CASE OF KOSUMOVA v. RUSSIA
Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
7. The applicant was born in 1938 and lived in Kharachoy. She was the mother of Raisa Kosumova, born in 1967, and the widow of Alikhazhi Kosumov, born in 1932. 8. On 7 June 2003 at about 5 p.m. an operational investigative group composed of officers of the Vedenskiy District Prosecutor’s Office (“the District Prosecutor’s Office”), the Vedenskiy District Department of the Interior (“ROVD”), the Criminal Police of the Provisional Task Force of the Russian Ministry of the Interior and the Directorate of the Federal Security Bureau for the Vedenskiy District (“UFSB”), were driving several vehicles along the Dyshne-Vedeno-Kharachoy road, returning from Kharachoy to the village of Vedeno. One of the vehicles of the convoy was blown up and thrown down a steep slope by the explosion into the nearby River KhulKhulau. Several officers in the vehicle were wounded and two were killed instantly. 9. After the explosion, the police officers called for reinforcements. In the following hour and fifteen minutes an armoured unit, a reconnaissance unit of the Vedenskiy District military command and a special operations unit of the FSB arrived at the scene. After the reinforcements arrived, unidentified forces started firing mortars at the forested slopes. Shells were exploding on the roadside less than 100 metres from the explosion scene. 10. Meanwhile, the applicant’s daughter was driving her GAZ-66 truck from Vedeno to Kharachoy. As she passed the scene of the explosion, mortar shells started exploding on the roadside. She received a wound to the head and died instantly. Two FSB officers were also wounded and hospitalised. 11. On 16 January 2004 the civil registration office of the Vedenskiy District issued a death certificate (no. 13), certifying that Raisa Kosumova, aged 35, had died on 7 June 2003 in Kharachoy in the Vedenskiy District, from a shell wound to the head. 12. Around the time the applicant’s daughter died, the applicant’s seventy-year-old husband was ill. Concerned for her husband’s health, the applicant hesitated about telling him about their daughter’s death. 13. The applicant’s husband found out about their daughter’s death on 1 July 2003. He could not cope with her loss and died two days later, on 3 July 2003. 14. On 7 June 2003 the District Prosecutor’s Office instituted criminal proceedings into the death of the applicant’s daughter under Article 109 § 1 of the Russian Criminal Code (negligent homicide). An on-site inspection and an inspection of the applicant’s daughter’s body were carried out. 15. On 10 June 2003 the chief assistant of the District Prosecutor’s Office sent an order to the Vedenskiy District Temporary Department of the Interior (“VOVD”), the Vedenskiy District ROVD and the UFSB requesting them to carry out without delay the necessary operational-search measures for establishing who had been involved in the death of the applicant’s daughter. 16. On the same day two officers of the Vedenskiy ROVD were questioned about the circumstances of the events of 7 June 2003. 17. On 17 June 2003 a post-mortem examination of the applicant’s daughter’s body was completed. It was established that she had died from a vast penetrating head wound resulting in brain damage. 18. On 29 June 2003 the Vedenskiy District UFSB replied to the request of 10 June 2003, stating that it had appeared impossible to identify the individuals involved in the death of the applicant’s daughter. 19. On 25 July 2003 the applicant was granted victim status in the proceedings. She was questioned on the same day. 20. On 7 August 2003 the criminal proceedings were suspended. The heads of the Vedenskiy District VOVD, ROVD and UFSB were instructed to carry out the necessary operational-search activities with a view to identifying the possible suspects. The applicant was not informed of this decision. 21. For the next two and a half years, the applicant attempted, in vain, to find out how the investigation was progressing, and made various enquiries to the competent domestic authorities. 22. On 20 January 2006, with the help of a lawyer provided to her by the NGO Committee Against Torture, the applicant obtained a reply from the District Prosecutor’s Office and copies of the decisions of 7 June 2003 (instituting criminal case no. 24041), 25 July 2003 (acknowledging her victim status in the proceedings and setting out her procedural rights), and 7 August 2003 (suspending the preliminary investigation for failure to identify those responsible for the events in question). 