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FIRST
SECTION
CASE OF
TANGIYEVA v. RUSSIA
(Application
no. 57935/00)
JUDGMENT
STRASBOURG
29
November 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Tangiyeva v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr A. Wampach, Deputy Section Registrar,
Having
deliberated in private on 8 November 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 57935/00) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mrs Zaynap Abdul-Vagapovna
Tangiyeva (“the applicant”), on 29 April 2000.
- The
applicant was represented by the lawyers of the NGO EHRAC/Memorial
Human Rights Centre. The Russian Government
(“the Government”) were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged that her three relatives had been killed in Grozny
in January 2000 by State servicemen. She referred to Articles 2, 3
and 13 of the Convention.
- By
a decision of 18 May 2006 the Court declared the application
admissible.
- The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and was a resident of Grozny, Chechnya.
She currently resides in Ingushetia.
- The
submissions of the parties on the facts concerning the circumstances
of the applicant's relatives' deaths and the ensuing investigation
are set out in Part A below. A description of the relevant materials
submitted to the Court is contained in Part B.
A. The submissions of the parties
1. The events of January 2000
- The
applicant and her family lived in the Staropromyslovskiy district of
Grozny in their own house at 166 Derzhavina Street.
- In
October 1999 hostilities resumed in Chechnya between the Russian
forces and the Chechen fighters. Grozny and its suburbs came under
heavy bombardment. The Staropromyslovskiy district, situated in the
northern and central parts of the town, was bombarded from the air
and by artillery. The applicant submitted that most residents of the
district had left for safer areas. Following heavy fighting, as of
December 1999 the Russian forces started to regain control over the
city starting from the north, and by the end of January 2000 the
central parts of the city were finally taken.
- In
the winter of 1999-2000 the applicant, her father Abdul-Vagap
Tangiyev (born in 1926), her mother Khirzhan Ibragimovna Gadaborsheva
(born in 1932), her uncle Ismail Ibragimovich Gadaborshev (born in
1924) and her sister Khanifa Gazdiyeva remained in their house in
Grozny. In December 1999 they were joined there by five neighbours,
all women, because their house had a large cellar where they could
take shelter during shelling.
- The
applicant, her sister and a neighbour submitted written accounts of
the events of December 1999 and January 2000. According to them, the
district had first come under heavy bombardment on 22 November 1999,
when one of the women who had been staying with them in the cellar
had been killed. On the same day the applicant's mother had been
slightly wounded by shrapnel. After that the shelling intensified,
and the applicant and her family were unable to leave the town.
- After
23 December 1999 the shelling became very intense, and the persons
who had been staying in their cellar decided to move somewhere safer.
On 26 December 1999 most of them moved to a nearby five-storey
building with a larger cellar in Pugacheva Street. The applicant's
father, uncle and one neighbour remained in their house to look after
the property and cattle. In the evening of the same day the applicant
heard the noise of tank engines in the streets. She said that they
had been relieved because they had expected an end to the shelling.
- In
the morning of 27 December 1999 the applicant's uncle met a group of
Russian servicemen on the way from his house to the Pugacheva Street
and told them that a group of forty to forty-five civilians had taken
refuge in the cellar of that house. The servicemen then came into the
cellar and checked the identity documents of the men, most of whom
were about 50 years old. The soldiers then took up battle positions
in the neighbourhood.
- In
the morning of 28 December 1999 the applicant noted that their house
in Derzhavina Street was partially destroyed. When she and her mother
arrived there, they found her father and a neighbour, who had
remained in the cellar throughout the day upon orders of the soldiers
who had been stationed around the house.
- On
28 and 29 December 1999 servicemen came to the cellar of the
apartment block at Pugacheva Street where the applicant was staying
and ordered the men, under threat, to help them collect six bodies of
servicemen from the street.
- On
1 January 2000 a detachment of the OMON (special police forces)
arrived in the district and took up position in a former hostel
building near Pugacheva Street. On the same day servicemen from that
unit took away three men from the cellar. The applicant later learned
that they had been shot.
- Each
day from 3-10 January 2000 the applicant went to check up on her
relatives in the house at Derzhavina Street. On several occasions
there they met an officer who said his name was Tima and who was the
commander of a tank crew stationed at 164 Koltsova Street. The
officer was often drunk and aggressive, and had once threatened to
shoot them all, but the applicant's father had managed to calm him
down. Tima said that he was from Ossetia and that he had fought in
Dagestan before. The applicant submitted that she could have
identified him or composed a sketch of him. She submitted that the
situation had been very tense, because the soldiers had regularly
visited both houses for identity checks, ordered the residents to
help them collect dead bodies under threat, selected men for
“exchange” with the fighters, and so on. The applicant
also saw the houses in the neighbourhood being systematically set on
fire.
- In
the evening of 10 January 2000 the applicant, her family and some
neighbours finally decided to leave Grozny on the following day,
until the situation grew calmer. The applicant and her sister went to
get water from the hostel where the OMON troops were stationed and
warned an officer there that old people were staying in the house at
Derzhavina Street, and that they should not shell it or shoot at them
when they were carrying water. She then returned to the cellar of the
house at Pugacheva Street, while her mother, father, uncle and a
neighbour, Valentina Fotiyeva, stayed in their family home at
Derzhavina Street.
- In
the morning of 11 January 2000 the applicant, her sister and three
other women went to the house at Derzhavina Street to pick up her
uncle and to say good-bye to her parents. They found the gates closed
and smoke coming out of the house. They received no reply to their
calls, and forced the doors open. The cellar was burning and they
were unable to access it. In the kitchen they found the applicant's
father's body and the body of Valentina Fotiyeva, both with gunshot
wounds. The documents, money and valuables were intact. The applicant
and her sister took the two bodies out of the burning house, but did
not have time to extinguish the flames or to bury them because they
were afraid that the killers would come back. They ran to the house
in Pugacheva Street and related what had happened. A neighbour told
them to leave immediately and promised to take care of the burials.
The applicant and her sister took only their personal documents with
them and walked several kilometres to the roadblock in Sobachevka,
where they took a bus to Ingushetia.
