in Karabulak. On 25 October 2009 they had arrived in the town to continue following the suspects; at about 3 p.m. on that date the suspects had spotted the surveillance and had opened fire on them. As a result of the return of fire, both suspects had been killed; a number of items, including three explosive devices, an AK machine gun and a Makarov pistol had been found in their car.

32.  On 11 January 2010 the Karabulak investigating department sent the pre‑investigation-inquiry case file to the supervising prosecutor for determination of jurisdiction.

(c)   Third refusal to open a criminal case into the circumstances of the shooting

33.  On 7 December 2010 the Karabulak investigating department again refused to open a criminal case into the armed resistance of Khamzat Uzhakhov and Mr T. to the officers of the Ingushetia Federal Security Service owing to the death of the suspects. The text of the refusal was a verbatim copy of that of 11 January 2010.

34.  On 20 September 2017 (in the documents submitted the date was also referred to as 21 September 2017) the superiors of the Karabulak investigating department overruled the refusal to initiate a criminal investigation of 7 December 2010 (see paragraph 33 above) as unsubstantiated and ordered that an additional pre-investigation inquiry be carried out. The document stated, amongst other things, the following:

“... [T]he documents of the file show that the decision to refuse [to open a criminal case] was taken prematurely, without having taken all of the necessary steps and therefore it should be overruled for the following reasons:

- the pre-investigation inquiry failed to verify the allegations concerning the commission of the [unlawful] search by the members of the police force, as the investigators failed to request the information on the possible conduct of the search at the [second applicant’s] address in Troitskaya from the Ministry of the Interior in Ingushetia;

- the information concerning deployment of military vehicles, such as the APCs and GAZelle and UAZ military vehicles belonging to the Ministry of the Interior was not requested either;

- the registers of the deployment of combat vehicles of the Ministry of the Interior in Ingushetia were not examined;

- the drivers of combat vehicles of law-enforcement agencies stationed in Ingushetia were neither identified nor interviewed;

- the neighbourhood police officer responsible for the neighbourhood [at the second applicant’s address] was not interviewed;

- the residents of the neighbouring houses located in the vicinity [of the second applicant’s house] were not interviewed ...”Steps taken by the investigators from the Sunzhenskiy investigating department

35.  From the documents submitted it is apparent that on 1 December 2009, in addition to lodging the complaints with the Prosecutor General and the Ingushetia prosecutor (see paragraph 23 above), the first applicant also complained the same complaint with the Sunzhenskiy district prosecutor’s office.

36.  On 11 December 2009 (in the documents submitted the date was also referred to as 18 December 2009) the Ingushetia prosecutor forwarded the first applicant’s complaint to the Sunzhenskiy district investigating department (“the Sunzhenskiy investigating department”) for examination (see paragraph 23 above).

37.  On 20 January 2010 the Sunzhenskiy district prosecutor’s office forwarded the complaint of 1 December 2009 (see paragraph 35 above) to the Sunzhenskiy investigating department and then, on 27 January 2010, to the investigations department of military unit no. 68799 (“the military investigators”) for examination.

38.  On 28 June 2011, the Sunzhenskiy investigating department refused to initiate a criminal investigation into the killing of Khamzat Uzhakhov and the unlawful search of the second applicant’s house for lack of evidence that a crime had been committed. The refusal was based only on the information collected by the military investigators within their pre-investigation inquiry and repeated almost verbatim their refusals of 9 November 2010 and 21 June 2011 (see paragraphs 75 and 58 below). It appears that the applicants were not informed thereof.

39.  On 21 September 2017 the interim Sunzhenskiy district prosecutor issued a request concerning the elimination of procedural violations which had occurred within pre-investigation inquiry in case file no. 27ck-10 (требование об устранении нарушений федерального законодательства допущенных в ходе доследственной проверки по материалу №27ск-10). The document stated, amongst other things, the following:

“... [T]he examination of the case-file material shows that it is necessary that the following steps be taken:

1) addditional examination of the crime scene [at the second applicant’s house], including the basement where, according to the applicant, a grenade was thrown;

2) interviewing of the neighbours of the applicant concerning the events of 25 November 2009;

3) establishing the amount of damage caused to the wife of Khamzat Uzhakhov [the second applicant];

4) identifying and interviewing the law-enforcement officers who had participated in the arrest of Khamzat Uzhakhov ... concerning their involvement in the search [of the second applicant’s house];

5) severing the material concerning the verification of the applicant’s allegations of unjustified and unlawful use of firearms by the Ingushetia FSB officers during Khamzat Uzhakhov’s arrest ... and forwarding it to military unit no. 68799;

6) taking a decision concerning the opening of a criminal case under paragraph 3 of Article 162 of the Criminal Code (breaking and entering and burglary carried out by a group of persons) ...”Steps taken by the military investigators

40.  On 23 March 2010 the military investigators examined the crime scene at the second applicant’s house and established that part of the courtyard gates as well as a few items of furniture in the house had been damaged.

41.  On 8 April 2010 the military investigators requested that the Ingushetia FSB provide information on the search of the second applicant’s house on 25 November 2009 and the destruction and theft of the property. On 5 May 2010 the Ingushetia FSB replied, stating that at Khamzat Uzhakhov’s address in Troitskaya “on 25 November 2009 no search activities [had been] carried out, [and] the items and valuables listed in the request [had not] been seized”.