23. On 16 December 2006 the proceedings were resumed. The decision of 7 August 2003 was found to be unlawful and the investigation incomplete and superficial. A copy of the decision was sent to the applicant. 24. On 19 December 2006 the District Prosecutor’s Office requested the head of central archives at the Ministry of Defence to provide copies of extracts from the military action logbook of the Vedenskiy District Military Commandant’s Office for 7 June 2003. 25. On the same day the investigator of the District Prosecutor’s Office questioned I. P., head of the artillery armament service of military unit no. 6780 based in Vedeno, who stated as follows: “The following procedure is in place for deploying mortar batteries. Once the command has been received, the mortar battery’s officer-on-duty is given an order which includes [such information as]: the number of shells, target coordinates, the time of firing, and the time of ceasefire. The battery’s officer-on-duty transmits the command to the officer-on-duty, who alerts the crew-on-duty and issues an order in accordance with the command received. As soon as the firing has been ceased, the battery’s officer-on-duty reports to the initiator of the firing, then the latter reports to the Command of the United Group Alignment (“UGA”) ... Within twenty-four hours the battery commander files a report in order to write off the ammunitions used, indicating the initiator of the firing, the time, target coordinates, and the number of shells used. The report is then approved by the military unit commander ... and agreed with the local department of the FSB. I then receive the report, and prepare an ammunitions expenditure account. Next, the account and the report are attached to a secret file that I keep. The file is kept for five years and is then destroyed ... I don’t know if the military units of the Ministry of Defence previously deployed on the territory of Vedeno and Dyshne-Vedeno had the same procedures in place.” 26. On 27 December 2006 the District Prosecutor’s Office sent requests to the Vedenskiy District ROVD to establish the whereabouts of officers D. G., V. N., V. K., O. L., M. K. and A. A., who had served there on a contract basis in June 2003. On the same day the District Prosecutor’s Office requested the Igrinskiy District ROVD of the Republic of Udmurtiya to question O. Sh., who had served at the Vedenskiy District ROVD in June 2003 as an expert criminologist. 27. On 28 December 2006 the District Prosecutor’s Office requested the head of the Vedenskiy District ROVD to guarantee the attendance of its officers L. Sh., A. I., Kh. Kh., R. M. and Yus. Sh., for questioning as witnesses to the events of 7 June 2003. 28. On 3 January 2007 the investigator of the District Prosecutor’s Office questioned police officer Kh. Kh., who stated that on 7 June 2003 he had been wounded in the explosion and taken to hospital in Grozny and could not therefore provide any information about the subsequent mortar attack. 29. On 4 January 2007 the investigator questioned police officer A. T., who claimed to have left the scene of the explosion to provide help to the wounded and could not therefore clarify the circumstances of the mortar attack. 30. On 8 January 2007 the District Prosecutor’s Office sought the assistance of the UFSB for the Chechen Republic in establishing the whereabouts of Captain A. K. and Ensign S. Zh., wounded during the mortar attack on 7 June 2003, in order to question them as victims of the attack. On the same day the District Prosecutor’s Office requested the Prosecutor’s Office of the Chechen Republic to provide them with personal data and contact information for two former officers of the Vedenskiy District Prosecutor’s Office, A. P. and A. An., in order to guarantee their attendance for questioning as witnesses to the events of 7 June 2003. 31. On 15 January 2007 the investigator of the investigations department of the Vedenskiy District VOVD questioned witness S.-Kh. M., who stated that on 7 June 2003 the operational investigative group had arrived in Kharachoy to investigate an attack by members of an illegal armed group on civilians (murder and arson). After the investigative group had left, he, I. D. and A. T. went to the cemetery to bury the victims. From the cemetery they heard an explosion and then saw that a district police vehicle had been blown up. As they approached, they saw that several police officers had been wounded and killed. They started helping by providing first aid and evacuating the wounded. On their way from the gorge to the road leading to Dyshne-Vedeno, he heard detonations. A GAZ-66 truck driving on its way to Kharachoy passed them by. He knew that the driver of the truck was a woman from Kharachoy. Later he knew from the officers who had remained at the scene of the explosion that the detonations he had heard had been mortars. He did not know whether the scene of the explosion had been subjected to shelling by members of an illegal armed group or the federal forces. 