BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF
INDERBIYEVA v. RUSSIA
(Application
no. 56765/08)
JUDGMENT
STRASBOURG
27
March 2012
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 Inderbiyeva v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Peer
Lorenzen,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Linos-Alexandre
Sicilianos,
Erik
Møse,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 6 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 56765/08) 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, Ms Deshi Inderbiyeva (“the
applicant”), on 10 July 2008.
- The
applicant was represented by Mr D. Itslayev, a lawyer practising in
Grozny. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative
of the Russian Federation at the European Court of Human Rights.
- The
applicant alleged that two of her sisters had been killed by Russian
servicemen in Grozny in January 2000. She alleged a violation of
Articles 2, 3, 6 and 13 of the Convention.
- On
11 September 2009 the Court decided to apply
Rule 41 of the Rules of Court and to grant priority treatment to
the application and to give notice of the application to the
Government. Under the provisions of former Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having
considered the Government’s objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968. She lives in Grozny. She is the sister of
Shema (also spelt Sheima) Inderbiyeva, who was born in 1963, and
Shamani Inderbiyeva, who was born in 1966.
A. The killing of Shema and Shamani Inderbiyeva and
subsequent events
1. The applicant’s account
- At
some point in 1999 due to heavy hostilities between Russian forces
and Chechen fighters the applicant moved to a refugee camp in
Ingushetia. Two of her sisters, Shema Inderbiyeva and Shamani
Inderbiyeva, and her mother Yakhita Inderbiyeva remained in their
flat – no. 10 in the block of flats at 154B, Pugacheva Street
in the Staropromyslovskiy District of Grozny. Most of the
other residents of the district left for safer areas, but the
applicant’s relatives stayed to look after the family property.
According to the applicant, Russian forces regained control over the
Staropromyslovskiy District at the beginning of January 2000.
- In
December 1999 the applicant’s mother and her sisters Shema and
Shamani Inderbiyeva moved from their flat to the basement under the
pavilion situated in the courtyard of their block of flats. On
1 January 2000, owing to the intensity of a fire, Shema and
Shamani Inderbiyeva decided to hide in the basement of the
applicant’s block of flats at no. 285 (in the documents
submitted the address is also stated as no. 287) in Derzhavina Street
in the Staropromyslovskiy District of Grozny. Their mother, Yakhita,
remained in the basement at 154B, Pugacheva Street as she was sick
and could not walk. The applicant’s sisters
regularly visited their mother and brought her food.
- On
8 February 2000 (in the submitted documents the date was also
referred to as 12 February 2000) the applicant, together with an
acquaintance, Ms F.A., went to visit her relatives in Grozny. She did
not find anybody in her family’s flat in Pugacheva Street and
went to find out about her sisters and mother from the neighbours who
lived in her block of flats in Derzhavina Street. In the basement of
the house the applicant found her mother, who was in bed, in a state
of shock and incoherent, and who kept saying: “Russian
soldiers, smoke, fire”.
- Having
spent the night with her mother in the basement, on the following day
the applicant went to look for her sisters in Pugacheva Street. In
the basement located in the courtyard of her family’s block of
flats she found the two burnt corpses of Shema and Shamani
Inderbiyeva. The applicant was able to identify her sisters by their
personal belongings, pieces of hair, remaining facial features and
teeth crowns.
- The
applicant collected the remains in pillow cases and returned with
them to Derzhavina Street, where she met Ms M.Z., an elderly ethnic
Russian. The woman told her that on 10 January 2000 she and her
husband had been walking next to the basement at 154B, Pugacheva
Street when they had seen three servicemen looking into the basement
under the pavilion. One of the servicemen, a senior one, had said to
someone in the basement: “Mother, come out and let’s go
to the military commander’s office for an identity check”.
Then he had leaned over and pulled the applicant’s mother out.
He had walked her away from the pavilion by hand whereas two other
servicemen had remained next to the basement. Next, one of the two
soldiers had thrown something inside. A powerful explosion followed
as a result of which the pavilion had been partially destroyed and
smoke had been coming out from the basement. The applicant’s
mother had turned back and fainted; looking at her the soldiers had
started laughing. Ms M.Z. and her husband had become scared and
walked away.
- On
10 February 2000 the applicant and Ms F.A. went to the
Staropromyslovskiy District military commander’s office to
obtain permission to bury her sisters’ remains in the cemetery
of the village of Valerik in the Urus-Martan District. After she
explained to the servicemen that her sisters had been killed by
Russian soldiers, the servicemen wanted to detain her and even opened
gunfire to stop her, but she managed to run away. Then she saw a
group of Chechens in military uniforms and asked them for help. The
servicemen from the military commander’s office requested that
the Chechens hand the applicant over to them, but they refused. Then
the Chechen servicemen took her to the 36th District of Grozny (36-й
участок);
from there the applicant managed to get a lift to Valerik.