- On
the following day, 12 January 2000, the applicant returned to Grozny
with two cars, in order to collect and bury the bodies. At one of the
military roadblocks on the way they picked up three servicemen as an
escort for security. They also met by chance their neighbour, who
explained where he had buried the applicant's father's body. When
they arrived at 166 Derzhavina Street, the house was completely
burned down. They could not go down to the cellar, because it was
still smouldering. They dug up the applicant's father's body and took
it away for burial in the village of Chermen in North Ossetia.
- One
month later relatives of Valentina Fotieyeva collected her body and
buried it in a cemetery in Grozny.
- Later,
on 6 March 2000, the charred remains of the applicant's mother and
uncle were extracted from the cellar by officials of the Russian
Ministry of Emergencies (Emercom). Personal belongings and bullets
were found near the bodies. The applicant's family buried them at a
village cemetery in Ingushetia.
- In
addition to her own statements and three witness statements, the
applicant submitted drawings of the neighbourhood and of their house
at 166 Derzhavina Street, with indications of the places referred to
and the locations of the bodies of her relatives. She also submitted
photographs of the ruins of their house and of the cellar in
Pugacheva Street.
2. Subsequent events and investigation into the
killings
- The
applicant did not apply to any authorities or contact a medical
doctor after the incident. However, her story was related in a number
of press articles and NGO reports, copies of which the applicant
submitted to the Court.
- On
26 January 2000 the Literaturnaya Gazeta newspaper in the
article “Welcome to Hell! Interviews with Persons Who Escaped
from Besieged Grozny” reported the story of the killing of the
applicant's relatives, based on an interview with her.
- In
February 2000 Human Rights Watch issued a report entitled “Civilian
Killings in Staropromyslovskiy District of Grozny” in which it
accused the Russian forces of deliberately murdering at least
thirty-eight civilians between late December and mid-January. Human
Rights Watch interviewed survivors, eyewitnesses and relatives of the
dead. The report contains information about the deaths of Abdul-Vagap
Tangiyev, Khirzhan Gadaborsheva, Ismail Gadaborshev and Valentina
Fotiyeva, based on interviews with the applicant and another witness
in Ingushetia.
- Several
human rights NGOs assisted the applicant and addressed the
law-enforcement authorities in relation to the events in the
Staropromyslovskiy district of Grozny in January 2000, where several
dozen local residents had allegedly been executed by unidentified
military units.
- On
10 February 2000 Human Rights Watch wrote to the Russian authorities,
including the President, the Prosecutor General and the Minister of
Defence with a request that they investigate credible allegations of
the mass murder of civilians in the Staropromyslovskiy district.
- On
3 May 2000 the applicant was questioned by a prosecutor in the
Staropromyslovskiy District Prosecutor's Office. The applicant
submitted that the investigator had asked her questions about the
killings, to which the applicant herself was not a witness. When she
had stated that only the Russian servicemen stationed around the
house could have committed the murders, and had spoken of their
previous visits and threats, the investigator had told her that there
were no direct witnesses to the murders, and that she could be held
responsible for false accusations. The applicant had suggested that
officer Tima could be responsible for the killings, and the
investigator had told her that he had died. After that the applicant
had been convinced that the investigation would not be effective and
did not turn to any other official body.
- She
was called for questioning once again, as a witness, on 31 May 2000,
but it appears that she failed to attend.
- It
appears that no death certificates were ever issued in respect of the
applicant's relatives. The applicant's cousin, the son of Ismail
Gadaborshev, submitted that he had had difficulties in obtaining a
death certificate for his father and for other relatives.
- The
applicant's representatives, NGO Memorial, asked prosecutors at
various levels on several occasions to submit information about the
investigation of the killings of civilians in the Staropromyslovskiy
district. In response, they received conflicting information with
references to different criminal case numbers. On several occasions
they were informed that their requests had been forwarded to
different prosecutors' services for processing.
- On
19 June and 18 July 2002 the Chechnya Prosecutor's Office informed
Memorial that on 5 March 2000 criminal case no. 12011 had been
opened into the murders committed in Grozny on 10 January 2000 and
that it had been transferred for further investigation to the
Northern Caucasus Department of the Prosecutor General's Office.
- However,
on 22 August 2002 the Northern Caucasus Department of the Prosecutor
General's Office forwarded Memorial's request for information to the
Chechnya Prosecutor and asked him to issue an update of the
investigation of criminal case no. 12011.
- On
17 February 2004 the applicant wrote to the Staropromyslovskiy
District Prosecutor asking for news about the investigation into her
relatives' murder. She did not receive a reply.
- On
28 May 2004 the Staropromyslovskiy District Prosecutor's Office
granted victim status to the applicant's brother Shamsudin Tangiyev
in criminal case no. 33024 concerning the murder of his parents
and uncle in Grozny on 11 January 2000.
3. Investigation into the murders – information
from the Government
- In
March 2005 the application was communicated to the Russian
Government, who were requested at that time to submit a copy of
investigation file no. 33024. In their memorials submitted in
reply the Government gave some details of the investigation, without
specifying the dates of the investigative measures. They did not
submit any copies of the documents to which they referred. The
Government stated that the investigation was pending and that the
disclosure of the documents would be in violation of Article 161 of
the Code of Criminal Procedure because the file contained information
of a military nature and personal data concerning the witnesses. 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 personal data of the
witnesses], and without the right to make copies of the case file and
transmit it to others”.
- In
May 2006 the Court declared the application admissible and reiterated
its request for the documents. In response, the Government submitted
an update of the investigation and several documents from the
criminal investigation file (see Part B below). They did not submit
any of the witness statements or other important procedural
documents, such as descriptions of the sites or results of the
ballistic expert reports.
- Referring
to the information from the Prosecutor General's Office, the
Government submitted in their memorials that the investigation had
established that between January and February 2000 detachments of the
federal forces had conducted a counterterrorist operation in the
Staropromyslovskiy district of Grozny. Within the same period several
inhabitants of the district, including the applicant's relatives, had
been killed by unknown persons.
- The
Government submitted that a number of investigative measures had been
carried out by the prosecutors. On 17 April 2004 they inspected the
Tangiyevs' house. On 28 May 2004 the applicant's brother Shamsudin
Tangiyev was questioned and granted victim status in the proceedings.
