GADUYEVA AND OTHERS v. RUSSIA

THIRD SECTION

DECISION

Application no. 41521/14
Leyla Mayrbekovna GADUYEVA and Others
against Russia

The European Court of Human Rights (Third Section), sitting on 18 May 2021 as a Committee composed of:

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

Having regard to the above application lodged on 15 May 2014,

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 are:

1) Ms Leyla Gaduyeva, born in 1973,

2) Mr Ismail Yakayev, born in 2005,

3) Mr Murad Yakayev, born in 2006, and

4) Ms Anisa Yakayeva, born in 2008.

The applicants live in Urus-Martan, the Chechen Republic. They were represented by lawyers from Materi Chechni, an NGO practising in Grozny. The applicants are the wife and children of the late Mr Salambek Yakayev.

2.  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.

The circumstances of the case

3.  The facts of the case, as submitted by the parties, may be summarised as follows.The death of Mr Salambek Yakayev and the ensuing criminal proceedings

4.  On 23 June 2009 Salambek Yakayev and his two friends were driving in a minivan to Urus-Martan. At around 5 p.m. the vehicle exploded on the side of a rural road next to the village of Alkhan-Yurt. Mr Yakayev was seriously injured and died on the way to the Urus‑Martan district hospital. One of his friends died on the spot and the other survived having received serious injuries.

5.  On the same date the Achkhoy-Martan interdistrict investigative department (the investigators) examined the scene. They took photographs, collected some evidence and commissioned its forensic examination. The experts were requested to determine whether the fragments collected belonged to regular ammunition or to a self-made explosive device.

6.  On 24 June 2009 the investigators opened criminal case no. 73031. On the same date the investigators and the hospital surgeon examined the body of Mr Yakayev. Later that day the body was handed over to the relatives of Mr Yakayev and buried shortly afterwards.

7.  On 15 July 2009 Mr Yakayev’s brother, Mr A. Ya., was granted victim status in the criminal case and questioned. Subsequently, on various dates in July and August 2009 the investigators questioned several other relatives of the victims of the explosion. All of them were unaware of the reasons for the explosion and denied that the victims could have either blown themselves up or had an explosive device in the vehicle.

8.  On 24 August 2009 the investigation was suspended for the failure to identify the perpetrators. It was resumed on 25 September 2009 and then, on 26 October 2009 the investigators again suspended the proceedings for the same reasons. The applicants were informed of those decisions.

9.  On 14 September 2011 the first applicant was granted victim status in the criminal case and questioned. She stated that she had no idea as to the reasons of the explosion.

10.  On 15 September 2011 the investigators again suspended the investigation and informed the applicants thereof.

11.  On 12 December 2012 the first applicant requested an update on the progress of the investigation. On the same date, the investigators provided her with copies of some documents from the case file.

12.  On 16 December 2013 the first applicant appealed against the suspension of 15 September 2011 to the Urus-Martan Town Court (the Town Court), having stated that the investigation into the circumstances of her husband’s death was ineffective. On 28 January 2014 the Town Court left the appeal without examination as on 16 January 2014 the investigators had resumed the proceedings.

13.  Meanwhile, on various dates between 16 and 26 January 2014 the investigators questioned several local residents who had known the victims of the explosion. No new information was obtained.

14.  On 26 January 2014 the investigation was suspended again. It appears that it is pending to date and the circumstances of the explosion and Mr Yakayev’s death have not been elucidated.Other relevant information

15.  On an unspecified date in 2013 the first applicant lodged a claim for compensation of non-pecuniary damage with the Town Court. She alleged that the explosion had taken place in the area which had been under full control of the federal military forces. Therefore, her husband’s death must have resulted from the negligence of the military personnel who had left mines behind.

16.  On 25 June 2013 the Town Court dismissed the claim as unsubstantiated, its decision was subsequently upheld on 29 August 2013 by the Chechnya Supreme Court.

