Information Note on the Court’s case-law 72
February 2005
Khashiyev and Akayeva v. Russia - 57942/00 and 57945/00
Judgment 24.2.2005 [Section I]
Article 2
Article 2-2
Use of force
Killing of civilians in Chechen war: violation
Article 3
Torture
Civilians in Chechen war – treatment contrary to Article 3 not established beyond reasonable doubt: no violation
Failure to conduct an effective investigation into credible allegations of torture: violation
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Relatives of civilian casualties in military attacks not required to pursue civil-law remedies: preliminary objection dismissed
Facts: Each applicant was a resident of Grozny up to the time of the military operations there towards the end of 1999. With the outbreak of hostilities, the applicants took the decision to leave their home and move to Ingushetia. In each case, they entrusted their homes to relatives (the first applicant’s brother and sister as well as the latter’s two adult sons, the second applicant’s brother), who remained in the city. At the end of January 2000, the applicants learned of the deaths of their relatives. They returned to Grozny and found the bodies lying in the yard of a house and in a nearby garage. All bodies bore multiple gunshot and stab wounds. There was also bruising and, in some cases, broken bones and mutilation. The applicants brought the bodies back to Ingushetia for burial. On a subsequent trip to Grozny, the second applicant visited the scene of the killings and found spent machine gun cartridges and her brother’s hat. In a nearby house she saw five bodies, all of which bore gunshot wounds. Having learned that a sixth victim had survived, the second applicant managed to trace her in Ingushetia and was told that the victims had been shot at by Russian troops. A criminal investigation, opened in May 2000, was suspended and reopened several times, but those responsible were never identified. In 2003 a civil court in Ingushetia ordered the Ministry of Defense to pay damages to Mr Khashiyev in relation to the killing of his relatives by unidentified military personnel.
Law: Article 2 (obligation to protect the right to life) – The Court first noted that, in reply to its request, the Government had submitted only about two-thirds of the criminal investigation file. It was inherent in proceedings related to cases of this nature that in certain instances solely the respondent Government had access to information capable of corroborating or refuting the applicant’s allegations. A failure on the Government’s part to submit such information without a satisfactory explanation could give rise to the drawing of inferences as to the well-founded character of such allegations.
On the basis of the material in its possession the Court found it established that the applicants’ relatives had been killed by military personnel. No other plausible explanation as to the circumstances of the deaths had been forthcoming, nor had any justification been relied on in respect of the use of lethal force by the State agents.
Conclusion: violation (unanimously).
Article 2 (obligation to conduct an effective investigation) – An investigation into the killings of the applicants’ relatives had been opened only after a considerable delay and had been flawed. In particular, the investigation did not seem to have pursued the possible involvement of a certain military unit directly mentioned by several witnesses. The Court was not persuaded that an appeal against the outcome of the investigation would have been able to remedy its defects, even if the applicants had been properly informed of the proceedings and had been involved in it. The applicants must therefore be regarded as having complied with the requirement to exhaust the relevant criminal-law remedies. In sum, the authorities had failed to carry out an effective criminal investigation into the circumstances surrounding the deaths of the applicants’ relatives.
Conclusion: violation (unanimously).
Article 3 (obligation to protect from torture) – The Court was unable to find that beyond all reasonable doubt the applicants’ relatives had been subjected to treatment contrary to Article 3.
Conclusion: no violation (unanimously).
Article 3 (obligation to conduct an effective investigation) – The Court found that there had been no thorough and effective investigation into credible allegations of torture.
Conclusion: violation (unanimously).
Article 13 –The applicants’ complaints were clearly “arguable” for the purposes of Article 13. They should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation, for the purposes of Article 13. In the present cases the criminal investigation had been ineffective in that it lacked sufficient objectivity and thoroughness, and the effectiveness of any other remedy, including the civil remedies, had been consequently undermined.
Conclusion: violation (5 votes to 2).
Article 41 – The Court awarded EUR 15,000 to the first applicant and EUR 20,000 to the second applicant in respect of non-pecuniary damage. It also made an award for costs and expenses.
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This summary by the Registry does not bind the Court.
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