THIRD SECTION
DECISION
Application no. 16233/08
Antonina Ivanovna FILIPPOVA and Others
against Russia
The European Court of Human Rights (Third Section), sitting on 14 November 2017 as a Chamber composed of:
Helena Jäderblom, President,
Luis López Guerra,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 22 February 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms Antonina Ivanovna Filippova, Ms Albina Georgievna Ivannikova, Ms Irina Vasilyevna Medvedeva, are Russian nationals who were born in 1943, 1930, and 1966 respectively, and live in Podolsk (Moscow Region), Moscow, and Yubileyny (Moscow Region) respectively. They were represented before the Court by Mr I. Trunov and Ms L. Ayvar, lawyers practising in Moscow.
2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. General background
4. On the evening of 23 October 2002 a group of terrorists belonging to the Chechen separatist movement took hostages in the “Dubrovka” theatre in Moscow (also known as the “Nord-Ost” theatre). For three days more than nine hundred people were held at gunpoint and under threat of explosions in the theatre’s auditorium. The terrorists refused to surrender, so in the early morning of 26 October 2002 the Russian security forces pumped an unknown gas through the building’s ventilation system. When the terrorists lost consciousness under the influence of the gas, special forces stormed the building. As a result of the operation the majority of the hostages were released (over 730 people). However, a large number of hostages were affected by the gas; according to information gathered by the investigative authorities by the end of 2002, 129 hostages died on the spot, in the hospitals or during transportation, and some of those who survived continued to suffer from serious health problems. Other facts concerning the hostage-taking, the liberation of the hostages, the medical assistance provided, and the ensuing investigation and civil proceedings are presented in the case Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, ECHR 2011 (extracts), concerning the same events.
5. A criminal investigation into the events was opened in October 2002. As regards the storming of the building and the rescue operation, the investigation into the terrorist act did not establish any fault on the part of the authorities and no separate inquiry into the officials’ actions has been conducted. The Finogenov and Others judgment covered those proceedings up to November 2003 (Finogenov and Others, cited above, §§ 30-102). All former hostages and next of kin of the deceased had been questioned and had been granted the status of victims by that time (ibid., § 40). Several applicants in the Finogenov and Others case challenged the investigation’s inaction and lack of results in the courts. Their complaints were dismissed by the courts in Moscow in 2005-2006 (ibid., §§ 123-42). The main criminal investigation was extended several times, and remained pending at the time of the Finogenov and Others judgment.
6. One episode of the case, concerning an accomplice of the terrorists, Mr T., was severed from the main case and brought to trial. Mr T. was convicted in September 2003.
7. In its judgment of 20 December 2011 the Court found that there had been a breach of the positive obligations under Article 2 of the Convention in so far as the planning and execution of the rescue operation was concerned; it also found a breach of the authorities’ obligation to effectively investigate the loss of life, since the “the investigation into the authorities’ alleged negligence in this case was neither thorough nor independent” (ibid., § 282). The Court found no violation of Article 2 in respect of the authorities’ decisions to storm the building and to employ potentially lethal gas to neutralise the terrorists (ibid., §§ 226 and 236). It also found that no separate issues arose under Articles 6 and 13. In making awards under Article 41, the Court took into account that the violations found concerned the failure to comply with positive obligations, resulting from the unintended consequences of the rescue operations, and noted the domestic payments made to the applicants.
8. At its 1265th meeting, on 20-21 September 2016, the Council of Europe Committee of Ministers adopted a decision concerning the execution proceedings in the Finogenov and Others case (CM/Del/Dec(2016)1265/H46-23/22 September 2016). Referring to the communications from the Russian authorities, the Committee of Ministers welcomed information about the payment of individual awards. At the same time, it regretted “the investigating authorities’ decision, taken after the European Court’s judgment, not to open a criminal investigation due to the previous domestic decision taken in this context”. It also invited the Russian authorities to inform the Committee in detail about the investigation’s further perspectives.
