FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 17945/03
by Reyzilya SALATKHANOVA
and Movlid SALATKHANOV
against Russia
The European Court of Human Rights (First Section), sitting on
20 September 2007 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann, judges,
and Mr A. Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 24 November 2000,
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
The applicants are Mrs Reyzilya Nasrudinovna Salatkhanova, born in 1951, and Mr Movlid Yusup-Khadzhiyevich Salatkhanov, born in 1938. The applicants are Russian nationals and live in the village of Dyshne-Vedeno in Chechnya, Russia. They are represented before the Court by Ms L. Khamzayeva, a lawyer practising in Moscow. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Killing of Ayub Salatkhanov
The applicants are husband and wife. The first applicant is a housewife, the second applicant is retired. They have nine children. In April 2000 their son Ayub Salatkhanov, born in 1984, was a student of the 9th grade at school.
On 17 April 2000 at about 1 p.m. Ayub Salatkhanov, with three of his friends, went to the village market along Lenina Street. A convoy of Russian military vehicles was going down the street. The convoy included armoured personnel carriers (APCs), with soldiers sitting on the hulls. One of the servicemen raised his automatic rifle, took aim and shot at the applicants’ son. According to the applicants, it must have been a silenced rifle because the other three boys did not hear the shot and did not understand where it had been aimed, until Ayub Salatkhanov, who took several more steps, fell on the ground in front of the house at 153 Lenina Street, where the head of the village administration lived.
Ayub Salatkhanov was bleeding from the mouth and the chest area. He was immediately put into a car to be taken to the district hospital, but died in the car on the way. He had been wounded in the heart.
At that time there were a lot of passers-by in the street, who called the local police, the military commander’s office and the prosecutors. Together they forced the convoy to stop and to go to the military commander’s office. There the servicemen of the Dyshne-Vedeno temporary district police station (VOVD) identified a warrant officer, “Ch.”, who had allegedly shot at the boy. In the meantime he had climbed from the APC into the hull of a ZIL-130 military truck. According to the applicants, the servicemen of the VOVD searched the truck, and in a box with canned meat found an AK 7.62 automatic rifle, with an ammunition magazine and a silencer. The rifle belonged to warrant officer Ch.
2. Investigation into the killing
On 17 April 2000 the Vedeno District Prosecutor’s Office opened criminal investigation no. 14/36006 under Article 105 paragraph 1 of the Criminal Code into the murder of Ayub Salatkhanov. The applicants were informed accordingly by a letter of 27 April 2000, which also stated that “the person who committed the crime has been identified and detained” and that the case file would be transferred for further investigation to the military prosecutor of military unit no. 20102 based in Khankala (the main Russian military base in Chechnya).
On 20 April 2000 the second applicant was granted the status of a victim in the criminal proceedings.
On 16 June 2000 the Prosecutor’s Office of the Chechen Republic replied to the applicants’ request for information that the criminal investigation into their son’s murder had been transferred to the military prosecutor’s office, which was responsible for investigating crimes committed by servicemen. It was also stated that all further questions should be referred to the military prosecutor’s office in Khankala. On transfer, the case was given the number 34/33/0179-00.
On 28 June 2000 the applicants were informed by a letter from the military prosecutor of military unit no. 20102 that on 2 June 2000 the criminal investigation in respect of warrant officers Ch. and S. of military unit no. 75143 had been discontinued under Article 5 paragraph 2 of the Code of Criminal Procedure [absence of corpus delicti]. The case file was forwarded for further investigation to the Prosecutor’s Office of the Chechen Republic.
On 29 June 2000 the supervising military prosecutor quashed the decision to discontinue the investigation.
On 3 July 2000 the Vedeno district civil registration office issued a death certificate for Ayub Salatkhanov, aged 16, who had died on 17 April 2000 of a gunshot wound to the heart.
On 15 November 2000 the investigation was suspended because serviceman Ch. had absconded. On the same date he was placed on the wanted list.
In January 2001 the residents of Dyshne-Vedeno wrote a collective petition to the military commander of Chechnya, with copies to the Government of the Chechen Republic. They complained of “arbitrary violence” on the part of military servicemen and referred to a number of incidents, including the killing of the applicants’ son. They asked the commander to intensify the investigation and to protect them from further incidents.
On 11 March 2001 the military prosecutor of military unit no. 20102 informed the applicants that the investigation had identified the suspect – Ch., warrant officer of military unit no. 75143. The military unit had been relocated out of Chechnya without the military prosecutor’s knowledge. Warrant officer Ch. had absconded and on 15 November 2000 had been placed on the wanted list.
By a letter dated 27 July 2001 (received by the applicant in December 2001) the military prosecutor of military unit no. 20102 informed the applicants that the serviceman responsible for the murder of their son had been identified. He had been discharged from military service and had absconded. He had been searched for by the officers of the Ostrovskiy district police of the Pskov Region, where his residence was located. The letter further stated that on 15 November 2000 the investigation had been suspended during the search. On 25 July 2001 the investigation was resumed, and a request for a search was forwarded to the authorities in Ukraine, where the suspect’s parents resided.
On 8 August 2001 the Chief Military Prosecutor’s Office informed the applicants that the investigation into their son’s murder had been reopened. The person suspected of the crime had absconded and had been placed on the federal wanted list.
On 8 October 2001 the Prosecutor’s Office of the North Caucasus Military Circuit informed the applicants that on 2 April 2001 the decision of 15 August 2000 to suspend the proceedings had been quashed and the case file had been forwarded for further investigation to the military prosecutor of military unit no. 20102. The investigation was pending, and the applicants would be informed of the results.
