FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 74240/01
by Petimat GOYGOVA
against Russia
The European Court of Human Rights (First Section), sitting on 18 May 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrsN. Vajić,
MrA. Kovler,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 5 January 2001,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Petimat Kirimovna Goygova, is a Russian national and was born in 1966. She was a resident of Grozny, Chechnya, which she left for Ingushetia. At some point she left Russia and currently lives in Belgium. She is represented before the Court the Stichting Russia Justice Initiative (SRJI), an NGO based in the Netherlands with offices in Moscow and in Ingushetia, Russia. The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The submissions of the parties on the facts concerning the circumstances of the applicant’s relatives’ deaths and the ensuing investigation are set out in Sections 1 - 2 below. A description of the materials submitted to the Court is contained in Part B.
1. The killing of the applicant’s relatives
The applicants and her family lived in the Staropromyslovskiy district in Grozny.
In October 1999 hostilities resumed in Chechnya between the Russian forces and the Chechen fighters. Grozny and its suburbs came under heavy bombardment. Staropromyslovskiy district, situated in the northern and central parts of the town, was bombarded from the air and by artillery. The applicant submits that most residents of the district left for safer areas. Following heavy fighting, as of December 1999, the Russian forces started to regain control over the city starting from the north, and by end of January 2000 the central parts of the city were finally taken.
The applicant lived with her family in the Novaya Katayama settlement[1] in the Staropromyslovskiy district of Grozny. In January 2000 the applicant and her four children were staying in Ingushetia, while her brother Magomed Goygov (aged 31) and her mother Maryam Goygova (aged 59) remained in Grozny.
On 19 January 2000 the applicant went to Grozny to find about her relatives. She was not allowed to pass through the checkpoint and spent the night in a neighbouring settlement. On the following morning, 20 January 2000, the applicant again arrived at the military roadblock at the entrance to the city.
There the applicant met a local resident, whose name she does not disclose for security reasons, identified by her as A., who told her that at the crossroad of Neftyanaya Street and the 4th Lane there was a body of an old lady in a hand-cart. He told her that on 19 January 2000 the old lady had been wounded by shrapnel and that three men had tried to take her out of Grozny. They walked up to the 8th Lane, where there was a group of soldiers and three armoured personnel carriers (APCs), one of which had been damaged. The soldiers stopped them, beat the men and led them away. They shot the woman in the cart, and then A. saw shots being fired, so he presumed that the men had also been shot. From his story the applicant made out that the woman was her mother and that her brother, Magomed Goygov, could have been among the three men.
At the roadblock on the border of the Staropromyslovskiy district the applicant talked to the military and asked them to let her pass. She identified them as belonging to the 205th detachment of the 58th army. One of them whom she believed was in charge, named Oleg, refused to let her go further. When the applicant stated that she was looking for her mother, he replied that they had taken revenge for their dead comrades whose mothers had also wanted to see them alive. Later the applicant submitted that Oleg’s hands had been covered with a bandage and that another local resident, a woman named Lena, told the applicant that she had heard him complaining that he had wounded his hands “beating those bastards”.
A. helped the applicant to get through the military roadblock and accompanied her to the crossroads, where they found the cart containing the body of the applicant’s mother. She had a shrapnel wound in the abdomen and a gunshot wound in the head. The applicant could not stay in Grozny too long, so she took her mother’s body to A.’s house and left. She did not find any traces of her brother.
The next day the applicant returned with her family to Grozny in a hired minivan. They were not allowed to pass through the roadblock with the vehicle and walked to the Staropromyslovskiy district. There they collected Maryam Goygova’s body in the cart and walked back out of Grozny. They then put the body into the minivan and brought it to Nazran, where they buried it. At that time the applicant did not apply to any authorities or doctor, nor did she take photographs of her mother’s body before burial.
The applicant’s sisters went to the Chernokozovo and Mozdok detention centres in search of their brother, Magomed Goygov.