On 5 May 2004 the applicant, her sister and two relatives were also
questioned and granted victim status in the proceedings. On the same
day the investigating officers recovered from the applicant two
cartridges she had collected near the body of her father. A ballistic
examination was carried out and concluded that they were the type of
ammunition used for a 5.45 mm calibre automatic rifle and could be
used to identify the firearm used.
- The
Government submitted that the applicant and her relatives had refused
to allow the bodies of their relatives to be exhumed for forensic
tests to be carried out. They had also refused to identify their
places of burial, which made it impossible to establish the cause of
their deaths.
- The
Government further informed the Court that between April and July
2004 the investigating officers had questioned more than twenty
neighbours and acquaintances of the Tangiyevs, who had stated that
they had no information about the perpetrators of the killings. One
witness stated that the Staropromyslovskiy district had been the
scene of heavy fighting between the federal forces and the illegal
armed groups. Another witness stated that the applicant's father had
had a dispute with the members of the illegal armed groups. The
investigators failed to identify the relatives and the place of
burial of Valentina Fotiyeva, the woman who had been killed in the
Tangiyevs' house.
- The
investigators looked into the possibility that the killings could
have been committed by the servicemen, but found no information to
support it. According to the information from the Northern Caucasus
Military Circuit, between January and February 2000 the detachments
of the federal forces in the Staropromyslovskiy district had been
subjected to numerous attacks by illegal armed groups, who could be
implicated in the killings. On 3 June 2005 a military prosecutor
questioned the commander of one of the military units which had taken
part in the counterterrorist operation in Grozny. He stated that he
had not been aware of the applicant's relatives' killings. The
prosecutors continued to carry out investigative measures with the
participation of the servicemen.
- According
to the Government, the victims had been systematically informed of
the adjournments and reopening of the case. The investigation was
pending with the Staropromyslovskiy District Prosecutor's Office and
was under the special supervision of the Prosecutor General's Office.
B. Documents submitted by the parties
1. Documents submitted by the applicant
- In
November 2004 the applicant submitted additional documentary evidence
in support of her allegations. In addition to her own detailed
statements of facts, the applicant submitted three witness
statements.
- The
applicant's sister Khanifa Gazdiyeva stated that on 10 January 2000
they had decided to leave Grozny on the following day because of
constant harassment by soldiers. In the morning of 11 January 2000
the witness, along with the applicant and two women named Galina and
Birlant M., went to collect her parents and uncle from their house at
Derzhavina Street. She then described how they had discovered the
bodies of her father and of Valentina, both with gunshot wounds to
the head. The house was turned upside down and there were a lot of
bullet holes. Some of the furniture was smouldering, the cellar door
was closed and smoke was coming out of it. The women took two bodies
out of the house but could not extinguish the flames in the cellar.
They then left the bodies with the neighbour out of fear that the
soldiers might return and kill them as witnesses, and left Grozny on
the same day. They buried their father's body on 12 January 2000. On
6 March 2000 the remains of their mother and uncle were removed with
the assistance of Emercom and buried in Ingushetia.
- The
applicant's cousin, Magomet Gadaborshev, testified about the death of
his father, the applicant's uncle. The witness himself was in
Ingushetia at the relevant time and learnt of his father's death from
the applicant and other relatives.
- The
applicant's neighbour in Grozny, “Galina P.”, testified
that she had been with the applicant and her sister on 11 January
2000 when they had found their parents' and uncle's bodies in the
house at Derazhavina Street. The witness submitted that the Chechen
fighters (“boyeviki”) had left the district by
mid-December, and that before that they had caused no harm to the
residents, and had sometimes even helped them. From 25 December 1999
the Russian servicemen started to enter the Staropromyslovskiy
district. Some of the soldiers helped them and gave them food. Others
asked them, sometimes under threat, to help them collect the dead
bodies of servicemen, because the “fighters” would not
shoot at civilians. She corroborated the relatives' statements about
the discovery of the bodies on 11 January 2000.
- In
addition to the documents submitted by the applicant, in the
proceedings in the case of, Makhauri v. Russia (application
no. 58701/00), the Government submitted a copy of the
investigation file in criminal case no. 14/33/0262 (joined in
July 2004 with criminal case no. 50100) opened by military
investigators in relation to an attack on Mrs Makhauri in January
2000 in the Staropromyslovskiy district. The file also contained a
witness statement by Galina P. (born in 1937), made during the
investigation in August 2000. On the basis of this information, in
2000 the military investigators requested the Grozny Town
Prosecutor's Office to give them information about the murder of the
three members of the Tangiyev family and the woman named Valentina.
It appears that no reply was received.
- Galina
P. stated to the military investigators that in winter 1999-2000 she
had remained in Grozny. She moved in to the Tangiyevs' house at
Derzhavina Street, where nine people had stayed in the cellar, and
remained there until 24 December 1999. Then they moved to another
house, at 144 Pugacheva Street, because the shelling had become too
intense and the first house had been damaged. About sixty people,
mostly elderly, had stayed in the big cellar at 144 Pugacheva Street.
The Chechen fighters left their district around 18 December 1999. The
witness testified that the federal soldiers had regularly visited
their cellar and forced the inhabitants to help them retrieve the
wounded and dead. On 1 or 2 January 2000 the three youngest men from
the cellar (aged below 50) had been taken away by soldiers and later
found dead. The witness described the soldiers as wearing blue-grey
camouflage uniforms. She also testified that on 10 January 2000,
along with the two Tangiyev sisters, she visited their house, where
four persons had been staying: Abdul-Vagap
Tangiyev, his wife Khirzhan Gadaborsheva, his brother Ismail
Gadaborshev and an elderly woman, “Valya”. They
found the bodies of Mr Tangiyev and Valya in the house with gunshot
wounds, while the cellar was closed and burning. A neighbour told
them to leave because the killers could return, and later told them
that he had buried the four bodies in the courtyard. On the same day,
on 10 January 2000, the witness left for Ingushetia.
