CASE OF TANGIYEVA v. RUSSIA
Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Loukis Loucaides
6. The applicant was born in 1958 and was a resident of Grozny, Chechnya. She currently resides in Ingushetia. 7. The submissions of the parties on the facts concerning the circumstances of the applicant’s relatives’ deaths and the ensuing investigation are set out in Part A below. A description of the relevant materials submitted to the Court is contained in Part B. 8. The applicant and her family lived in the Staropromyslovskiy district of Grozny in their own house at 166 Derzhavina Street. 9. In October 1999 hostilities resumed in Chechnya between the Russian forces and the Chechen fighters. Grozny and its suburbs came under heavy bombardment. The Staropromyslovskiy district, situated in the northern and central parts of the town, was bombarded from the air and by artillery. The applicant submitted that most residents of the district had left for safer areas. Following heavy fighting, as of December 1999 the Russian forces started to regain control over the city starting from the north, and by the end of January 2000 the central parts of the city were finally taken. 10. In the winter of 1999-2000 the applicant, her father Abdul-Vagap Tangiyev (born in 1926), her mother Khirzhan Ibragimovna Gadaborsheva (born in 1932), her uncle Ismail Ibragimovich Gadaborshev (born in 1924) and her sister Khanifa Gazdiyeva remained in their house in Grozny. In December 1999 they were joined there by five neighbours, all women, because their house had a large cellar where they could take shelter during shelling. 11. The applicant, her sister and a neighbour submitted written accounts of the events of December 1999 and January 2000. According to them, the district had first come under heavy bombardment on 22 November 1999, when one of the women who had been staying with them in the cellar had been killed. On the same day the applicant’s mother had been slightly wounded by shrapnel. After that the shelling intensified, and the applicant and her family were unable to leave the town. 12. After 23 December 1999 the shelling became very intense, and the persons who had been staying in their cellar decided to move somewhere safer. On 26 December 1999 most of them moved to a nearby five-storey building with a larger cellar in Pugacheva Street. The applicant’s father, uncle and one neighbour remained in their house to look after the property and cattle. In the evening of the same day the applicant heard the noise of tank engines in the streets. She said that they had been relieved because they had expected an end to the shelling. 13. In the morning of 27 December 1999 the applicant’s uncle met a group of Russian servicemen on the way from his house to the Pugacheva Street and told them that a group of forty to forty-five civilians had taken refuge in the cellar of that house. The servicemen then came into the cellar and checked the identity documents of the men, most of whom were about 50 years old. The soldiers then took up battle positions in the neighbourhood. 14. In the morning of 28 December 1999 the applicant noted that their house in Derzhavina Street was partially destroyed. When she and her mother arrived there, they found her father and a neighbour, who had remained in the cellar throughout the day upon orders of the soldiers who had been stationed around the house. 15. On 28 and 29 December 1999 servicemen came to the cellar of the apartment block at Pugacheva Street where the applicant was staying and ordered the men, under threat, to help them collect six bodies of servicemen from the street. 16. On 1 January 2000 a detachment of the OMON (special police forces) arrived in the district and took up position in a former hostel building near Pugacheva Street. On the same day servicemen from that unit took away three men from the cellar. The applicant later learned that they had been shot. 17. Each day from 3-10 January 2000 the applicant went to check up on her relatives in the house at Derzhavina Street. On several occasions there they met an officer who said his name was Tima and who was the commander of a tank crew stationed at 164 Koltsova Street. The officer was often drunk and aggressive, and had once threatened to shoot them all, but the applicant’s father had managed to calm him down. Tima said that he was from Ossetia and that he had fought in Dagestan before. The applicant submitted that she could have identified him or composed a sketch of him. She submitted that the situation had been very tense, because the soldiers had regularly visited both houses for identity checks, ordered the residents to help them collect dead bodies under threat, selected men for “exchange” with the fighters, and so on. The applicant also saw the houses in the neighbourhood being systematically set on fire. 18. In the evening of 10 January 2000 the applicant, her family and some neighbours finally decided to leave Grozny on the following day, until the situation grew calmer. The applicant and her sister went to get water from the hostel where the OMON troops were stationed and warned an officer there that old people were staying in the house at Derzhavina Street, and that they should not shell it or shoot at them when they were carrying water. She then returned to the cellar of the house at Pugacheva Street, while her mother, father, uncle and a neighbour, Valentina Fotiyeva, stayed in their family home at Derzhavina Street. 