CASE OF TRAPEZNIKOVA v. RUSSIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 2 (procedural aspect);Violation of Art. 6-1;Violation of P1-1
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant was born in 1940 and lives in Stavropol. 6. At the material time the applicant and her husband lived in a three-room apartment in a block of flats at 4 Prospekt Revolyutsii in the city of Grozny, the Chechen Republic. The applicant submitted a housing warrant (ордер) confirming her right to live in the apartment. She did not submit any documents proving that she had a title to the flat. 7. In early October 1999 a military operation was launched in the territory of the Chechen Republic. 8. According to the applicant, on 4 January 2000 the block of flats at 4 Prospekt Revolyutsii was hit by a missile fired by the Russian armed forces during an attack on Grozny. The applicant’s flat and all her belongings were destroyed. It does not appear that the applicant witnessed the destruction. 9. On 6 January 2000 the applicant, her husband and other residents were sheltering from a bombardment in the basement of their block of flats. At around 10 p.m. an intoxicated man armed with a machine gun came down to the basement and started shooting, with the result that the applicant’s husband and three other persons were killed. The applicant managed to escape. According to her, the name of the man who shot her husband was Khalid. He had lived for some time in their block of flats and during the bombings she had met him in the basement on several previous occasions. 10. On the next day the applicant buried her husband’s body and the bodies of the others killed in the shooting in the courtyard. It does not appear that an autopsy was performed or any photographs taken. 11. On 21 June 2000 a local registry office certified the death of the applicant’s husband. On the same date a housing authority issued the applicant with a certificate confirming that her flat “was destroyed and burnt completely during the military actions on 4 January 2000”. The certificate contained no other information relating to the destruction. The applicant did not submit any documents which would indicate the cause of the destruction of the block of flats at 4 Prospect Revolutsii, or any photographs of the site of the destruction. 12. According to the Government, the applicant’s written complaint concerning her husband’s murder was received by the Zavodskoy District Department of the Interior of Grozny on 17 February 2000. On 27 February 2000 the acting prosecutor of Grozny opened an investigation into the case under Article 105 (2) (aggravated murder) of the Russian Criminal Code. The case file was assigned the number 12005. 13. On the same day the applicant was granted the status of victim of a crime and questioned. She reiterated her account of the events of 6 January 2000 and described the appearance of the alleged murderer. 14. In the Government’s submission, on 27 February 2000 the investigation authorities also inspected the scene of the incident in the applicant’s presence. The Government did not produce any report on that inspection. 15. On 23 April 2000 the proceedings in case no. 12005 were suspended for failure to establish the identity of the alleged perpetrator. The applicant was informed in writing that the proceedings had been adjourned on 27 [rather than 23] April 2000. 16. On 7 June 2000 the criminal proceedings were reopened. According to the Government, on the same date, upon the applicant’s request of 31 May 2000, the investigator in charge ordered the exhumation of the corpses of those killed on 6 January 2000, including the applicant’s husband. The exhumation and forensic examination were carried out on the next day. 17. On 7 July 2000 the investigation was stayed as it was impossible to establish those responsible. It does not appear that there was any investigative activity between 7 July 2000 and 10 December 2001. 18. On the latter date the decision of 7 July 2000 was set aside and the proceedings in criminal case no. 12005 were resumed, the applicant being notified in a letter of 12 December 2001. 19. On 14 January 2002 the investigation into the killing of the applicant’s husband was again suspended in the absence of information concerning those responsible. It appears that the applicant was not informed of that decision until 14 October 2002, when the Grozny prosecutor’s office stated in their letter that the criminal proceedings instituted on 27 February 2000 in connection with the killing of the applicant’s husband had been suspended on 14 January 2002 for failure to find the alleged perpetrators, and that the search for those responsible was under way. 20. In a letter of 13 May 2002 the Department of the Ministry of the Interior for the Southern Federal Circuit notified the applicant that the investigation in connection with her husband’s murder had been commenced on 17 [rather than 27] February 2000, that the case had been given the number 12005 and that the suspect in the case, Ismailov Kh. S., had been an officer of the Ministry of the Shariat State Security [a security service established when the former President of Chechnya, Aslan Maskhadov, had been in power]. The letter stated that the suspect was presently on the federal wanted list. 21. It does not appear that any investigative activity took place between 14 January 2002 and 21 April 2005. 