UMAYEVA v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1200/03
by Lipatu Makhmudovna UMAYEVA
against Russia

The European Court of Human Rights (First Section), sitting on 11 December 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 S. Nielsen, Section Registrar,

Having regard to the above application lodged on 6 January 2003,

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, Mrs Lipatu Makhmudovna Umayeva, is a Russian national who was born in 1959 and lives in Grozny, Chechnya. She is represented before the Court by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government were represented by their former Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, are summarised below in Part A. Documents submitted by the parties are listed in Part B.

A. The circumstances of the case

1. The events of January 2000

The applicant has a daughter and three grandsons. Her family lived at 9 Kiyevskiy Lane in the Staropromyslovskiy district of Grozny, where they owned two adjacent flats, nos. 4 and 5. Prior to the resumption of hostilities in Chechnya in 1999 the applicant was a professor of the Chechen and Russian languages and of teaching methods in the Chechen branch of the Business and Administration University of Ingushetia.

In October 1999 hostilities resumed between Russian forces and Chechen armed groups. Grozny came under heavy bombardment from air and by artillery.

The applicant remained in Grozny in the winter of 1999-2000. On 10 January 2000 her house at 9 Kiyevskiy Lane was destroyed during a rocket attack. The complete destruction of flat no. 4 at 9 Kiyevskiy Lane was confirmed in May 2002 by the Grozny municipal service.

After 10 January 2000 the applicant and her family lived in the cellar of a house at 23 Olympiyskiy Drive, together with several other residents of the area. On 22 January 2000 the residents were informed, via an amplifier installed in a helicopter, that the following day would be their last opportunity to leave the city through a humanitarian corridor. Leaflets containing similar information were dropped, notifying the residents that they could leave on 23 January 2000 at 9 a.m. by the road leading to the settlement of Staraya Sunzha, where they would be picked up by buses and taken out of the Grozny area.

On 23 January 2000 at 9 a.m. the applicant and her family left the house at Olimpiysky Drive. They were joined by other residents who were heading towards Staraya Sunzha. The applicant recalls that there were about a hundred people in their group, including children. People were carrying only their most valuable possessions, in bags or on sledges. Many had white armbands, and a man walking close to the applicant was carrying a pole with a white sheet to show that they were civilians.

At about 9.30 a.m. the front of the group, including the applicant, reached Zhukovskiy Street. Further down that street there stood the premises of a former canning factory, where a regiment of Russian military forces was temporarily stationed. When the applicant was crossing Zhukovskiy Street at the point where it intersects with Olimpiysky Drive, artillery fire and shelling started from the direction of the cannery. Later a helicopter appeared, from which a sniper fired towards the crossroads. As a result of the shelling a nine-storey building nearby was destroyed. The applicant submitted a drawing with a plan of the area where the attack occurred.

The applicant received several shell and fire wounds to her right arm, both legs, hips and left kneecap. She lost consciousness and remained in the street for about ten hours. Her relatives told her later that the shelling had continued and that they could not retrieve her or the other wounded until nightfall.

In the evening of the same day the applicant was taken by her relatives to a basement. She could not be taken to a hospital because the shelling was continuing. Her relatives and neighbours transported her from one cellar to another, and it was not until 30 January 2000 that she reached the field hospital of the Ministry of Emergencies (Emercom), located in the settlement of Staraya Sunzha on the outskirts of Grozny, where she was treated by medical personnel for the first time.

On the following day the applicant was taken further away, to a hospital in the town of Argun, due to assistance obtained by her sister from the then head of the Chechen police force. However, that hospital had no electricity and it was impossible to take an X-ray of the applicant’s wounds. On 31 January 2000 the applicant was brought by her sister to a hospital in Gudermes, where she finally received proper treatment. There she was diagnosed with the following injuries: perforating firearm wounds to the soft tissues of the right arm and right hip, a perforating firearm wound to the left knee cap, a transcondylar fracture of the left hip, complicated by osteomyelitis, and a perforating firearm wound to the left foot, resulting in a splintered fracture of an instep bone and forming a defect of the bone tissue.

The applicant remained in the Gudermes hospital until August 2000. Subsequently she travelled to Rostov-on-Don for further medical treatment and in September-October 2001 she was treated in Moscow. The applicant continues to suffer from the consequences of her wounds, is partially disabled and can walk only with difficulty.

The Government did not dispute the factual circumstances of this part of the complaint as presented by the applicant.