On 25 January 2000 the applicant again went to Grozny to look for her brother. She travelled together with relatives of other missing persons from the district, Magomed Khashiyev and his sister Movlatkhan Bokova. At the Khashiyevs’ house at 107 Neftyanaya Street they found bodies of Magomed Khashiyev’s sister, Lidiya Taymeskhanova, and her son, Anzor Taymeskhanov, as well as the body of their neighbour, Anzor Akayev. All had gunshot wounds and some bones were broken. Magomed Khashiyev and Roza Akayeva later applied to the European Court of Human Rights in relation to the killing of their relatives (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005).
During her trip on 25 January 2000 the applicant did not find her brother. The Khashiyevs were also looking for Lidiya Taymeskhanova’s other son, Rizvan Taymeskhanov, and Magomed Khashiyev’s brother, Khamid Khashiyev.
On 10 February 2000 Magomed Khashiyev and his sister, with the assistance of witness A., discovered three bodies in a garage about 100 metres away from the crossroads where the applicant’s mother had been found. They identified two of the bodies as Rizvan Taymeskhanov and Khamid Khashiyev; the third body belonged to Magomed Goygov, the applicant’s missing bother. The bodies had numerous gunshot wounds. Magomed Khashiyev took photographs of the three bodies in the garage and fetched a car to take them to Ingushetia the same day.
The applicant was not present in Grozny on 10 February 2000, but she referred to the statements of A. and Movlatkhan Bokova in relation to the discovery of the bodies.
The applicant also refers to the Human Rights Watch report “Civilian Killings in the Staropromyslovskiy District of Grozny” which includes statements by two other witnesses, identified as B. and C., who had lived in the Staropromyslovskiy district at the relevant time. They testified that on 20 January 2000 at about 4 p.m. a tall Russian soldier had walked into their house and told them that he had killed a wounded woman in a hand-cart, and that he would kill them as well. He also told them that the three men who had accompanied the woman had been transferred to a detachment of the police special forces (OMON). The soldier then left, without causing any harm to B. and C.
The applicant appended to her complaint a drawing of the district with indications of places where the bodies of her relatives had been discovered and coloured photographs of her brother’s body made by Magomed Khashiyev upon discovery of the three bodies on 10 February 2000, and during the autopsy at Nazran hospital.
2. Investigation into the murder of the applicant’s relatives
On 10 February 2000 the body of the applicant’s brother was examined by an officer of the Nazran Department of the Interior. The examination took place in the Nazran Town hospital in the presence of two male relatives. The report listed numerous bullet wounds (at least a dozen) to the head, body and limbs. The right ear had been cut off.
On 11 February 2000 Magomed Goygov was buried in Ingushetia.
The applicant submits that at that time her relatives requested the prosecutor’s office to conduct an investigation into the killing of her brother. At the same time they informed the law-enforcement bodies of the killing of the applicant’s mother. The applicant also submits that relatives of other persons executed in Grozny in January 2000 applied to the authorities with similar requests. The applicant refers to NGO reports and letters, as well as media reports, which should have alerted the Russian authorities to act quickly and diligently in a case concerning a mass killing.
In particular, the applicant refers to the Human Rights Watch Report of February 2000 entitled “Civilian Killings in the Staropromyslovskiy District of Grozny” in which it accuses the Russian forces of deliberately murdering at least 38 civilians between late-December and mid-January. Human Rights Watch interviewed survivors, eyewitnesses and relatives of the dead. The report contains information about the killing of Maryam Goygova on 19 or 20 January. It also listed Magomed Goygov as having “disappeared” after being detained by soldiers.
On 15 May 2000 the civil registration office of Nazran issued death certificates for Maryam Azizovna Goygova, born in 1940, and for Said-Magomed Kirimovich Goygov, born in 1968. The deaths had occurred on 19 January 2000 in Grozny.
It appears that the applicant had no direct contacts with the law-enforcement authorities in relation to her relatives’ killing. She contested the effectiveness of the investigation with reference to documents obtained by the relatives of other victims of the events in Grozny and their representatives.
