CASE OF KHADZHIMURADOV AND OTHERS v. RUSSIA
Remainder inadmissible (Article 35-1 - Six-month period);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra
5. The applicants alleged principally that their twenty-one relatives (spouses, children, brothers and an uncle) had been killed by State servicemen on 5 February 2000 in the Novye Aldy settlement on the outskirts of Grozny (see Appendix for details). 6. A criminal investigation into the murders was opened on 5 March 2000 by the Grozny town prosecutor’s office. Over the years, the applicants or close members of their families were granted victim status in the proceedings. Those proceedings are still ongoing. 7. The documents indicate that only one applicant, Olga Soltykhanova (application no. 22304/10), was in the Novye Aldy at the time of the events; the other applicants were out of the district or out of Chechnya, owing to heavy fighting in the preceding months. 8. In support of their claims, the applicants submitted copies of the death certificates issued in respect of their relatives, copies of some documents from the criminal investigation file, decisions granting them or their close relatives victim status in the criminal proceedings, statements which they had made, statements from witnesses to the events, and press and NGO reports. Several applicants also submitted documents issued in 2000 and 2001 by the local administration or “neighbourhood committees” confirming that the houses in which they had lived had been destroyed or damaged in 2000. 9. Some applicants complained that their state of health had deteriorated due to the stress and anguish which they had suffered in the aftermath of the Novye Aldy killings, and particularly in view of the inadequate and callous response of the authorities to their plight. 10. The facts of the present case are connected to the case of Musayev and Others v. Russia (nos. 57941/00 and 2 others, 26 July 2007) in so far as the applicants claimed that their relatives had been killed by the same people and in the same circumstances as the relatives of the applicants in that case. 11. The applicants in Musayev and Others complained that eleven of their relatives had been killed by unidentified servicemen on 5 February 2000 in the Novye Aldy. The first applicant had witnessed the deaths of his seven distant relatives (cousins and nephews). Other applicants in Musayev and Others were more closely connected to the victims, and were their husband, sister or brothers. The first applicant had been granted victim status in the domestic criminal proceedings and had participated in those proceedings (see Musayev and Others, cited above, §§ 68, 81, 94). It appeared that in the domestic criminal proceedings the proximity of the relationships between the victims and the deceased had not been fully ascertained, and, as noted in the Musayev and Others judgment, no single list existed of the victims and the people who had been granted victim status in the proceedings (ibid., §§ 74, 80, 162). The Government did not challenge the first applicant’s victim status under Article 2 of the Convention. 12. On the basis of the parties’ submissions and inferences drawn by the Court, it was established that on 5 February 2000 eleven relatives of the applicants had been killed by State servicemen in the Novye Aldy settlement on the outskirts of Grozny, during a special operation (a “sweeping” operation) carried out by, amongst others, servicemen from the Police Special Task Unit (Отдел милиции особого назначения (ОМОН)) from St Petersburg (hereinafter the St Petersburg OMON). 13. According to the documents examined by the Court, more than fifty people had been killed on that day in the Novye Aldy by unidentified servicemen wearing camouflaged uniforms and using automatic weapons, equipped with portable radio sets, armoured personnel carriers (APCs) and military Ural trucks. The same servicemen had also looted and burnt down a number of houses. 14. In April 2006, when the parties exchanged observations in Musayev and Others, the criminal investigation was still ongoing. Although the investigation file reflected some attempts to identify the servicemen involved, there was no information that anyone had been charged with the crimes. The Court concluded that the authorities had failed to carry out an effective investigation into the deaths. 15. In addition, the first applicant, who had witnessed the deaths of his relatives and had himself been held at gunpoint, was found to be a victim of inhuman and degrading treatment in breach of Article 3 of the Convention. Lastly, a breach of Article 13 of the Convention was found, since the criminal investigation into the deaths had been inefficient, rendering any other remedy equally futile. 