2. Criminal proceedings concerning the attack of 23 January 2000

On 4 March 2002 the applicant applied to the Grozny Town Prosecutor, described the attack on the civilian convoy on 23 January 2000 and her injuries and asked that a criminal investigation be opened into the attack.

On 14 and on 20 May 2002 the applicant submitted written complaints to the Grozny Town Prosecutor’s Office.

On 26 June 2002 the Grozny Town Prosecutor’s Office opened a criminal investigation under Article 118 part 3 of the Criminal Code – involuntary causing of bodily harm of medium gravity. The Leninskiy District Department of the Interior (Leninskiy ROVD) was put in charge of the investigation. On the same day the applicant was notified of this.

On 28 June 2002 an investigator from the Leninskiy ROVD opened a preliminary investigation and assigned the case file no. 48089.

In July and August 2002 the applicant and a number of witnesses were questioned. Two witnesses confirmed the applicant’s account of the events of January 2000. The investigation also questioned a number of local residents, servicemen from the Leninskiy ROVD and former members of the armed forces who had participated in combat in Grozny. However, none of these witnesses had any information about the episode complained of by the applicant. Furthermore, the investigation questioned medical personnel in the hospital in Argun where the applicant had been taken on 30 January 2000 (see documents in Part B below).

In July 2002 a medical report confirmed that the injuries could have been received in the circumstances described by the applicant.

On 3 August 2002 the applicant was granted victim status in the proceedings.

On 6 August 2002 an investigator from the Leninskiy ROVD issued the applicant with a notice which stated: “On 23 January 2000 during the period of hostilities in Grozny, while using the humanitarian corridor provided by the federal armed forces, Mrs Lipatu Umayeva received firearm wounds, as a result of which she was admitted to hospital in Gudermes. ...”

In August 2002 the Leninskiy ROVD and the military commander’s office of Grozny informed the investigation that it would be impossible to identify the relevant military units in view of the passage of time and because in January 2000 a large number of military units had participated in the operations in Grozny.

The Government also stated that on 11 August 2002 the investigation had forwarded requests for information to the investigative departments of the Ministry of the Interior in the Moscow and Rostov regions. They did not indicate the nature of these requests or whether any answers had been received.

On 24 August 2002 the charge against unknown persons was reformulated under Article 213 part 3 of the Criminal Code – hooliganism involving the use of arms (on 27 January 2004 the same charge was brought under Article 213 part 1, to comply with the new wording of that provision).

On 26 August 2002 the officer in charge of the case adjourned the investigation for failure to identify the culprits. The applicant was informed of this but did not appeal the decision.

In September 2005 the present application was communicated to the Russian Government.

On 29 December 2005 the investigation was resumed. According to the Government, the investigation requested information from the Ministry of Defence about the locations of military units in Chechnya at the relevant time. The Government also stated that five persons had been questioned as witnesses at that time, without indicating who they were and what they had stated. The Government did not submit any documents produced within this round of investigation.

On 3 February 2006 the investigation was adjourned and on 9 February 2006 it was resumed.

On 9 March 2006 the investigation of the criminal case was again adjourned for failure to identify the culprits. The applicant was informed of this decision on 31 March 2006.

The Government stated that the Prosecutor General’s Office was monitoring the progress of the investigation.

In January 2006, in response to the Court’s request, the Government submitted about 120 pages of documents from the criminal investigation file concerning the attack against the applicant. The file contained no list of documents, some pages were not numbered and certain parts seemed to be missing. In consequence, the Court requested the Government to submit a list of the documents contained in the said file. In March 2006 the Government replied, relying on information obtained from the Prosecutor General’s Office, that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the 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. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of the documents disclosing military information and the witnesses’ personal data, and without the right to make copies of the case file and transmit it to others.

3. Civil proceedings brought by the applicant

On 5 March 2002 the municipal office of Grozny issued a certificate to confirm that the applicant’s permanent residence address was at 9 Kiyevskiy Lane, flats no. 4 and 5.

On 20 March 2002 the administration of the Leninskiy District issued a property title (ордер на жилое помещение) to the applicant in respect of flat no. 4 at 9 Kiyevskiy Lane.

On 22 March 2002, at the applicant’s request, the Leninskiy District Court in Chechnya certified her ownership of flat no. 5 at 9 Kiyevskiy Lane.