(a)   First refusal of the military investigators to initiate a criminal investigation

42.  On 18 May 2010 the military investigators interviewed Ingushetia FSB officer Mr P.Ch. He stated that he did not know who had carried out the unlawful search of the second applicant’s house on 25 November 2009 and that to his knowledge on that date the Ingushetia FSB had not carried out any special operations in Kurortnaya Street in Troitskaya. He further submitted that to his knowledge, on 25 November 2009, officers of the Ingushetia FSB had carried out a special operation in Karabulak to detain Mr T. and that the latter and Mr Uzhakhov had resisted the FSB officers with gunfire. Both men had been killed by the officers’ return of fire. The examination of their car after the incident established that both men had had firearms and ammunition on them.

43.  On 26 May 2010 the military investigators refused to initiate a criminal investigation into Khamzat Uzhakhov’s killing and the search of his and the second applicant’s house for lack of corpus delicti. The decision stated that according to an information statement from the Ingushetia FSB, they had not carried out any special operations, including a search of the second applicant’s house, on 25 November 2009. The decision further referred to statement of the FSB officer, Mr P.Ch. (see the paragraph above) and the statements of two CTC police officers, Mr V.S. and Mr Kh.A., both of whom stated that Khamzat Uzhakhov had been killed during an exchange of fire. In particular, both officers stated that on 25 November 2009 they had tried to stop a silver VAZ-2109 model car without registration numbers when shots had been fired at them from the vehicle. As a result of returning fire, Mr T., who had been wanted as an active member of an illegal armed group, had been killed, along with Khamzat Uzhakhov, who had been actively aiding illegal armed groups.

44.  On 26 May 2010 in view of the above refusal, the military investigators transferred the pre-investigation inquiry into the applicants’ allegations of the unlawful search and the destruction and theft of property to their civilian counterparts, the Sunzhenskiy investigating department (see paragraph 38 above). According to the decision, the transfer was “necessary to conduct a [pre-investigation] inquiry and take a decision in respect of unidentified law-enforcement agents who had conducted the unlawful search of the home of Kh. Uzhakhov” (also see decision of 9 November 2010 below in paragraph 48 below). The applicants were not informed of that decision.

45.  On an unspecified date between June and August 2010 the first applicant appealed against the refusal to the Nalchik Military Garrison Court, requesting that it be set aside. He stated, in particular, the following:

“... on 25 November 2009 the FSB officers ... arrived at the family house of the deceased Khamzat Uzhakhov ... and undertook criminal actions against [his] wife and minor children and the family property. As a result, some of the property was destroyed, including by a grenade explosion, and some of it was stolen.

The fact that those crimes against Khamzat Uzhakhov, his family and property had been committed by the same FSB unit was established by the pre-investigation inquiry carried by the Sunzhenskiy investigative department. The involvement of the FSB officers in the intentional killing of the taxi driver Khamzat Uzhakhov has been also confirmed by the pre-investigation inquiry conducted by the investigators of military unit no. 68799...

In spite of the clear evidence confirming that the crimes against Khamzat Uzhakhov’s life and his family’s property were committed by FSB officers, the military investigator ... limited himself to questioning only the persons directly involved [in the incident] and did not question the eyewitnesses – the wife of Khamzat Uzhakhov, the other family members and the other witnesses to the events ...”

46.  In September 2010 the first applicant’s complaint was sent for examination to the Pyatigorsk Military Garrison Court.

47.  On 1 November 2010 the Pyatigorsk Military Garrison Court did not rule on the merits of the complaint, but stated that the complaint was unsubstantiated and terminated the proceedings as on 30 October 2010 the supervising prosecutors (the head of the investigations department of military unit no. 68799) had already overruled the impugned decision of 26 May 2010. The applicants were not informed of the decision of 30 October 2010.

(b)   Second refusal of the military investigators to initiate a criminal investigation

48.  On 9 November 2010 the military investigators again refused to initiate a criminal investigation against the FSB officers in connection with the killing of Khamzat Uzhakhov on the same grounds, that is to say lack of corpus delicti. The decision was very similar to that of 26 May 2010 and was based on the statements of the same law-enforcement officers. The applicants were not informed of that decision. As for the applicants’ allegations in respect of the unlawful search carried out in the second applicant’s house, the refusal stated as follows:

“... [F]rom the complaints lodged by [the first applicant] on 1 December 2009 and 13 January 2010 it appears that at about 4 p.m. on 25 November 2009 a group of about thirty armed service personnel in balaclavas from unidentified law-enforcement agencies broke into the home of Mr Kh. Uzhakhov. .... The men, without showing a search warrant, broke down the door of the house and started looking about. During the search, they stole from the house two Korans, a DVD-player, a vacuum cleaner, binoculars, a notebook computer, a new mobile phone, a digital camera, a thermos, a tablecloth, the licence plate of the family’s Volvo car, three gold rings and [RUB 1,500] in cash. Also, they destroyed ... the entrance gates, one door, [and] ten slates ... the explosion damaged the basement where potatoes were being kept ... eight windows were also broken ...

From the crime-scene-examination report of 23 March 2010 [in respect of the second applicant’s] home, it appears that ... the right part of the gates was damaged ... [I]n the bedroom... the bed and the wardrobe were damaged. No other damage was established ...