- On
the same date, 10 February 2000, the applicant buried her sisters’
remains in the Valerik cemetery. After that, she returned to the
refugee camp in Ingushetia.
- According
to the applicant, her mother Yakhita, after witnessing the murder of
her daughters Shema and Shamani by the soldiers, suffered a severe
psychological breakdown and became mentally ill.
- In
support of her statements, the applicant submitted her own statement
dated 22 February 2010; a statement by Ms G.P. dated 29 January
2004; a statement by Mr S.Kh. dated 1 March 2010; a statement by
Ms Z.T. dated 1 February 2004, a copy of the witness statement
by the applicant’s mother Yakhita Inderbiyeva dated 5 July 2000
and copies of other documents received from the authorities. The
applicant also enclosed a Human Rights Watch report “Civilian
Murders in the Staropromyslovskiy District of Grozny” of
February 2000 and a sketched map of the district indicating the place
where the bodies of her sisters had been discovered. The applicant
also referred to the Court’s judgments Khashiyev
and Akayeva v. Russia (nos. 57942/00
and 57945/00, 24 February 2005), Makhauri
v. Russia (no. 58701/00, 4 October
2007), Tangiyeva v. Russia
(no. 57935/00, 29 November 2007), Goncharuk
v. Russia (no. 58643/00,
4 October 2007), and Goygova v.
Russia (no. 74240/01, 4 October
2007), and the witness statements contained therein, stating that the
events she complained of had been examined by the Court in those
judgements and that they concerned the same events which had taken
place in the Staropromyslovskiy District of Grozny in January 2000.
2. Information submitted by the Government
- The
Government did not challenge the matter as presented by the
applicant. They stated that the circumstances of the events were
still under criminal investigation and that unidentified persons had
killed the applicant’s sisters.
B. The official investigation of the murder
1. Information submitted by the applicant
- The
death of Shema and Shamani Inderbiyeva was initially
investigated as part of criminal case no. 12038 opened on 3 May
2000 by the Grozny Town Prosecutor’s Office (the town
prosecutor’s office). The criminal investigation was initiated
after the publication in the newspaper Novaya Gazeta on 27
April 2000 of an article entitled “Freedom or death”
concerning the mass murder of civilians by servicemen of the 205th
brigade on 19 January 2000 (in the documents submitted the date
was also referred to as 19 February 2000) in Grozny.
- On
5 and 17 July 2000 the applicant’s other sister Mobarik
Inderbiyeva (in the documents submitted also spelt Moberik) and her
mother Yakhita Inderbiyeva were questioned by the investigators.
- The
applicant was neither kept informed of the progress in the
investigation of criminal case no. 12038 nor granted
victim status in the criminal case.
- On
2 July 2003 the Staropromyslovskiy District Prosecutor’s Office
in Grozny (the district prosecutor’s office) opened criminal
case no. 50080 in connection with the murder of the applicant’s
sisters.
- On
6 December 2007 the applicant requested that the investigators allow
her to access the investigation file. On 10 December 2007 her request
was granted in part and she was able to obtain copies of a few basic
procedural decisions.
- On 15 April 2008 the applicant
complained to the Staropromyslovskiy District Court of Grozny (the
district court) that the investigation in criminal case no. 50080 was
ineffective. She requested that the court order the district
prosecutor’s office to resume the investigation and conduct it
in a thorough and effective manner.
- On
19 May 2008 the district court rejected the applicant’s
complaint stating that on 16 May 2008 the district prosecutor’s
office had already resumed the investigation of the criminal case.
- According
to the applicant, throughout the investigation the authorities failed
to provide her with information on the progress of the criminal
proceedings in case no. 50080.
2. Information submitted by the Government
- On
3 May 2000 the town prosecutor’s office opened criminal case
no. 12583 in connection with the publication of the article
“Freedom or death” in Novaya Gazeta concerning the
mass murder of civilians on 19 February 2000 by the 205th
brigade of the Russian military forces in the Katayama (also spelt
Katoyama) settlement in the Staropromyslovskiy District of Grozny.
- On
17 June 2000 the investigators from the town prosecutor’s
office questioned the applicant who stated that on 9 February 2000
she had returned to Grozny from Ingushetia and found out that her
sisters Shema and Shamani had been killed by servicemen from military
unit no. 3737. On the same date she had found her sisters’
bodies in the basement at no. 154B Pugacheva
Street and had subsequently buried them at a cemetery in the
Achkhoy Martan District.