The applicant produced a copy of a letter by the Chechnya Republican Prosecutor of 16 January 2001 in relation to the murder of civilians in the Staropromyslovskiy district. The letter stated that on 3 May 2000 criminal investigation no. 12038 had been opened by the Grozny Town Prosecutor’s Office under Article 105 part 2 of the Criminal Code (murder of two or more persons in aggravating circumstances). The investigation was opened following a publication entitled “Freedom or Death” in the Novaya Gazeta on 27 April 2000. The investigation established that in February 2000, after the entry of the Russian forces into the district, 10 bodies of local inhabitants were discovered. The list of names referred, inter alia, to “Kerimov M.M., Goygov S.K., Goygova M. and Goygov A.”. Forensic reports carried out on the bodies of Goygov S., Khashiyeva Kh. and Taymeskhanov R. confirmed the cause of death. The letter stated that no witnesses had been identified to support the assumption that these people had been killed by servicemen. On 3 July 2000 the criminal case was adjourned, then re-opened on 30 August 2000. It was again adjourned on 30 September 2000 due to failure to identify the culprits. Attempts to locate the culprits, including possibly soldiers of the federal forces, were to continue.
The applicant submits that the Prosecutor’s letter of 16 January 2001 gives an incorrect list of names of those killed. She states that her brother’s full name was Said-Magomed Kirimovich Goygov, while he was traditionally referred to as Magomed. Her brother (Goygov S.K.) and her mother (Goygova M.) are listed in the letter, while the names of Kerimov M.M. and Goygov A. were not familiar to the applicant, even though these should have been her relatives or neighbours. She concludes that the letter mistakenly refers to her brother two or three times, confusing his name and patronymic. She also states that by January 2001 the number of confirmed victims of the killings should have been much higher than 10 persons. The applicant considers these mistakes to be characteristic of the level of the investigation and its attitude to the victims.
She also refers to information obtained by the Court after communicating the complaints of Magomed Khashiyev and Roza Akayeva (nos. 57942/00 and 57945/00). According to the applicant, the information submitted by the Russian Government in their memorandum about the progress of the investigation is inconsistent and proves that the investigation into the crimes allegedly committed by the Russian forces is ineffective.
On 18 April 2003 the SRJI, on the applicant’s behalf, requested the Grozny Town Prosecutor’s Office to inform them of the progress of the investigation in the criminal investigation file no. 12038 and to forward them a copy of the decision to grant the applicant victims status in the proceedings.
In May 2003 the Grozny Town Prosecutor’s Office replied to the SRJI and informed them that the applicant had to appear in person for questioning and that she should submit appropriate documents to establish her family links with the deceased Maryam Goygova and Said-Magomed Goygov. The prosecutor refused to divulge the information about the investigation to the SRJI referring to Article 161 of the Criminal Procedure Code (CPC), which prohibits disclosure of information about the progress of the criminal investigation.
On 9 July 2003 the SRJI informed the Grozny Town Prosecutor’s Office that the applicant resided in Belgium and submitted her address there. It requested the prosecutors to forward a relevant request to their Belgian counterparts so that the applicant could be questioned at her current place of residence and accorded victim status in the proceedings. This letter was repeated on 17 November 2004, because no reply came from the Grozny Town Prosecutor’s Office.
On 16 August 2004 the investigation questioned Marina Dzaurova, the applicant’s sister. On the same day she was granted victims status.
The applicant submits that neither she nor her relatives have been properly informed of the progress of the investigation or about its adjournment and reopening.
The applicant also refers to Council of Europe documents deploring the lack of progress of investigations into crimes allegedly committed by Russian forces against civilians.
Referring to the General Prosecutor’s Office, the Government submit that the investigation in the criminal case no. 12038 established that in January-February 2000 a detachment of the federal forces had conducted a counterterrorist operation in the Staropromyslovskiy district of Grozny. Within the same period several inhabitants of the district were killed by unknown persons using firearms. The Government also informed the Court that the investigation was pending and that at some stage the applicant’s sister Radima Goygova had been questioned as a witness. She refused to submit the bodies of her mother and brother for exhumation and forensic expert reports. Furthermore, the Government state that on 20 September 2004 the decision to adjourn the investigation in the criminal case was quashed and the case was forwarded for additional investigation. They do not submit copies of the documents to which they refer.
