MEZHIYEVA v. RUSSIA - 44297/06 - Chamber Judgment [2015] ECHR 387 (16 April 2015)

In the case of Mezhiyeva v. Russia,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          André Potocki,
          Helena Jäderblom,
          Aleš Pejchal,
          Dmitry Dedov, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 24 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 44297/06) 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 Kisa Abdul-Kadirovna Mezhiyeva (“the applicant”), on 15 September 2006.

2. The applicant was represented by Stichting Russian Justice Initiative, an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, under Article 2 of the Convention that the Russian authorities had failed to protect her husband’s and her own right to life. She further alleged that the investigation of the circumstances of her husband’s death and her own severe injuries caused in the explosion on the bridge over river Sunzha in 2001 had been ineffective.

4. On 1 April 2009 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant, Ms Kisa Abdul-Kadirovna Mezhiyeva, is a Russian national who was born in 1961 and lives in Grozny.

A. Explosion which led to the death of the applicant’s husband

6. The applicant lived with her husband, Mr Mauda Mezhiyev, in Grozny. In 1999 they temporarily left Chechnya for Ingushetia, but returned in 2000. Her husband was a bus driver. When they returned to Chechnya he resumed his work. The applicant worked as a conductor on the same bus. Usually they worked for two weeks and then had two weeks off.

7. In March 2001 the applicant’s husband’s employer asked him to work for the two weeks which were supposed to be rest weeks, because the bus station did not have enough buses. He was asked to use his own bus, which was in good condition. The applicant’s husband agreed.

8. The applicant and her husband worked on route no. 7, which connected the Grozny bus station with Altayskaya Street. It went along Lenin Street and Pobeda Prospekt, which were connected by a bridge over the river Sunzha in the centre of Grozny. The bridge was controlled by, and observed from, two checkpoints of the Russian federal forces.

9. According to the applicant, in 2001 Russian engineer units checked the main streets of Grozny every morning for explosive devices that might have been installed by rebel fighters. Lenin Street and Pobeda Prospekt were also checked regularly.

10. In the morning of 6 March 2001 the applicant was working with her husband on route no. 7. When they approached the bridge, it appeared that it had been closed by Russian servicemen. They had therefore to cross another bridge, in Krasnykh Frontovikov Street. They finished the first trip on route no. 7 between 10 a.m. and 11 a.m. The applicant enclosed statements by four witnesses, bus drivers G.Sh., U. M. and V.M., and conductor K.M., corroborating that the bridge between Lenin Street and Pobeda Prospekt had been closed by the military that morning, before the explosion. According to the Government, the closure of the bridge in Lenin Street was evidence that an inspection was being carried out, because it was a strategically important area and took a long time to be checked.

11. In the afternoon the applicant and her husband made another trip on route no. 7 from Altayskaya Street to Grozny bus station. At about 13-14 minutes to 3 p.m., after they had stopped at the central market and had gone further towards the bus station, they saw another no. 7 bus, operated by driver Sh., crossing the bridge. It was followed by buses nos. 1 and 18 and a convoy of military vehicles. The convoy was headed by a tank, which was followed by three or four Ural vehicles and an armoured personnel carrier (hereinafter “the APC”). The convoy went straight on, but the APC turned left near the bridge and stopped.

12. When the applicant and her husband saw that the bridge was open, they decided not to make a detour into Krasnykh Frontovikov Street, but to drive across the bridge. They approached the bridge two or three minutes after the military convoy had passed through.

13. Before crossing the bridge bus drivers always had to register at the checkpoint and pay a fee of ten Russian roubles (RUB). At the checkpoint the applicant’s husband stopped the bus, which had some twenty passengers on board, and got out to register and pay the fee. However, the soldier at the checkpoint neither checked his documents nor took the money for the fee, but told the applicant’s husband to move forward quickly.