16. On 5 March 2000 the Grozny town prosecutor’s office opened criminal investigation no. 12011 into the murder of several inhabitants of the Novye Aldy settlement in Grozny by “unidentified men armed with guns” under Article 105 § 2 of the Criminal Code (the murder of two or more persons with aggravating circumstances); the decision also referred to the looting of residents’ property. In response to the Court’s request in the present case, the Government submitted copies of eight volumes of documents from criminal case no. 12011, produced after the judgment issued in Musayev and Others. Those documents can be summarised as follows. 17. The applicants submitted that, prior to the Musayev and Others judgment in July 2007, they had not been aware that another group of victims had applied to the Court. They also submitted that, prior to that date, they had had no reasons to doubt the effectiveness of the domestic investigation, even if no regular updates from the prosecutor’s office had been forthcoming. Some of the applicants also referred to their previous contact with lawyers whom they had instructed to apply to the Court in 2005, but one lawyer had died, and either their instructions to other lawyers had not been complied with or the applicants had not kept any written proof of those instructions. As the documents in the Court’s possession indicate, in March 2005 thirty-one families of victims of the Aldy events sent a letter to the Court stating their intention to apply to the Court. That letter included at least ten applicants in the present case. The signatories failed to submit proper applications or otherwise pursue that complaint, which was eventually discontinued. 18. The deaths of eleven people were found to be in breach of Article 2 of the Convention in the Musayev and Others judgment (cited above), and the family members of five of those people are applicants in the present complaint (see Appendix). While the first applicant in the Musayev and Others case was a cousin and a nephew of the deceased, the applicants in the present group are the deceased’s spouses, children and brothers. 19. The applicants in the present case (or their close relatives) were granted victim status in criminal investigation file no. 12011 on various dates between March 2000 and June 2012 (see Appendix). Eight applicants were questioned and received victim status in March and April 2000. Six were granted victim status in April and May 2004, and one in March 2005. The other five received such status between December 2007 and July 2012. On 19 April 2004 the investigator of the Chechnya prosecutor’s office granted an application made by a lawyer, Mr A. Khamzayev. The application was for thirty-two people to have victim status. The list included fourteen applicants in the present case, twelve of whom later obtained and countersigned proper individual decisions as indicated above. There is no information that any other procedural acts involving the applicants’ participation occurred between April 2000 and December 2007 (see the following paragraph). 20. The investigation was adjourned and resumed a number of times (see subsection 5. Various procedural steps below); on 5 December 2007 the investigation was resumed. As of 2008 the applicants in the present case and in Musayev and Others and their close relatives were regularly questioned about the events of 5 February 2000. Thus, in December 2008 the following applicants were questioned: Zoya Musayeva (no. 21200/09), Malika Ganayeva (no. 30538/09), Ruslan Khadzhimuradov (no. 21194/09), Birland Tasuyeva (no. 27064/09), Ibragim Musayev (no. 21200/09), Aset Khakimova (no. 32851/09), Osman Kudozov (no. 30578/09), Manshura Sugaipova (no. 27259/09), Birlant Beterakhmadova (no. 24693/09), Baret Shamsatova (no. 27159/09), Abulkhasan Khaydayev (no. 30531/09), Alpatu Khirikhanova (no. 24700/09), Yakhita Bishayeva (no. 32855/09), and Yakhita Dzhabrailova (no. 32992/09). In November 2012 the investigators questioned Elina Umarkhadzhiyeva and Madina Dzhamaldayeva (no. 30538/09); in December 2013 they questioned Rashid Gerikhanov (no. 27063/09), Aysest Musostova (no. 32862/09), Abulkhasan Khaydayev (no. 30531/09), and Birlant Beterakhmadova (no. 24693/09). During questioning, the investigators informed the applicants about forensic expert reports on the bodies that had been carried out in 2000. The applicants were also asked questions about the loss of property and were asked to estimate the pecuniary damage which they had sustained. While they provided some estimates, no documents were provided, and all applicants stated that they intended to seek pecuniary damages as civil parties during the trial. 