According to the information received from the Ingushetia FSB, on 25 November 2009 neither search operations were carried out [by them] nor were objects or valuables taken.

From explanations given by a serviceman of the Ingushetia FSB, P.Ch., they neither carried out any special operations [at the second applicant’s] address in Troitskaya, nor did he take part in such an operation ...

Therefore, it should be concluded that the unlawful search of the [second applicant’s] home ... the FSB service personnel did not carry out; from the crime‑scene-examination report of 23 March 2010, the damage as alleged by [the first applicant] in his complaint, did not transpire. ...”

49.  On 9 November 2010 the military investigators again (see paragraph 44 above) transferred the pre-investigation inquiry into the allegations concerning the unlawful search and the destruction and theft of property by “unidentified law-enforcement agents” to their civilian counterparts, the Sunzhenskiy investigating department. According to the military investigators “it [had been] established that the FSB officers [had] not [been] involved in the unlawful search”. The applicants were not informed of that decision.

50.  On 30 November 2010 the first applicant requested that the military investigators inform him on the progress of the investigation into his complaint of Khamzat Uzhakhov’s killing and of the unlawful search of the second applicant’s house. He requested that a criminal case be opened, that he be granted victim status and that he be provided with copies of relevant decisions. In particular, he stated that during the unlawful search, the second applicant and her minor children had been subjected to degrading treatment and that the law-enforcement officers had destroyed some of her property and stolen a number of valuables.

51.  On 25 December 2010 the applicants were informed of both procedural decisions of 9 November 2010 (see paragraphs 48 and 49 above).

52.  On 21 February 2011 (in the documents submitted the date was also referred to as 14 March 2011) the first applicant appealed to the Nalchik Military Garrison Court against the refusal of 9 November 2010 to initiate a criminal investigation against the FSB officers. He stated, in particular, that the military investigators had neither questioned any eyewitnesses to the incident, except for a few of the implicated officers, nor established the circumstances of the use of lethal force by them against Khamzat Uzhakhov. He also stated the following:

“On 25 November 2009 ... law-enforcement officers in various vehicles, including an APC without a registration plate, arrived at Kurortnaya Street, were the family of my executed brother resided, and took criminal actions against his wife and minor children, as well as their property. As a result, part of the family property was destroyed, including by a grenade explosion, and a part of it was stolen. The fact that all those crimes against Khamzat Uzhakhov, his family and property had been committed by the same unit of the Ingushetia FSB was established by the pre‑investigation inquiry carried out by the Sunzhenskiy investigating department...

The military investigator ... did not even find it necessary to interview the eyewitness – Khamzat’s wife, other family members and other witnesses to the events...”

53.  On 23 March 2011 the Nalchik Military Garrison Court did not rule on the merits of the complaint, but stated that the complaint was unsubstantiated and terminated the proceedings as on 15 March 2011 the supervising prosecutors (the head of the investigations department of military unit no. 68799) had already overruled the impugned decision of 9 November 2010.

54.  On 29 March 2011 the first applicant appealed against the above decision to the North Caucasus Military Circuit Court. He stated, in particular, that he had neither been informed of the decision of 15 March 2011 nor provided with a copy and that it had been taken by the military prosecutors just to prevent the examination of his appeals on the merits by the court. He emphasised that he had no copy of the decision of 15 March 2011 (see the paragraph above) and requested that it be send to his address. Then he reiterated his arguments concerning the unlawfulness of his brother’s killing, degrading treatment of the second applicant and the unlawfulness of the search as he had stated in the appeal of 21 February 2011 (see paragraph 52 above).

55.  On 28 April 2011 (in the documents submitted the date was also referred to as 29 April 2011) the Nalchik Military Garrison Court issued a decision stating that the first applicant’s appeal to the North Caucasus Military Circuit Court had been lodged outside of the prescribed time-limit and, therefore, should be left without examination. The court stated that even though the appeal was dated 29 March 2011, its envelope was postmarked 5 April 2011 (in the documents submitted the date was also referred to as 5 May 2011).

56.  On 12 May 2011 the first applicant appealed against this decision by way of supervisory review to the Presidium of the North Caucasus Military Circuit Court, stating that the Nalchik Military Garrison Court, when calculating the ten-day time-limit, had failed to take into account weekends. He also reiterated his arguments concerning the unlawfulness of his brother’s killing, degrading treatment of the second applicant and the unlawfulness of the search as he had stated in the appeal of 21 February 2011 (see paragraph 52 above).

57.  On 6 July 2011 the appeal was rejected by the Presidium of the North Caucasus Military Circuit Court. The court stated that the first applicant had been informed of the court decision of 23 March 2011 on 26 March 2011, but had lodged his appeal on 6 April 2011, whereas it should have been lodged within ten days of 23 March 2011, that is to say by 4 April 2011.

(c)   Third refusal of the military investigators to initiate a criminal investigation

58.  On 21 June 2011, the military investigators again refused to initiate a criminal investigation against the FSB officers on the same grounds, that is to say lack of corpus delicti. The refusal was a verbatim copy of the one issued on 9 November 2010. It is unclear whether the applicants were informed thereof.