19. In the morning of 11 January 2000 the applicant, her sister and three other women went to the house at Derzhavina Street to pick up her uncle and to say good-bye to her parents. They found the gates closed and smoke coming out of the house. They received no reply to their calls, and forced the doors open. The cellar was burning and they were unable to access it. In the kitchen they found the applicant’s father’s body and the body of Valentina Fotiyeva, both with gunshot wounds. The documents, money and valuables were intact. The applicant and her sister took the two bodies out of the burning house, but did not have time to extinguish the flames or to bury them because they were afraid that the killers would come back. They ran to the house in Pugacheva Street and related what had happened. A neighbour told them to leave immediately and promised to take care of the burials. The applicant and her sister took only their personal documents with them and walked several kilometres to the roadblock in Sobachevka, where they took a bus to Ingushetia. 20. On the following day, 12 January 2000, the applicant returned to Grozny with two cars, in order to collect and bury the bodies. At one of the military roadblocks on the way they picked up three servicemen as an escort for security. They also met by chance their neighbour, who explained where he had buried the applicant’s father’s body. When they arrived at 166 Derzhavina Street, the house was completely burned down. They could not go down to the cellar, because it was still smouldering. They dug up the applicant’s father’s body and took it away for burial in the village of Chermen in North Ossetia. 21. One month later relatives of Valentina Fotieyeva collected her body and buried it in a cemetery in Grozny. 22. Later, on 6 March 2000, the charred remains of the applicant’s mother and uncle were extracted from the cellar by officials of the Russian Ministry of Emergencies (Emercom). Personal belongings and bullets were found near the bodies. The applicant’s family buried them at a village cemetery in Ingushetia. 23. In addition to her own statements and three witness statements, the applicant submitted drawings of the neighbourhood and of their house at 166 Derzhavina Street, with indications of the places referred to and the locations of the bodies of her relatives. She also submitted photographs of the ruins of their house and of the cellar in Pugacheva Street. 24. The applicant did not apply to any authorities or contact a medical doctor after the incident. However, her story was related in a number of press articles and NGO reports, copies of which the applicant submitted to the Court. 25. On 26 January 2000 the Literaturnaya Gazeta newspaper in the article “Welcome to Hell! Interviews with Persons Who Escaped from Besieged Grozny” reported the story of the killing of the applicant’s relatives, based on an interview with her. 26. In February 2000 Human Rights Watch issued a report entitled “Civilian Killings in Staropromyslovskiy District of Grozny” in which it accused the Russian forces of deliberately murdering at least thirty-eight civilians between late December and mid-January. Human Rights Watch interviewed survivors, eyewitnesses and relatives of the dead. The report contains information about the deaths of Abdul-Vagap Tangiyev, Khirzhan Gadaborsheva, Ismail Gadaborshev and Valentina Fotiyeva, based on interviews with the applicant and another witness in Ingushetia. 27. Several human rights NGOs assisted the applicant and addressed the law-enforcement authorities in relation to the events in the Staropromyslovskiy district of Grozny in January 2000, where several dozen local residents had allegedly been executed by unidentified military units. 28. On 10 February 2000 Human Rights Watch wrote to the Russian authorities, including the President, the Prosecutor General and the Minister of Defence with a request that they investigate credible allegations of the mass murder of civilians in the Staropromyslovskiy district. 29. On 3 May 2000 the applicant was questioned by a prosecutor in the Staropromyslovskiy District Prosecutor’s Office. The applicant submitted that the investigator had asked her questions about the killings, to which the applicant herself was not a witness. When she had stated that only the Russian servicemen stationed around the house could have committed the murders, and had spoken of their previous visits and threats, the investigator had told her that there were no direct witnesses to the murders, and that she could be held responsible for false accusations. The applicant had suggested that officer Tima could be responsible for the killings, and the investigator had told her that he had died. After that the applicant had been convinced that the investigation would not be effective and did not turn to any other official body. 30. She was called for questioning once again, as a witness, on 31 May 2000, but it appears that she failed to attend. 