B. Relevant documents
1. Documents from the investigation file no. 12038
Within the proceedings in Khashiyev and Akayeva v. Russia (mentioned above, §§ 46-68), the Government submitted a copy of the investigation file in criminal case no. 12038, opened by the Grozny Town Prosecutor’s Office on 3 May 2000 and concerning “mass murder by the ‘205th brigade’ of civilian population in the Novaya Katayama settlement in Grozny on 19 January 2000”. The investigation was opened under Article 105 (a), (d), (e) and (j) of the Criminal Code following the publication of an article entitled “Freedom or Death” in the Novaya Gazeta newspaper on 27 April 2000.
Part of the submitted documents concerned the discovery on 10 February 2000 of three bodies in a garage near the Neftyanaya Street. One of the bodies belonged to Magomed Goygov, the applicant’s brother. Below is a brief summary of the documents from that file relevant to the present case.
a) Witness statements by the applicant and her sister
Sometime in 2000 the applicant and her sister Marina Dzaurova wrote statements, addressed to the Nazran Town Prosecutor, about the discovery of the bodies of Maryam Goygova and Magomed Goygov.
The applicant stated that on 19 January 2000 she had travelled to Grozny to find out about her mother and brother. There she met a man from the neighbourhood named Viskhan, who told her that a body of an old woman was lying in a cart at a crossroads nearby. He told her that she had been killed by soldiers from the 205th infantry brigade from Budennovsk, and referred to two soldiers who had told him the same thing – one named Oleg, the other Dima. Together with Viskhan the applicant went to the place indicated by him and found her mother’s body in a cart. They took it to Viskhan’s home and the applicant returned to Ingushetia. Viskhan also told her that three men who had accompanied Maryam Goygova had been taken away by the soldiers and probably shot. He identified them as Magomed Goygov and his two neighbours – Khamid Khashiyev and Rizvan Taymeskhanov. On the following day, on 21 January 2000, the applicant returned to Grozny with her sister to collect their mother’s body. When returning to Ingushetia, they took along a wounded woman, Elena Goncharuk (applicant in application no. 58643/00), who had survived an attack by soldiers on 19 January and who was taken to the Sunzhenskiy hospital. The applicant further recalled that after the burial of her mother in Nazran, on 24 January 2000 she again went to Grozny together with Magomed Khashiyev and Movlatkhan Bokova. Together with Viskhan they searched the surroundings of the place where he had last seen the soldiers and the three missing men, but found nothing and were forced to return to Ingushetia. On 10 February 2000 the Khashiyevs again came to Grozny and found the three bodies about 50 metres from the place where they had been on 24 January 2000. They took pictures of the bodies and brought them to Ingushetia. Her brother was buried in Nazran on 11 February 2000.
The applicant’s sister confirmed her statements. She added that on 21 January 2000 they had hired a minivan in Ingushetia to go to Grozny, but were not allowed to enter the city with the vehicle. They had to walk to the Staropromyslovskiy district and to walk back with the cart. She also stated that on 24 January 2000 the Emercom of Ingushetia gave them a lorry to travel to Grozny, but the vehicle again was not allowed to enter the city and they had to walk. She stated that both times on the road they were on numerous occasions stopped and checked by the military who had treated them rudely. After 24 January the family started to search for Magomed Goygov in detention centres, because they thought he could have been detained.
b) Witness statements by the relatives of Khamid Khashiyev and Rizvan Taymeskhanov
In their testimonies dated 5 May 2000 Magomed Khashiyev and his sister Movlatkhan Bokova gave details concerning the discovery of their relatives’ bodies. Both stated that on 25 January 2000 they had travelled to Grozny with the applicant and there met Viskhan who had told them that their relatives had been taken away by federal soldiers. They also testified about their return to Grozny on 10 February 2000, when they followed Viskhan’s directions and found three bodies, all frozen to the ground and with heavy wounds to the head. Magomed Khashiyev took photographs of the bodies at the spot and went to fetch a car. On the same day they delivered the bodies to Ingushetia, where they were buried the following day, on 11 February 2000.