59.  On 21 June 2011 the military investigators decided yet again (see paragraphs 44 and 49 above) to transfer the pre-investigation inquiry into the allegations of unlawful search, destruction and theft of property to their civilian counterparts at the Sunzhenskiy investigating department. The latter also refused to open a criminal case into the events on 28 June 2011, basing its decision on the conclusions of the military investigators of 9 November 2010 and 21 June 2011 (see paragraphs 48 and 58 above). From the documents submitted it appears that no criminal proceedings concerning Mr Uzhakhov’s killing have been initiated to date.RELEVANT DOMESTIC LAW

60.  For a summary of relevant domestic law see Dalakov v. Russia (no. 35152/09, §§ 51-53, 16 February 2016).

THE LAWALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

61.  The applicants complained under Article 2 of the Convention that State agents had killed their relative Mr Khamzat Uzhakhov and that no effective investigation had been carried out into the matter. The relevant provision 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.”AdmissibilityThe parties’ submissions

62.  The Government submitted that the complaint was inadmissible for the failure to exhaust domestic remedies. They stated that the applicants should have appealed to the domestic courts against those refusals to initiate a criminal investigation which had not been quashed by higher prosecutors. In particular, the applicants had failed to appeal against the decision of the Nalchik Military Garrison Court of 23 March 2011 (see paragraph 53 above).

63.  The applicants objected the Government’s non-exhaustion plea as, according to them, there was no evidence that the remedy referred to would have led to the initiation of a criminal investigation. They pointed out, that the decisions of 26 May and 9 November 2010 had been quashed by the prosecutors, but those decisions did not lead to opening of a criminal case, but then again to yet another refusal, that of 21 June 2011 (see paragraphs 43, 48 and 58 above). The applicants submitted that they were not required to appeal against the decision of the Nalchik Military Garrison Court of 23 March 2011 as they had obtained the desirable outcome – the impugned refusal of 9 November 2010 had been quashed (see paragraph 53 above). The applicants further stated that only a fully-fledged criminal investigation into the circumstances surrounding their relative’s death would have be an effective remedy in their case.The Court’s assessment

64.  The Court considers that the questions of whether the applicants exhausted domestic remedies in respect of this complaint are closely linked to the question of whether the domestic authorities carried out an effective investigation into their allegations. These issues relate to the merits of the applicants’ complaint under Article 2 of the Convention. The Court therefore decides to join them to the merits, which are to be examined below.

65.  The Court notes that the 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.MeritsThe parties’ submissions

(a)   The Government

66.  The Government could be understood as alleging the applicant’s failure to make a prima facie case, as the applicants had failed to substantiate their allegations under the substantive limb of Article 2 of the Convention with eyewitness statements.

67.  The Government submitted that “the use of force [had been] absolutely necessary ... [as] Mr Uzhakhov had posed a threat to the police officers and his surroundings as he had possessed a gun and had been shooting at the police”. They stated that the police operation against the applicants’ relative had not been planned; it had been spontaneous as the officers had had to take urgent steps to protect themselves on the spot and that the use of lethal force had been “strictly proportionate to the circumstances and indispensable to the purpose designed”.

68.  The Government further stated that “the investigation of an alleged violation of Mr Uzhakhov’s right to life [had been] in compliance with Article 2 of the Convention as [it had been] prompt and expeditious, independent, ... thorough and comprehensive ...”

(b)   The applicants

69.  The applicants stressed that the Government had not challenged the facts as submitted in their application form and that the Government’s submission contained a number of contradictions and inconsistencies. In particular, unlike his passenger Mr T., Mr Uzhakhov had never been suspected of illegal activities and the only piece of evidence to this end had been produced by only one police officer, who had given Mr Uzhakhov’s character reference on 8 December 2009, that is in two weeks after the incident (see paragraph 20 above). Mr Uzhakhov and Mr T. had been under police surveillance, but according to the authorities, the special operation against them had not been planned. There was no evidence that Mr Uzhakhov had used any firearms against the alleged pursuit, as neither the service personnel, nor their equipment, nor the vehicle had sustained any injuries or damage from the alleged shooting. The witness statements had contained significant inconsistencies on the key circumstances of the special operation, such as whether Mr Uzhakhov’s car had been chased by the agents when the suspects had allegedly opened fire or the police had blocked it and then the suspects had started shooting. Moreover, in the applicants’ submission, the authorities had failed to take basic steps to establish the true circumstances of the incident, such as carrying out a forensic examination of the bullets collected from the scene and explaining the failure to locate Khamzat Uzhakhov’s and Mr T.’s fingerprints on the firearms found in their car.The Court’s assessment

70.  A summary of relevant general principles can be found in Armani Da Silva v. the United Kingdom ([GC], no. 5878/08, §§ 229-39, 30 March 2016) and Dalakov v. Russia (no. 35152/09, §§ 61-65, 16 February 2016).

71.  It is common ground between the parties that the death of the applicants’ relative Mr Khamzat Uzhakhov resulted from the use of lethal force by State agents. The Court will firstly assess the adequacy of the investigation into his death and then the actions of the State agents who actually administered the force, as well the planning and control of those actions.

(a)   The State’s procedural obligation under Article 2 of the Convention

72.  From the documents submitted to the Court, it is apparent that no criminal investigation into the circumstances surrounding the death of the applicants’ relative was carried out, other than the pre-investigation inquiry by the Sunzhenskiy investigating department and the military investigators – in respect of the actions of the FSB officers against Khamzat Uzhakhov (see paragraphs 38, 43, 48 and 58 above) – and the pre-investigation inquiry by the Karabulak investigating department – in respect of the actions of Mr Uzhakhov against the FSB officers (see paragraphs 28, 31 and 33 above). Thus, the Court is bound to assess the circumstances based on the documents furnished as part of the case files of those pre-investigation inquires, all of which resulted in refusals to open a criminal case.