32. On 16 January 2007 the criminal proceedings were suspended for failure to identify those responsible for committing the crime. On 16 February 2007 the investigation was subsequently resumed, but suspended again on 16 April 2007. 33. In the meantime, on 17 January 2007 the UFSB for the Chechen Republic informed the District Prosecutor’s Office that in 2003 Captain A. K. and Ensign S. Zh. had served in the UFSB as undercover agents, which was why their whereabouts could not be revealed. 34. On 29 January 2007 witness I. D. was questioned. His statements were consistent with the statement by S.-Kh. M. (see paragraph 31 above). 35. On 30 January 2007 the acting prosecutor of the District Prosecutor’s Office approached the military prosecutor of military unit no. 20102 for assistance in obtaining information from the UGA as to whether the mortar batteries used on 7 June 2003 had belonged to the military units and divisions deployed in the Vedenskiy District, with an indication of the time of firing, target coordinates and the number of shots. 36. On 6 February 2007 the central archives of the Ministry of Defence provided a document stating as follows: “[On] 7 June 2003 [at] 17.10 on the ROVD officers’ return trip in the UAZ-452 truck from the village of Kharachoy a landmine exploded on the 4.5 metre-high slope near the road, one kilometre south-east of the village of Dyshne-Vedeno. Losses: “200” – 2, “300” – 10 pers.” 37. On 13 February 2007 witness V. N., a former officer of the Vedenskiy District ROVD, was questioned. He stated as follows: “From 17 January 2003 to 8 January 2006 I served under contract as chief of police at the Vedenskiy District ROVD. [I] participated in counterterrorism operations in accordance with the assignments of [the ROVD]. Indeed, on 7 June 2003 at about 8 a.m. the Vedenskiy District ROVD received information that a group of [approximately] eighty rebel fighters had entered the village of Kharachoy and murdered two women, ... set four houses on fire and committed other crimes. At about 2 p.m. as part of a militarised convoy of the operational investigative group, I went to the village to carry out urgent investigative measures. The convoy consisted of six vehicles. After completing the investigative measures, as the convoy was returning back to Vedeno near the gorge three kilometres from Kharachoy, a UAZ vehicle was blown up by an explosive device hidden by the road and fell down the abyss from a height of 20 metres ... The incident was reported to the ROVD and Military Commandant’s Office, and a call for reinforcements was made. The officers of the operational investigative group participated in the evacuation of those killed and wounded [by the explosion]. After the reconnaissance unit arrived, the road was blocked by an armoured personnel carrier (APC). At the same time, at about 5.30 p.m. mortar shelling of the nearby area began. I don’t know who opened fire. The explosions hit the forested area on the mountain slopes; there were about fifteen explosions altogether. Judging by the sound characteristic of a flying shell, I concluded that the firing was from mortars. I don’t know which direction the firing came from, [since] it is impossible to establish the direction of mortar fire. It is difficult to say whether the shelling was carried out by officers of the federal forces or members of the illegal armed group. After the road was blocked by the APC, a civilian GAZ-66 truck stopped not far from the APC. A woman was at the wheel. During the shelling she remained in the truck. The shelling lasted about fifteen minutes. Approximately halfway through one of the shells exploded between the APC and the GAZ-66 truck. After the shelling stopped it was discovered that the woman driver of the GAZ-66 truck had received a shell wound to the head and died on the spot. Two FSB officers were also wounded; I don’t know their names or the nature of their injuries ...” 38. On 14 February and 15 February 2007 respectively witnesses A. An., former chief assistant to the Vedenskiy District prosecutor, and A. A., a former officer of the Vedenskiy District ROVD, were questioned. 