21. Additional questioning of the applicants, their relatives and other local residents continued into 2009 and the years which followed. New victims of the events were identified as late as 2014, and their relatives were granted victim status in the proceedings. The questioning of other local residents continued until 2014, when they were granted victim status in the proceedings, notably in respect of the loss of property. 22. On 9 February 2009 Mrs Birlant Beterakhmadova (application no. 24693/09) complained to the Staropromyslovskiy District Court of Grozny regarding the decision of 24 November 2008 to adjourn the investigation and the prosecutor’s failure to conduct an efficient investigation into the murders. 23. On 3 April 2009 the Staropromyslovskiy District Court noted that the decision of 24 November 2008 had been quashed on 15 March 2009 by the Chechnya Investigative Committee, and dismissed Mrs Beterakhmadova’s complaint. She did not appeal against that decision. 24. The decision of 10 April 2006 to adjourn the investigation (and subsequent similar documents) indicates that in May 2005 the investigation identified S.B. as a suspect. He was charged with aggravated murder and robbery. In February 2000 S.B. had been a police technician with the sapper battalion of the St Petersburg OMON. The charges stated that on 5 February 2000 he, along with three other unidentified persons, had killed Mr Sultan Dzhabrailov (the husband of Mrs Yakhita Dzhabrailova, applicant in case no. 32992/09) by shooting him with a Kalashnikov machine gun. S.B. was also charged with robbing two other people of money and jewellery, A.M and B.M. In October 2005 S.B. escaped to Belarus and his name was put on the international wanted list. In February 2006 the Zavodskoy District Court in Grozny ruled that S.B. should be arrested. The decision of 10 April 2006 states that the investigator informed the victims of that decision, but the case file contains no relevant correspondence. Copies of letters submitted by the parties indicate that a copy of that decision was sent to the victims on 14 November 2007. 25. In April 2011 the investigators asked the prosecutor’s office in St Petersburg to question S.B.’s civil partner about his whereabouts. In November 2012 she stated that she had had no information about S.B.’s whereabouts since 2006, although she had seen him in 2008 in St Petersburg. 26. In November 2012 the investigators examined a social network page belonging to S.B. and noted that the latest photographs on it had been uploaded in 2007. In May 2013 the investigators sought to obtain additional information about S.B.’s whereabouts by questioning his other relatives, locating his mobile phone, and so on. 27. During the questioning of victims and witnesses the investigators collected additional information about the suspects. Thus, in February 2009 Mr Ibragim Musayev (application no. 21200/09) referred to servicemen from the 245th motorised rifle regiment, the commander of that regiment, and the commander of company no. 6 (see Musayev and Others, cited above, § 107) as possible suspects. 28. In April 2010 the investigation produced a list of over 170 servicemen of the St Petersburg OMON who had been posted in Chechnya in February 2000, and asked for verification of whether one of them had a tattoo in the shape of a snake on his neck, mentioned by one of the witnesses. Dozens of servicemen were inspected, but no one with a snake-shaped tattoo was identified. When questioned in February 2011, the servicemen, in brief statements, confirmed that they had served in Chechnya in February 2000 but had no knowledge of the civilians killed in the Novye Aldy. 29. In April 2010 the investigators sent a letter asking the prosecutor of the Northern Caucasus military circuit to identify and question the servicemen and commanders of the 245th motorised rifle regiment (see Musayev and Others, cited above, §§ 105-07). The letter contained detailed information and questions about the events of 5 February 2000, and asked the prosecutor to identify and question the people who had used known radio call signs and to identify the commanders of the operation. In June 2010 an officer of the military unit concerned stated, as a witness, that all details about the use of radio equipment and the assignment of calls were stored as secret information for five years. Several reminders followed in 2011 asking, in particular, for the former commander of the 245th regiment, Major-General S.L., to be questioned. 30. In June 2010 the investigator in charge sought similar information from another military unit (the 15th motorised rifle regiment), including the names of the unit commanders who had taken part in the operation on 5 February 2000. In particular, the letter referred to the commander of company no. 6 of the regiment, who, the investigators suggested, had written a note left by the servicemen for the local residents. 