14. When the applicant’s husband’s bus moved towards the bridge, he saw another no. 7 bus coming in the opposite direction. Since the bridge was too narrow for two buses, the applicant’s husband stopped to let that bus pass. While the other bus was passing, the applicant was looking at the bridge but noticed nothing suspicious. When their bus moved forward again, there was a powerful explosion at the edge of the bridge under the front left wheel of the bus on the driver’s side.

15. Immediately after the explosion the military closed the checkpoint and did not allow anybody to approach the bus. The applicant’s brother, V. M., who was also a bus driver, happened to be behind them. When he saw the explosion, he tried to drive through to the bus which had been blown up, to take the wounded to hospital, but was not allowed to by the military, who opened fire on his bus. Three bullets hit the windscreen, and V. M. was forced to make a U-turn. He decided to approach the bridge from the opposite side and drove towards the other bridge in Krasnykh Frontovikov Street to make a detour.

16. After the explosion, injured and frightened passengers were screaming, and the applicant lost consciousness. When she came back to her senses the last passenger, a woman with a child, was leaving the bus. The applicant asked her to help, because she herself was injured. By that time the bus was surrounded by federal servicemen. She heard one of them saying: “Bastards, they’re getting out alive”.

17. As the applicant was trying to get out of the bus, one of the servicemen came to help her. He put a tourniquet on her arm to stop the bleeding and bandaged her leg with his belt. Then he carried the applicant out of the bus and put her next to her husband, who was sitting near the wheel which had exploded. It appeared that he had been thrown out of the bus by the blast. He was badly injured and required urgent medical aid.

18. At that time V. M. was driving along Krasnykh Frontovikov Street There he saw an ambulance driving in the opposite direction. He stopped it and asked its driver to take those injured in the explosion to hospital. The driver agreed and followed V. M.’s bus. They approached the blown-up bus from Lenin Street. However, according to the applicant, the servicemen again refused to let anybody near the bus and fired shots in the air. Nevertheless, V. M. and the ambulance driver ran to the bus. They carried the applicant and her husband to the ambulance and put other passengers in V. M.’s bus. They took them all to Grozny Town Hospital no. 9.

19. As nobody was allowed near the bus immediately, the applicant’s husband, who was bleeding heavily from numerous shrapnel wounds, was only taken to hospital fifty minutes after the explosion. He died in the hospital fifteen to twenty minutes later. On the same day his relatives took his body from the hospital for burial.

20. The applicant was also badly injured, in the head, arm and leg. She had surgery, and her left arm was amputated above the elbow. The next day, 7 March 2001, her relatives took her to a hospital in Stariye Atagi. They did not immediately tell her about her husband’s death, to spare her worry while she was recovering. They told her that he had been taken to a hospital in Makhachkala. She was told about his death about a month later when she was feeling better. During the following year the applicant had to undergo outpatient treatment for her injuries, which caused her severe pain.

B. Criminal investigation

21. On 6 March 2001, thus on the very day of the explosion, the Grozny Prosecutor’s Office opened investigation file no. 11076 in connection with the explosion. According to the Government, the ground for the initiation of the criminal case was the availability of sufficient information pointing to the signs of the crime under Articles 105 § 1 and 205 § 1 of the Criminal Code. The case was subsequently transferred to the Leninsky District Prosecutor’s Office.

22. On the same date the investigating authorities examined and photographed the scene of the explosion. They also heard two servicemen of the checkpoint who described the events which had taken place shortly before and after the explosion. It appears from their statements that they could see the bridge well, but none of them had seen “a red car” mentioned in the report of 9 March 2001 on an on-site investigation (see paragraph 24 below). The Government, accepting that the fact that the servicemen could see the bridge well, maintained that this did not mean that the bridge was wholly controlled by the servicemen and that unforeseen circumstances could happen.

23. According to the Government, the official check concluded that the servicemen at checkpoint no. 17 could not observe the moment of planting of the explosive because of the distance.