- On
the same date the investigators questioned the applicant’s
sister Mobarik Inderbiyeva who stated that on 12 February 2000 the
applicant had returned home with the remains of their sisters Shema
and Shamani who had been blown up by military servicemen with a
flamethrower on 10 January 2000 while they had been hiding in
the basement. The witness further stated that she had been able to
identify the remains of her sisters by their personal
belongings, pieces of hair, remaining facial features and teeth
crowns. The witness stressed that her sisters could have been killed
only by Russian soldiers as the area in question had at the time been
under the full control of the Russian military and it had been
impossible for persons who had not belonged to the federal forces to
access the premises without a special pass.
28. On
5 July 2000 the investigators questioned the applicant’s mother
Yakhita Inderbiyeva who stated, amongst other things, that at some
point in January 2000 the applicant had told her that she had found
the burnt remains of her daughters Shema and Shamani in the
basement next to the pavilion.
- On
27 July 2000 the investigators questioned Ms Ya.Z. whose
statement concerning the circumstances surrounding the death of the
applicant’s sisters the Government did not give to the Court.
-
On 11 June 2003 the Chechnya Prosecutor’s Office forwarded part
of criminal case file no. 12038 to the district prosecutor’s
office to be severed into a separate criminal case. The relevant part
of the file concerned the discovery by the applicant on 12 February
2000 of the burnt bodies of her sisters Shema and Shamani
Inderbiyeva.
- On
16 June 2003 the investigators in criminal case no. 12583
requested that the military prosecutor of the
United Group Alignment (the UGA) inform them which military units had
participated in the military operation in the Staropromyslovskiy
District of Grozny in January and February 2000.
- On
25 June 2003 an investigator from the district prosecutor’s
office initiated a preliminary inquiry into the discovery by the
applicant of her sisters’ bodies.
- On
2 July 2003 the district prosecutor’s office opened criminal
case no. 50080 under Article 105 § 2 of the Russian
Criminal Code (murder) in connection with the discovery on 12
February 2000 of the bodies of Shema and Shamani Inderbiyeva in the
basement situated across the courtyard from the block of flats at
no. 154B Pugacheva Street in Grozny.
- On
3 July 2003 the investigators examined the crime scene at no. 154B
Pugacheva Street. Nothing was collected from the scene.
- On
29 July 2003 the investigators requested that the Staropromyslovskiy
District Department of the Interior (the ROVD) identify any witnesses
to the applicant’s sisters’ murder and that those
witnesses be brought in for questioning.
- In
reply to the above request, on 1 August 2003 the ROVD informed the
investigators that the applicant’s mother and Ms Ya.Z. had
been summoned for questioning.
- On
15 September 2003 the investigators again requested that the ROVD
identify witnesses to the murder, bring the applicant, her mother,
her sister Mobarik Inderbiyeva and Ms Ya.Z. for questioning and
identify the place of the applicant’s sisters’ burial.
- On
17 September 2003 the ROVD reported to the investigators that it was
impossible to establish other witnesses to the events, other than the
applicant and Mobarik Inderbiyeva, as the buildings in the area had
been destroyed as a result of the armed hostilities and residents who
had resided there in 2000 had moved elsewhere.
- On
17 September 2003 the applicant provided the ROVD officers with a
short statement concerning the circumstances surrounding the
discovery of her sisters’ bodies and stated that her mother
Yakhita Inderbiyeva had developed a mental illness as a result of her
daughters’ murder.
- On
23 September 2003 the investigators again requested that the ROVD
identify the witnesses to the events and bring them for questioning
stating that the ROVD had provided them with superficial replies and
failed to take meaningful steps to identify the witnesses.
- On
5 October 2003 the investigators granted the applicant victim status
in criminal case no. 50080 and questioned her. The applicant stated
that on 9 February 2000 she had gone from Ingushetia to visit her
sisters and mother in Grozny. On 10 February 2000 she had gone to
Pugacheva Street where she had met a woman who had told her that her
mother had became mentally ill and was living in a basement situated
in a former dentist’s office. The applicant had found her
mother in an incoherent state. Then the applicant had met an elderly,
ethnically Russian couple and the woman had told her about the
circumstances of her sisters’ murder by servicemen from
military unit no. 3737. According to the woman, the soldiers had
conducted a ‘sweeping-up’ operation in the area; they had
pulled Yakhita Inderbiyeva out from the basement and let her go, but
they had killed her daughters Shema and Shamani who had remained in
the basement, with a flamethrower. Then the applicant had gone to the
basement, found the burnt bodies of her sisters and had taken the
remains to the village of Valerik for burial.
- On
17 October 2003 the investigators ordered that the bodies of Shema
and Shamani Inderbiyeva be exhumed.
- On
21 October 2003 the investigators examined the bodies. It was
impossible to establish any traces of physical violence, other than
burns, owing to the state of decomposition.
- On
22 October 2003 the investigators ordered forensic medical
examinations of the remains of Shema and Shamani Inderbiyeva and
requested that the experts determine the cause of their death,
possible origins and the extent of the injuries, traces of gunshot
wounds and their number.