39. On 20 February 2007 witness O. L., a former officer of the Vedenskiy District ROVD, was questioned. He stated as follows: “Since 2002 I had served at the Vedenskiy District ROVD on a contract basis. ... On 7 June 2003 information was received that during the night a group of rebel fighters (sixty to eighty individuals) had entered the village of Kharachoy and killed two women, burned down several houses and all the motor vehicles ... At about 13.30 the operational investigative group comprising about fifty officers of the police, prosecutor’s office and FSB [in four vehicles] headed to Kharachoy. At about 14.00 the operational investigative group arrived in Kharachoy. Having split up into several groups, [we] inspected the scene of the incident and gathered the required material. At about 18.00 we decided to head in the direction of Vedeno. The head of the Vedenskiy District ROVD decided to proceed in groups, with two to three minute intervals, since it was suspected that the rebel fighters might be nearby and could attack the convoy ... Having driven about 800 metres from Kharachoy, an unarmoured UAZ truck carrying the head of the ROVD and eleven other individuals was blown up behind us. We stopped, as I understood that one of our vehicles had been blown up. Everybody left the truck and dispersed onto the road ... At that moment we were subjected to shelling from automatic firearms coming from the forested area on the other side of the abyss. The abyss was about 100 metres wide. I think that at least two people were firing at us. FSB officers called for reinforcements and artillery support. Several of our officers started going down the abyss [to provide help to those who were in the UAZ vehicle]. Me and other officers were covering them, firing at the forested area with automatic firearms. The firefight lasted for about twenty minutes and ended after FSB officers launched two grenades in the direction of the forested area with an RPG-7 handheld grenade launcher. The officers of the prosecutor’s office inspected the scene of the attack; the police officers were helping to take the wounded onto the road. We put the wounded into a GAZEL van, and took them to Vedeno. From the direction of Dyshne-Vedeno a GAZ-66 truck was driving towards us ... At that moment a mortar attack began. About three shells hit the forested area and two landed on the road where we were. We immediately hid from the shells under a URAL truck. The interval between strikes was about a minute. The GAZ-66 truck was already approximately 50 metres from us, when a shell exploded next to it. The truck stopped. At that moment the FSB officers got in touch with the military and asked them to cease fire. We got out from under the [URAL] truck and saw that the woman driver of GAZ-66 truck was dead ... Two of our officers were also wounded; I don’t remember who exactly. The firing was from mortars, as a characteristic roar was clearly heard before each explosion. I cannot say where the firing was conducted from, since we were in a gorge, and the echo could be heard from everywhere ...” 40. On 21 March 2007 witness D. G., a former officer of the Vedenskiy District ROVD, was questioned. He stated as follows: “From 19 June 2002 to 19 June 2003 I served under contract at the Vedenskiy District ROVD ... On 7 June 2003 [as part of the operational investigative group] I went to the village of Kharachoy, where during the night of 7 June 2003 about eighty unidentified [members of an illegal armed group] had killed several women and burned down several houses and cars. On the return trip from the scene of the incident, [on the road running through forested mountain slopes] between the villages of Kharachoy and Dyshne-Vedeno, a landmine exploded, as a result of which a UAZ truck carrying officers of the Vedenskiy District ROVD was thrown down the abyss. Thereupon, [the convoy] was subjected to shelling. The shelling was carried out with automatic firearms coming from the forested mountain area by members of the illegal armed group. Later, there was an artillery attack. [This was clear judging by] the characteristic sound and the presence of characteristic “funnels” on the ground. It is difficult to say which direction the artillery attack was conducted from as the events date back to more than three years ago ...” 41. On 25 April 2007 the military prosecutor of military unit no. 20102 informed the acting prosecutor of the Vedenskiy District that pursuant to their request of 30 January 2007, an enquiry had been sent to the commander of the UGA and upon receipt of the reply the requested information would be sent separately. 