2. Documents from the criminal investigation file
- In
September 2006 the Government submitted about seventy pages of
documents from the file of the criminal investigation carried out
into the murder of the applicant's parents and uncle. Those documents
include the prosecutors' decisions to open, transfer, adjourn and
reopen the investigation, and to grant victim status to the applicant
and her brother. They can be summarised as follows.
- On
3 May 2000, following the publication of “Freedom or Death”
in the Novaya Gazeta newspaper on 27 April 2000, the Grozny
Town Prosecutor's Office opened criminal investigation file no. 12038
under Article 105 part 2 of the Criminal Code (murder of two or more
persons in aggravating circumstances) “concerning mass murder
by the '205th brigade' of members of the civilian population in the
Katayama settlement in Grozny on 19 January 2000”. In
connection with these proceedings the applicant and her brother were
questioned in May and June 2000.
- On
14 August 2003 an investigator of the Grozny Town Prosecutor's Office
decided that the killing of four persons at 166 Derzhavina Street had
constituted a separate episode and forwarded the relevant part of the
file to the Staropromyslovskiy District Prosecutor for further
investigation.
- On
20 August 2003 the Staropromyslovskiy District Prosecutor's Office
refused to carry out an investigation under Article 24 part 1
paragraph 2 of the Code of Criminal Procedure – due to the
absence of information indicating that the deaths had occurred as a
result of criminal actions. The investigator stated that the
information about the circumstances of the applicant's relatives'
deaths had been incomplete. Turning to the applicant's statement, he
concluded that the deaths and the fire in the house had most probably
been a result of shelling, because at the relevant time the district
had been the scene of heavy fighting. In the absence of more reliable
information about the reasons and circumstances of the deaths, the
investigation was closed.
- On
2 April 2004 the Chechnya Prosecutor's Office quashed that decision.
On 16 April 2004 the Staropromyslovskiy District Prosecutor's Office
opened criminal investigation file no. 33024 under Article 105
part 2 of the Criminal Code into the applicant's relatives' murder.
- In
May 2004 the applicant's brother, and in May 2005 the applicant, were
granted victim status in the proceedings.
- At
different stages of the proceedings several orders were issued by the
supervising prosecutors enumerating the steps to be taken by the
investigators. On 26 August 2004 a prosecutor from the
Staropromyslovskiy District Prosecutor's Office ordered, among other
things, that a plan of action be drawn up, that steps be taken to
locate the places of burial and to carry out exhumations and forensic
tests, that the bullets and cartridges from the crime scene be
collected and sent for examination by a ballistic expert, that more
personal information about the victims be collected, including the
identification of the relatives of Valentina Fotiyeva. Similar orders
were issued in October 2004, April and December 2005.
- Between
April 2004 and August 2006 the investigation was adjourned and
reopened seven times. The latest document in the case-file reviewed
by the Court is dated 14 August 2006. The prosecutor of the
Staropromyslovskiy District Prosecutor's Office resumed the
investigation and again ordered the collection of missing information
about the victims, the identification and questioning of other
possible witnesses to the crime, including Galina P., and the
implementation of other steps to identify the perpetrators of the
killings.
II. RELEVANT DOMESTIC LAW
- Until
1 July 2002 criminal-law matters were governed by the 1960 Code of
Criminal Procedure of the Russian Soviet Federative Socialist
Republic. From 1 July 2002 the old Code was replaced by the Code of
Criminal Procedure of the Russian Federation.
- Article
161 of the new Code of Criminal Procedure establishes the rule of
impermissibility of disclosing data from the preliminary
investigation. Under paragraph 3 of the Article, information from the
investigation file may be divulged only with the permission of a
prosecutor or investigator and only in so far as it does not infringe
the rights and lawful interests of the participants in the criminal
proceedings and does not prejudice the investigation. Divulging
information about the private life of participants in criminal
proceedings without their permission is prohibited.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
1. Arguments of the parties
- The
Government requested the Court to declare the case inadmissible as
the applicant had failed to exhaust domestic remedies. They submitted
that the investigation into the killings was continuing in accordance
with the domestic legislation. The applicant had not applied to a
court in Chechnya or further afield in the Northern Caucasus with a
complaint against the actions of the investigating authorities or
against any other allegedly unlawful actions of State officials. She
had therefore failed to use the domestic remedies available.
- The
applicant disagreed with the Government's objection. She argued that
the criminal investigation was utterly ineffective in her case. She
further argued that the civil remedies referred to by the Government
could not establish the identity of the perpetrators of the crime in
the absence of conclusions from the criminal investigation. She asked
the Court to dismiss the Government's preliminary objection.
2. The Court's assessment
- In
the present case the Court took no decision about the exhaustion of
domestic remedies at the admissibility stage, having found that this
question was too closely linked to the merits. It will now proceed to
examine the arguments of the parties in the light of the provisions
of the Convention and its relevant practice. The Court has already
found in a number of similar cases 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 and criminal remedies (see Estamirov and Others v.
Russia, no. 60272/00, § 73-74, 12 October 2006).
- As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, this
procedure alone cannot be regarded as an effective remedy 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 regarding the
identity of 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, and Estamirov and Others, cited above,
§ 77). In the light of the above, the Court confirms that
the applicant was not obliged to pursue civil remedies. The
preliminary objection in this regard is thus dismissed.
- As
regards criminal-law remedies, the Court observes that an
investigation into the murders has been pending since May 2000. The
applicant and the Government are in disagreement as to the
effectiveness of this investigation.
- The
Court considers that this limb of the Government's preliminary
objection raises issues concerning the effectiveness of the criminal
investigation which are closely linked to the merits of the
applicant's complaints. Thus, it considers that these matters fall to
be examined below under the substantive provisions of the Convention.
II. THE COURT'S ASSESEMENT OF THE EVIDENCE AND
ESTABLISHMENT OF FACTS
A. Arguments of the parties
- The
applicant alleged that her relatives had been unlawfully killed by
agents of the State and that the authorities had failed to carry out
an effective and adequate investigation into the circumstances of
their deaths. She invited the Court to draw inferences as to the
well-foundedness of her factual allegations from the Government's
failure to provide the documents requested from them.
- The
Government referred to the absence of conclusions from the pending
investigations and denied the State's responsibility for the killing
of the applicant's relatives.