Relevant domestic law

17.  For a summary of the relevant domestic regulations, see Kosumova v. Russia, no. 2527/09, §§ 66-72, 16 October 2014.

COMPLAINTS

18.  The applicants complained under Article 2 of the Convention that the death of their relative Mr Salambek Yakayev had been caused by explosives left behind by the federal military forces and that the ensuing investigation into the matter was ineffective, contrary to Article 2 of the Convention, which reads as follows:

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

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

THE LAWThe parties’ submissions

19.  The Government submitted that the complaint should be declared inadmissible for the applicants’ failure to comply with the six-month time‑limit. The applicants should have realised long before lodging their application with the Court that the investigation into the circumstances of their relative’s death had been ineffective. Given the overall time frame of almost five years between the incident and the initiation of the proceedings before the Court, the suspensions in the investigation, of which the applicants had been informed, along with their lack of communication with the authorities, the applicants’ explanation for the significant delay of lodging of the application was unjustified.

20.  Furthermore, the application of the second, third and fourth applicants was inadmissible for non-exhaustion, as they had not participated in the criminal proceedings.

21.  The applicants submitted that the delay in the submission of their application was due to the fact that they had suffered mentally after the death of their family member and the first applicant’s need to take care of the other applicants, them being minors. Besides, the applicants hoped that such a serious incident would be investigated effectively by the authorities of their own motion.The Court’s assessmentGeneral principles

22.  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 references).

23.  At the same time, the Court has refrained from indicating a specific time frame 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 deaths and that the requirement of expedition may require an applicant in such a case to bring it 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, § 162).

24.  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. The Court has imposed a duty of diligence and initiative on the families of victims wishing to complain of a delayed or ineffective investigation, who should not 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 Opačić and Godić v. Croatia (dec.), no. 38882/13, §§ 27-30, 26 January 2016, with further references).

25.  The Court has found that, in cases 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).

26.  The Court considers that new developments which occur after a lull of several years and amount to no more than a mere formality, or do not lead to any noticeable progress in the investigation (see, by contrast, Brecknell v. the United Kingdom (no. 32457/04, § 71, 27 November 2007)), will not be accepted as providing a new starting-point for the purpose of calculating the six-month time-limit (see Dzhamaldayev v. Russia (dec.), no. 39768/06, § 35, 22 January 2013; Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, § 47, 31 May 2016; and Dashuyeva v Russia (dec.) [Committee], 5725/11, 19 May 2020).Application of the principles to the present case

27.  Turning to the facts of the present case, the Court observes that within the period between the initiation of the criminal case in June 2009 and the applicant’s appeal to the local court in December 2013, the investigation into the circumstances Mr Yakayev’s death was suspended and resumed on several occasions. In June 2011 the first applicant requested to be granted victim status in the criminal case entitling her to request information from the investigation. The first applicant and the deceased’s brother were informed of those procedural decisions. In December 2012, in three and half years from the opening of the criminal case in June 2009, the first applicant requested to be informed of the progress in the proceedings. She then appealed against the suspension of the investigation of 15 September 2011 in December 2013, that is in more than two years and three months since she had been informed thereof.

28.  The Court further observes that the applicants in the present case complained of an isolated incident concerning an explosion of a private vehicle in unclear circumstances, and not of a major military action (see, by contrast, Abuyeva and Others v. Russia, no. 27065/05, § 179, 2 December 2010), a situation which would have provided grounds to assume that the authorities’ response would be proportionate to the gravity of the complaints and the number of victims. In the latter situation, the applicants could have waited longer for the results of the investigation without themselves taking the initiative and seeking information about the proceedings. However, in the present case the investigation was ongoing for almost five years at the time of lodging of the application and no meaningful investigative steps had been taken by the authorities. There was no new evidence or information appearing which would provide the applicants with some realistic prospect that the investigation would be effective and capable of elucidating the circumstances surrounding the death of their husband and father.

29.  In view of the above, the Court finds that the applicants have not shown convincingly that any concrete advances were being made that could have justified their inactivity for almost five years in the case of the death of their family member. It finds that following the suspension of the investigation in the criminal case, the applicants ought to have concluded a considerable time beforehand, and certainly more than six months before the present application was lodged, that the investigation was ineffective. The Court does not find that their initiative in 2013 in respect of the investigation just a few months prior to their application to the Court is capable of leading it to a different conclusion (see, mutatis mutandis, Dashuyeva, cited above, § 48, and Filippova and Others v. Russia (dec.), no. 16233/08, § 31, 14 November 2017).

30.  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 application should be declared inadmissible.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 June 2021.

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Olga ChernishovaDarian Pavli
Deputy RegistrarPresident

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