Magomed Khashiyev’s daughter, Raykhat Khashiyeva, accompanied her father and aunt on their trip to Grozny on 10 February 2000. In her statement of 10 May 2000 she confirmed their accounts regarding the discovery of the bodies of Khamid Khashiyev, Rizvan Taymeskhanov and Magomed Goygov.
c) Description of the bodies and forensic expert reports
An examination of the bodies of Khamid Khashiyev, Rizvan Taymeskhanov and Magomed Goygov was conducted by an investigator from the Malgobek Town Prosecutor’s Office in the municipal morgue on 10 February 2000. The bodies were frozen. In respect of Magomed Goygov the expert noted numerous bullet wounds (at least a dozen) to the head, body and limbs. The right ear had been cut off. The report stated that the relatives refused to submit the body for a complete forensic expert report. One bullet extracted from the body was transferred to the relatives.
d) Documents relating to identification of the relevant military units
On 19 November 2000 the headquarters of the United Group Alliance (UGA) of the Ministry of Defence (based in Khankala) replied to the prosecutor’s request and submitted a list of military units identified by five-digit numbers only, which had been deployed in Grozny between 5 January and 25 February 2000.
On 4 March 2001 an investigator from the Chechen Republican Prosecutor’s Office sent a request to the military prosecutor of military unit no. 20102 (Khankala), asking to identify the exact temporary location of the military units at the relevant time, to identify the commanding officers and retrieve notes referring to operations in the Staropromyslovskiy district. The file reviewed by the Court contained no reply to that request.
e) The prosecutor’s orders
At different stages of the proceedings in the criminal case no. 12038 several orders were produced by the Chechen Republican Prosecutor’s Office enumerating the steps to be taken by the investigators, such as identifying and questioning all the victims and witnesses, carrying out forensic and ballistic reports etc. The order of 14 August 2001 listed ten persons whose bodies had been discovered in Novaya Katayama, including the applicant’s relatives. On 16 January 2003 the same prosecutor’s office ordered the investigators to establish possible places of burial of other civilians, to identify further witnesses and victims and to identify military units possibly responsible for the crimes.
A summary of the main steps of the investigation is given in the order by the Grozny Town Prosecutor dated 22 January 2003, which is the last document in the case-file submitted by the Government. Between May 2000 and January 2003 the case was adjourned seven times and the investigation was renewed on eight occasions. The file was transferred four times between the Grozny Town Prosecutor’s Office and the Chechen Republican Prosecutor’s Office. The document concludes with a list of tasks that should be carried out by the investigation team, including identification of the military units deployed in the Staropromyslovskiy district of Grozny at the relevant dates, identification of the burial places of civilians in the Novaya Katayama settlement, identification of witnesses and the victims of the crimes, etc.
2. Related civil proceedings
In 2000 and in 2003 Magomed Khashiyev, whose brother and nephew were killed together with the applicant’s brother, applied to the domestic courts. First, he obtained a decision which established the fact of death of his relatives for administrative purposes; then he obtained a civil compensation for their deaths. Below are the relevant details of these proceedings, submitted by the parties in the proceedings of applications nos. 57942/00 and 57945/00.
a) Certification of deaths
On 5 April 2000 Magomed Khashiyev submitted an application to the Malgobek Town Court in Ingushetia, seeking to have certified the facts of the deaths of his brother Khamid Khashiyev, his sister Lidiya Khashiyeva and his two nephews, Rizvan Taymeskhanov and Anzor Taymeskhanov. Mr. Khashiyev submitted that his relatives had remained in Grozny during the winter of 1999 – 2000, while he and the rest of the family escaped the hostilities to Ingushetia. On 17 January 2000 the soldiers of the “205th battalion” of the federal army entered Staropromyslovskiy district and “committed outrages”. On 19 January 2000 they entered his sister’s household and killed his relatives in a brutal fashion, causing numerous firearms and stab wounds. Mr. Khashiyev learnt the details of the killings when he attended the funeral of Maryam Goygova. His relatives were buried in Ingushetia. A criminal investigation had been opened and was ongoing. The declaration of deaths was required to obtain death certificates from the civil registration office.