31. In May 2011 the investigators asked the military investigators to submit information about the commanders of the 245th motorised rifle regiment and to ask them a number of specific questions about the events of 5 February 2000. 32. In April 2011 the investigators asked the investigator of St Petersburg to carry out additional ballistic reports on 357 guns used by the St Petersburg OMON in February 2000. 33. In May 2011 the investigator in charge informed the military prosecutor of the Southern military circuit that the special operation on 5 February 2000 in the south of Grozny had been under the command of Colonel Ye.K., the head of the operative headquarters of the internal troops of the Ministry of the Interior. He reminded the military prosecutors of his previous requests for the commanders of that operation to be identified and questioned. It does not appear that any progress was achieved in this respect. 34. During additional questioning in the period 2009-2013, local residents were asked about the damage to their property caused in 2000. They explained that many houses had been burnt down by the servicemen, and that those who had stayed in the district had been forced to give up their jewellery and valuables as a result of threats. Others estimated the amount of pecuniary damage caused (see Appendix). No one was granted victim status in relation to any property offence and no additional documents were requested from the residents. The victims stated that they would seek damages in the course of a criminal trial, as civil parties. 35. On 18 January 2014 the investigator ruled that no criminal proceedings should be opened in connection to the crimes relating to property, due to the expiration of the statutory limits for those crimes. It does not appear that that decision was challenged. In December 2014 decisions according civil party status in criminal proceedings with regard to property claims were issued in respect of the following applicants: Ayset Musostova (no. 32862/090), Birlant Beterakhmadova (no. 24693) and Zoya Musayeva (no. 21200/09). Osman Kudozov (application no. 30578/09) submitted documents which indicated that the house for which he claimed compensation had been owned by M.K., his sister. In his written statement to the Court he stated that at some point M.K. had received compensation from the State for the lost property, but he submitted no relevant documents. 36. On 5 December 2007 the investigation of criminal case file no. 12011 into the events of 5 February 2000 was resumed, and the victims were informed accordingly. 37. On 5 January 2008 the investigation was adjourned. 38. The investigation was then resumed, but on 18 August 2008 was adjourned again, and the applicants were informed accordingly. 39. The investigation was then resumed, but adjourned again on 24 November 2008. A letter informing the victims of the adjournment was dated 24 October 2008. 40. It appears that the investigation was reopened and then adjourned again on 11 January 2009. 41. It was then reopened in March 20009, and on 16 April 2009 adjourned again, for similar reasons as those stated in the decision of 10 April 2006 (see paragraph 24 above). 42. On 22 March 2010 the Chechnya Investigative Committee gave an order for an investigating group to be set up which would include investigators from the military prosecutor’s office, in view of information about the possible implication of military servicemen in the crimes. 43. In June 2010 the investigators watched a video filmed in the Novye Aldy on 9 February 2000 (see Musayev and Others, cited above, § 25) and produced the video’s transcript for the file. 44. In November 2012 the investigators compiled a table of people who had been killed on 5 February 2000, indicating their places of burial, the next-of-kin granted victim status in the proceedings, and the dates of such decisions. The table contains information about forty-seven deaths, including the deaths of twenty people about which the applicants in the present case complain; the one exception is Isa Akhmadov, born in 1964 (the brother of Aysest Musostova, application no. 32862/09). At the same time, the table contains information about the death of a certain Isa Akhmatov, born in 1959, in respect of whose death another person (his brother) was questioned and granted victim status in June 2012. 45. In December 2014 the investigation recognised civil party status of three applicants in connection with the destruction and theft of property during the events of 5 February 2000. 46. It does not appear that the applicants were informed of any other developments, or that they sought further information from the investigating authorities.