31. It appears that no death certificates were ever issued in respect of the applicant’s relatives. The applicant’s cousin, the son of Ismail Gadaborshev, submitted that he had had difficulties in obtaining a death certificate for his father and for other relatives. 32. The applicant’s representatives, NGO Memorial, asked prosecutors at various levels on several occasions to submit information about the investigation of the killings of civilians in the Staropromyslovskiy district. In response, they received conflicting information with references to different criminal case numbers. On several occasions they were informed that their requests had been forwarded to different prosecutors’ services for processing. 33. On 19 June and 18 July 2002 the Chechnya Prosecutor’s Office informed Memorial that on 5 March 2000 criminal case no. 12011 had been opened into the murders committed in Grozny on 10 January 2000 and that it had been transferred for further investigation to the Northern Caucasus Department of the Prosecutor General’s Office. 34. However, on 22 August 2002 the Northern Caucasus Department of the Prosecutor General’s Office forwarded Memorial’s request for information to the Chechnya Prosecutor and asked him to issue an update of the investigation of criminal case no. 12011. 35. On 17 February 2004 the applicant wrote to the Staropromyslovskiy District Prosecutor asking for news about the investigation into her relatives’ murder. She did not receive a reply. 36. On 28 May 2004 the Staropromyslovskiy District Prosecutor’s Office granted victim status to the applicant’s brother Shamsudin Tangiyev in criminal case no. 33024 concerning the murder of his parents and uncle in Grozny on 11 January 2000. 37. In March 2005 the application was communicated to the Russian Government, who were requested at that time to submit a copy of investigation file no. 33024. In their memorials submitted in reply the Government gave some details of the investigation, without specifying the dates of the investigative measures. They did not submit any copies of the documents to which they referred. The Government stated that the investigation was pending and that the disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure because the file contained information of a military nature and personal data concerning the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file and transmit it to others”. 38. In May 2006 the Court declared the application admissible and reiterated its request for the documents. In response, the Government submitted an update of the investigation and several documents from the criminal investigation file (see Part B below). They did not submit any of the witness statements or other important procedural documents, such as descriptions of the sites or results of the ballistic expert reports. 39. Referring to the information from the Prosecutor General’s Office, the Government submitted in their memorials that the investigation had established that between January and February 2000 detachments of the federal forces had conducted a counterterrorist operation in the Staropromyslovskiy district of Grozny. Within the same period several inhabitants of the district, including the applicant’s relatives, had been killed by unknown persons. 40. The Government submitted that a number of investigative measures had been carried out by the prosecutors. On 17 April 2004 they inspected the Tangiyevs’ house. On 28 May 2004 the applicant’s brother Shamsudin Tangiyev was questioned and granted victim status in the proceedings. On 5 May 2004 the applicant, her sister and two relatives were also questioned and granted victim status in the proceedings. On the same day the investigating officers recovered from the applicant two cartridges she had collected near the body of her father. A ballistic examination was carried out and concluded that they were the type of ammunition used for a 5.45 mm calibre automatic rifle and could be used to identify the firearm used. 41. The Government submitted that the applicant and her relatives had refused to allow the bodies of their relatives to be exhumed for forensic tests to be carried out. They had also refused to identify their places of burial, which made it impossible to establish the cause of their deaths. 42. The Government further informed the Court that between April and July 2004 the investigating officers had questioned more than twenty neighbours and acquaintances of the Tangiyevs, who had stated that they had no information about the perpetrators of the killings. One witness stated that the Staropromyslovskiy district had been the scene of heavy fighting between the federal forces and the illegal armed groups. Another witness stated that the applicant’s father had had a dispute with the members of the illegal armed groups. The investigators failed to identify the relatives and the place of burial of Valentina Fotiyeva, the woman who had been killed in the Tangiyevs’ house. 