24. From the report of 9 March 2001 on an on-site investigation, written by a psychologist who was attached to the mobile unit of the Ministry of the Interior of the Chechen Republic, it appears that several residents of Grozny had confirmed that shortly before the explosion a red VAZ 2107 car had gone on to the bridge over the river at high speed, had made a U-turn, the driver or a passenger had put something at the edge of the bridge, and the car had immediately left. An internal enquiry had established that the personnel on duty at the checkpoint at the time had not seen who had placed the explosive device and when this had occurred. This report was transmitted to the prosecuting authorities.

25. According to the applicant, by March 2001 the bridge over Sunzha was partially destroyed and was in such a poor condition that no “red car” could have made a U-turn on the bridge, let alone making at high speed. She also stated that no car could have travelled between federal checkpoints no. 17 and no. 19 unnoticed or without the authority of those agents of the Government’s forces in Chechnya who were manning the checkpoints at the material time.

26. On 6 May 2001 the preliminary investigation was suspended pursuant to Article 195 § 3 of the Code of Criminal Procedure.

27. The applicant learned from her relatives that the investigation had been opened, but she did not apply to the prosecuting authorities on her own initiative. However, as for more than one year she had neither been called to the prosecutor’s office for questioning, nor had she been informed of the investigative measures taken, on 31 October 2003 she requested to be informed of the progress of the investigation and to be given the decision to institute the criminal investigation of the explosion.

28. On 2 November 2003 the Prosecutor’s Office of the Chechen Republic forwarded her request to the Leninsky District Prosecutor’s Office.

29. On 6 November 2003 the Deputy Prosecutor of the Leninsky District Prosecutor’s Office quashed the decision of 6 May 2001 and reopened the preliminary investigation. On the same day, the applicant was questioned and granted victim status. She was also provided with a copy of the decision to institute the criminal investigation of the explosion of 6 March 2001. According to the Government, this copy was given to her only on 9 November 2003.

30. On 26 November 2003 a medical expert examination was ordered, which confirmed the injuries that the applicant had suffered as a result of the explosion. The expert report was submitted on 9 January 2004. Two other medical expert reports concerning two other wounded persons had been drawn up on 29 December 2003.

31. On 12 and 24 December 2003 two witnesses testified, inter alia, that they had heard a detonation in March 2001 in the afternoon.

32. On 1 January 2004 an expert examination of wrecks of the bus concerned was carried out and finalised on 24 March 2004.

33. On 6 January 2004 one of the injured persons who had travelled in the bus was heard. On the same day, the preliminary investigation was suspended under Article 208 paragraph 1(1) of the Code of Criminal Procedure. However, on 1 April 2004 the Prosecutor of the Leninsky District Prosecutor’s Office quashed this decision and resumed the investigation.

34. On 9 April 2004 the head of the Leninsky district department of the interior in Grozny was ordered to identify persons travelling in the bus before the explosion and those who were concerned by the crime in question. On the same day, the investigator drew up a record of splinters collected at the place of the explosion.

35. On 10 April 2004 an expertise in technology and explosive was ordered.

36. On 30 April 2004 the preliminary investigation was again suspended, this time under Article 208 § 1(1) of the Code of Criminal Procedure.

37. On 9 March 2005 an expert examination of splinters found at the scene of the explosion was conducted. According to the results of the examination, the objects submitted for examination were splinters from an artillery shell of 122-mm calibre. The explosion had most likely been caused by a makeshift explosive device consisting of the artillery shell and an activating device. It was not possible to establish the precise construction of the activating device, because no parts of it were submitted for examination. On the surfaces of the objects submitted for examination were found micro particles of a high-explosive substance, trotyl, with which artillery shells of 122 mm calibre are loaded. The maximum radius the artillery shell splinters would scatter is 800 metres.

38. As since her questioning in November 2003 the applicant had not been provided with any information on the progress of the investigation, on 2 May 2006 she applied to the Leninsky District Prosecutor’s Office for leave to study the case file.

39. On 6 May 2006 the Deputy Prosecutor of the Leninsky District Prosecutor’s informed the applicant that the investigation had been suspended and that she could study the case file.