On an unspecified date in 2002 the applicant lodged a civil suit with the Leninskiy District Court in Grozny. She sought compensation for pecuniary damage caused by the destruction of her flat and belongings as a result of the rocket attack on 10 January 2000. She estimated the cost of her flat at 650,000 Russian roubles (RUB). She attached a list of her destroyed property, evaluated by her at RUB 271,050, and indicated two witnesses who could testify about the property and its destruction. She also sought compensation for pecuniary and non-pecuniary damage caused by the attack of 23 January 2000 and the injuries received, as a result of which she was obliged to undergo medical treatment and remained partially disabled. She indicated that she had already spent RUB 69,020 and that she needed RUB 147,726 for further treatment. The applicant also sought RUB 10,000,000 for non-pecuniary damage. The applicant submitted that both attacks had been carried out by the Russian military forces and named the Ministry of Defence and the Ministry of Finance as co-defenders.

On 18 October 2000 the Leninskiy District Court refused to consider the applicant’s claim for lack of jurisdiction. The court stated that the applicant should submit her claim at the location where the defendants were based, i.e. in a district court in Moscow.

The applicant appealed against the above decision without giving any reasons, and on 26 November 2002 the Supreme Court of Chechnya confirmed the decision of 18 October 2002. The court stated that a claim against a legal entity should be brought at the location of that entity; accordingly, the applicant should bring her claim before a district court in Moscow. The court also referred to the amount of the applicant’s claim.

The Government explained in their observations that Government Decree No. 404 of 4 July 2003 had been implemented in Chechnya. Accordingly, action was being taken to set up a compensation scheme for persons whose housing and property had been damaged. They referred to information from the Commission in charge of payment of compensation, which had stated on 12 December 2005 in information note no. 4893 that the applicant’s application for compensation had been placed on the Commission’s agenda, in list no. 21. The Government submitted that in December 2005 the Commission had considered list no. 14, and it was expected that the applicant’s file would be reviewed at one of the Commission’s upcoming sessions. The Government did not submit any documents in this respect.

B. Documents submitted by the parties

1. Documents submitted by the applicant

The applicant submitted a number of additional documents to substantiate her claims. They can be summarised as follows.

(a) Documents related to the attack of 23 January 2000

In October 2005 four persons produced written accounts of the events of 23 January 2000. They were Sulanbek U., the applicant’s brother, and three female neighbours, Roza D., Leyla M. and Tumisha N. They confirmed that on 10 January 2000 the applicant’s house had been hit by a rocket and destroyed. The residents of their part of Grozny had been hiding in cellars from heavy shelling. They testified that on 22 January 2000 they had been informed, by means of a helicopter using loudspeakers and flyers, that they could leave the city by road in the direction of Staraya Sunzha. On 23 January 2000 at about 9 a.m. several dozen persons took white cloths to demonstrate that they were civilians and walked towards Staraya Sunzha. The witnesses stated that the group had been on foot and many people had been carrying their belongings on sledges and in their hands. At some point there was a loud explosion and then the witnesses saw helicopters in the air. They took refuge in a nearby basement, where Sulanbek U. and his sister Maryam realised that their sister, the applicant, was not there. They could not leave the cellar until evening because of the continued shelling. In the evening, with assistance from other persons, Sulanbek U. and his sister retrieved the wounded applicant, took her to the basement and gave her first aid. On the following day they transported her to Straya Sunzha, where there was a Red Cross field hospital. From there the applicant was taken to the Argun hospital, while the witnesses went to Ingushetia with buses from the Ministry of Emergencies (Emercom).

(b) Documents related to the medical treatment of the applicant

The applicant submitted a number of documents attesting to the seriousness of her injuries and the cost of treatment. The Gudermes district hospital confirmed that the applicant had remained there between 31 January and 1 August 2000 and that she had been required to buy various medicines and equipment, for a total of RUB 69,020.

In November 2001 a Moscow-based traumatology centre produced a calculation of RUB 147,726 for inserting an implant.

In April 2003 the same hospital produced another calculation for treatment of the applicant, amounting to RUB 222,210. It is unclear if the applicant actually paid these sums or if they were an indication of the price of the suggested treatment.

(c) Documents related to the destruction of the applicant’s property

Two witnesses produced written statements to the effect that the applicant had lost household property, in line with the list submitted by her to the national courts.

2. Documents submitted by the Government

The Government submitted about 120 pages of documents from criminal investigation file no. 48089 concerning the applicant’s injuries. These can be summarised as follows.