- On
23 October 2003 the Chechnya Bureau of Forensic Expert Evaluations
(the Bureau) reported to the investigators that the state of the
bodies of Shema and Shamani Inderbiyeva, which must have been exposed
to high temperatures, precluded them from obtaining the information
necessary to reply to the investigators’ questions.
- On
2 November 2003 the investigation in criminal case no. 50080 was
suspended for failure to identify the perpetrators.
- On
3 April 2004 (in the documents submitted the date was also referred
to as 1 April 2004) the deputy Chechnya prosecutor overruled the
decision to suspend the investigation as unsubstantiated and
premature and ordered the investigators to resume the proceedings and
take a number of steps, such as identifying the servicemen from
military unit no. 3737 who had participated in the military
operation in the Staropromyslovskiy District of Grozny in January
2000 and providing an explanation of the differences in the witness
statements given by the applicant, her sister Mobarik Inderbiyeva and
Ms Ya.Z.
- On
10 April 2004 the investigators again requested that the ROVD
identify among the neighbourhood’s residents the witnesses to
the applicant’s sisters’ murder.
- On
12 April 2004 the investigators again examined the crime scene; no
evidence was collected.
- On
various dates in April 2004 the investigators questioned a number of
witnesses, including Ms M.S., Mr R.M., Ms M.Ib., Ms T.Sh.,
Ms Kh.D., Mr R.Kh., Mr A.Kh., Ms F.M., Ms M.Kh., and Ms M.O.,
all of whom stated that at the material time they had lived elsewhere
and had not witnessed the events in question; however, at some point
they had learnt from their relatives and neighbours that the
applicant’s sisters Shema and Shamani had been killed by
Russian servicemen and their corpses had been found later in the
basement.
- On
15 May 2004 the investigators requested that the Central Archives of
the Russian Ministry of the Interior (the MVD) provide them with the
following information:
“....the investigation established the involvement
in the crime [the murder of the applicant’s sisters] of
military servicemen from military brigade no. 205.
According to the reply from the North-Caucasus
Headquarters of the Internal Troops of the Ministry of the Interior
to our request for information, documents concerning special
operations conducted in the Chechen Republic in 1999, 2000, 2001 and
2002 were transferred to the Central Archives of the Ministry of the
Interior.
Based on the above information, I ask you .... to
identify which regiments of which military units and troops of the
Ministry of the Interior carried out their service duties or were
stationed between October 1999 and February 2000 inclusive in the
Staropromyslovskiy District of Grozny... and to establish the
location of these regiments and units at present...
...you are also requested to declare which troops of
military brigade no. 205 of the Russian Military Forces participated
in the military operation in Grozny... between October 1999 and
February 2000 in the Staropromyslovskiy District of Grozny...”
- On
16 May 2004 the investigators again requested that the ROVD identify
the witnesses to the events, including the elderly Russian couple who
had informed the applicant of the circumstances of her sisters’
murder, and bring them for questioning.
- On
8 June 2004 the investigation in the criminal case was again
suspended for failure to identify the perpetrators.
- On
9 July 2004 the supervising prosecutor overruled the decision to
suspend the investigation as unsubstantiated and premature and
ordered the investigators to resume it and take a number of steps,
such as identifying the servicemen from military unit no. 3737 who
had participated in the military operation in the Staropromyslovskiy
District of Grozny in January 2000. The prosecutor also ordered the
investigators to provide an explanation of the differences in the
witness statements given by the applicant, her sister Mobarik
Inderbiyeva and Ms Ya.Z., and to identify the elderly Russian couple
who had informed the applicant about the circumstances of her
sisters’ murder.
- On
15 July 2004 the investigators again questioned the applicant’s
sister Mobarik Inderbiyeva who stated that she had found out about
the circumstances of her sisters’ murder from the applicant and
that the area where her sisters had been killed had at the time been
under the full control of the Russian military.
- On
2 August 2004 the investigators questioned Mr I.A. who stated that he
had not witnessed the murder, but had learnt from his relatives and
neighbours that the applicant’s sisters had been killed during
a ‘sweeping up’ operation by Russian military
servicemen who had been called by the local population ‘the
jailers’ (‘тюремщики’).
- On
the same date, 2 August 2004, the investigators questioned Mr A.G.
whose statement about the events was similar to the one given by
Mr I.A.
- On
9 August 2004 the investigation in the criminal case was suspended
for the third time for failure to identify the perpetrators.
- On
18 October 2004 the supervising prosecutor overruled the decision to
suspend the investigation as unsubstantiated and premature and
ordered the investigators to take the necessary steps ordered on
9 July 2004. The investigation was resumed on the same date.
- On
21 October 2004 the investigators questioned Mr K.S. whose statement
about the events was similar to that given by Mr I.A. (see paragraph
56 above).