B. General principles
- Before
proceeding to assess the evidence, the Court reiterates that it is of
the utmost importance for the effective operation of the system of
individual petition instituted under Article 34 of the Convention
that States should furnish all necessary facilities to make possible
a proper and effective examination of applications (see Tanrıkulu
v. Turkey [GC], no. 23763/94, § 70, ECHR 1999–IV).
In cases in which there are conflicting accounts of the events, the
Court is inevitably confronted when establishing the facts with the
same difficulties as those faced by any first-instance court. It is
inherent in proceedings relating to cases of this nature, where an
individual applicant accuses State agents of violating his rights
under the Convention, that in certain instances solely the respondent
Government have access to information capable of corroborating or
refuting these allegations. A failure on a Government's part to
submit such information which is in their hands without a
satisfactory explanation may not only give rise to the drawing of
inferences as to the well-foundedness of the applicant's allegations,
but may also reflect negatively on the level of compliance by a
respondent State with its obligations under Article 38 § 1 (a)
of the Convention (see Timurtaş v. Turkey, no.
23531/94, §§ 66 and 70, ECHR 2000-VI, and Taniş and
Others v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII).
- The
Court relies on a number of principles that have been developed in
its case-law when it is faced with the task of establishing facts on
which the parties disagree. As to the facts in dispute, the Court
recalls its jurisprudence confirming the standard of proof “beyond
reasonable doubt” in its assessment of evidence (see Avşar
v. Turkey, no. 25657/94, § 282, ECHR 2001 VII
(extracts)). Such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. In this context, the conduct of the
parties when evidence is being obtained has to be taken into account
(see Taniş and Others, cited above, § 160).
- The
Court is sensitive to the subsidiary nature of its role and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Nonetheless, where allegations are made under Articles 2
and 3 of the Convention the Court must apply a particularly thorough
scrutiny (see, mutatis mutandis, the judgments in Ribitsch
v. Austria, 4 December 1995, Series A no. 336, p.24, §
32; and Avşar, cited above, § 283) even if
certain domestic proceedings and investigations have already taken
place.
- Finally,
when there have been criminal proceedings in the domestic courts
concerning those same allegations, it must be borne in mind that
criminal-law liability is distinct from international-law
responsibility under the Convention. The Court's competence is
confined to the latter. Responsibility under the Convention is based
on its own provisions which are to be interpreted and applied on the
basis of the objectives of the Convention and in light of the
relevant principles of international law. The responsibility of a
State under the Convention, arising for the acts of its organs,
agents and servants, is not to be confused with the domestic legal
issues of individual criminal responsibility under examination in the
national criminal courts. The Court is not concerned with reaching
any findings as to guilt or innocence in that sense (see Avşar,
cited above, § 284).
C. Article 38 § 1(a) and consequent inferences
drawn by the Court
- The
applicant alleged that her relatives had been killed by servicemen.
In support of her allegations she referred to her own statement and
the statements of her sister and a neighbour confirming that at the
relevant time servicemen of the Russian army and police (OMON) had
been present in the Staropromyslovskiy district and the information
about their involvement in the killings of civilians. She also argued
that the Government's failure to submit the documents requested by
the Court, namely the entire criminal investigation file, disclosed a
failure to comply with their obligations under Articles 34 and
38 § 1 (a) of the Convention.
- In
view of these statements, the Court communicated the applicant's
complaints to the Russian Government and asked them to produce
documents from the criminal investigation file opened into the
killings of the applicant's relatives. This request was reiterated
both before and after the application was declared admissible,
because the evidence contained in that file was regarded by the Court
as crucial for the establishment of the facts in the present case
(see paragraphs 37-38 above).
- In
their submissions the Government did not deny that Abdul-Vagap
Tangiyev, Khidzhan Gadaborsheva and Ismail Gadaborshev had
been killed on the night of 10-11 January 2000 in Grozny. However,
they argued that the exact reasons and circumstances of their deaths
had not been elucidated. They refused to disclose most of the
documents of substance from the criminal investigation file, invoking
Article 161 of the Code of Criminal Procedure which, according to
them, precluded the submission of these documents.
- The
Court notes that the Government did not request the application of
Rule 33 § 2 of the Rules of Court, which permits a
restriction on the principle of the public character of the documents
deposited with the Court for legitimate purposes, such as the
protection of national security and the private life of the parties,
as well as the interests of justice. The Court further remarks that
it has already found that the provisions of Article 161 of the Code
of Criminal Procedure do not preclude disclosure of the documents
from a pending investigation file, but rather set out a procedure for
and limits to such disclosure (see, for similar conclusions, Mikheyev
v. Russia, no. 77617/01, § 104, 26 January
2006). For these reasons the Court considers the Government's
explanations concerning the disclosure of the case file insufficient
to justify the withholding of the key information requested by the
Court.
- In
view of this and bearing in mind the principles cited above, the
Court finds that it can draw inferences from the Government's conduct
in this respect. Furthermore, and referring to the importance of a
respondent Government's cooperation in Convention proceedings, the
Court notes that there has been a breach of the obligations laid down
in Article 38 § 1(a) of the Convention to furnish all necessary
facilities to the Court in its task of establishing the facts.
- As
to the applicant's claim that the Government's failure to submit the
documents from the investigation file also constituted a breach of
their obligations under Article 34 of the Convention, in view of the
above finding as to Article 38 § 1(a), the Court finds that no
separate issues arise under Article 34.
D. The Court's evaluation of the facts
- The
Court notes that is undisputed by the parties that the applicant's
relatives had died on the dates indicated by her and that they had
been victims of unlawful use of force. It remains to be decided if
Government agents may be held responsible for their deaths.
- The
applicant alleged that the killings of her relatives were directly
linked to the other murders which had occurred in the
Staropromyslovskiy district in January 2000. She argued that the
servicemen of the federal forces had conducted “summary
executions” of the residents and that her relatives' killings
followed that pattern. She referred to the Court's conclusions in
Khashiyev and Akayeva v. Russia, where the Court had found it
established that the Russian forces had been in control of the
district at the time and that they had been responsible for the
deaths of the applicants' relatives on 19 and 20 January 2000 (see
Khashiyev and Akayeva, cited above, §§
142-45).