40. On 27 May 2006 the applicant came to study the case file. Investigator S. provided her with copies of the following documents: the report of the inspection of the scene of the blast on 6 March 2001, photographs of the explosion scene, psychologist K.’s report of 9 March 2001, the transcript of the applicant’s questioning on 6 November 2003, and the reports of the expert examinations of 26 November 2003 and 9 March 2005. According to the investigator, the case file contained nothing else that could be of interest to the applicant, did not allow the applicant to study the whole case file and make photocopies of the documents. He did not confirm his refusal in writing. It is not clear whether the applicant requested him to do so.

41. According to the applicant, the investigator told her that no servicemen from the checkpoint near the bridge had been questioned. When she expressed her doubts as to the credibility of the report of 9 March 2001, he allegedly said that Russians had made the report to divert suspicions from them.

42. On 20 June 2006 the applicant complained to the Leninsky District Prosecutor’s Office that the investigation was ineffective.

43. On 28 June 2006 she lodged a complaint with the Leninsky District Court concerning the suspension of the investigation, its ineffectiveness and procrastination, and failure to provide her with the complete investigation file. It is not clear whether the complaints have been examined.

44. On 6 December 2006 the preliminary investigation was suspended. This decision was subsequently quashed and the investigation was resumed. However, on 9 December 2006 the Deputy Prosecutor of the Leninsky District Prosecutor Office closed the criminal investigation opened against unidentified persons under Article 205 of the Criminal Code concerning terrorism. According to the applicant, as a general rule, the Russian authorities opened criminal proceedings under this provision whenever explosions or arson attacks or other acts threatening the lives of civilians, or likely to cause significant damage to property, or having any other adverse consequences for the public, were committed in Chechnya by members of rebel armed units opposing the federal troops. Thus, the investigators must have obtained some evidence to the effect that the explosion on the bridge was not perpetrated by rebel fighters, and there was no “red car”.

45. On 30 June 2009 the Deputy Head of the Investigation Office of the Investigation Committee quashed this decision and resumed the investigation.

46. The Court requested the Government to provide a copy of the complete investigation file in the criminal case instituted in relation to the explosion that caused the applicant’s husband’s death. Initially, the Government refused to do so, citing the absence of guarantees from the Court in terms of non-disclosure of confidential data. According to the Government, the applicant and her representatives provided no guarantees that the case file would be kept confidential. Taking into account a substantial volume of complaints of violations of human rights in the territory of the Chechen Republic during counterterrorism operations, disclosure of legally protected information contained in documents of criminal cases under investigation would lead to substantial damage to the legitimate interests of both the State and participants in criminal trials.

47. On 28 October 2009 the Government finally provided the main parts of the relevant criminal case file.

48. The criminal investigation was still pending in June 2011, thus ten years and three months after it had been initiated.

II. RELEVANT DOMESTIC LAW

49. Article 205 of the Criminal Code of the Russian Federation of 1996 establishes liability for terrorism, which is defined as “causing an explosion, arson or other act terrorising the population and creating risk to human lives ... and which is aimed at influencing decisions taken by the [public] authorities ...”

50. Chapter 16 of the Russian Code of Criminal Procedure (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of damaging the constitutional rights or freedom of the parties to criminal proceedings (Article 125 § 1). The competent court is that which has jurisdiction for the place of the preliminary investigation.

51. Article 161 of the Code of Criminal Procedure enshrines the rule that data from a preliminary investigation may not be disclosed. Paragraph 3 of the same Article provides that information from an investigation file may be divulged 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. It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission.

52. Under Article 208 § 1(1) of the Code, the preliminary investigation shall be suspended for failure to establish the identity of a person to be charged. Similar provisions were set out in Article 195 § 3 of the Code as in force until 1 July 2002.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 AND 13 OF THE CONVENTION

53. The applicant complained that the authorities had failed to protect her husband’s and her own right to life and that the investigation into the explosion had been ineffective. She further complained under Article 13 of the Convention that she had no effective domestic remedies in respect of the alleged violation of Article 2 of the Convention.