- On
18 November 2004 the investigation in the criminal case was suspended
for the fourth time for failure to identify the perpetrators.
- On
14 December 2004 the supervising prosecutor again overruled the
decision to suspend the investigation as unsubstantiated and
premature and ordered the investigators to take the necessary steps,
including those ordered on 9 July and 18 October 2004. The
investigation was resumed on the same date and the applicant was
informed of this decision.
- On
14 January 2005 the investigation in the criminal case was again
suspended for failure to identify the perpetrators without having
taken any of the steps ordered by the supervising prosecutor.
- On
27 January 2005 the investigators requested that the ROVD identify
the witnesses to the murder and bring them for questioning. On the
same date the investigators requested that the Archives of the
North Caucasus Military Circuit inform them which military unit
had been stationed in the area of the events at the material time.
- On
6 December 2007 the applicant complained to the district prosecutor’s
office that the investigation into her sisters’ murder was
ineffective and requested that the investigators allow her to access
the investigation file.
- On
10 December 2007 the investigators granted the applicant’s
request in part and allowed her to access the procedural documents
reflecting the investigative steps taken with her participation.
- On
8 April 2008 the applicant again complained to the district
prosecutor’s office that the investigation into her sisters’
murder was ineffective and requested that the investigators grant her
access to the investigation file and resume the criminal proceedings.
No reply was given to this request.
- On
16 May 2008 the supervising prosecutor again overruled the decision
to suspend the investigation as unsubstantiated and premature and
ordered the investigators to take the necessary steps, including
those ordered on 9 July, 18 October and 14 December 2004. The
investigation was resumed on the same date.
- On
20 May 2008 the investigators requested that the investigative
department of the UGA assist them in identifying the military unit
which had been stationed in the area of the events in January and
February 2000, provide them with a list of its servicemen for the
period and inform them of the stationing of the military unit at
present.
- On
2 June 2008 the investigators questioned Ms Ya.Z. The Government did
not furnish a copy of this statement to the Court either (see
paragraph 29 above).
- On
9 June 2008 the ROVD informed the investigators that it was
impossible to establish the identities of the elderly Russian couple
who had witnessed the applicant’s sisters’ murder.
- On
16 June 2008 the investigation in the criminal case was suspended for
the sixth time for failure to identify the perpetrators.
- On
26 June 2008 the applicant again complained to the district
prosecutor’s office that the investigation into her sisters’
murder was ineffective and requested that the investigators grant her
access to the investigation file and resume the criminal proceedings.
- On
30 June 2008 the investigators replied to the applicant’s
complaint stating that she was entitled to a copy of the last
decision to suspend the investigation.
- On
an unspecified date in January 2009 the supervising prosecutor again
overruled the decision to suspend the investigation as unlawful and
ordered the investigators to take the necessary steps. The Government
did not furnish the Court with a copy of this document.
- On
19 January 2009 the investigation in the criminal case was resumed.
- The
Government submitted that although the investigation had failed to
establish the perpetrators of the murder of Shema and Shamani
Inderbiyeva, the proceedings were still in progress. The information
gathered by the investigators demonstrated that the applicant’s
sisters had been killed by unidentified persons and that “it
cannot be seen from the case file that Shema and Shamani Inderbiyeva
were killed as a result of the use of lethal force by representatives
of the State”. The Government further submitted that the
domestic authorities had been taking all possible steps to have the
crime resolved.
- In
reply to the Court’s request for the full contents of the
investigation file in criminal case no. 50080, the Government
stated in a Memorandum of 20 January 2010 that they enclosed the
contents of the criminal case file ‘in full’ and that it
ran to 171 pages. However, from the documents submitted and their
pagination it follows that a number of documents, such as witness
statements, were not furnished by the Government and no explanation
had been given for the failure to submit the remaining documents to
the Court.
II. RELEVANT DOMESTIC LAW
- For
a summary of the relevant domestic law see Goygova v. Russia
(no. 74240/01, §§ 63 64, 4 October 2007).
THE LAW
I. THE ISSUE OF EXHAUSTION OF DOMESTIC REMEDIES
A. The parties’ submissions
- The
Government submitted that the investigation into the murder of the
applicant’s sisters had not yet been completed. They further
argued, in relation to the complaint under Article 13 of the
Convention, that it had been open to the applicant to lodge court
complaints about any acts or omissions of the investigating
authorities. She could also have applied for civil damages.
- The
applicant contested the Government’s submission. She stated
that the only available remedy, the criminal investigation, had
proved to be ineffective.
B. The Court’s assessment
- The
Court will examine the arguments of the parties in the light of the
provisions of the Convention and its relevant practice (for a
relevant summary, see Estamirov and Others v. Russia, no.