42. On 16 May 2007 witness V. K., a former officer of Vedenskiy District ROVD, was questioned. With regard to the circumstances of the mortar fire, he claimed to have been unable to say whether the firing was from mortars or artillery equipment, or to say who had conducted it. However, he stated that he had seen shell bursts and estimated that there had been about twenty of them. It was difficult in the circumstances to determine which direction the firing was conducted from. 43. On 20 September 2007 the applicant’s lawyer challenged the decision of 16 April 2007 suspending the investigation of the case before the Shalinskiy Inter-District Investigation Department (Шалинский межрайонный следственный отдел следственного управления Следственного комитета при прокуратуре Российской Федерации по Чеченской Республике). 44. On 20 December 2007 its head found that there were no grounds for quashing the decision. 45. On 21 March 2008 the applicant’s lawyer challenged the above decision before the Vedenskiy District Court (“the District Court”). 46. On 14 April 2008 the District Court held that the decision of 20 December 2007 had been unlawful, unjustified and premature, and instructed the District Prosecutor’s Office to resume the investigation. In particular, the court pointed out the need to identify the person who had given the order to use heavy weapons without precisely calculating the target area or ensuring that the relevant area had been cordoned off beforehand. Furthermore, it considered it necessary to obtain relevant information from the central archives of the Ministry of Defence, the Ministry of the Interior and the FSB with respect to the mortar fire executed on 7 June 2003. 47. On 10 July and 28 July 2008 the applicant’s lawyer enquired with the head of the Shalinskiy Inter-District Investigation Department whether the judgment of 14 April 2008 had been complied with. On 20 July and 9 August 2008 respectively he was informed that the investigation of the criminal case had never been resumed. 48. The applicant challenged the idleness of the Shalinskiy Inter-District Investigation Department before the District Court, which on 19 August 2008 found its inactivity unlawful. 49. On 7 September 2008 the investigation of the case was transferred from the District Prosecutor’s Office to the Shalinskiy Inter-District Investigation Department. 50. On 27 February 2009 the investigation was resumed. The following instructions were given to the investigator of the Shalinskiy Inter-District Investigation Department: “- to join to the material of criminal case no. 24041 as evidence copies of all necessary documents from the criminal case opened into the causing of bodily harm to officers of the Vedenskiy District ROVD and FSB as a result of the explosion of a UAZ-452 vehicle by an unidentified explosive device on 7 June 2003; - to question as witnesses all the officers of the Vedenskiy District ROVD and FSB driving in the convoy ... at the moment of the mortar attack, including regarding the issue of who in particular had been contacted [to give the order] to use mortar fire; - to establish the owner of the GAZ-66 truck ...; - to obtain from the central archives of the Ministry of Defence copies of extracts from the military action logbook of the Vedenskiy District Military Commandant’s Office for 7 June 2003 and join them to the case material; - obtain from the headquarters of the UGA information on whether the mortar batteries used on 7 June 2003 belonged to military units and military divisions deployed in the Vedenskiy District of the Chechen Republic, with an indication of the time of firing, the target area and the number of shots; - to carry out other necessary investigative measures; and - to take a lawful and justified decision on the criminal case based on the results of the investigative measures conducted.” 51. On 6 March 2009 the investigator of the Shalinskiy Inter-District Investigation Department requested the head of central archives at the Ministry of Defence to provide copies of extracts from the military action logbook of the Vedenskiy District Military Commandant’s Office for 7 June 2003. On the same day the investigator requested the temporary district police (ОГ ВОГО и П МВД России по Веденскому району Чеченской Республики) to obtain information from the UGA headquarters about the mortar batteries used on 7 June 2003 by the military units and divisions deployed in the Vedenskiy District, with an indication of the time of firing, the target area and the number of shots. 52. On 13 March 2009 the investigator questioned witness R. M., an officer of the Vedenskiy District ROVD, whose statements were similar to the statement by Kh. Kh. (see paragraph 28 above). 