On 7 April 2000 the Malgobek Town Court in Ingushetia certified the deaths of Khamid Khashiyev, Lidiya Khashiyeva, Rizvan Taymeskhanov and Anzor Taymeskhanov, which had occurred in Grozny, Chechnya, on 19 January 2000. The court based its decision on statements by the applicant and two witnesses. The court noted in the decision that a criminal case had been opened and that an investigation was in progress (there is no evidence that a criminal case had been opened at that time).
b) Proceedings to obtain damages
At the end of 2002 Magomed Khashiyev applied to a district court in Ingushetia seeking pecuniary and non-pecuniary damages from the Ministry of Finance. He stated that his four relatives had been killed in Grozny in January 2000 by the military. He had found their bodies and had transported them with great difficulty to Ingushetia, where they were buried. A criminal investigation was opened, but failed to establish the servicemen responsible for the killings. Witness Nikolay G. testified to the court that he lived in the Staropromyslovskiy district not far from the applicant’s family. In January 2000, about a month after the federal troops had established firm control over the district, he saw the servicemen leading Khamid Khashiyev and two of his nephews towards the garages. They were walking in front of an armoured personnel carrier (APC); armed soldiers were sitting on its hull. Soon afterwards he heard automatic rifle shots from the garages. When he attempted to go there, soldiers threatened him. He also submitted that he was threatened by someone from the prosecutor’s office to “keep his mouth shut”. Other witnesses testified about the circumstances in which the bodies had been discovered in Grozny, transported to Ingushetia and buried, and about the state of the bodies prior to burial.
On 26 February 2003 the Nazran District Court in Ingushetia partially granted the claim and awarded Mr. Khashiyev pecuniary and non-pecuniary damages in the amount of 675,000 roubles.
The court noted that it was common knowledge that the Staropromyslovskiy district had been under the firm control of the Russian federal forces by the material time, and that this did not need to be proved. At that time only federal soldiers were able to travel about town on an APC and to conduct identity checks. That Lidiya Khashiyeva and Anzor Taymeskhanov had been killed during an identity check was corroborated by the fact that their bodies were found in the courtyard of their house with identity documents in their hands. The court further noted that the exact military unit responsible for the killings had not been established by the investigation, adjourned at that time. However, all military units were State bodies and therefore pecuniary damage should be paid by the State.
The decision was upheld at the final instance by the Ingushetia Supreme Court on 4 April 2003 and executed in 2004.
3. Other relevant documents
Within the proceedings in the Khashiyev and Akayeva case the applicants submitted a statement by Christopher Mark Milroy, registered medical practitioner, Professor of Forensic Pathology at the University of Sheffield and Consultant Pathologist to the British Home Office. The statement was prepared on the basis of the witness’ statements and of eight colour photographs taken by Magomed Khashiyev when the bodies of Khamid Khashiyev, Rizvan Taymeskhanov and Magomed Goygov were found.
The expert concluded that “the photographs show injuries in keeping with bullets fired from a high velocity rifle. ... High velocity rifles can cause significantly destructive injuries. Those unused to looking at injuries caused by these weapons may mistake the cause of injuries produced by these weapons.” He further listed a number of procedural steps normally taken in an examination of a body of a person who has died in suspicious circumstances. In the expert’s opinion, these should include an x-ray of the body to identify and recover the projectiles and detailed examination and photographing of the external injuries, “as the pattern of injuries may indicate whether the victims were shot at close range or they had been tortured”.
COMPLAINTS
1. The applicant complains under Article 2 of the Convention that the right to life of Magomed Goygov and Maryam Goygova was violated. She also complains that no effective investigation has been carried out into their deaths, in violation of the procedural guarantees under Article 2 of the Convention.
2. The applicant complains that there is enough evidence to conclude, from the known circumstances in which her mother and brother had died and from the nature of their injuries, that they had been subjected to treatment in violation of Article 3 of the Convention. The applicant further alleges that no effective investigation into this complaint has been carried out by the relevant domestic authorities.