(a) Decision to open a criminal investigation

On 25 June 2002 the Grozny Town Prosecutor’s Office opened a criminal investigation on the basis of the applicant’s letter of 14 May 2002, in which she stated that she had been wounded by the military when trying to leave Grozny through a corridor for civilians on 23 January 2000. The investigation referred to Article 118 part 3 of the Criminal Code (involuntary causing of bodily harm).

(b) Statements by the applicant and other eye-witnesses

On 28 June 2002 the applicant was questioned about the circumstances of the attack and gave detailed submissions. She explained that on 22 January 2000 she had learnt from an announcement made through the amplifiers of a helicopter that on 23 January 2000 civilians would have a final chance to leave the city along the Staraya Sunzha road. She further stated that on the morning of 23 January 2000 she walked along the indicated route, together with a large group of local residents. In Zhukovskogo Street they had been attacked by gunfire from the premises of the canning factory and from a helicopter. She had been wounded in both legs and the right hand, and had fainted. Later her sister and other people had taken her to a nearby cellar and then transported her to Straya Sunzha, which they reached on 28 January 2000. The applicant further explained how she had been treated for her wounds. She named two witnesses who could confirm her statements and explained that her sister was no longer alive.

On 3 August 2002 the applicant was granted victim status in the proceedings.

On 2 July 2002 the investigation questioned both witnesses indicated by the applicant, Tamara Kh. and Satsita N., who confirmed her statements.

(c) Description of the site

On 5 July 2002 the investigation examined the site at Zhukovskogo Street where the attack had taken place. The investigators did not find anything noteworthy.

(d) Statements by local residents, medical staff and servicemen from the Leninskiy ROVD

In July and August 2002 the investigation questioned sixteen residents of the area and servicemen from the Leninskiy ROVD, who had no information about the attack of 23 January 2000. Most of the witnesses were not in Grozny in January 2000 and could only confirm that in January 2000 there had been intense fighting between the army and the illegal insurgents.

Medical staff of Argun town hospital No. 1 explained that at the relevant time the hospital had received many persons wounded in the hostilities. They could not recall the applicant’s case and indicated that records had not been kept properly, in view of the emergency situation.

On 16 August 2002 the head of the Leninskiy ROVD informed the investigator in charge of the case that no other witnesses could be identified.

(e) Medical documents and forensic report

On 24 July 2002 a medical expert, prepared on an order by the investigator, concluded that the applicant’s injuries could have been received within the time period and under the circumstances indicated by her. He evaluated the injuries as bodily harm of medium gravity.

(f) Attempts to identify military units

In July 2002 the Leninskiy ROVD informed the investigator in charge of the case that it was impossible to identify which military units had been stationed in Zhukovskogo Street on 23 January 2000, in view of the passage of time and the fact that the military units which had participated in active combat with illegal armed groups in Grozny at that time had been redeployed. It would also be impossible to identify the exact provenance of the military helicopters referred to by the applicant.

On 25 July 2002 the military commander of Grozny, citing the same reasons, informed the investigator in charge of the case that it would be impossible to identify the military units and helicopters concerned.

(g) Orders by prosecutors

On 24 August 2002 the charge was reformulated under Article 213 part 3 of the Criminal Code – hooliganism involving the use of arms.

On 26 August 2002 the investigator in charge of the case adjourned the investigation for failure to identify the culprits. The applicant was informed of the adjournment.

On 27 January 2004 the investigation was resumed for two days in order to bring charges under Article 213 part 1 of the Criminal Code, in view of its new wording. On 29 January 2004 the investigation was adjourned for failure to identify the persons who had committed the crime. The applicant was informed accordingly.

C. Relevant domestic law

1. The Code of Criminal Procedure of 1960, in force until July 2002

The 1960 Code of Criminal Procedure (Уголовно-процессуальный Кодекс РСФСР), contained provisions relating to criminal investigations.

Article 195 provided that a criminal investigation could be adjourned, inter alia, if it was impossible to identify the persons who could be charged with the crime. In such cases a reasoned decision was to be issued. No investigative actions could be carried out once a case had been adjourned. An adjourned criminal case could be closed upon expiry of the limitation period.

On 23 March 1999 the Constitutional Court adopted a decision (Постановление Конституционного Суда Российской Федерации № 5-П) by which it extended judicial control to include a number of procedural decisions taken by investigators and prosecutors in criminal proceedings, including the decision to adjourn criminal investigation.

2. The new Code of Criminal Procedure

Since 1 July 2002 matters related to criminal investigation have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001). Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of damaging the constitutional rights or freedom of the parties to criminal proceedings (Article 125 § 1). The competent court is that which has jurisdiction for the place of the preliminary investigation (ibid.).