73.  The information collected by the investigators in each of the pre‑investigation inquires contained clear indications of the conflicting evidence and versions of the circumstances of Mr Khamzat Uzhakhov’s death (see, for example, paragraphs 26, 34, 39, 45, 48 and 52 above) and, therefore, should have prompted at least one of the investigating authorities to initiate a fully‑fledged criminal investigation into the matter. However, in spite of the evidence contained in those files and the applicants’ consistent complaints that the actual circumstances of Mr Uzhakhov’s killing had been in contradiction to the official version, the authorities not only limited themselves to taking a very few formal steps, but they failed to coordinate the material and information collected therein (see, for example, paragraphs 44 and 48 above) and refused to investigate the applicants’ allegations. The Court reiterates in this regard, that Article 2 of the Convention implies that there should be some form of effective and impartial investigation where deprivation of life occurs.

74.  As a result of that failure to clarify the matter, none of the local residents who could have witnessed the shooting and could have shed light on the circumstances of Mr Khamzat Uzhakhov’s death were questioned. Meanwhile, the implicated officers gave “an explanation”, which did not commit them in the same way as it would have in the context of criminal proceedings if such proceedings had been opened against them, and did not entail the necessary safeguards inherent in an effective criminal investigation, such as liability for perjury (see paragraph 60 above). The Court observes further that the first applicant consistently requested that the authorities take measures aiming at opening of a criminal case and grant him victim status in those proceedings (see paragraphs 23, 24, 45 and 50 above). However, his requests were to no avail. As noted above (see paragraph 60 above), the questioning of witnesses, confrontations and identification parades were among the investigative measures which at the time could be carried out in the course of a criminal investigation only once a criminal case had been opened.

75.  The Court reiterates that the “pre‑investigation inquiry” carried out at the material time (if it was not followed by a “pre-trial investigation”), especially in the view of conflicting or inconsistent versions of the events, as in the present case, was unable to elucidate the circumstances of the use of the lethal force against Khamzat Uzhakhov. It has already found that a pre-investigation inquiry alone was not capable of leading to punishment of those responsible when it comes to allegations concerning the use of lethal force or ill-treatment by State agents (see Dalakov, cited above, § 71, and Lyapin v. Russia, no. 46956/09, § 135, 24 July 2014).

76.  The documents submitted indicate that the domestic court refused to examine on the merits the applicants’ complaints concerning the investigators’ failure to clarify properly the circumstances of Mr Uzhakhov’s death, despite the evidence referred to by the applicants (see paragraph 47, 53 and 55 above), while the latter had no possibility to induce the authorities to initiate a criminal investigation other than to lodge a court complaint. In a situation where no proceedings concerning the death of Mr Khamzat Uzhakhov were pending, their complaint concerning the failure to open a criminal case could have led the courts to decide either that the refusal to open a criminal case was unlawful or that the applicant’s complaint was unsubstantiated (see paragraphs 47 and 53 above).

77.  The documents submitted indicate that taking the decision to dismiss the complaint as unsubstantiated, the courts disregarded the applicants’ arguments and evidence referred to in their complaints (see paragraphs 45 and 52 above).

78.  Turning to the Government’s non-exhaustion plea (see paragraphs 62 above), the Court has noted that the pre-investigation inquiry has been unable to elucidate the circumstances of the use of lethal force (see paragraph 75 above). Furthermore, considering that the investigating authorities had refused to open a criminal case on seven occasions (see paragraphs 28, 31, 33, 38, 43, 48 and 58 above), such an appeal appears to have been devoid of any purpose (see Devyatkin v. Russia, no. 40384/06, § 30, 24 October 2017), given that those decisions had already been found deficient by their supervisors. Therefore, the Court finds that the applicants were not obliged to pursue the remedy referred to by the Government and dismisses their objection in respect of the complaints under Article 2 of the Convention.

79.  The documents submitted indicate that despite the contradictory information collected by the pre-investigation inquiries and the applicants’ credible and consistent complaints, the domestic authorities failed to demonstrate a proper response to the serious allegations of inappropriate use of lethal force by agents of the State. By failing in its duty to carry out an effective investigation, the State fostered the State agents’ sense of impunity. The Court stresses that a proper response by the authorities in investigating serious allegations of use of lethal force by agents of the State in compliance with the Article 2 of the Convention standards is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion or tolerance of unlawful acts (see, among other authorities, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167, ECHR 2011).

80.  In view of the foregoing, the Court concludes that there has been a violation of Article 2 of the Convention under its procedural head.

(b)   Alleged violation of the substantive aspect of Article 2 of the Convention

81.  A summary of principles developed by the Court when it has been faced with the task of establishing the facts of events in cases involving issues under Articles 2 and 3 of the Convention can be found in El-Masri v. “the former Yugoslav Republic of Macedonia” ([GC], no. 39630/09, §§ 151‑53, ECHR 2012).

82.  The Court notes that it is common ground between the parties that the applicants’ relative Khamzat Uzhakhov was shot and killed on 25 November 2009 in Karabulak as a result of a special operation carried out by State agents. However, the parties disagreed on the key circumstances of the incident, such as whether his behaviour and actions necessitated the use of lethal force against him.

