THIRD SECTION
DECISION
Applications nos. 20436/11 and 24776/11
Magomet ISRAILOV against Russia
and Ayzat BAKAYEVA against Russia
The European Court of Human Rights (Third Section), sitting on 28 April 2020 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above applications lodged on 16 February 2011 and 2 April 2011 respectively,
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 applicant in the first case, Mr Magomet Israilov, is a Russian national, who was born in 1961 and lives in Grozny. He was represented before the Court by Mr T. Shamsudinov, a lawyer practising in Grozny.
2. The applicant in the second case, Ms Ayzat Bakayeva, is a Russian national, who was born in 1968 and lives in Allonnes, France. She was represented before the Court by Mr I. Timishev, a lawyer practising in Nalchik.
3. 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
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Israilov v. Russia (no. 20436/11)
5. On 5 April 2002 the applicant’s sister, Ms K.G., went from Grozny to Ingushetia to visit her son in hospital. She travelled by taxi with some other passengers.
6. At around 10 a.m. on the outskirts of Sernovodsk village, the taxi came under fire and the driver and all of the passengers were killed.
7. On 6 April 2002 investigators with the Achkhoy-Martan inter-district prosecutor’s office (“the investigators”) opened criminal case no. 63026. The applicant’s sister was listed as an unidentified victim.
8. On the same day, 6 April 2002, the crime scene was examined.
9. Later on the same day, Mr U. and Mr M. were questioned as witnesses. They stated that on 5 and 6 April 2002 two armoured personnel carriers with military servicemen in camouflage uniforms had been seen driving through Sernovodsk and the village of Samashki. Soon after they had passed Sernovodsk, one of the witnesses had heard automatic gunfire and gunshots. After that they had found a car damaged by gunshots and several dead bodies on the road.
10. On 7 April 2002 the applicant was informed by his niece of the death of his sister, Ms K.G.
11. On 15 April 2002 the applicant’s other sister, Ms I., was granted victim status in the criminal case and questioned.
12. On 6 June 2002 the investigators suspended the criminal proceedings for failure to identify the perpetrators.
13. On 29 August 2002 the investigators’ superior, the Achkhoy-Martan inter-district prosecutor, overruled the suspension as unlawful and ordered that the following steps be taken: (i) the bodies of the victims be subjected to a forensic examination; (ii) witnesses Mr U. and Mr M. be questioned concerning the possible involvement of military servicemen in the incident; (iii) information about the possible involvement of Ms K.G. (the applicant’s sister) in the unlawful transit of goods from Chechnya to Ingushetia be verified; (iv) clarification be obtained as to whether the car involved in the incident had been escorting a freight vehicle transporting illegal goods and whether the incident had been a killing motivated by pecuniary motives.
14. On 1 September 2002 the applicant’s sister Ms I. was questioned.
15. Between 2 October 2002 and 6 October 2002 a forensic medical examination was carried out which found that the death of Ms K.G. had been caused by penetrating gunshot wounds to the head and abdomen.
16. On 29 September 2002 the investigation was again suspended for failure to identify the perpetrators.
17. No steps were taken by the authorities between September 2002 and October 2007. The applicant did not contact the investigators.
18. On 22 October 2007 the criminal investigation was resumed.
19. On 23 October 2007 the applicant was granted victim status in the criminal case and questioned.
20. On 1 November 2007 the investigation was again suspended for failure to identify the perpetrators.
21. On 15 January 2008 the investigation was resumed and then again suspended on 15 February 2008.
22. On 20 May 2008 the investigation was resumed again.
23. On 27 May 2008 Mr M. was questioned again and reiterated his earlier statement.
24. On 18 June 2008 the investigation was suspended again and then resumed on 24 September 2008, before being again suspended on 24 October 2008.
25. On 21 October 2010 the applicant challenged the suspension of investigation before the Achkhoy-Martan District Court stating that it was premature and unsubstantiated.
26. On 29 October 2010 the Achkhoy-Martan District Court overturned the suspension and ordered that a number of steps be taken.
27. On 30 December 2010 the investigation was resumed. It appears to still be pending.
28. On 16 February 2011, almost nine years after the death of his sister, the applicant lodged his application with the Court.
2. Bakayeva v. Russia (no. 24776/11)
29. Until 1999 the applicant resided with her family in Grozny. In September 1999 they moved to Ingushetia due to the armed hostilities taking place in Chechnya at the material time.
30. On 4 February 2000 the applicant returned to Grozny to visit her relatives. She discovered that her parents were missing and their house had been looted.
31. Between February and April 2000 the applicant tried to establish her parents’ whereabouts, to no avail. In April 2000 she was informed that her father had been shot dead in January 2000 and that her mother had been killed by Russian soldiers, who she had tried to stop from looting her house.