60272/00, §§ 73 74, 12 October 2006).
- The
Court notes 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.
- As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, the
Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention (see
Khashiyev and Akayeva v. Russia, cited above, §§ 119 21,
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 Government’s objection in
this regard is thus dismissed.
- As
regards criminal-law remedies, the Court observes that the
investigation into the murders has been pending since 3 May
2000. The applicant and the Government dispute the effectiveness of
the investigation.
- The
Court considers that the Government’s objection raises issues
concerning the effectiveness of the investigation which are closely
linked to the merits of the applicant’s complaints. Thus, it
decides to join this objection to the merits of the case and
considers that the issue falls to be examined below.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant alleged that her sisters had been unlawfully killed by
agents of the State and that no effective investigation had been
carried out into the matter. She relied on Article 2 of the
Convention, which reads:
“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.”
A. Admissibility
- The
Court considers, in the light of the parties’ submissions, that
the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. Further, the Court has already found that the Government’s
objection concerning the issue of exhaustion of domestic remedies
should be joined to the merits of the complaint (see paragraph 86
above). The complaint under Article 2 of the Convention must
therefore be declared admissible.
B. The alleged violation of the right to life of Shema and
Shamani Inderbiyeva
1. The parties’ submissions
- The
applicant alleged that her sisters had been unlawfully killed by
agents of the State and referred to the Court’s conclusion in
the cases of Khashiyev and Akayeva, Goygova,
Makhauri, Goncharuk, and Tangiyeva (all
cited above), noting that, at the relevant time, the area was under
the full control of the Russian federal forces. She argued
that the Government had not suggested any other version of the
events.
- The
Government denied any involvement of State agents in the killing of
the applicant’s sisters and stated that they had been murdered
by unidentified criminals.
2. The Court’s assessment
- It
was not disputed by the parties that the applicant’s sisters
had been killed. The Government did not suggest that the exceptions
provided for in the second paragraph of Article 2 could be applicable
in the present case. The question remains whether the respondent
State may be held responsible for their death.
- The
Court observes that it has developed a number of general principles
relating to the establishment of facts in dispute, in particular when
faced with allegations of a violation of Article 2 (for a summary of
these, see Estamirov and Others, cited above, §§ 98 101).
In the light of these principles, the Court will decide whether the
death of the applicant’s sisters can be attributed to the State
and whether there has been a violation of Article 2 in this respect.
- The
Court finds that the factual circumstances as presented by the
applicant were not disputed by the Government and were not
contradicted by the documents in the investigation file. As it
appears, the only version of the events pursued by the investigation
was that suggested by the applicant. The Government did not present
any alternative account of the attack and, moreover, the
investigation obtained information proving the applicant’s
allegations of the State agents’ responsibility for her
sisters’ death (see paragraph 51 above).
- In addition, the Court has long held that where the
events in issue lie wholly, or to a large extent, within the
exclusive knowledge of the authorities – as in the case of
persons in custody under those authorities’ control –
strong presumptions of fact will arise in respect of injuries and
deaths occurring during such detention. Thus, it has found that where
an individual is taken into custody in good health but is found to be
injured at the time of release, it is incumbent on the State to
provide a plausible explanation of how those injuries were caused,
failing which an issue will arise under Article 3 of the Convention
(see Tomasi v. France, 27 August 1992, §§
108-11, Series A no. 241-A; Ribitsch v. Austria, 4
December 1995, § 34, Series A no. 336; and Selmouni v.
France [GC], no. 25803/94, § 87, ECHR 1999 V).
Indeed, in such situations the burden of proof may be regarded as
resting on the authorities (see,
inter
alia,
Salman v. Turkey [GC], no. 21986/93, §
100, ECHR 2000 VII).
- The
Court has also considered it legitimate to draw a parallel between
the situation of detainees, for whose well-being the State is held
responsible, and the situation of persons found injured or dead in an
area within the exclusive control of the State authorities. Such a
parallel is based on the salient fact that in both situations the
events in issue lie wholly, or in large part, within the exclusive
knowledge of the authorities (see Akkum and Others v. Turkey,
no. 21894/93, § 211, ECHR 2005 II (extracts)).
- The
Court will assess the effectiveness of the investigation into the
death of the applicant’s sisters below (see paragraphs 100 -
107), but it is clear that it failed to establish the military units
presumably involved in the incident or to indict the individuals
responsible. Taking this into account and the Court’s finding
in the judgments referred to by the applicant, the Court finds that
she has made a prima facie case that her sisters were killed by
servicemen during a security operation on or around 10 January 2000
in the Staropromyslovskiy District of Grozny, and that the Government
have failed to provide any other satisfactory and convincing
explanation of the events. Their reference to the absence of
conclusions from the criminal investigation is not enough to absolve
them from their burden of proof under Article 2 of the Convention.
- On
the basis of the above, the Court finds that the death of Shema and
Shamani Inderbiyeva can be attributed to the State. In the absence of
any justification put forward by the Government, the Court finds that
there has been a violation of Article 2 under its substantive limb.
C. Alleged inadequacy of the investigation
1. The parties’ submissions
- The
applicant alleged that the authorities had failed to conduct an
effective investigation into the circumstances of her sisters’
death, in violation of their procedural obligation under Article 2.
She argued that the investigation had fallen short of the standards
established by the Convention and national legislation. In
particular, the investigation had not been prompt because of the
delay in opening it and in taking important steps. A number of
investigative measures had never been taken, such as securing the
relevant evidence and questioning servicemen who could have been
involved. The investigation had been ongoing for more than ten years
without producing any tangible results. The authorities had
systematically failed to inform her of the progress of the
proceedings and that she had been given no information about
important procedural steps.
- The
Government contended in reply that the investigation was being
carried out in accordance with the relevant domestic legislation and
Convention standards.
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 summary see, for example, Bazorkina v. Russia,
no. 69481/01, §§ 117 19, 27 July 2006).
- In
the present case, an investigation was carried out into the murder of
the applicant’s sisters. The Court must assess whether that
investigation met the requirements of Article 2 of the Convention.
- The
Court notes from the outset that it has previously found the
investigation into the murders of the inhabitants of the
Staropromyslovskiy District perpetrated in January and February 2000
to be ineffective and in breach of the requirements of Article 2 of
the Convention (see Khashiyev and Akayeva v. Russia, cited
above, §§ 156-66; Goygova, cited above,
§§ 76-85; Makhauri v. Russia, cited above,
§§ 105 14; Goncharuk v. Russia, cited
above, §§ 65 71; and Tangiyeva v. Russia,
cited above §§ 88 95). It can be seen from the
documents submitted that no different conclusion could be arrived at
in the present case for the following reasons.
- 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 town
prosecutor’s office. In June and July 2000, within the scope of
this investigation, the applicant, her sister and her mother were
questioned and confirmed information about the circumstances in which
their relatives’ bodies had been found and their burial.
However, it does not appear that any other steps were taken at that
time in order to solve the murders. More than three years later, in
June 2003, the documents relating to the murder of the applicant’s
sisters were transferred to the district prosecutor’s office
with an instruction to carry out a separate investigation but the
authorities only initiated a separate set of proceedings to
investigate the matter in July 2003.
- The
Court further notes that even the most basic procedural steps in the
investigation were taken after September 2003, that is, more than
three and half years after the events in question. The measures taken
after September 2003 included such crucial steps as the questioning
of other witnesses, examination of the crime scene, attempts to
identify the military units that could have been involved in the
murders and the carrying out of a forensic medical examination. 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.
- The
Court also notes that the applicant was granted victim status only in
October 2003. Even after that she was only informed of the suspension
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 suspended 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 death of Shema and Shamani Inderbiyeva.
This rendered recourse to the criminal domestic remedies, referred to
by the Government, ineffective in the circumstances. The Court
accordingly dismisses the Government’s objection in this
respect and holds that there has been a violation of Article 2 under
its procedural limb as well.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant relied on Article 3 of the Convention, submitting that
prior to their killing Shema and Shamani Inderbiyeva were subjected
to ill treatment and that as a result of her sisters’
death and the State’s reaction thereto, she had endured
psychological suffering in breach of Article 3 of the
Convention. Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Admissibility
- Turning
to the first part of the applicant’s complaint, the Court notes
that the applicant neither raised it with competent domestic
authorities nor enclosed any documents with the application to
substantiate her allegations.
- As for the second part of the complaint, the Court
notes that the present case concerns the instantaneous death of the
applicant’s sisters as a result of an explosion. In this
regard, the Court refers to its practice by which the
application of Article 3 is usually not extended to the relatives of
persons who have been killed by the authorities in violation of
Article 2 (see Yasin Ateş v. Turkey, no. 30949/96, § 135,
31 May 2005) or to cases of unjustified use of lethal force by State
agents (see Isayeva and Others v. Russia, nos. 57947/00,
57948/00 and 57949/00, § 229, 24 February 2005), as opposed to
the relatives of the victims of enforced disappearances. The latter
approach is exercised by the Court in view of the continuous nature
of the psychological suffering of the applicants whose relatives
disappeared and the applicants’ inability for a prolonged
period of time to find out what happened to them (see, among many
other authorities, Bazorkina, cited above, § 141;
Imakayeva v. Russia, no. 7615/02, § 166, ECHR 2006 XIII
(extracts); and Luluyev and Others v. Russia, no. 69480/01,
§ 115, ECHR 2006 XIII (extracts)). As for the
present case, even though the Court does not doubt that the tragic
death of her sisters caused the applicant profound suffering, it
nonetheless, owing to the instantaneous nature of the incident, does
not find that it amounts to a violation of Article 3 of the
Convention (see, for a similar situation, Udayeva and Yusupova v.