83.  The Court will have to determine whether the way in which the special operation was conducted showed that the FSB officers had taken appropriate care to ensure that any risk to the life of Khamzat Uzhakhov was kept to a minimum. In carrying out its assessment of the planning and control phase of the operation from the standpoint of Article 2 of the Convention the Court must have particular regard to the context in which the incident occurred as well as to the way in which the situation developed and whether the use of force was no more than “absolutely necessary” (see Andronicou and Constantinou v. Cyprus, 9 October 1997, § 182, Reports of Judgments and Decisions 1997‑VI, and Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, §§ 562-63 and 601, 13 April 2017).

84.  The Court notes that its ability to evaluate the operation has been seriously hampered by the absence of any meaningful investigation into the State agents’ conduct. Nevertheless, the Court will assess the organisation of the operation on the basis of the material available to it, in particular by relying on the relevant evidence submitted by the Government, which is not disputed by the applicant.

85.  The Court notes that contrary to the Government’s submission, the operation was not spontaneous, and the officers had had Mr Uzhakhov and Mr T. under surveillance (see paragraphs 21, 30 and 31 above). The officers were well-equipped and were intending to arrest the two men. However, there is nothing in the documents reviewed by the Court to suggest that any serious consideration was given at the planning stage of the operation to the possibility that the suspects would try to escape or resist the arrest.

86.  The Court observes that according to the implicated officers, Khamzat Uzhakhov and Mr T. had opened fire, either while being pursued or after having been blocked in by the officers, and that therefore the latter were obliged to return fire. However, despite the officers’ statements to the contrary, from the crime-scene-examination report it is apparent that their version of the events has not been sufficiently supported by the evidence available. Firstly, it is open to doubt whether Mr Uzhakhov and Mr T. had used the guns during the shootout, as their fingerprints had not been found on the firearms in their car or on their person (see paragraphs 26, 30 and 31 above). Secondly, neither any of the officers involved, nor their vehicles, belongings or equipment had been grazed, perforated or damaged in any way by the gunfire allegedly issuing from their car (see paragraphs 26, 42 and 43 above). Moreover, no other traces of bullets or gunshots had been found at the alleged skirmish, while the same report indicated that Mr Uzhakhov’s car had been shot at from the back (see paragraph 26 above). Therefore, the documents submitted do not demonstrate that the officers’ version was substantiated by the evidence. While bearing in mind the limitations on the scope of its review, as mentioned above, the Court neither finds elements to conclude that the conduct by the State agents was compatible with the requirement to minimise the risk to life of individuals in need of protection, nor can it support the conclusion that the use of lethal force was absolutely necessary, as the Government seem to suggest.

87.  In the light of the foregoing, the Court concludes that the actions of the authorities in respect of the planning, control and execution of the operation were not sufficient to safeguard the life of Mr Khamzat Uzhakhov. The authorities failed to take the reasonable measures available to them in order to prevent his death.

88.  There has accordingly been a violation of the substantive aspect of Article 2 of the Convention.ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

89.  The applicants complained that the second applicant had been subjected by State agents to inhuman and degrading treatment during the house search on 25 November 2009 and that the authorities had failed to investigate the matter. The relevant provision reads as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”AdmissibilityThe parties’ submissions

90.  The Government submitted that the complaint was manifestly ill‑founded.

91.  The applicants maintained their complaint.The Court’s assessment

92.  The Court considers that the question whether this complaint is manifestly ill-founded is closely linked to its merits and, therefore, should be joined to them. The Court notes that this complaint is not manifestly ill founded within the meaning of Article 35 §§ 3 and 4 of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.MeritsThe parties’ submissions

93.  The Government submitted that no ill-treatment of the second applicant had taken place on 25 November 2009 and that the applicants had failed to substantiate their allegations by evidence.

94.  The applicants maintained their complaint.The Court’s assessment

95.  The Court will first examine the complaint that there was no effective investigation into the second applicant’s allegation of ill-treatment.

(a)   The State’s procedural obligation under Article 3 of the Convention

96.  A summary of the principles concerning the State’s obligation under the procedural aspect of Article 3 of the Convention can be found in El‑Masri, cited above, §§ 182-85 and, Bouyid v. Belgium ([GC], no. 23380/09, §§ 81‑90, ECHR 2015).

97.  The parties disagreed as to whether the alleged ill-treatment of the second applicant during the house search on 25 November 2009 had taken place. The Government, referring to the statements of the unidentified officers (see paragraph 22 above) and the information statement from the security agency (see paragraph 41 above) denied that the State agents had arrived at the applicant’s house on the date alleged. The applicants maintained their complaint and submitted that the events had occurred as described in their complaints lodged with the domestic authorities and that the latter had taken no steps to verify them.

98.  The Court observes firstly, that the second applicant’s husband Khamzat Uzhakhov was killed at about 3 p.m. on 25 November 2009 in Karabulak and that, according to the applicants, about an hour later, at about 4 p.m. on the same date, a group of State agents arrived in Troitskaya to search his house, where he had resided with the second applicant and their three minor children.