32. Subsequently, the applicant and her cousin visited the house in which the applicant’s mother had allegedly been killed and recovered charred bone fragments. They collected the remains and buried them in the village of Martan-Chu.
33. At the end of April 2000 the applicant lodged a complaint with the police. Subsequently, police officers visited and questioned some of the residents living next to the house which had belonged to the applicant’s parents.
34. On 2 October 2000 the Civil Records Office in Grozny (ЗАГС) recorded the deaths of the applicant’s father and mother under numbers 352 and 353 and issued their death certificates.
35. On 25 February 2003 the applicant and her family moved to Allonnes, France where they were granted asylum.
36. Between February 2003 and June 2010 the applicant had no contact with the authorities concerning the investigation into her parents’ death.
37. On an unspecified date in 2010 the applicant hired a lawyer, Mr T., who on 4 June 2010 requested the authorities to open a criminal case into the killing of the applicant’s parents.
38. On 9 August 2010 the Leninskiy inter-district investigation department in Grozny (“the investigators”) informed the applicant’s lawyer that on 30 July 2010 criminal case no. 23049 had been opened into the killing of the applicant’s father and on 9 August 2010 criminal case no. 23052 into the killing of her mother.
39. On 16 October 2010 the applicant’s lawyer complained to the Staropromyslovskiy District Court in Grozny of the investigators’ failure to effectively investigate the matter and to transfer the investigation to the military authorities, as the killings had been perpetrated by military servicemen.
40. On 29 October 2010 the Staropromyslovskiy District Court dismissed the complaint, stating that the investigation could not be transferred to the military authorities until the involvement of military servicemen had been established. On 1 December 2010 the Chechnya Supreme Court upheld that decision on appeal.
41. On 30 October 2010 the investigation in criminal case no. 23049 was suspended and on 9 November 2010 the investigation in case no. 23052 was also suspended. It appears that the proceedings are still pending.
42. On 2 April 2011, more than ten and half years after the death of her parents, the applicant lodged her application with the Court.
COMPLAINTS
43. The applicants in both cases complain under Article 2 of the Convention of an alleged killing of their relatives by State servicemen and a failure of the national authorities to investigate the matter effectively.
44. The applicants submitted other complaints under Articles 1, 5, 8, and 13 of the Convention.
THE LAW
I. JOINDER OF THE APPLICATIONS
45. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.
II. ADMISSIBILITY OF THE APPLICATIONS
A. The parties’ submissions
1. The Government
46. In their observations, the Government argued that the applications should be declared inadmissible as brought “out of time”. Furthermore, the applicants had failed to complain of the alleged deficiencies of the investigation before the domestic courts.
2. The applicants
47. The applicants submitted that they had complied with the six‑month rule. They had taken all possible steps within a reasonable time-limit and had lodged their applications as soon as they had considered the domestic investigations to be ineffective. They also submitted that lodging court complaints against the investigators would not have rendered the proceedings effective.
B. The Court’s assessment
48. The Court does not have to address all the issues raised by the parties as both applications are, for the following reasons, inadmissible in any event for non-compliance with the six-month time-limit set out in Article 35 of the Convention.
49. The Court reiterates that the purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it is also meant to protect the authorities and other parties concerned from being left in a state of uncertainty for a prolonged period of time (see Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002‑III, and Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002).
50. Where no remedies are available or they are judged ineffective, the six‑month time-limit in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), nos. 62566/00 and 14 others, 10 January 2002). However, special considerations may apply in exceptional cases where an applicant avails himself of, or relies on, an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective; in such a case it is appropriate to take as the start of the six-month period the date when he or she first became aware or ought to have become aware of the circumstances rendering the remedy ineffective (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).
51. In a number of cases concerning ongoing investigations into the deaths of applicants’ relatives, the Court has examined the period of time from which the applicant could or should have started doubting the effectiveness of a remedy (see, among other examples, Bulut and Yavuz, cited above; Bayram and Yıldırım, cited above; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005; Finozhenok v. Russia (dec.), no. 3025/06, 31 May 2011; Gusar v. the Republic of Moldova and Romania (dec.), no. 37204/02, 30 April 2013; and Opačić and Godić v Croatia (dec.), no. 38882/13, 26 January 2016).
52. Consequently, where a death has occurred, applicant relatives are expected to take steps to keep track of the 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 effective criminal investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 158, ECHR 2009). On the same basis, where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (ibid., § 160).
53. The determination of when the six-month period should start to run has depended 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. In this connection, in the above‑cited Varnava and Others judgment, the Court noted that where the lack of progress or ineffectiveness of an investigation was readily apparent, the requirements of expedition may require an applicant to bring such a case before the Court within a matter of months, or at most, depending on the circumstances, a very few years after the events. This is particularly pertinent in cases of unlawful death where there is generally a precise point in time at which the death is known to have occurred and some basic facts are in the public domain, so a lack of progress or the ineffectiveness of an investigation will generally be more readily apparent (see Varnava and Others, cited above, § 162).