2. The applicants’ situation
9. The applicants in the present case lost their relatives during the hostage crisis, or were themselves amongst the hostages. The first and the second applicants lost their daughters, Ms Zh. Goncharova and Ms Ye. Anisimova, respectively. The third applicant was amongst the hostages herself and, in addition, lost her husband, Mr V. Medvedev.
10. The applicants submitted no information or documents concerning participation in the criminal investigation. The Government submitted copies of the decisions to grant victim status to the first and third applicants, dated 15 December and 27 October 2002 respectively.
11. In 2002 the applicants brought proceedings against the Moscow City Administration, seeking compensation for the damage caused by the terrorist attack. They claimed that Article 17 of the Suppression of Terrorism Act established the strict liability of the regional authorities (liability without fault) for any non-pecuniary damage caused to the victims of a terrorist attack. The claims made no mention of the pending criminal investigation into the attack, although the copies of the decisions to grant victim status had been appended (but not submitted to the Court). On 28 May 2003 the Tverskoy District Court dismissed those claims as unfounded. The District Court found that the Moscow City Administration bore a number of obligations towards the victims, especially in respect of their rehabilitation and support, but was not responsible for the carrying out and coordination of anti-terrorist operations. The applicants decided not to appeal against the judgment, because they believed that it would be futile.
12. In March 2012 the Government submitted, in addition, information about proceedings for obtaining regular payments following the loss of a breadwinner. According to these documents, in 2003 several relatives of the deceased victims of the terrorist attack, including three applicants in the present case, sought additional payments for the loss of a breadwinner. On 20 January 2004 the Tverskoy District Court of Moscow partially granted the claims and awarded to each of the applicants additional regular payments, pursuant to the Moscow City Administration’s decree of 29 January 2003, no. 116-rp, on assistance to the victims of terrorist acts and the general obligation established by section 17 of the Suppression of Terrorism Act of 25 July 1998. The latter provided that the damage caused by a terrorist attack should be compensated by the authorities of the federal constituency where the attack took place. It does not appear that an appeal was lodged against the judgment of 20 January 2004. These proceedings did not mention the then pending criminal investigation.
13. The parties’ submissions contain no information to indicate that the applicants took any steps in the context of the criminal investigation into the terrorist attack or any other proceedings other than those described above.
COMPLAINTS
14. The applicants complained, under Articles 2, 3, 6 and 13 of the Convention that they had lost their relatives as a result of the State’s actions, that the investigation had not been effective, that they had not received full compensation from the State for the damage sustained and that they had had no effective domestic remedies against the alleged violations.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
15. Before dealing with the substance of the complaint, the Court must determine whether the applicants have satisfied the admissibility criteria.
16. Article 35 § 1 of the Convention provides as follows:
“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken ...”
A. The parties’ arguments
17. In their observations of 29 March 2012 the Government asked the Court to dismiss the application as having been lodged outside 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 2002, and the criminal investigation had been opened on 23 October 2002. In October 2002 and December 2003 the Moscow City Prosecutor’s Office had ruled against opening a criminal investigation into the authorities’ reaction to the terrorist act. Both these decisions were concerned with the actions of the officials in charge of the medical rescue operation and the officers of the special forces. The applicants had the status of victims in the criminal proceedings and had been fully apprised of the most important procedural developments. The Government argued that they had taken no procedural steps in the course of the criminal investigation, which was pending at that time. They sought civil compensation from the authorities but failed to appeal against the first‑instance court judgments of 28 May 2003 and 20 January 2004. They lodged their complaint with the Court on 22 February 2008, and thus failed to comply with the six-month time-limit.
18. The applicants submitted no comments or observations on this point, limiting their submissions of 7 December 2012 to the question of just satisfaction under Article 41 of the Convention.
B The Court’s assessment
1. General principles
19. 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 to 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).
20. 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).
21. 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.
22. 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).