54. Having made a global assessment of the events of the present case, the Court deems it more appropriate to examine the applicant’s complaints solely from the standpoint of Article 2 of the Convention (see, for example, Matushevskyy and Matushevska v. Ukraine, no. 59461/08, § 63, 23 June 2011). Article 2 of the Convention which reads as follows:

“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;

A. Admissibility

55. The Court notes at the outset that the applicant has the requisite standing of an indirect victim under Article 34 of the Convention in respect of her husband’s death as she is personally affected by the alleged violation of Article 2 of the Convention. Thus, her complaints concerning her husband’s death cannot be rejected for lack of victim status (see, mutatis mutandis, Velikova v. Bulgaria (dec.), no. 41488/98, 18 May 2005). Furthermore, she is also victim in respect of the own grave injuries.

56. The Government objected that the domestic remedies had not been exhausted. They pointed out that the applicant had not brought a claim for damages by way of a complaint before the national courts.

57. The applicant maintained that an effective remedy for the purposes of Article 2 of the Convention would have been a proper criminal investigation of the circumstances of the explosion which killed her husband and seriously injured her. She had lodged the application with the Court within six months, as soon as she had been able to realise that the investigation was ineffective. She had therefore complied with the admissibility criteria under Article 35 of the Convention (see Bulut and Yavuz ν. Turkey (dec.), no. 73065/01, 28 May 2002).

58. As regards remedies seeking redress for damage sustained as a result of illegal acts or unlawful conduct of State agents, the Court has already found in a number of 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 Aslakhanova and Others v. Russia, nos. 2944/06 and 8300/07, 50184/07, 332/08, 42509/10, 18 December 2012, § 89; Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005; and Estamirov and Others, no. 60272/00, 12 October 2006, § 77). Accordingly, the Court confirms that the applicant was not obliged to pursue civil remedies. The objection in this regard is thus dismissed.

59. Furthermore, the Court considers that the Government’s objection raises issues of non-exhaustion of domestic remedies in respect of the effectiveness of the investigation which are closely linked to the merits of the complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined from the standpoint of the procedural limb of Article 2 of the Convention (see, for example, Matushevskyy and Matushevska, cited above, § 66).

60. The Court notes that the complaint under Article 2 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

61. The applicant claimed that the State agents, acting intentionally and unlawfully, had deprived her husband of his life and had endangered her life and had not taken necessary measures to secure her husband’s life as well as her health after the explosion. The bridge in question was controlled by and observed from two checkpoints of the Russian forces. The Government’s account of a “red car” had been unsubstantiated. In contrast to other days, on 6 March 2001 the police on duty at checkpoint no. 17 let her husband’s bus through to the bridge without checking his papers or charging a fee, but instead urging him to move forward to the bridge quickly. One of the servicemen who had come running to the bus after the explosion said: “Bastards, they’re getting out alive”. This confirmed that the servicemen had acted deliberately to harm the lives and health of the people in the bus.

62. According to the applicant, the Russian authorities failed to provide copies of records of interviews signed by witnesses or statements bearing their signatures in support of the allegation that unidentified persons “in a red car” had planted an explosive device at the edge of the bridge. Moreover, the Government had failed to provide information on the identity of the witnesses.

63. The applicant further maintained that the State agents had deliberately and unlawfully prevented timely medical aid from being given to her and her husband, despite the serious injuries they had suffered. Due to the Government’s failure to provide the entire criminal investigation file to the Court, the burden of proof shifted from the applicant to the State to demonstrate that its agents were not responsible for the death of the applicant’s relative and her own injuries (see Özalp and Others v. Turkey, no. 32457/96. 8 April 2004, § 35). The deprivation of the life of her husband was arbitrary as it did not result from “the use of force which is no more than absolutely necessary” according to Article 2 of the Convention.