54. In some cases when information purportedly casting new light on the circumstances of a killing comes into the public domain at a later stage, then the issue then arises as to whether, and in what form, the procedural obligation to investigate is revived (see, for example, Cerf v. Turkey, no. 12938/07, §§ 65-67, 3 May 2016, and Khadzhimuradov and Others v. Russia, nos. 21194/09 and 16 others, § 76, 10 October 2017). However, as the Court has stated on a number of occasions, new developments, occurring after a lull of several years, and which amount to no more than a mere formality, or do not produce any noticeable developments in the investigation, will not be accepted as providing a new starting point for the purposes of calculating the six-month time-limit (see Finozhenok, cited above; Nasirkhayeva v. Russia (dec.), no. 1721/07, 31 May 2011; Dzhamaldayev v. Russia (dec.), no. 39768/06, § 35, 22 January 2013; and Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, § 47, 31 May 2016).
55. In the present case, the Court notes that the applicant in Israilov (no. 20436/11) lodged his application with the Court almost nine years after the date of the killing of his sister and the applicant in Bakayeva (no. 24776/11) lodged her application ten and half years after the official date of the death of her parents. In both applications, the investigations were still formally pending at the time when the proceedings before the Court were initiated (compare Utsmiyeva and Others v. Russia (dec.), no. 31179/11, § 34, 26 August 2014).
56. The Court observes that in both applications, the investigation has not attained any tangible results and no suspects have been identified. The investigation in Israilov (no. 20436/11) remained at a standstill from September 2002 to October 2007 for a period of more than five years, when no steps were taken and no communication took place between the authorities and the applicant (see paragraph 17 above). The investigation of both criminal cases in Bakayeva (no. 24776/11) was initiated only in 2010, that is almost ten years after the death of the applicant’s parents (see paragraphs 34 and 38 above); between February 2003 and June 2010, over a period of more than seven years, there was no contact between the applicant and the domestic authorities concerning the investigation into the death of her parents (see paragraph 36 above).
57. The Court notes that the applicants had received no information from the authorities for more than five and seven years respectively, and yet there is no evidence in the documents submitted – despite such a significant period of silence on the part of the authorities – that either one of them attempted to request information on their own initiative. They remained passive in respect of the seemingly dormant domestic investigation (compare Utsmiyeva and Others, cited above, § 36). If the applicants failed to become aware of the ineffectiveness of the investigation given such a significant lull, the Court considers that this was attributable to their own negligence (see, for example, Findik and Omer v. Turkey (dec.), nos. 33898/11 and 35798/11, § 15, 9 October 2012, and Opačić and Godić, cited above).
58. The Court observes that since the applicants are the close relatives of the victims of the violations claimed, they may be expected to display due diligence and take the requisite initiative in informing themselves of the progress being made in the investigation into their relatives’ killing. The absence of any news from the authorities on the investigation of such a serious crime for such a significant period should have prompted them to draw appropriate conclusions (see, for example, Açış v. Turkey, no. 7050/05, § 42, 1 February 2011).
59. In view of the above, the Court finds that the applicants in both of the present applications have not shown convincingly that some kind of advance was being made that would have justified their inactivity for more than five and seven years respectively: there was a five-year standstill in the investigation in Israilov (no. 20436/11) between September 2002 and October 2007, well before the application was lodged in February 2011 (see paragraphs 17 and 28 above); and in Bakayeva (no. 24776/11), where the investigation was only initiated ten years after the killing, there was a seven‑year gap in communication with the authorities prior to the application being lodged with the Court (see paragraphs 36 and 42 above). The Court finds that in such circumstances the applicants ought to have concluded long before – and certainly more than six months before – the introduction of their applications that the domestic investigations were without effect.
60. Further, in relation to the formal initiation of the investigations in Bakayeva (no. 24776/11) in 2010 (see paragraphs 33 and 38 above), the Court notes that where information purportedly casting new light on the circumstances of a death comes into the public domain, a new obligation to investigate the death may arise (see Cerf, cited above, §§ 65-67). As to the application before it, the Court does not find that the initiation of the investigations in 2010 can cast a new light on the circumstances, given that it has not led to the discovery of any new elements, and especially given that the proceedings were suspended shortly thereafter (see paragraphs 38 and 41 above).
61. Accordingly, the Court finds that the present applications must be rejected for failure to comply with the six-month time-limit set out in Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 28 May 2020.
Olga ChernishovaAlena Poláčková
Deputy RegistrarPresident
Full & Egal Universal Law Academy