23. 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:
“179. The Court considers it of paramount importance in the present case that the applicants complained not of an isolated incident, but rather of a major military action which had caused dozens of deaths and injuries among the civilian population. ... It is reasonable to assume that they expected that the authorities’ response would be proportionate to the gravity of their complaints and the number of victims. In such circumstances, it is understandable that they might have waited longer for the results of the investigation without themselves taking the initiative and seeking information about the proceedings. Applying the test as formulated in Varnava and Others (cited above, § 162), the Court finds that the applicants indeed applied to Strasbourg ‘within a matter of very few years’ after the events.”
24. 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).
25. 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).
2. Application to the present case
26. In so far as the applicants complained about the deaths of their relatives, the Court notes that over five years and three months passed between the event and the lodging of their complaints. In line with the above-cited case-law, such a long period is in itself 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.
27. The investigation into the terrorist attack was opened in October 2002. The first and the third applicants were granted the status of victims at the end of 2002. There is no similar information about the second applicant, but it is reasonable to presume that she, like the other victims, had been questioned and granted victim status at about the same time (see paragraph 5 above; see also Finogenov and Others, cited above, § 32). The first group of victims applied to the Court in April and August 2003, complaining about the inefficiency of the investigation (see Finogenov and Others, cited above, § 1). In its judgment of 20 December 2011 the Court found that “the investigation into the authorities’ alleged negligence ... was neither thorough nor independent, and, therefore, not ‘effective’” (see Finogenov and Others, cited above, § 282). It considered that, in some areas, the investigation had been “manifestly incomplete” and that early on in the proceedings the prosecution had decided that, as regards the authorities’ alleged negligence, “there was no case to answer” since no formal criminal investigation had been opened into the actions of the officials (ibid., §§ 276-77).
28. The Court next notes that, in response to a specific question about compliance with the six-month time-limit, no information has been submitted by the applicants about their involvement with the investigation. There is no evidence showing that after the granting of victim status the applicants 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.
29. The Court reiterates that, in situations such as the present one, it is difficult to indicate a specific date when applicants should have become aware of the ineffectiveness of an investigation. It is also conscious of the magnitude of the events and the applicants’ understandable expectations of an adequate response by the authorities. Nevertheless, it is difficult to reconcile the total absence of communication between the victims and the investigating authorities for over five years with the requirement to have reasonable faith in the effectiveness of the domestic remedies, and thus explain the delay in the submission of their complaints. The investigation had already found in 2002 and 2003 that the authorities had “no case to answer” in respect of the deaths that had occurred. It thus appears unlikely that the ineffectiveness of these proceedings had not been apparent to the applicants in the present case at an earlier date.
30. The Court notes that in 2003 and 2004 the applicants engaged in civil proceedings with the Moscow City Administration. Their first claim for damages was dismissed as unfounded on 28 May 2003, and on 20 January 2004 their second claim was partially granted and they were awarded payments following the loss of a breadwinner (see paragraphs 11-12 above). However, these proceedings do not seem to bear any relevance to the calculation of the six-month limit in the present case, since they were focused on the funds available to the victims from the local budget regardless of fault on anyone’s part. They did not make any reference to the then pending criminal proceedings, were not concerned with any unlawful actions on the part of the State agents in the context of Article 2 and could not, therefore, affect the conclusion as regards the applicants’ loss of faith in the available domestic remedies.
31. Against this background, the Court finds that the absence of an effective domestic investigation into the events must have been apparent to the applicants in the present case long before they applied to the Court.
32. Finally, the Court observes that there were some developments in the investigation after the Finogenov and Others judgment (see paragraph 8 above). However, in the absence of any additional information to that effect, it is unable to find that they were of such a nature as to put the authorities under an obligation to take additional measures or to revive the applicants’ hopes of an effective outcome of the domestic criminal investigation.
33. In view of the above, it follows that the Government’s objection as to the admissibility of the complaint under Article 2 of the Convention on the basis of the expiry of the six-month time-limit should be upheld, and the complaint should be declared inadmissible.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
34. Referring to the same facts as outlined above, the applicants alleged a breach of Articles 6 and 13 of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 December 2017.
Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident
Full & Egal Universal Law Academy