CASE OF GONCHARUK v. RUSSIA
Violation of Art. 2;Violation of Art. 13
Christos Rozakis
6. The applicant was born in 1962. Before 2000 she was a resident of Grozny, Chechnya, which she left for Ingushetia. She currently resides in Norway. 7. The submissions of the parties with regard to the facts concerning the circumstances of the events of 19 January 2000 and the ensuing investigation are set out in Part A below. A description of the documents submitted to the Court is contained in Part B. 8. In July 2004 the applicant produced a detailed account of the attack on her. She submitted that prior to 1999 she and her family lived at 10 Skvoznoy Lane in the Katayama settlement in the Staropromyslovskiy district in Grozny. The applicant has a daughter who was born in 1982. They lived in Kazakhstan until 1990 and then moved to her parents' flat in Grozny. In 1993 the applicant removed her daughter from Chechnya after the school which she attended came under attack. 9. In October 1999 hostilities resumed in Chechnya between the Russian forces and the Chechen fighters. Grozny and its suburbs came under heavy bombardment. Staropromyslovskiy district, situated in the northern and central parts of the town, was bombarded from the air and by artillery. The applicant submitted that most residents of the district left for safer areas. The applicant, who stayed because of her poor health, spent the winter of 1999-2000 hiding from bombardments in the cellars, along with the few other remaining residents of the district. Following heavy fighting, as of December 1999 the Russian forces started to regain control over the city from the north, and by the end of January 2000 the central parts of the city were finally taken. 10. On 19 January 2000 a massive attack by the federal forces on their district began. The applicant and five other persons were hiding in a garage located in 4th Neftyanoy Lane and when the shelling intensified they ran to a nearby cellar. While running, the applicant was wounded in her leg. When the shelling subsided, several military servicemen appeared and ordered everyone out of the cellar. The applicant and others walked out, with their hands on their heads. The soldiers told them that they had an order to kill everyone and that those who remained in the city had assisted the fighters (“boyeviki”). 11. The applicant submitted that the soldiers had not listened to their explanations and refused to look at their identity documents. They had ordered the inhabitants to return to the cellar and, once the residents went downstairs, threw tear-gas grenades into it. The people in the cellar wept and asked them to stop, and finally the soldiers ordered them to come out again, one by one. The applicant, who was wounded, could not walk by herself and was assisted by a Chechen man. Two Russian women and another Chechen man walked out first and were shot at the entrance to the garage by machine-gun fire. The soldiers then shot at the third woman and at the applicant and her helper, whose body eventually covered hers. 12. The applicant lost consciousness and, when she awoke, she realised that the others were dead. She was wounded in the chest and was bleeding from the mouth. When night fell, the applicant walked over to a neighbouring street where the Khashiyev family lived (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005). They gave her first aid and allowed her to stay in their shed. They said that they were expecting a second check [by security forces] and were afraid to let her into the house. 13. The applicant, who was bleeding and afraid to remain in Grozny, changed clothes and walked to the roadblock with a white flag. There the soldiers checked her documents and let her through. The applicant did not tell them about the attack on her. On the morning of the following day the applicant was taken to Ingushetia by Petimat Goygova (the applicant in the case of Goygova v. Russia, no. 74240/01) who had been looking for her relatives in the Staropromyslovskiy district (they were later found killed). 14. The applicant remained in the Ordzhonikidze village (Sunzhenskiy district) hospital until 7 February 2000. There she was diagnosed with gunshot and shrapnel wounds to the knee joints and chest, concussion and neurotic asthenia. She was treated and her wounds were operated on. She submitted the relevant medical documents. 15. While in the hospital the applicant was interviewed by human-rights activists, who later reported her story. It was also related in several publications. 16. After being discharged from hospital, the applicant stayed in Ingushetia, in the premises of an old pig farm used by other refugees from Chechnya. In summer 2000 the applicant went to Grozny to find out about the state of her flat and property. Her neighbours told her that unknown persons had been looking for her. 17. The applicant did not seek any direct contacts with law-enforcement bodies in the aftermath of the attack. Nevertheless the events in the Staropromyslovskiy district, including the attack on the applicant, became known to the authorities shortly afterwards due to NGO and media reports. 18. Several human-rights NGOs contacted the law-enforcement authorities in relation to the events in the Staropromyslovskiy district of Grozny in January 2000, when several dozen local residents were allegedly executed by unidentified detachments of the Russian military. 