43. The investigators looked into the possibility that the killings could have been committed by the servicemen, but found no information to support it. According to the information from the Northern Caucasus Military Circuit, between January and February 2000 the detachments of the federal forces in the Staropromyslovskiy district had been subjected to numerous attacks by illegal armed groups, who could be implicated in the killings. On 3 June 2005 a military prosecutor questioned the commander of one of the military units which had taken part in the counterterrorist operation in Grozny. He stated that he had not been aware of the applicant’s relatives’ killings. The prosecutors continued to carry out investigative measures with the participation of the servicemen. 44. According to the Government, the victims had been systematically informed of the adjournments and reopening of the case. The investigation was pending with the Staropromyslovskiy District Prosecutor’s Office and was under the special supervision of the Prosecutor General’s Office. 45. In November 2004 the applicant submitted additional documentary evidence in support of her allegations. In addition to her own detailed statements of facts, the applicant submitted three witness statements. 46. The applicant’s sister Khanifa Gazdiyeva stated that on 10 January 2000 they had decided to leave Grozny on the following day because of constant harassment by soldiers. In the morning of 11 January 2000 the witness, along with the applicant and two women named Galina and Birlant M., went to collect her parents and uncle from their house at Derzhavina Street. She then described how they had discovered the bodies of her father and of Valentina, both with gunshot wounds to the head. The house was turned upside down and there were a lot of bullet holes. Some of the furniture was smouldering, the cellar door was closed and smoke was coming out of it. The women took two bodies out of the house but could not extinguish the flames in the cellar. They then left the bodies with the neighbour out of fear that the soldiers might return and kill them as witnesses, and left Grozny on the same day. They buried their father’s body on 12 January 2000. On 6 March 2000 the remains of their mother and uncle were removed with the assistance of Emercom and buried in Ingushetia. 47. The applicant’s cousin, Magomet Gadaborshev, testified about the death of his father, the applicant’s uncle. The witness himself was in Ingushetia at the relevant time and learnt of his father’s death from the applicant and other relatives. 48. The applicant’s neighbour in Grozny, “Galina P.”, testified that she had been with the applicant and her sister on 11 January 2000 when they had found their parents’ and uncle’s bodies in the house at Derazhavina Street. The witness submitted that the Chechen fighters (“boyeviki”) had left the district by mid-December, and that before that they had caused no harm to the residents, and had sometimes even helped them. From 25 December 1999 the Russian servicemen started to enter the Staropromyslovskiy district. Some of the soldiers helped them and gave them food. Others asked them, sometimes under threat, to help them collect the dead bodies of servicemen, because the “fighters” would not shoot at civilians. She corroborated the relatives’ statements about the discovery of the bodies on 11 January 2000. 49. In addition to the documents submitted by the applicant, in the proceedings in the case of, Makhauri v. Russia (application no. 58701/00), the Government submitted a copy of the investigation file in criminal case no. 14/33/0262 (joined in July 2004 with criminal case no. 50100) opened by military investigators in relation to an attack on Mrs Makhauri in January 2000 in the Staropromyslovskiy district. The file also contained a witness statement by Galina P. (born in 1937), made during the investigation in August 2000. On the basis of this information, in 2000 the military investigators requested the Grozny Town Prosecutor’s Office to give them information about the murder of the three members of the Tangiyev family and the woman named Valentina. It appears that no reply was received. 