3. The Code of Civil Procedure

Articles 117 and 118 of the Code of Civil Procedure of 1964 in force at the material time (Гражданский процессуальный Кодекс РСФСР) laid down rules of territorial jurisdiction over civil claims. According to Article 117, a civil claim was to be lodged at the location of the defendant. Under Article 118 the claimant could choose the jurisdiction of the claim in certain cases. Inter alia, claims for compensation for damage caused by injuries or other health problems, and claims for compensation for damage to property could also be brought at the claimant’s place of residence or at the place of commission of the tort.

Chapter 24-1 established that a citizen could apply to a court for redress for unlawful actions of a state body or an official. Such complaints could be submitted to a court either at the location of the state body or of the plaintiff, at the discretion of the plaintiff (Article 239-4). Within the same procedure the courts could also award damages, including compensation for non-pecuniary damage.

The Code of Civil Procedure of the Russian Federation (“the new Code”) was enacted on 14 November 2002 and replaced the RSFSR Code of Civil Procedure (“the old Code”) from 1 February 2003.

COMPLAINTS

1. The applicant complained under Article 2 of the Convention that the attack by the Russian military forces on 23 January 2000 had amounted to a violation of her right to life in view of the excessive force used. She also submitted that the State had failed to investigate her allegations and had therefore failed in its positive obligations under Article 2.

2. The applicant argued that the injuries caused to her and the failure to provide proper medical treatment in the days following the injury qualified as torture within the meaning of Article 3 of the Convention. She also submitted that the State had failed in its positive obligations under Article 3 because no effective investigation had taken place.

3. She complained that she had had no access to a court, in breach of Article 6.

4. The applicant submitted that the destruction of her house and property in Grozny had constituted a violation of both Article 8 of the Convention and Article 1 of Protocol No. 1.

5. The applicant submitted that she had had no effective remedies in respect of the injuries caused to her and the lack of an effective investigation, contrary to Article 13 of the Convention.

6. In her observations submitted in response to the Government’s memorandum, the applicant asked the Court to find the Government in breach of their obligations under Article 38 § 1 (a), in view of their failure to disclose the entire contents of the investigation file.

THE LAW

I. alleged violations of Articles 2, 3 and 13 of the Convention

The applicant argued that the attack on her and the failure to carry out an effective investigation violated her rights guaranteed under Articles 2, 3 and 13 of the Convention, the relevant parts of which provide:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The Government’s preliminary objection as to the exhaustion of domestic remedies

1. Arguments of the parties

The Government argued that the applicant had failed to exhaust domestic remedies. In particular, they noted that the applicant did not appeal to a court of law against the actions of the investigative authorities, as provided for by Article 125 of the Code of Criminal Procedure. She had also failed to make use in the proceedings of her rights as a victim.

The applicant argued that no effective investigation had taken place following her complaint and that she had had no remedies against the prosecutor’s decision to adjourn the proceedings. The applicant stated that she had been in a vulnerable position after her injury. She alleged that she had not had genuine access to the file, in spite of the victim status accorded to her. She also stated that, following the adoption by the State Duma of the Decree of 7 June 2003, declaring an amnesty for persons responsible for certain crimes committed during the anti-terrorist operation in Chechnya, she had had no right to challenge its application to anyone found responsible for committing a crime against her. She also referred to a general problem of non-investigation of crimes allegedly committed by State agents in Chechnya.

2. The Court’s assessment

As regards criminal-law remedies, the Court observes that the applicant complained to the law-enforcement agencies in 2002 and that an investigation was in progress from June 2002. The applicant 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 applicant’s 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. As to the merits of the complaint

1. Arguments of the parties

The applicant submitted that in view of the lethal force involved and the degree of her injuries, the actions of the Russian military had amounted to a violation of the right to life, protected by Article 2. She also argued that the procedural aspect of the said Article had been breached in that no proper investigation had taken place. Furthermore, the applicant argued that the situation had disclosed a violation of Article 3, in view of the suffering caused to her and also in view of the Government’s failure to carry out a proper investigation into her complaints. The applicant also referred to the absence of domestic remedies in this respect and claimed that there had been a violation of Article 13 of the Convention.