Russia, no. 36542/05, §§ 82 83,
21 December 2010).
- It
therefore follows that the applicant’s complaint under Article
3 should be rejected pursuant to Article 35 §§ 3
(a) and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the proceedings brought by her against the
investigators were unfair (see paragraph 22 above). She relied on
Article 6 of the Convention, which, in so far as relevant, reads as
follows:
“1. In the determination of his civil
rights and obligations ..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law...”
- The
Court finds that Article 6 § 1 of the Convention is inapplicable
to the proceedings in question, as they did not involve the
determination of the applicant’s civil rights or obligations or
a criminal charge against the applicant, within the meaning of the
Convention (see, among many other authorities, Udayeva and
Yusupova, cited above, § 86).
- It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 (a) and must be rejected in accordance with Article
35 § 4 thereof.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The applicant complained that
she had been deprived of effective remedies in respect of the alleged
violations
of Article 2 contrary to 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.”
A. The parties’ submissions
- The Government contended that
the applicant had effective remedies at her disposal as required by
Article 13 of the Convention and that the authorities had not
prevented her from using those remedies. The applicant had the
opportunity to challenge the acts or omissions of the investigating
authorities in court. They added that participants in criminal
proceedings could also claim damages in civil proceedings. In sum,
the Government submitted that there had been no violation of
Article 13.
- The applicant maintained the
complaint.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The
Court reiterates that in circumstances where, as in the present case,
a criminal investigation into a murder has been ineffective and the
effectiveness of any other remedy that might have existed has
consequently been undermined, the State has failed in its obligations
under Article 13 of the Convention (see Khashiyev
and Akayeva, cited
above, § 183).
- 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 regards
non-pecuniary damage, she stated that she had
endured emotional suffering in relation to the loss of her sisters
and the authorities’ failure to effectively investigate their
death. She left the determination of the amount of compensation to
the Court.
- The Government submitted that
finding a violation of the Convention would be adequate just
satisfaction in the applicant’s case.
- The
Court has found a violation of both aspects of Article 2 and of
Article 13 of the Convention on account of the death of the
applicant’s sisters and the authorities’ failure to
effectively investigate the matter. The Court thus accepts that the
applicant has suffered non-pecuniary damage which cannot be
compensated for solely by the findings of violations. It awards the
applicant 100,000 euros (EUR) plus any tax that may be chargeable
thereon.
B. Costs and expenses
- The
applicant was represented by Mr D. Itslayev, a lawyer practising in
Grozny. The applicant submitted a contract with
her representative and an itemised schedule of costs and expenses
that included legal research and drafting, as well as administrative
and translation expenses. The overall claim in respect of
costs and expenses related to the applicant’s legal
representation amounted to EUR 4,306. The applicant submitted the
following breakdown of costs:
(a) EUR 3,637 for 24.25 hours of
interviews and drafting of legal documents submitted to the Court and
the domestic authorities, at the rate of EUR 150 per hour;
(b) EUR 125 of administrative
expenses;
(c) EUR 544 in translation fees
based on the rate of EUR 80 per 1000 words.
- The
Government regarded the claim as unsubstantiated, pointing out that
the relevant documents were not sufficiently itemised or supported by
documentary evidence.
- 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 v. the
United Kingdom, 27 September 1995, § 220, Series A no.
324)
- Having
regard to the details of the information submitted by the applicant,
the Court is satisfied that these rates are reasonable and reflect
the expenses incurred. The Court notes that this case was rather
complex and required the amount of research and preparation claimed
by the applicant.
- Having
regard to the details of the claims submitted by the applicant, the
Court awards her the amount of EUR 4,000 together with any tax that
may be chargeable to the applicant, the net award to be paid into the
representative’s bank account, as identified by the applicant.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 UNANIMOUSLY
- Decides to join to the merits the Government’s
objection as to the issue of exhaustion of criminal domestic remedies
and rejects it;
- Declares the complaints under Articles 2 and 13
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a substantive
violation of Article 2 of the Convention in respect of Shema and
Shamani Inderbiyeva;
- Holds 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 in which Shema and
Shamani Inderbiyeva died;
5. Holds
that there has been a violation
of Article 13 of the Convention in conjunction with Article 2 of
the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the date of settlement:
(i) EUR 100,000
(one hundred thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the applicant;
(ii) EUR 4,000
(four thousand euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, to be paid into the
representative’s bank account;
(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 the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 27 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