64. If the Government’s theory is accepted that the explosive device was planted by unidentified persons driving a red car (see paragraph 24 above), there is no logical explanation why they would plant the explosive device in broad daylight just 100 metres from checkpoint no. 17, after crossing checkpoint no. 19 twice - with and without the explosive device - despite the fact that in Lenin Street and Pobeda Prospekt (adjoining the bridge in question) and in other streets in Grozny there were plenty of locations for planting the device with less risk of being noticed. Accordingly, the applicant found the Government’s account of a “red car” unsubstantiated.

65. The applicant further argued that the criminal investigation had been ongoing for more than ten years (see paragraph 48 above). The Government could not, therefore, claim in a convincing way that this constituted an effective remedy under Article 35 of the Convention, in particular with regard to the serious nature of the alleged crime. Moreover, they did not explain why the investigation had been protracted (see Timurtas ν. Turkey (dec.), no. 23531/94, 13 June 2000; Sarli ν. Turkey (dec.), no. 24490/94, 28 September 1995; and Ertak v. Turkey (dec.), no. 20764/92, 12 April 1996). The applicant maintained that in this case the investigating authorities had failed to comply with the requirement of promptness and reasonable expedition (see, for example, Khashiyev and Akayeva v. Russia, nos. 57942/00, .57945/00, 57942/00, 57945/00, 24 February 2005, § 155, and Yasa v. Turkey, no. 22495/93, 2 September 1998, § 102-104).

(b) The Government

66. The Government maintained that there was evidence of overcrowded buses and heavy traffic; it was doubtful that the explosive was laid by Russian servicemen; it was also doubtful that the bus was a target. They added that the applicant’s allegation that it was not possible to hide or bury an explosive device at “high speed” since it would take some time, and there was a busy intersection at the bridge, did not exclude the possibility that the device could have been placed under a non-suspicious object (such as rubbish or building materials). The Government refer in this respect to the applicant’s statement in her original application that they “did not notice anything suspicious on the bridge ... there were holes and rubbish everywhere.”

67. The Government submitted that the preliminary investigation had not produced any evidence which would support the applicant’s argument that her husband had been deprived of his life as a result of the “use of force” by a representative of the State (see McCann and Others v. the United Kingdom, 27 September 1995, Series A no. 324, § 161, and Kaya v. Turkey, 19 February 1998, Reports 1998-I, § 105). Accordingly, there had been no evidence proving beyond reasonable doubt that Russian authorities or representatives had been involved in the applicant’s husband’s death (see Ireland v. the United Kingdom, no. 5310/71, 18 January 1978, § 161). There were no grounds for serious statements that the Russian authorities had not demonstrated “special diligence” in providing security measures for citizens in Grozny, also in relation to the applicant and her husband. Thus, there were no grounds to assume that Article 2 was violated.

68. In other words, the Government submitted that the applicant’s allegations that Russian servicemen had planted the bomb were not supported by the facts, and that they were of a speculative nature. The Government submitted that it seemed more probable that a military convoy, which had been two or three minutes away at the time of the explosion, had been the main target. There were no grounds for stating that Russian authorities had been involved in the explosion.

69. The Government submitted that the investigation had been conducted by independent prosecution agencies (see Gülec v. Turkey, no. 21593/93, 27 July 1998, Reports 1998-IV, §§ 81-82, and Öğur v. Turkey [GC], no. 21594/93, 20 May 1999, §§ 91-92, ECHR 1999-III) and that it had been prompt and expedient, having started on the very day of the explosion (see Cakici v. Turkey [GC], no. 23657/94, 8 July 1999, ECHR 1999-IV, §§ 80, 87, 106; Tanrikulu v. Turkey [GC], no. 23763/94, 8 July 1999, ECHR 1999-IV, § 109; and Mahmut Kaya v. Turkey, no. 22535/93, 28 March 2000, ECHR 2000-III, §§ 106-107). In order to identify the persons involved in the explosion, the preliminary investigation team had demonstrated a sufficient effort to allow it to assert that the authorities of the Russian Federation had fulfilled their positive obligation to conduct an effective investigation as required by Article 2 of the Convention (see Tahsin Acar v. Turkey, no. 26307/95, 8 April 2004, § 220).