- The
Court has already noted the difficulties for an applicant to obtain
the necessary evidence in support of his or her allegations which is
in the hands of the respondent Government in cases where the
Government fail to submit relevant documentation. Where the applicant
makes out a prima facie case and the Court is prevented from
reaching factual conclusions for lack of such documents, it is for
the Government to argue conclusively why the documents in question
cannot serve to corroborate the allegations made by the applicants,
or to provide a satisfactory and convincing explanation of how the
events in question occurred. The burden of proof is thus shifted to
the Government and if it fails in its arguments, issues will arise
under Article 2 and/or Article 3 (see Toğcu v. Turkey,
no. 27601/95, § 95, 31 May 2005; Akkum and Others v.
Turkey, no. 21894/93, § 211, ECHR 2005 ...
(extracts)).
- The
Court has already noted above that it was unable to benefit from the
results of the domestic investigation due to the Government's failure
to disclose documents from the file. It also found that it could draw
inferences from the Government's conduct in respect of the
investigation documents. The Court is satisfied that the applicant
made a prima facie case that her relatives had been
killed by the servicemen on the night of 10-11 January 2000 and that
the Government failed to provide any other satisfactory and
convincing explanation of the events.
- In
such circumstances, the Court finds it established that the
applicant's relatives' deaths can be attributed to the State.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant alleged that her relatives had been unlawfully killed by
agents of the State and that the authorities had failed to carry out
an effective and adequate investigation into the circumstances of
their deaths. She relied on Article 2 of the Convention, which
provides:
“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.”
- The
Court will first examine the applicant's complaint concerning the
effectiveness of the investigation.
A. The alleged inadequacy of the investigation
1. Arguments of the parties
- The
applicant maintained that the respondent Government had failed to
conduct an effective and thorough investigation into her relatives'
deaths. The investigation was slow and the necessary steps to secure
the relevant evidence and identify the perpetrators of the crime were
not being taken. The applicant had not been promptly granted victim
status in the proceedings and had not been properly informed of their
progress.
- The
Government disputed the allegation that there were failures in the
investigation. They pointed to the difficulties associated with
investigative work in Chechnya. The Government stressed that the
applicant and her brother, who had been granted victim status in the
criminal proceedings, had repeatedly objected to the exhumation of
the bodies and forensic testing, thus hindering the investigation
process.
2. The Court's assessment
- The
Court has on many occasions stated that the obligation to protect the
right to life under Article 2 of the Convention also requires by
implication that there should be some form of effective official
investigation when individuals have been killed as a result of the
use of force. It has developed a number of guiding principles to be
followed for an investigation to comply with the Convention's
requirements (for a recent summary, see Bazorkina v. Russia,
no. 69481/01, §§ 117-119, 27 July 2006).
- In
the present case, an investigation was carried out into the killings.
The Court must assess whether that investigation met the requirements
of Article 2 of the Convention.
- The
Court notes that the authorities were aware of the crime by at least
May 2000, when a criminal investigation into the killings committed
in the Staropromyslovskiy district was opened by the Grozny Town
Prosecutor's Office. On 3 May 2000, within the scope of this
investigation the applicant, and later her brother, were questioned
and confirmed information about the finding of their relatives'
bodies and their burial. However, it does not appear that any other
steps had been taken at that time in order to solve the murders. More
than three years later, in August 2003, the documents relating to the
murders of the applicant's family members was transferred to the
District Prosecutor's Office with an instruction to carry out a
separate investigation. However, on 20 August 2003 the investigator
of that office took the view that no crime had been committed,
referring to the possibility that the persons had died as a result of
shelling. This decision was taken without any other additional
investigative steps aimed at elucidating the circumstances of the
deaths having been taken.
- The
Court notes that even the most basic procedural steps in the
investigation were taken after April 2004, when the case had been
communicated to the respondent Government, and more than four years
after the events in question. The measures taken after April 2004
included such crucial steps as the questioning of other witnesses,
inspection of the crime scene, attempts to identify the military
units that could have been involved in the murders and the carrying
out of a ballistic expert report. It is obvious that these measures,
if they were to produce any meaningful results, should have been
taken immediately after the crime was reported to the authorities,
and certainly as soon as the investigation had commenced. The Court
reiterates that it is crucial in cases of deaths in contentious
situations for the investigation to be prompt. The passage of time
will inevitably erode the amount and quality of the evidence
available and the appearance of a lack of diligence will cast doubt
on the good faith of the investigative efforts, as well as drag out
the ordeal for the members of the family (see Paul and Audrey
Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR
2002-II). These delays, unexplained in this case, not only
demonstrate the authorities' failure to act of their own motion but
also constitute a breach of the obligation to exercise exemplary
diligence and promptness in dealing with such a serious crime.
- A
number of crucial steps were never taken. For example, no autopsies
or forensic reports were conducted in the course of the
investigation, even though it appears that certain attempts to obtain
the relevant permission from the relatives had been made in 2000 and
later, in 2004. The investigation was thus deprived of information
about the state of the bodies or the type of injuries sustained, and
was unable to establish with any degree of precision the cause of the
deaths. The Court notes, in this regard, that the applicant
significantly contributed to this failure, because she and her
brother had not permitted the exhumation of the bodies, and had even
refused to indicate the place of their relatives' burial. However, it
considers that the applicant's refusal to permit exhumation cannot
absolve the authorities from their obligations to obtain detailed
information about the cause of deaths of four persons in suspicious
circumstances. It does not appear that the prosecutors, who bore the
primary responsibility, ever made appropriate orders or tried
otherwise to pursue the matter (see, mutatis mutandis,
Tanlı v. Turkey, no. 26129/95,
§ 152, ECHR 2001 III (extracts)).
- The
Court also notes that the applicant and her brother were granted
victim status only in 2004. Even after that they were only informed
of the adjournment and reopening of the proceedings, and not of any
other significant developments. Accordingly, the investigators did
not ensure sufficient public accountability to provide the
investigation and its results with the required level of public
scrutiny; nor did it safeguard the interests of the next-of-kin in
the proceedings.