The second applicant applied to various prosecutors in person as well as in writing and asked them to ensure a proper investigation into his son’s murder. According to him, he was told on several occasions that different versions of his son’s killing existed, and that they all needed to be verified – for example, that his son had been shot at by a rebel sniper, or by the local police, or that he had attacked the convoy and had been killed doing so. He submitted that, as a result of the stress and anguish caused by the killing of his son and the complacency of the prosecutors, his health had deteriorated dramatically and he had suffered two heart attacks.
After a number of suspensions and reopenings, the investigation was again resumed on 17 January 2005. Ch.’s whereabouts were established and it was also found that he had changed his name to M. He was subsequently arrested, and on 18 April 2005 the case was committed for trial to the Grozny Garrison Military Court. It appears that no final judgment has been delivered yet.
Despite specific requests made by the Court on two occasions, the Government did not submit a copy of the investigation file concerning the murder of Ayub Salatkhanov. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. After the case had been committed for trial, the Government submitted that “[b]efore the court renders its final decision in [the criminal case], the question of familiarisation with the investigation case file falls into the court’s jurisdiction and remains at its discretion”.
3. Proceedings for compensation for non-pecuniary damage
In 2003 the second applicant brought a claim against the Ministry of Finance for compensation for non-pecuniary damage caused by the murder of his son by a serviceman.
On 22 July 2003 Basmanniy District Court of Moscow dismissed the claim. The court held, in particular:
“As it follows from the materials of the case, the possibility that [the applicant] was caused physical and moral suffering arose as a result of fulfilment of duties by a serviceman of military unit no. 75143 [Ch.] ...
Precisely [this military unit] may be liable if [its serviceman] caused non-pecuniary damage when fulfilling [his] duties.”
On 12 February 2004 the Moscow City Court upheld the judgment on appeal.
According to the Government, within the framework of the criminal proceedings against Ch., the second applicant had brought a civil claim for compensation for non-pecuniary damage in the amount of 10,100,000 Russian roubles (RUR) before the criminal case against Ch. was sent for trial.
COMPLAINTS
The applicants complained under Articles 2, 3, 6 and 13 of the Convention about their son’s murder and the lack of an effective investigation.
THE LAW
A. The Government’s objection concerning exhaustion of domestic remedies
The Government contended that the applicants had failed to exhaust available domestic remedies. In particular, they had not brought civil claims for damages and had not appealed against procedural decisions adopted in the course of the criminal proceedings.
The applicants averred that the Government had failed to demonstrate the relevance and effectiveness of the domestic remedies invoked.
The Court observes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil proceedings and criminal remedies. As regards a civil action to obtain redress for damage sustained through alleged illegal acts or unlawful conduct on the part of State agents, the Court notes, in the first place, that the second applicant did bring a civil claim for compensation for non-pecuniary damage. The claim was dismissed by domestic courts at two instances. The Court further observes that in any event a civil claim for damages would not have resolved the issue of effective remedies in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings as to the perpetrators of fatal assaults, still less of establishing their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00,
§ 119-121, 24 February 2005). Furthermore, a Contracting State’s obligation under Articles 2 and 13 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault might be rendered illusory if, in respect of complaints under those Articles, an applicant were required to exhaust an action leading only to an award of damages (see Yaşa v. Turkey, judgment of 2 September 1998, Reports of Judgments and Decisions 1998‑VI, p. 2431, § 74).
In the light of the above, the Court dismisses the Government’s objection in the part related to the applicants’ alleged failure to exhaust domestic civil remedies.
As regards criminal-law remedies, the Court observes that the applicants complained to the law-enforcement agencies on the day their son was killed and that an investigation was in progress from July 2000 until April 2005, when the case was sent for trial. The applicants and the Government disagree as to the effectiveness of that investigation.
The Court considers that this limb of the Government’s objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicants’ complaints and it would be inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this objection to the merits.
B. Merits of the application
The applicants complained under Articles 2, 3, 6 and 13 of the Convention about their son’s murder and the lack of an effective investigation.
The Government submitted that, in having instituted a criminal investigation into Ayub Salatkhanov’s murder, the Russian authorities had admitted that there had been a violation of his right to life. However, the violation had been the result of the actions of a particular individual and not of State agencies. The investigation conducted had met the requirements of Article 2 of the Convention. Its long duration had been due to the fact that the suspect had absconded and it had taken some time to establish his whereabouts. Serviceman Ch. could not have been arrested directly after the incident, because it had been necessary to establish the circumstances of the incident first. In the Government’s view, the long duration of the investigation alone could not lead to the conclusion that it was ineffective. They further submitted that the applicants had had effective domestic remedies, as required by Article 13 of the Convention. In particular, a criminal investigation into Ayub Salatkhanov’s murder had been instituted and the second applicant had been granted the status of a victim.
The applicants contested the Government’s submission that the State was not responsible for the murder of their son since at the time of the events Ch. had been fulfilling his duties as a serviceman. The applicants further submitted that the mere institution of the investigation and the granting of the status of a victim to the second applicant were not sufficient to render the investigation effective. In sum, the applicants insisted that there had been a violation of their Convention rights.
The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not 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
Decides to join to the merits the Government’s objection concerning the exhaustion of domestic remedies;
Declares the application admissible, without prejudging the merits.
André WampachChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy