Communicated on 15 October 2020
Published on 2 November 2020
THIRD SECTION
Application no. 76817/13
Georgiy Grigoryevich KIPER and Others
against Russia
lodged on 14 November 2013
STATEMENT OF FACTS
The applicants, Mr Georgiy Grigoriyevich Kiper, Mrs Nelli Georgiyevna Smakhtina and Mr Viktor Yuriyevich Smakhtin, are Russian nationals, who were born in 1938, 1963 and 1959 respectively and live in Moscow.
The first applicant is the father of the second applicant. The latter two applicants are spouses. Ms A.S. was the first applicant’s granddaughter and the second and the third applicant’s daughter.The circumstances of the caseThe background information
In spring 2004 Ms A.S. then aged 19, met Mr A.V. then aged 18. Mr A.V. started pursing and stalking Ms A.S., despite Ms A.S.’s multiple attempts to end their contacts.
After Mr A.V.’s behaviour became violent, which included, among other things, an attempt to arson the door of the second applicant’s flat and various threats, on multiple occasions during 2004, 2005 and 2006, Ms A.S. and the applicants applied to police for help and assistance.
It appears that there were serious delays in bringing a criminal investigation in respect of Mr A.V.’s behaviour. It does not appear that any actions were taken by the police to protect and assist the applicants and Ms A.S.The murder of Ms A.S.
On 6 October 2006 Mr A.V. murdered Ms A.S. by hitting her at least 11 times with a knife.
By a first instance judgment dated 22 May 2008 the Moscow Regional Court convicted Mr A.V. of having attacked the applicants and murdered Ms A.S.
On the same date Judge K. of the Moscow Regional Court adopted a special ruling, in which he pointed at “inaction and inappropriate execution of their professional duties and breaches of the requirements of the criminal procedure by investigator Kn. as well as prosecutor Ka.”. The special ruling noted that the mentioned problems were among “indirect reasons enabling the continuation of Mr A.V.’s illegal activity in respect of Ms A.S., as a result of which Mr A.V. on 6 October 2006 committed ‘an especially serious crime’ in respect of the victim – her murder carried out with special cruelty”.
The ruling was then sent to the superiors of the Department of the Interior and the Prosecutor’s Office for information.The applicants’ attempts to hold State authorities liable for their inaction resulting in the murder of Ms A.S.
(a) The applicants’ attempts to bring criminal proceedings against investigators in respect of their allegedly negligent behaviour
The applicants applied to the Prosecutor’s Office requesting the authorities to bring criminal proceedings against the investigators in charge of the criminal investigation.
By a decision of 26 October 2011 the investigation refused to open criminal investigation in connection with the alleged negligence of the investigators.
This decision was upheld on appeal by the Meshchanskiy District Court on 3 February 2012.
The Moscow City Court confirmed the judgment of the Meshchanskiy District on 26 March 2012.
(b) Tort proceedings
Thereafter the applicants brought civil proceedings against the Prosecutor’s Office of the town of Korolev of the Moscow Region, the Korolev Town Department of the Interior and the Ministry of Finance of the Russian Federation in respect of the events resulting in the death of their daughter and granddaughter and requested a pecuniary award in this connection.
By a decision of 26 April 2013 the Korolev Town Court of the Moscow Region dismissed the applicants’ claim. It noted that “the death of Ms A.S. resulted directly from the actions of Mr A.V., who was convicted for this crime. There is no direct causal link between the actions (inactions) of the officials of the Department of the Interior, the officials of the Prosecutor’s Office and the death of Ms A.S.”.
The decision of the first instance court was upheld on appeal by the Moscow Regional Court on 25 September 2013.Relevant domestic law and practice
Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. The tortfeasor is not liable for damage if he proves that the damage has been caused through no fault of his own (Article 1064 §§ 1 and 2 of the Civil Code).
A court may impose on the tortfeasor an obligation to compensate for non-pecuniary damage (physical or mental suffering). Compensation for non-pecuniary damage is unrelated to any award in respect of pecuniary damage (Articles 151 § 1 and 1099 of the Civil Code).
Irrespective of the tortfeasor’s fault, non-pecuniary damage shall be compensated for if the damage was caused (i) by a hazardous device; (ii) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment; or (iii) through dissemination of information which was damaging to honour, dignity or reputation (Article 1100 of the Civil Code).
State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions (Article 1069 of the Civil Code). Irrespective of any fault by State officials, the State or regional treasury is liable for damage sustained by a citizen on account of (i) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure, or (iii) unlawful administrative punishment (Article 1070 of the Civil Code).
COMPLAINT
The applicants complain under Articles 2, 6 and 13 of the Convention that the death of Ms A.S. resulted from the inaction of the authorities, which failed to react swiftly to the applicants’ and Ms A.S.’s calls for investigation and assistance in the face of real and imminent threats posed by Mr A.V. They further deplore the domestic courts’ unwillingness to examine their tort claims against law enforcement officials, even despite the obvious shortcomings in the investigation acknowledged in the special ruling of 22 May 2008.
QUESTIONS TO THE PARTIES
1. Regard being had to the special ruling dated 22 May 2008, was there a violation of Article 2 of the Convention as a result of the Russian authorities’ alleged failure to react promptly to the applicants’ and the victim’s complaints about the behaviour of Mr A.V. and to take protective measures in the form of effective deterrence against serious breaches of the applicants’ and Ms A.S.’s personal integrity by Mr A.V. (compare Talpis v. Italy, no. 41237/14, §§ 107-25, 2 March 2017)? Was the existing Russian legal framework adequate for dealing with such cases?
2. Was there a violation of Article 2 of the Convention, taken on its own or in conjunction with Article 13 of the Convention, as a result of the delays in institution of criminal proceedings into the applicant’s allegations of stalking by Mr A.V.?
Full & Egal Universal Law Academy