- Finally,
the Court notes that the investigation was adjourned and resumed a
number of times and that on several occasions the supervising
prosecutors pointed out the deficiencies in the proceedings and
ordered measures to remedy them, but that these instructions were not
complied with.
- In
the light of the foregoing, the Court finds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the deaths of Abdul-Vagap
Tangiyev, Khidzhan Gadaborsheva and Ismail Gadaborshev. This
rendered recourse to the domestic remedies, whether civil or
criminal, equally ineffective in the circumstances. The Court
accordingly dismisses the Government's preliminary objection in this
respect and holds that there has been a violation of Article 2 under
its procedural limb.
B. The alleged failure to protect the right to life
1. Arguments of the parties
- The
applicant submitted that on the night of 11 January 2000 her
relatives had been killed in violation of Article 2 of the Convention
by unidentified Russian servicemen stationed in the district.
- The
Government did not dispute the fact that the applicants' relatives
had died. However, they did not find it possible to answer the
question of whether there had been a violation of Article 2 in
respect of the applicants' relatives as an investigation into the
deaths was still in progress. They noted that there was no exact
information available about the circumstances of her relatives'
deaths. No information had been obtained during the investigation to
support the allegation that servicemen had been responsible for the
crime.
2 The Court's assessment
- The
Court reiterates that Article 2, which safeguards the right to life
and sets out those circumstances in which deprivation of life may be
justified, ranks as one of the most fundamental provisions in the
Convention, from which no derogation is permitted. Together with
Article 3, it also enshrines one of the basic values of the
democratic societies making up the Council of Europe. The
circumstances in which deprivation of life may be justified must
therefore be strictly construed. The object and purpose of the
Convention as an instrument for the protection of individual human
beings also requires that Article 2 be interpreted and applied so as
to make its safeguards practical and effective (see McCann and
Others, cited above, §§ 146-47).
- In
the light of the importance of the protection afforded by Article 2,
the Court must subject deprivations of life to the most careful
scrutiny, taking into consideration not only the actions of State
agents but also all the surrounding circumstances (see, amongst other
authorities, Avşar, cited above, § 391).
- The
Court has already found above, on inferences, that the State agents
were responsible for the deaths Abdul-Vagap
Tangiyev, Khirzhan Gadaborsheva and
Ismail Gadaborshev (see paragraphs 82 and 83 above). The
Government did not suggest that the exceptions of the second
paragraph of Article 2 could be applicable in the present case.
- The Court is therefore led to conclude that there has
been also a violation of Article 2 of the Convention under its
substantive limb.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant submitted that the feelings of fear, anguish and distress
she had suffered as a result of the killing of three members of her
family amounted to treatment contrary to Article 3 of the Convention,
which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government, beyond denying the factual basis of the applicant's
allegations, did not specifically deal with her complaint under
Article 3 of the Convention.
- The
Court considers that in the present case no separate issues arise
beyond those already examined under Article 2 and of Article 13
(below).
- In
these circumstances, while the Court does not doubt that the death of
her family members caused the applicant profound suffering, it
nevertheless finds no basis for finding a violation of Article 3 in
this context.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant submitted that she had no effective remedies in respect of
the above violations, in breach of Article 13 of the Convention,
which provides:
“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.”
- The
Government disagreed and referred to the ongoing criminal
investigation into the murders.
- The
Court reiterates that Article 13 of the Convention guarantees the
availability at the national level of a remedy to enforce the
substance of the Convention rights and freedoms in whatever form they
might happen to be secured in the domestic legal order. Given the
fundamental importance of the right to protection of life, Article 13
requires, in addition to the payment of compensation where
appropriate, a thorough and effective investigation capable of
leading to the identification and punishment of those responsible for
the deprivation of life and infliction of treatment contrary to
Article 3, including effective access for the complainant to the
investigation procedure leading to the identification and punishment
of those responsible (see Anguelova v. Bulgaria, no. 38361/97,
§§ 161-162, ECHR 2002-IV, and Süheyla Aydın
v. Turkey, no. 25660/94, § 208, 24 May 2005). The Court
further reiterates that the requirements of Article 13 are
broader than a Contracting State's obligation under Article 2 to
conduct an effective investigation (see Khashiyev and Akayeva,
cited above, § 183).
- It
follows that in circumstances where, as here, the criminal
investigation into the death was ineffective and the effectiveness of
any other remedy that may have existed, including civil remedies, was
consequently undermined, the State has failed in its obligation under
Article 13 of the Convention.
- Consequently,
there has been a violation of Article 13 in conjunction with Article
2 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant did not submit any claims for pecuniary damage. As to
non-pecuniary damage, the applicant stressed that she had lost her
parents and her uncle, and was faced with the absence of an effective
investigation into their deaths. This had caused her feelings of
anguish, distress and anxiety. She claimed 100,000 euros (EUR) in
this respect.
- The
Government found the amount claimed to be excessive.
- The
Court observes that it has found violations of the substantive and
procedural limbs of Article 2 and a violation of Article 13 of the
Convention. The Court accepts that the applicant has suffered
non-pecuniary damage and awards the applicant EUR 60,000, plus
any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant was represented by lawyers from the NGO EHRAC/Memorial
Human Rights Centre. She submitted the following breakdown of costs:
(a) EUR
500 for 20 hours of research in Chechnya and Ingushetia at a rate of
EUR 25 per hour;
(b) EUR
400 in travel expenses for the field workers;
(c) EUR
2,000 for 40 hours of drafting legal documents submitted to the Court
and the domestic authorities at a rate of EUR 50 per hour by the
lawyers in Moscow;
(d) 1,792
pounds sterling (GBP) for 17 hours and 55 minutes of legal work by a
United Kingdom-based lawyer at a rate of GBP 100 per hour;
(e) GBP 176
for the professional fees of a barrister in London consulted as to
the evidence;
(f) GBP
409 for translation costs, as certified by invoices; and
(g) GBP
250 for administrative and postal costs.
- The
Government disputed the reasonableness and the justification of the
amounts claimed under this heading. They also objected to the
representatives' request to transfer the award for legal
representation directly into their account in the UK.