3. The applicant alleged that her mother and brother had been detained in violation of the provisions of Article 5 of the Convention.
4. The applicant submits that she had no effective access to a civil court in the absence of any meaningful conclusions of the criminal investigation. In this respect, she claims a violation of Article 6.
5. The applicant claims that she had no effective remedies against the alleged violations, contrary to Article 13 of the Convention.
THE LAW
The applicant alleges violations of Articles 2, 3, 5, 6 and 13 of the Convention.
1. Exhaustion of domestic remedies
The Government request the Court to declare the application inadmissible as the applicant has failed to exhaust the domestic remedies available to her. They submit that the investigation into the killings is continuing, in accordance with the domestic legislation. The applicant did not apply to a court with a complaint against the actions of the investigating authorities or against other state bodies. The Government also refer to the Constitution and other legal acts which permit individuals to appeal to the courts actions of the administrative bodies which infringe upon the citizens’ rights. The applicant did not apply to a court in Chechnya or further in the Northern Caucasus with any complaints, and therefore failed to use the domestic remedies available.
The applicant argues that she had no effective remedies to turn to. First, she claims that in January 2000 there were no functioning legal institutions in Chechnya. Referring to Council of Europe documents, human rights groups reports and other cases pending before the Court, she alleges the existence of an administrative practice of non-investigating the crimes committed by the military and security forces in Chechnya.
In any event, the applicant submits that she exhausted the domestic remedies by applying to the prosecutors. Despite that, the criminal investigation mounted into the complaint was wholly ineffective. As to civil law remedies, they would be inappropriate to deal with this type of complaint and in any way, would be ineffective in the absence of the outcome of the criminal investigation.
The Court considers that in the particular circumstances of the present case it does not have sufficient information to enable it to make a ruling on the question of exhaustion of domestic remedies. Furthermore, this question is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings.
The Court therefore decides to join this objection to the merits.
2. As to the merits of the applicant’s complaints
a) The Government
The Government do not dispute the fact of the applicant’s relatives deaths. They note, however, that the identity of the perpetrators was not established. There is no conclusive evidence to support the applicant’s allegations that the authorities are responsible for the deaths, and no eye-witnesses of the murders have been identified. Nor has the investigation obtained information to support the applicant’s allegation that her relatives had been subjected to treatment in violation of Article 3 or detained in violation of Article 5. The investigation is being carried out in accordance with the domestic legislation.
Under Articles 6 and 13, the Government state that the applicant had access to courts and other effective domestic remedies in accordance with the Constitution and the applicable legislation.
b) The applicant
The applicant maintains her complaints. She argues that there can be no reasonable doubt that servicemen are responsible for the detention, ill-treatment and killing of her relatives in breach of Articles 2, 3 and 5 of the Convention. She relies on numerous documents already submitted to the Court in the course of the present and other cases, all of which support the version of the killings carried out by servicemen.
The applicant alleges that the authorities failed to conduct an effective investigation into the circumstances of the ill-treatment and deaths of her mother and brother, in violation of the procedural obligations under Articles 2 and 3. She argues that the investigation fell short of the standards of the European Convention and of the national legislation. The investigation was not prompt because of the delay in opening and in taking of important steps. A number of investigative actions were never taken, such as securing the relevant evidence and questioning the servicemen who could have been involved. The investigation has been going on for a long time – more than five and a half years – without producing any tangible results. Despite her specific requests, the applicant was never granted victim status in the proceedings. The authorities systematically failed to inform the applicant or her family of the progress of the investigation and they had no information about important procedural steps.
The applicant also asserts that she was unable to turn to a court in the absence of the outcome of the criminal investigation in breach of Article 6 and deprived of effective domestic remedies for her Convention complaints, as required by Article 13.
c) The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Joins to the merits the Government’s objection as to the exhaustion of domestic remedies;
Declares the application admissible, without prejudging the merits of the case.
Søren NielsenChristos Rozakis
RegistrarPresident
[1] The inhabitants of Grozny traditionally refer to “settlements” within the Staropromyslovskiy District, such as Tashkala, Aldy, Chernorechye etc., even though administratively they are a part of the city.
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