19. In February 2000 Human Rights Watch issued a report entitled “Civilian Killings in Staropromyslovskiy District of Grozny” in which it accused the Russian forces of deliberately murdering at least 38 civilians between late December and mid-January. Human Rights Watch interviewed survivors, eyewitnesses and relatives of the dead. The report contains information about the attack on the applicant and the killing of five people in a cellar, based on an interview with her. 20. On 10 February 2000 Human Rights Watch contacted the Russian authorities, including the President, the Prosecutor General and the Minister of Defence with a request to investigate credible allegations of the murder of at least 38 civilians in the Staropromyslovskiy district, with reference to the applicant's case. 21. On 3 May 2000, following the publication of an article entitled “Freedom or Death” in the Novaya Gazeta newspaper on 27 April 2000, the investigator of the Grozny Prosecutor's Office opened a criminal investigation under Article 105 (a), (d), (e) and (j) of the Criminal Code “concerning mass murder by the '205th brigade' of the civilian population in the Novaya Katayama settlement of Grozny on 19 January 2000”. Within the scope of that investigation, on 12 July 2000 Mrs Roza Akayeva submitted a statement to the Chief Military Prosecutor about the murder of her brother Adlan Akayev, whose bullet-ridden body had been found on 25 January 2000 in the courtyard of his house in the Staropromyslovskiy district of Grozny. In her letter she submitted that on 9 February 2000 she had seen five bodies (three women and two men) in a garage at 4th Neftyanoy Lane. She gave the applicant's full name, referred to her as a witness of the killings committed on that day and stated that she had talked to her in the hospital in Ingushetia (see Khashiyev and Akayeva v. Russia, cited above, §§ 61-62). 22. In February 2001 Human Rights Watch issued a document entitled “Memorandum on Domestic Prosecutions for Violations of International Human Rights and Humanitarian Law in Chechnya”, in which it reported a lack of progress in the investigation into the attack on the applicant and into other killings committed in the Staropromyslovskiy district at the same time. 23. The applicant submitted that certain persons were looking for her and wanted to punish her for relating her story. She submitted that, between 2001 and 2004, her father in Kazakhstan, a friend in Ingushetia, her former boyfriend and her sister in the Stavropol region had been contacted by persons asking about her whereabouts. Her former boyfriend had been beaten and told to “keep away” from her. The applicant, who still suffered from the consequences of her wounds, was afraid of approaching the authorities for fear that her whereabouts might become known to her persecutors. She submitted that in July 2004 she had received medical treatment in Moscow for neurological problems resulting from the attack. 24. The Government submitted that the applicant had failed to apply to the authorities with a complaint, as a result of which the circumstances of the attack had become known to them only after the communication of the present application. On 26 April 2005 the Chechnya Prosecutor's Office initiated criminal investigation file no. 43037 under Article 111 § 1 of the Criminal Code (infliction of serious injuries). The investigation confirmed the attack on the applicant. It also confirmed that the applicant had spent time in hospital in Ingushetia suffering from gunshot wounds. More than 25 witnesses were questioned. However, the investigation could not question the applicant because she did not make her whereabouts known to the authorities. In October 2005 the Government forwarded to the Court a request by the Chechnya Prosecutor's Office seeking assistance in finding the applicant, and a copy of the decision to grant her victim status in the proceedings of criminal investigation no. 43037, to be countersigned by her. 25. In August 2006 the investigation concerning the attack upon the applicant was joined with another investigation, pending since 2003, concerning the discovery of five bodies with gunshot wounds at 4th Neftyanoy Lane. The investigation had been adjourned and reopened, and was on-going. It failed to locate and question the applicant or to identify the culprits. 26. Following the Court's requests, the Government submitted documents from the criminal investigation file opened in relation to the attack on the applicant (see Part B below). 27. The Government submitted about 115 pages of documents from the investigation file in criminal case no. 43037. The most important documents submitted by the Government can be summarised as follows: 28. On 26 April 2005 the Deputy Chechnya Prosecutor decided to open criminal investigation into the infliction of serious injuries on the applicant, following receipt of the appropriate information from the Registry of the European Court. The case file was assigned no. 43037 and the investigation was entrusted to the investigative department of the Chechnya Ministry of the Interior (Следственное управление при МВД ЧР). 29. The investigation made several unsuccessful attempts to locate and question the applicant through the Interior Ministry entities in Chechnya, Ingushetia and in the Stavropol region. 30. In April 2005 the housing bureau of the Staropromyslovskiy district informed the local department of the interior (ROVD) that house no. 10 at Skvoznoy Lane was unsuitable for habitation and that the applicant was not listed among the residents. 31. In May 2005 the investigation questioned a friend of the applicant in Ingushetia. The woman stated that she had collected the applicant from the Sunzhenskiy hospital in February 2000 and that the latter had stayed in her house for a month afterwards. She confirmed that the applicant had told her that she had been shot by armed men during a “mopping-up” operation in Grozny and that five or six people had been killed during the same attack. The witness was not aware of the applicant's whereabouts. 32. In June 2005 the investigation questioned Olga Zh., the applicant's sister who lived in the Stavropol region and at whose address the applicant had a formal registration. The witness stated that the applicant had stayed with her in 2002, after which she had left and the witness was not aware of her whereabouts. The applicant had told her that she had been wounded during a “mopping-up” operation in Grozny in January 2000, when armed men had killed several people in the cellar. The witness stated that her sister continued to suffer from the consequences of the attack, that she could not talk about the incident and that remembering it provoked serious nervous distress. 