50. Galina P. stated to the military investigators that in winter 1999-2000 she had remained in Grozny. She moved in to the Tangiyevs’ house at Derzhavina Street, where nine people had stayed in the cellar, and remained there until 24 December 1999. Then they moved to another house, at 144 Pugacheva Street, because the shelling had become too intense and the first house had been damaged. About sixty people, mostly elderly, had stayed in the big cellar at 144 Pugacheva Street. The Chechen fighters left their district around 18 December 1999. The witness testified that the federal soldiers had regularly visited their cellar and forced the inhabitants to help them retrieve the wounded and dead. On 1 or 2 January 2000 the three youngest men from the cellar (aged below 50) had been taken away by soldiers and later found dead. The witness described the soldiers as wearing blue-grey camouflage uniforms. She also testified that on 10 January 2000, along with the two Tangiyev sisters, she visited their house, where four persons had been staying: Abdul-Vagap Tangiyev, his wife Khirzhan Gadaborsheva, his brother Ismail Gadaborshev and an elderly woman, “Valya”. They found the bodies of Mr Tangiyev and Valya in the house with gunshot wounds, while the cellar was closed and burning. A neighbour told them to leave because the killers could return, and later told them that he had buried the four bodies in the courtyard. On the same day, on 10 January 2000, the witness left for Ingushetia. 51. In September 2006 the Government submitted about seventy pages of documents from the file of the criminal investigation carried out into the murder of the applicant’s parents and uncle. Those documents include the prosecutors’ decisions to open, transfer, adjourn and reopen the investigation, and to grant victim status to the applicant and her brother. They can be summarised as follows. 52. On 3 May 2000, following the publication of “Freedom or Death” in the Novaya Gazeta newspaper on 27 April 2000, the Grozny Town Prosecutor’s Office opened criminal investigation file no. 12038 under Article 105 part 2 of the Criminal Code (murder of two or more persons in aggravating circumstances) “concerning mass murder by the ‘205th brigade’ of members of the civilian population in the Katayama settlement in Grozny on 19 January 2000”. In connection with these proceedings the applicant and her brother were questioned in May and June 2000. 53. On 14 August 2003 an investigator of the Grozny Town Prosecutor’s Office decided that the killing of four persons at 166 Derzhavina Street had constituted a separate episode and forwarded the relevant part of the file to the Staropromyslovskiy District Prosecutor for further investigation. 54. On 20 August 2003 the Staropromyslovskiy District Prosecutor’s Office refused to carry out an investigation under Article 24 part 1 paragraph 2 of the Code of Criminal Procedure – due to the absence of information indicating that the deaths had occurred as a result of criminal actions. The investigator stated that the information about the circumstances of the applicant’s relatives’ deaths had been incomplete. Turning to the applicant’s statement, he concluded that the deaths and the fire in the house had most probably been a result of shelling, because at the relevant time the district had been the scene of heavy fighting. In the absence of more reliable information about the reasons and circumstances of the deaths, the investigation was closed. 55. On 2 April 2004 the Chechnya Prosecutor’s Office quashed that decision. On 16 April 2004 the Staropromyslovskiy District Prosecutor’s Office opened criminal investigation file no. 33024 under Article 105 part 2 of the Criminal Code into the applicant’s relatives’ murder. 56. In May 2004 the applicant’s brother, and in May 2005 the applicant, were granted victim status in the proceedings. 57. At different stages of the proceedings several orders were issued by the supervising prosecutors enumerating the steps to be taken by the investigators. On 26 August 2004 a prosecutor from the Staropromyslovskiy District Prosecutor’s Office ordered, among other things, that a plan of action be drawn up, that steps be taken to locate the places of burial and to carry out exhumations and forensic tests, that the bullets and cartridges from the crime scene be collected and sent for examination by a ballistic expert, that more personal information about the victims be collected, including the identification of the relatives of Valentina Fotiyeva. Similar orders were issued in October 2004, April and December 2005. 58. Between April 2004 and August 2006 the investigation was adjourned and reopened seven times. The latest document in the case-file reviewed by the Court is dated 14 August 2006. The prosecutor of the Staropromyslovskiy District Prosecutor’s Office resumed the investigation and again ordered the collection of missing information about the victims, the identification and questioning of other possible witnesses to the crime, including Galina P., and the implementation of other steps to identify the perpetrators of the killings. 59. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation. 60. Article 161 of the new Code of Criminal Procedure establishes the rule of impermissibility of disclosing data from the preliminary investigation. Under paragraph 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. Divulging information about the private life of participants in criminal proceedings without their permission is prohibited.