70. The Government further stated that the suspension of the investigation (see paragraph 33 above) did not mean that it had been terminated. The mere fact that the applicant was not satisfied with the amount of information given to her did not make the investigation ineffective. As the Court had already stated, this procedural obligation did not require applicants to have access to police files, or copies of all documents, or for them to be consulted or informed about every step (see Brecknell v. the United Kingdom, no. 32457/04, 27 November 2007, § 77).

71. The Government added that a large number of measures had been taken during the investigation of the explosion. They referred to the hearings of witnesses, including the applicant, and the examination in situ of the site of the explosion. Further, a series of operational search actions were taken which were aimed at the identification of those responsible for the explosion. The fact that these actions did not lead to the intended results hardly displayed ineffectiveness, and the fact that an investigation ended without specific, or only with limited, results was not indicative of any failure as such (see Szula v. the United Kingdom (dec.), no. 18727/06, 4 January 2007).

2. The Court’s assessment

72. The Court reiterates that Article 2 implies positive obligations of a procedural nature, including the duty for States to investigate deaths that may have occurred in breach of the Convention (see McCann and Others v. the United Kingdom, cited above, § 161). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Anguelova v. Bulgaria, no. 38361/97, § 137, and Jasinskis v. Latvia, no. 45744/08, 21 December 2010, § 72). This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, and effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances, or was otherwise unlawful. It should also afford a sufficient element of public scrutiny of the investigation or its results (see, mutatis mutandis, McCann and Others, cited above, § 161; Kaya, cited above, § 86; and Juozaitienė and Bikulčius v. Lithuania, nos. 70659/01 and 74371/01, 24 April 2008, § 88; Huohvanainen v. Finland, no. 57389/00, § 95, 13 March 2007). The investigation’s conclusions must be based on a thorough, objective and impartial analysis of all relevant elements. Any deficiency in the investigation which undermines its ability to establish the circumstances of the case, or to identify the person responsible, is liable to fall foul of the required measure of effectiveness (see Nachova and Others, cited above, § 113, and, a contrario, Huohvanainen, cited above, §§ 110-115).

73. The Court notes that the respondent State authorities complied with their obligation to commence the investigation promptly, as it was started on the very day of the explosion (see paragraph 21 above). However, it was unreasonably delayed. The aggregate length of more than ten years cannot be considered to be adequate with respect to the particular circumstances of this case, when there were periods of no apparent activity in the case (see Kaya, cited above, § 106).

74. The Court further notes that there must be a sufficient element of public scrutiny of any investigation and its results, in order to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim and the victim herself must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001, § 98; Güleç, cited above, § 82; and Öğur, cited above, § 92, where the family of the victim had no access to the investigation and court documents).

75. The Court finds, as rightly pointed out by the Government, that Article 2 of the Convention does not require applicants to have access to police files, or copies of all documents, or for them to be consulted or informed about every step taken by the authorities (see Brecknell v. the United Kingdom, no. 32457/04, 27 November 2007, § 77). But the facts of the present case indicate that the applicant’s involvement in the investigation was below the extent necessary for her to safeguard her legitimate interests. The Court observes in this respect that for over a year from the beginning of the investigation the applicant was neither called to the prosecutor’s office for questioning nor informed about the investigative measures taken, although she was a witness in the case, and that she had to submit a request to be informed of the progress of the investigation (see paragraphs 27-29 above). Moreover, as she was not provided with any information on the progress of the investigation after having been granted victim status, she had to take once again the initiative to apply for leave to study the case file (see paragraph 38 above). The Court pays also attention to the fact that being invited to study the case file only more than five years after the beginning of the investigation, the applicant was allowed to see four photographs of the explosion scene and five other documents from the file only, without be able to make photocopies (see paragraph 40 above). She was not given any record concerning the witness statements or other procedural steps undertaken by the investigation authorities and did not receive any detailed information about these steps pursued by them. These circumstances lead to the conclusion that the required degree of public scrutiny in this particular case was not met.