The Government stressed that the investigation of the applicant’s complaint within the criminal-law procedure had been carried out in accordance with the national legislation. The applicant had been made fully aware of the investigation’s progress and had not appealed against the actions of the law-enforcement agents. The applicant could have appealed against any decision on the basis of Article 46 of the Constitution and Article 125 of the Code of Criminal Procedure. Thus, she had had access to domestic remedies which she had not used.

2. The Court’s assessment

The Court considers, in the light of the parties’ submissions, that the applicant’s complaint under Articles 2, 3 and 13 of the Convention 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.

II. alleged violation of Article 6 of the Convention

The applicant complained that she had not had access to a court, in breach of Article 6, which provides, as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government noted that the applicant had had at her disposal the possibility to lodge a claim with the district court which had jurisdiction over her claim, but that she had failed to do so. She thus failed to exhaust domestic remedies available to her. The Government also noted that the applicant had not lost her right of access to a court and could apply anew to the court which had jurisdiction over her claims.

The applicant stressed that she had lodged a claim with the district court in Grozny, seeking compensation for the lost property and for the injuries sustained. However, the court refused to consider her claim for lack of jurisdiction, even though the legislation in force at the material time had provided for an alternative jurisdiction of such claims. The applicant argued that she had been effectively barred from access to a court, in breach of the relevant provisions of Article 6 of the Convention, because her claim had not been reviewed. She also alleged that her claim would in any event be futile, in the absence of results from a criminal investigation.

The Court reiterates that when it comes to matters of exhaustion, the applicants must observe the applicable rules and procedures of domestic law, failing which their application is likely to fall out of the exhaustion rule. They must also use any procedural means that may prevent a breach of the Convention (Cardot v. France, judgment of 19 March 1991, Series A no. 200, § 34). If more than one potentially effective remedy is available, the applicant is only required to have used one of them (Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005‑... (extracts)).

In the present case, by applying to the district court in Grozny, the applicant seemed to rely on Article 118 of the Code of Civil Procedure, which permitted alternative jurisdiction for claims resulting from injuries and damage to property, even though she did not formally invoke it in her claim or in her appeal. The district court in Grozny, where the applicant submitted her claim, refused to review her claim on the basis of the general rule (contained in Article 117 of the same Code) that a civil claim directed against a legal entity should be lodged at the location of that entity, and advised her to apply to the district court in Moscow which would have territorial jurisdiction over this type of dispute. The Supreme Court of Chechnya confirmed that the same general principle should be applicable.

The Court reiterates in this respect that it is not its task to take the place of the domestic courts and that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The role of the Court is limited to verifying whether the effects of such interpretation are compatible with the Convention (see Miragall Escolano and Others v. Spain, no. 38366/97, §§ 33-39, ECHR 2000-I).

The Court does not find that the interpretation of the national law used in the applicant’s case is arbitrary or manifestly unreasonable, since it is based on the general rule of delimiting the territorial jurisdiction of courts. In her appeal to the Chechnya Supreme Court the applicant gave no reasons for her disagreement with the district court’s decision and did not refer to any provisions of the national legislation. Nor did she make any arguments before this Court as to why she was unable to resubmit her claim, as advised. The Court also notes that as of December 2002 the applicant was represented by her current representatives, and thus it cannot be said that she was deprived of legal assistance on matters relating to her complaint. The Government stressed that the applicant was still able to bring the same suit to the district court at the location where the defendants were based, and that such a court would be competent to review her claim, in accordance with the relevant legislation.

In such circumstances the Court finds that the applicant failed to comply with the procedural requirements relating to territorial jurisdiction, or to give any reasons for her disagreement with the decisions of the domestic courts as to the applicable rules of such jurisdiction. She therefore failed to exhaust domestic remedies available to her.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

III. alleged violation of Article 8 of the Convention AND OF Article 1 of Protocol No. 1

The applicant referred to Article 8 of the Convention and to Article 1 of Protocol No. 1, the relevant parts of which provide:

Article 8

“1. Everyone has the right to respect for ... his home ....”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law ....”

The Court has found above that the applicant had failed to exhaust domestic remedies in respect of access to court. In such circumstances the applicant’s claim concerning the destruction of her house and property was not reviewed by the national courts, which would be best placed to determine the extent and amount of her losses and to decide on the question of compensation.

In such circumstances, the Court finds that the applicant’s claim under Article 8 and under Article 1 of Protocol No. 1 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the attack on her and the ensuing investigation, under Articles 2, 3 and 13 of the Convention;

Declares inadmissible the remainder of the application.

Søren NielsenChristos Rozakis
RegistrarPresident

 

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