33. In September 2005 the investigation requested the criminal police of Chechnya to assist in finding the applicant and to investigate her complaint about harassment by unknown persons in retribution for her complaint. Similar requests were forwarded to the Stavropol Interior Ministry regional investigation department and to the Staropromyslovskiy ROVD. 34. In May 2005 the Sunzhenskiy district hospital in Ingushetia informed the investigation that the applicant had been treated there between 22 January and 8 February 2000 for gunshot wounds to the knees and chest. 35. The investigation then questioned medical personnel from the hospital's accident ward. They confirmed that in January – February 2000 the applicant had been treated there. The applicant's medical record had been destroyed during a fire in the hospital, except for a registration log containing basic information about the applicant's stay. 36. In May 2005 the investigation questioned Tamara R., whose brother Kasum had been killed during the same attack in which the applicant had been wounded. The witness stated that around 20 January 2000 she had visited the applicant in hospital and had learnt from her that her brother had been killed in the cellar of a garage in 4th Neftyanoy Lane by armed men in camouflaged uniforms. The witness and her two sisters had travelled to Grozny and found seven or eight bodies with gunshot wounds in the cellar of house no. 9 in 4th Neftyanoy Lane. The witness and her sisters removed the body of their brother Kasum, which bore numerous gunshot wounds, and took it to the Nadterechny district for burial. No additional questions were put to the witness at that time about the other details of her brother's death, nor was she asked if an investigation had been mounted. 37. Several local residents questioned by the investigators in April 2005 stated that in the winter of 1999– 2000 they had been outside Grozny and that they were not aware of the circumstances of the attack on the applicant or of her whereabouts. They were aware, however, mostly by hearsay, of the murders of residents who had remained in Grozny, committed in January 2000 by unknown men in military uniforms. Several witnesses stated that they were aware that the murders had been committed during a “mopping-up” operation. In particular, several witnesses were aware of the killing of the Khashiyev family, of Magomed Goygov and of Adlan Akayev (see Khashiyev and Akayeva v. Russia mentioned above). 38. Zhabrail Ye. testified that he was aware of the killing of five persons and the wounding of a woman named Yelena in the garage of house no. 9 at the 4th Neftyanoy Lane. 39. In May 2005 the investigation questioned Fatima Goygova (the applicant in the case of Goygova v. Russia, no. 74240/01), whose mother and brother had been found killed in the Staropromyslovskiy district in January 2000. She stated that she was aware of the attack on the applicant, but had no information about the exact circumstances of the attack or of the applicant's whereabouts. 40. On 14 April 2005 the investigator from the Staropromyslovskiy ROVD examined the courtyard and the buildings located at no. 9 in 4th Neftyanoy Lane. They found the house and the garage destroyed and uninhabited. Nothing of interest to the investigation was noted. 41. On 30 August 2005 the applicant was granted victim status in the proceedings. As the applicant's whereabouts were not established, she did not countersign the document. 42. In May 2005 an officer of the Staropromyslovskiy ROVD in charge of collecting information on the applicant's case reported to the head of the ROVD that, as a result of questioning of the local residents, it could be presumed that “the crime could have been committed by military servicemen, possibly of Ossetian ethnic background, possibly enrolled on a contractual basis. Numbers of military units, vehicles and armoured vehicles could not be established”. 43. In September 2005 the Staropromyslovskiy ROVD informed the investigator in charge of the case that they were unable to identify the army units which had conducted the special operations in the district. 44. The investigation requested several agencies of the Ministry of Defence and of the Ministry of the Interior to provide them with information about the location and activities of their units in January 2000 in the Katayama settlement of the Staropromyslovskiy district. In response they were informed that such information was unavailable because the currently functioning structures had been established after January 2000 and had no information relevant to the preceding periods. 45. On 22 September 2003 the Staropromyslovskiy District Prosecutor's Office opened a criminal investigation with regard to the discovery of five bodies in 4th Neftyanoy Lane. 46. In September 2005 the Staropromyslovskiy District Prosecutor's Office wrote to the local ROVD and informed it that their office was investigating criminal case no. 50115, related to the discovery of five bodies at “house no. 11 in 4th Neftyanoy Lane”. The letter alleged that the information received from the European Court indicated that the applicant had been a witness to the murder of five people at “house no. 4 in Neftyanoy Lane”. It further stated that the applicant had never applied to the authorities with information about the incident and instructed the ROVD to carry out a verification of the facts, including locating and questioning the applicant and examination of the site as indicated by her. 47. On 18 August 2006 the proceedings in the two criminal cases were joined, as they concerned the same incident. The new case file was assigned no. 50115 and the Staropromyslovskiy District Prosecutor's Office was charged with the investigation. 48. In the course of the proceedings several orders were issued by the supervising prosecutors enumerating the steps to be taken by the investigators. In particular, in October 2005 a prosecutor from the Chechnya Prosecutor's Office ordered that additional information be obtained from the local authorities and from the military prosecutor of the United Group Alignment (UGA), and that to other possible witnesses to the crimes, including the applicant, be identified and questioned.