76. The foregoing considerations are sufficient to enable the Court to conclude that the investigation of the explosion on the bridge, which led to the death of the applicant’s husband and serious injuries to the applicant, was ineffective. The Court finds that the investigation was not capable of establishing the true circumstances surrounding the explosion and the identity of the perpetrator or perpetrators. Accordingly, there has been a violation of Article 2 of the Convention under the procedural limb. The Court therefore dismisses the Government’s objection regarding the admissibility of this complaint based on the non-exhaustion of domestic remedies, which was previously joined to the merits (see paragraph 59 above). In a situation where, as a result of an ineffective investigation by the domestic authorities, there is no sufficient factual basis to enable the Court to find “beyond reasonable doubt” that the Russian authorities were responsible for the event leading to the death of the applicant’s husband and her own serious injuries and that they were not provided the necessary help quickly enough after the explosion, the Court cannot come to any conclusion other than to find no violation under the substantial limb of Article 2 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

77. 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

78. The applicant claimed 196,595.39 roubles (RUB) in respect of pecuniary damage and 3,000,000 euros (EUR) in respect of non-pecuniary damage. She submitted that she could have counted on 30% of her husband’s earnings for the years that he would have supported her. She has also endured suffering due to the loss of her husband, the indifference the Russian authorities have shown towards this case, and their failure to provide the applicant with information about the conduct or results of the investigation. Her calculations were also based on the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary’s Department in 2007 (“the Ogden tables”)

79. Concerning the claim for pecuniary damage, the Government stated that it was not established that the death of the applicant’s husband was a result of actions of representatives of the respondent State. Therefore, the applicant cannot be regarded as a person losing her breadwinner because of a violation of rights safeguarded by the Convention. Furthermore, the Court does not need to use the Ogden tables; there is a national mechanism of compensation for loss of a breadwinner in Russia therefore the question of compensation for the loss of a breadwinner can be resolved at the national level. It does not appear from the materials presented in the instant case that the applicant used this procedure, and therefore her claims and calculations are unsubstantiated.

80. The Government stated in connection with the claim for non-pecuniary damage that it is not substantiated, nor is it explained, and the amount of EUR 3,000,000 is excessive, taking into account the Court’s case-law on just satisfaction in cases of violation of Article 2 and 13 of the Convention.

81. The Court has found a violation of Article 2 of the Convention on account of the ineffective investigation into the explosion which led to the deprivation of the applicant’s husband’s life and a threat to the life of the applicant, who suffered serious injuries.

82. It accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. It therefore awards her EUR 30,000 for non-pecuniary damage, plus any tax that may be chargeable thereon.

83. On pecuniary damage, the Court observes that there is no causal link between the matter held to constitute a violation of the Convention - the absence of an effective investigation - and the pecuniary damage alleged by the applicant. Consequently, it dismisses her claim under this head.

B. Costs and expenses

84. The applicant also claimed EUR 6,735.26 for costs and expenses incurred before the Court.

85. The Government submitted as regards costs and expenses, that it is the Court’s case-law that the applicant is entitled to reimbursement of their costs and expenses only in so far as it has been shown that they have been actually incurred and were reasonable (see Skorobogatova v. Russia, no. 33914/02, 1 December 2005, § 61).

86. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs for the proceedings before the Court.

C. Default interest

87. 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

1. Joins to the merits the Government’s objection of non-exhaustion of domestic remedies regarding the effectiveness of the investigation and rejects it;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;

4. Holds that there is no violation of Article 2 of the Convention under its substantive limb;

5. Holds

(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 to be converted into Russian roubles at the rate applicable at the date of settlement:

(i) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> MEZHIYEVA v. RUSSIA - 44297/06 - Chamber Judgment [2015] ECHR 387 (16 April 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/387.html Cite as: [2015] ECHR 387