99.  The documents submitted show that after the killing of Khamzat Uzhakhov, the applicants started lodging consistent complaints regarding the second applicant’s ill-treatment on 25 November 2009. In their complaints, the applicants were specific and detailed in the description of the events and their allegations regarding the involvement of State agents. In particular, shortly after the incident, then on 1 December 2009 at the latest, then on 13 January 2010, then on a date prior to 6 April 2010, then in November 2010 and lastly in February 2011 the applicants lodged complaints with various authorities regarding the second applicant’s alleged degrading treatment by FSB officers during their visit to her house on 25 November 2009 (see paragraphs 19, 23, 35, 45, 24, 50 and 52 above). From the documents submitted, it appears that contrary to the Government’s submission denying that the incident had taken place at all, the domestic investigators noted those complaints and took some measures to verify them, such as requesting relevant information (see paragraphs 34, 40, 39, 44 and 48 above). However, no other, more tangible steps were taken to elucidate the circumstances of the incident.

100.  It is noteworthy that despite the seriousness and consistency of the allegations, neither the second applicant herself nor any of her family members nor any other witnesses, such as her neighbours, nor the first applicant, were ever asked for clarifications or statements about what had happened to the second applicant on 25 November 2009. According to the documents submitted, not a single person who could have shed light on the events in question, other than the possibly implicated officers, was questioned by the investigators despite their superiors’ direct orders to this end (see paragraph 29 above). Moreover, the crime-scene examination was not carried out until March 2010, that is to say four months after the incident (see paragraph 40 above). Again, after that examination, the investigators took no further steps to either corroborate or refute the second applicant’s allegations. That failure to act was subsequently criticised by their superiors albeit several years later (see paragraphs 34 and 39 above).

101.  In the light of the seriousness and consistency of the applicants’ complaints, it would be not inconceivable to assume that law-enforcement officers could have arrived at the house of the person who had been under surveillance and who had just been killed in the special operation. In such circumstances, the second applicant’s complaint regarding the arrival at her house of the group of law-enforcement agents and her degrading treatment by them did not appear either far-fetched or unsubstantiated. Thus, when the applicants complained, it was for the investigators to take steps to verify whether their allegations had factual basis by promptly taking such essential measures as the examination of the crime scene in the house and its basement, and questioning of the second applicant and other witnesses in order to establish whether the events had occurred and whether the alleged ill-treatment could have taken place.

102.  For the reasons stated above and keeping in mind its findings in relation to the procedural obligation under Article 2 of the Convention (see paragraphs 79 and 80 above), the Court concludes that the State authorities failed to conduct an effective investigation into the allegations of the second applicant’s ill-treatment by State agents on 25 November 2009.

103.  Accordingly, there has been a violation of the procedural aspect of Article 3 of the Convention on account of the authorities’ failure to investigate the allegations of the second applicant’s ill-treatment on 25 November 2009.

(b)   Alleged violation of the substantive aspect of Article 3 of the Convention

104.  Where allegations are made under Article 3 of the Convention, the Court must conduct a particularly thorough scrutiny (see Gäfgen v. Germany [GC], no. 22978/05, § 93, ECHR 2010, with further references) and will do so on the basis of all the material submitted by the parties. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case (see, among other authorities, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000).

105.  Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25, and Gäfgen, cited above, § 92).

106.  The Court notes that the parties disagreed as to whether the alleged ill-treatment had taken place. The Government denied the ill-treatment whereas the applicants submitted that they had complained about the incident and requested that it be investigated, but to no avail.

107.  The Court observes that the applicants did complain to various authorities of the second applicant’s alleged degrading treatment by the officers during their visit to her house on 25 November 2009 (see paragraphs 23, 24, 35, 50 and 52 above). However, the applicants’ submission before the Court contained neither witness statements supporting their account of the events, nor medical documents nor any other evidence to corroborate their allegations (see, in this respect, also paragraph 114 below).

108.  The Court is therefore unable to exclude either the Government’s or the second applicant’s account of events. In such circumstances, it is unable to conclude “beyond reasonable doubt” that the FSB officers subjected her to any form of treatment prohibited by Article 3 of the Convention, as alleged by the applicants (see Khismatullin v. Russia, no. 33469/06, §§ 55‑59, 11 December 2014, and Nekrasov v. Russia, no. 8049/07, §§ 94‑95, 17 May 2016).

109.  Consequently, the Court finds no substantive violation of Article 3 of the Convention in respect of the second applicant’s alleged ill‑treatment.ALLEGED VIOLATIONS OF ARTICLE 8 AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

110.  Under Article 8 and Article 1 of Protocol No. 1 to the Convention, the second applicant complained of the unlawfulness of that search and the destruction and theft of her property during the search. Under Article 13 of the Convention, the applicants complained that they had not had effective domestic remedies in respect of the aforementioned violations. The relevant provisions of the Convention read as follows:

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”

AdmissibilityThe parties’ submissions

111.  The Government submitted that the complaint was manifestly ill‑founded as no search and destruction or theft of the second applicant’s property had taken place on 25 November 2009. They stressed that she had failed to substantiate her allegations by evidence.

112.  The applicants submitted that the Government’s denial was in contradiction to the orders of the domestic authorities of 21 September 2017, according to which the circumstances of the unlawful search and the destruction of property on 25 November 2009 were to be established by the investigators (see paragraph 39 above).The Court’s assessment

113.  When the facts of the case are unclear, as in the present case, it is not only the Government which should assist the Court in establishing the facts. The applicants themselves must support their allegations, especially when the relevant information is not within the exclusive access of the Government. In other words it is for the applicant to make a prima facie case and to adduce appropriate evidence (see Taziyeva and Others v. Russia, no. 50757/06, § 68, 18 July 2013).

