NASIRKHAYEVA v. RUSSIA
Inadmissible
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
The applicant, Ms Aminat Nasirkhayeva, is a Russian national who lives in Grozny, Chechnya. She is represented before the Court by Mr D. Itslayev, a lawyer practising in Nazran, Ingushetia. The respondent Government are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The applicant had four children. One of them, Ms Balizha Nasirkhayeva, was born in 1992. The applicant lived in Grozny with her family. In 1999 the Russian Government launched a counter-terrorist operation in Chechnya. On 27 December 1999 the applicant’s daughter received a wound to the head as a result of an explosion. The family and the wounded child remained in the basement of their house in view of the ongoing hostilities. On 11 or 13 January 2000 when federal servicemen reached the district, they gave Balizha Nasirkhayeva first aid and delivered the applicant and her daughter to a military hospital by helicopter. From there the applicant and her daughter were taken to a hospital in Vladikavkaz where the child spent six days in an intensive care unit. On 7 April 2000 Balizha Nasirkhayeva was brought to the Clinical Hospital of Ingushetia in Nazran and diagnosed with a post-traumatic condition caused by a penetrating wound to the skull. She was operated upon and several days later she was transferred by plane to a specialised paediatric hospital, the Ninth Hospital, in Moscow. On 14 April 2000 Balizha Nasirkhayeva died at the intensive care unit of the Ninth Hospital in Moscow. On 23 September 2004 the applicant and her husband sought assistance in receiving compensation for their child’s death from the Human Rights Office of the President of the Chechen Republic (“the Human Rights Office”). On 25 July 2005 the applicant sued the Government of Chechnya, seeking compensation for her daughter’s death. On 16 May 2006 the Staropromyslovskiy District Court of Grozny awarded her 20,000 Russian roubles in a lump sum, such award being given to people whose relatives had died during the counter-terrorist operation in Chechnya. The remaining claims for non-pecuniary damage were dismissed for the absence of a causal link between the actions of the defendant and the claim. The applicant did not appeal and on 26 May 2006 the judgment became final. On 24 October 2005 the Human Rights Office requested that the prosecutor’s office of the Zavodskoy District of Grozny (“the district prosecutor’s office”) investigate Balizha Nasirkhayeva’s death. The letter indicated that information about the criminal proceedings had been sought by the Staropromyslovskiy District Court within the scope of the compensation proceedings. It is unclear if this letter reached the district prosecutor’s office. On 7 March 2006 the applicant complained about her daughter’s death to the district prosecutor’s office. On 12 March 2006, referring to a letter from the Human Rights Office of 10 March 2006, the district prosecutor’s office opened an investigation under Article 105 § 1 of the Criminal Code (murder). The case was assigned number 51040. Pursuant to the Court’s request following the communication of the present case, the Government submitted thirty-six pages of documents from the criminal investigation file. These documents can be summarised as follows. On 8 April 2006 the district prosecutor’s office granted victim status to the applicant. She was questioned and stated that her daughter had been wounded as a result of an explosion. Two neighbours stated that they had heard the explosions outside and then saw that the applicant and her daughter had been wounded. The investigator also collected medical records and attempted to obtain information about the military operations in Grozny at that time. It does not appear that they obtained any relevant information in this respect. On 12 May 2006 the investigation in case no. 51040 was suspended for its failure to identify any suspects. The applicant was informed, but did not appeal against this decision. On 9 April 2009 the applicant wrote to the Investigative Committee of the Chechnya Prosecutor’s Office and asked for an update on the investigation. Article 125 of the Code of Criminal Procedure provides as follows: “Article 125. Judicial examination of complaints 1. Decisions of an investigator or prosecutor concerning their refusal to initiate a criminal investigation ... or any other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions.... 3. The court shall examine the lawfulness and the grounds for the impugned decisions or acts ... within five days from the receipt of the complaint... 5. As a result of the examination of the complaint the court shall deliver one of the following decisions: 1) Declaring the decisions, acts or omissions of the official as unlawful or unsubstantiated and obliging the official to eliminate the defects; 2) Not allowing the applicant’s complaint...”