- The
Court has to establish, first, whether the costs and expenses
indicated by the applicant were actually incurred and, second,
whether they were necessary (see McCann and Others, cited
above, p. 63, § 220).
- The
Court notes that the applicant was represented by the lawyers of
EHRAC/Memorial from the outset of the proceedings before it. It is
satisfied that the rates set out above are reasonable and reflect the
expenses actually incurred by the applicant's representatives.
- Further,
it has to be established whether the costs and expenses incurred by
the applicant for legal representation were necessary. The Court
notes that the case involved a certain quantity of factual and
documentary evidence and required a fair amount of research and
preparation. Furthermore, the Court notes that it is its standard
practice to rule that awards in relation to costs and expenses are to
be paid directly into the applicant's representatives' accounts (see,
for example, Toğcu, cited above, § 158; Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98,
§ 175, ECHR 2005 VII; and Imakayeva v. Russia,
no. 7615/02, ECHR 2006 ...).
- In these circumstances, and having regard to the
details of the claims submitted by the applicant, the Court awards
the following sums as claimed under this heading: EUR 2,900 and
GBP 2,627, exclusive of any value-added tax that may be
chargeable, the net award to be paid in pounds sterling into the
representatives' bank account in the United Kingdom, as identified by
the applicant.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Dismisses unanimously the Government's
preliminary objection;
- Holds unanimously that there has been a failure
to comply with Article 38 § 1 (a) of the
Convention;
- Holds unanimously that no separate issues arise
under Article 34 of the Convention;
- Holds unanimously that there has been a
violation of Article 2 of the Convention in respect of the
failure to conduct an effective investigation into the circumstances
of the deaths of Abdul-Vagap Tangiyev, Khidzhan
Gadaborsheva and Ismail Gadaborshev;
- Holds by 5 votes to 2 that there has been a
violation of Article 2 of the Convention in respect of the
killing of three members of the applicant's family;
- Holds unanimously that there has been no
violation of Article 3 of the Convention in respect of the
applicant;
- Holds unanimously that there has been a
violation of Article 13 of the Convention in conjunction with
Article 2 of the Convention;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
60,000 (sixty thousand euros) in respect of non-pecuniary damage, to
be converted into Russian roubles at the date of settlement;
(ii) EUR 2,900
(two thousand nine hundred euros) and GBP 2,627 (two thousand
six hundred and twenty-seven pounds sterling), the net award to be
converted into pounds sterling at the rate applicable at the date of
settlement, to be paid into the representatives' bank account in the
United Kingdom;
(iii) any
tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 29 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Loukis Loucaides
Deputy Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the partly dissenting opinion of MM Kovler
and Hajiyev is annexed to this judgment.
L.L.
A.M.W
PARTLY DISSENTING OPINION OF JUDGES KOVLER AND HAJIYEV
We
share the main conclusions of the Chamber in this case with the
exception of the conclusion that there has been a violation of
Article 2 of the Convention in respect of the killing of three
members of the applicant's family.
In
the light of the importance of the protection provided by Article 2
of the Convention, the Court must subject deprivations of life to the
most careful scrutiny, taking into consideration not only the actions
of State agents but also all the surrounding circumstances (see,
among other authorities, Avşar v. Turkey, no. 25657/94,
judgment of 10 July 2001, § 391, ECHR 2001-VII).
In
this case the applicant was unable to submit persuasive evidence to
support her allegations as to the State's responsibility for the
murders. The exact cause and circumstances of the applicant's
relatives' deaths have never been established. The applicant did not
seek the opinion of a medical doctor before the burial of her
relatives' remains. No official death certificates were produced by
the competent authorities such as to suggest that a basic
fact-finding exercise had been carried out on the domestic level and
at least indicate the dates and causes of the deaths. No photographs
were taken and no detailed description of the bodies was recorded
before burial, nor did the applicant apply to a domestic court in
order to establish the facts and circumstances of her relatives'
deaths (see, by contrast, Khashiyev and Akayeva v. Russia,
nos. 57942/00 and 57945/00, judgment of 24 February 2005, §§
28-30 and §§ 39-42, and Estamirov and Others v. Russia,
no. 60272/00, judgment of 12 October 2006, §§ 18, 20 and
21). Furthermore, in the criminal proceedings the applicant refused
to allow the exhumation of her relatives' remains and the preparation
of a forensic expert report, or even to identify the place where they
were buried. If such reports had been produced their results could
have provided valuable information about the exact manner of the
deaths and served to support or undermine the applicant's allegation.
The
investigation examined the version of the events advanced by the
applicant, as well as other possibilities, such as the possibility
that the deaths were a result of the shelling of the house or a feud
with the illegal “insurgents” operating in the district
(it appears that it found no conclusive evidence to support any of
these theories). The applicant herself was not an eyewitness to the
events. No witnesses were identified who could corroborate her
statements about the servicemen being responsible for the murders.
The absence of any independent information concerning the cause of
the deaths was undoubtedly a major impediment to the investigation.
The Court, to our regret, took into account only the applicant's
allegation that the servicemen had been the perpetrators of the
crime. According to the applicant, the killings of her relatives were
directly linked to the other murders which had occurred in the
Staropromyslovskiy district in January 2000 (see paragraph 80 of the
judgment). By analogy, she referred to the Court's conclusions in
Khashiyev and Akayeva.
In
view of the Court's conclusions in the Khashiyev and Akayeva
case, where the Court found it established that the Russian forces
had been in control of the district at the time and that they had
been responsible for the deaths of the applicants' relatives on 19
and 20 January 2000 (see Khashiyev and Akayeva, cited above,
§§ 142-45), we think that Mrs Tangiyeva's allegation cannot
be discarded as prima facie untenable. However, we cannot
agree with the applicant and apply these conclusions to the facts of
the present case to an extent which would attribute the
responsibility for unlawful acts to the respondent State, without
having the benefit of additional evidence to that effect.
We
reiterate that the required evidentiary standard for the purposes of
the Convention is that of proof “beyond reasonable doubt”
and that such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact. We cannot share the conclusion that the burden
of proof is exclusively shifted to the Government, even though we
regret that the respondent Government failed to disclose all the
documents in the investigation file.