114.  In the present case the applicants furnished copies of their complaints to the authorities indicating the circumstances of the search and the alleged destruction and theft of the property (see paragraphs 19, 23, 35, 45, 24, 50 and 52 above). However, no documents or other pieces of evidence were enclosed to confirm their account of the events, such as statements of their neighbours or relatives concerning the actual events or their consequences, photographs of the damage caused to the house and the items of property, and/or of any repairs done in the house after the alleged destruction of the basement by grenade. Furthermore, the applicants failed to provide information on the title to the house and proof of the existence of the items of property that had been allegedly damaged, or to submit any documents showing how they had come into their possession (see, conversely, for example, Salamov v. Russia, no. 5063/05, § 39, 12 January 2016, and Miltayev and Meltayeva v. Russia, no. 8455/06, § 40, 15 January 2013).

115.  On the basis of the information in the case file as it stands, and given that the applicants’ allegations of the search and the destruction and theft of the property on 25 November 2009 are not corroborated by evidence, the Court concludes that the applicants’ complaints under Article 8 and Article 1 of Protocol No. 1 are manifestly ill-founded.

116.  It follows that the complaints under Article 8 and Article 1 of Protocol No. 1 must be rejected pursuant to Article 34 and Article 35 §§ 3 (a) and 4 of the Convention.ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

117.  The applicants complained that there had been no effective remedies in respect of the alleged violations of Articles 2 and 3 of the Convention. Article 13 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.”

118.  The Court observes that this complaint concerns the same issues as those examined above in paragraphs 80 and 103 under the procedural limbs of Articles 2 and 3 of the Convention. Therefore, the complaint should be declared admissible. However, having regard to its conclusion under Articles 2 and 3 of the Convention, the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention (see Fanziyeva v. Russia, no. 41675/08, § 85, 18 June 2015, and Dalakov, cited above, § 90).APPLICATION OF ARTICLE 41 OF THE CONVENTION

119.  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.”DamagePecuniary damage

120.  The applicants made claims in respect of pecuniary damage for a number of items of property allegedly destroyed or stolen on 25 November 2009 in the total amount of 50,000 United States dollars (USD). They did not enclose documents showing their title to the items claimed or other evidence substantiating their claim.

121.  The Government submitted that the claim was manifestly ill‑founded, excessive and unsubstantiated.

122.  In view of its above finding of inadmissibility in relation to the complaint brought under Article 1 of Protocol No. 1 to the Convention, the Court rejects this claim.Non-pecuniary damage

123.  The applicants left the determination of the amount of the award to the Court.

124.  The Government left the matter to the Court’s discretion.

125.  Taking into account the parties’ submissions and the violations found, the Court awards EUR 21,000 to the second applicant and EUR 80,000 to the applicants jointly in respect of non‑pecuniary damage, plus any tax that may be chargeable to them.The applicants’ request for investigation

126.  The applicants also requested that “a fresh investigation leading to the prosecution and punishment of those responsible” be carried out into the circumstances of Khamzat Uzhakhov’s death.

127.  The Government did not comment.

128.  The Court notes it has decided that it was most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order to discharge their legal obligation under Article 46 of the Convention (see, for a recent example, Tsakoyevy v. Russia, no. 16397/07, § 160, 2 October 2018). It does not see any exceptional circumstances, which would lead it to reach a different conclusion in the present case.Costs and expenses

129.  The applicants were represented by lawyers from the NGO EHRAC/Memorial Human Rights Centre. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 2,450:

(a) EUR 2,250 for fifteen hours of work by Mr K. Koroteev at a rate of EUR 150 per hour;

(b) EUR 200 for two hours of work by Ms T. Chernikova at a rate of EUR 100 per hour.

130.  The Government did not comment on the claim.

131.  The Court has to establish firstly whether the costs and expenses indicated by the applicants were actually incurred and whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

132.  Having examined the details of the information submitted by the applicants, the Court awards them the amount of EUR 2,000 together with any value‑added tax that may be chargeable to the applicants, the net award to be paid into the representatives’ bank accounts, as identified by the applicants.Default interest

133.  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,Joins to the merits the Government’s preliminary objection concerning the exhaustion of criminal domestic remedies and rejects it;Declares the application admissible; except for the complaints under Article 8 and Article 1 of Protocol No. 1 to the Convention, which are declared inadmissible;Holds that there has been a substantive violation of Article 2 of the Convention in respect of Mr Khamzat Uzhakhov;Holds that there has been a procedural violation of Article 2 of the Convention on account of the failure to effectively investigate the circumstances of Mr Khamzat Uzhakhov’s death;Holds that there has been a procedural violation of Article 3 of the Convention in respect of the failure to investigate the second applicant’s allegations of ill-treatment;Holds that there has been no substantive violation of Article 3 of the Convention in respect of the second applicant;Holds that there is no need to examine separately issues under Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention;Holds

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

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

(ii)  EUR 21,000 (twenty one thousand euros) to the second applicant, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(iii) 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 indicated 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;Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 23 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Olga ChernishovaAlena Poláčková
              Deputy RegistrarPresident

 

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