53. On 19 March and 27 March 2009 respectively the investigator questioned the applicant’s sons, A. Kasumov (Kosumov) and A.-K. Kasumov (Kosumov), who stated that their sister had been transporting freight with their family’s GAZ-66 truck, and on 7 June 2003 had been on her way back from the village of Argun where she had been taking some construction stone. 54. On 4 April 2009 the temporary district police replied to the investigator’s request of 6 March 2009, stating that it did not have the information requested and advising the investigator to apply to the Vedenskiy District Military Commandant’s Office. 55. On the same day the investigator of the Shalinskiy Inter-District Investigation Department granted victim status to the applicant’s daughter’s sister-in-law, the owner of the GAZ-66 truck. 56. Between 5 April 2009 and 18 June 2010 the proceedings were suspended and reopened five times. 57. In the meantime, on 22 April 2009 the head of central archives at the Ministry of Defence replied that the military action logbook of the Vedenskiy District Military Commandant’s Office were classified, so in order for the documents to be sent to the investigator the latter had to provide the head of central archives with a classified postal address. 58. On 18 June and 30 June 2009 the investigator of the Shalinskiy Inter-District Investigation Department made further requests to the head of central archives at the Ministry of Defence for copies of extracts from the military action logbook of the Vedenskiy District Military Commandant’s Office for 7 June 2003, indicating the address where the requested documents could be sent. 59. Meanwhile, on 22 June 2009 the investigator questioned witness S. M., chief detective of the criminal investigation department of the Vedenskiy District Department of the Interior (“OVD”), who stated as follows: “We [undertook steps] to identify those involved in the blowing up of the [UAZ vehicle] and the mortar fire which had caused [the applicant’s daughter’s] death ... Based on the results of the measures taken, [we] identified the individuals who had blown up the UAZ vehicle ..., but the involvement of [those individuals] in the mortar fire was not proved. In this connection we repeatedly submitted requests to the Vedenskiy District military commandant in order to establish the involvement of mortar batteries of the Russian Ministry of Defence deployed in the Vedenskiy District of the Chechen Republic [in the events of 7 June 2003]; however, we have never received any reply.” 60. On 30 June, 6 July and 14 July 2009 the investigator questioned witnesses A. S., A. Tl. and A. G., detectives of the criminal investigation department of the Vedenskiy District OVD, who gave statements similar to that given by witness S. M. 61. On the resumption of the proceedings, on 18 June 2010 the acting head of the Shalinskiy Inter-District Investigation Department instructed the investigator to, inter alia, request from the Vedenskiy District Military Commandant’s Office and join to the case file pertinent information on the divisions of the Russian Ministry of Defence deployed in the vicinity of the scene of the events of 7 June 2003 which were armed with mortars, as well as information on the flying range of 82mm and 120mm mortar shells. 62. On the same date, in compliance with the above instructions, the investigator sent relevant requests to the head of the Vedenskiy District OVD, the Vedenskiy District military commandant, the head of the Vedenskiy District UFSB and the commander of the UGA. 63. On 21 June 2010 the investigation was suspended. It was resumed on 7 July 2010. It appears that the investigation was suspended and reopened again several times thereafter. 64. On 4 July 2011 the head of forensics at the Investigative Committee of the Russian Federation Prosecutor’s Office for the Chechen Republic stated that the case material in criminal case no. 24041 had revealed significant shortcomings in the way the preliminary investigative measures had been carried out. Instructions for further investigation were given to the investigator. It was requested, in particular, that all the FSB officers who had been involved in the events of 7 June 2003 be questioned, since it appeared from a number of witness statements that it had been FSB officers who had asked unidentified individuals for mortar fire support, and it had subsequently been at their request that the mortar shelling had been stopped. 65. On 17 July 2011 the investigation was suspended yet again. It was later resumed on 24 August 2011.