22. On the latter date the criminal proceedings in case no. 12005 were re-opened. The applicant was informed of this decision on the same date. 23. On 22 May 2005 the investigating authorities stayed the criminal proceedings on account of their inability to establish the alleged perpetrator and apprised the applicant of their decision on the same date. 24. It does not appear that any investigative activity took place between 22 May 2005 and 8 December 2006. 25. On the latter date the investigation was resumed. The investigating authorities informed the applicant of that decision in a letter of 8 December 2006. According to the Government, the conduct of the investigation was being supervised by the Prosecutor General’s Office. 26. In the Government’s submission, apart from the applicant, the investigating authorities also questioned seven witnesses. One of them, the applicant’s neighbour who had helped her to bury the bodies, gave oral evidence similar to the applicant’s account, whereas the others did not provide any relevant information. According to the Government, the investigating authorities also sent a number of queries to “competent bodies”. In particular, such queries were sent on 28 February, 17 April and 11 July 2000, 10 January 2002 and 4 May 2005. 27. The Government also submitted that the investigation had obtained information that the murder of the applicant’s husband and other victims had been committed by Khalid (Khazir) Ismailov, who had been an officer of a security service established when the former President of Chechnya, Aslan Maskhadov, had been in power. During the investigation, an address of Khalid’s acquaintance had been established, but the house at that address had proved to be deserted. The investigators also verified the possible involvement of a number of persons with the surname “Ismailov” in the killing of 6 January 2000, but that had brought no positive result. 28. On 20 July 2001 the applicant issued civil proceedings against a number of Federal Ministries before the Leninskiy District Court of Stavropol (“the District Court”). In her written submissions to the court the applicant sought damages in respect of her husband’s death. She also stated that the block of flats in which she lived had been destroyed by a missile and asked the court to award her compensation for the destroyed flat and belongings that had been in the flat. As can be ascertained from a copy of her written submissions, the applicant enclosed copies of her passport, the marriage certificate, the death certificate, the housing warrant, a letter from a local authority, and certificates from the housing authority. 29. By a default judgment of 3 December 2001 the District Court allowed in part the applicant’s compensation claim for her husband’s death and awarded her 20,000 Russian roubles (RUB). 30. As regards the applicant’s compensation claim concerning the destruction of her property, the court noted that under Article 1069 of the Civil Code of Russia the State was liable only for damages caused by its agents’ actions which were unlawful. It further found that the actions of the Russian federal troops in Chechnya had been lawful, as the military operation in Chechnya had been launched under Presidential Decree no. 2166 of 30 November 1994 and Governmental Decree no. 1360 of 9 December 1994, both of which had been found to be constitutional by the Constitutional Court of Russia on 31 July 1995. 31. The court further stated that the applicant had submitted no evidence proving a causal link between the defendants’ actions and the damage sustained by her, since the military actions had been carried out by both parties to the conflict. Therefore the destruction of the applicant’s possessions could not be imputed to the defendants. 32. The court further held that under Article 1079 of the Civil Code of Russia damage inflicted by a “source of increased danger” (источник повышенной опасности) was to be compensated for by the person or entity using that source, unless it was proven that the damage had been caused by force majeure or through the fault of the affected person. However, in the court’s view, the applicant’s reference to the above Article was unfounded, as weapons and military equipment, in the circumstances of the present case, could not be regarded as a “source of increased danger”, since they had been used strictly for the purposes they were designed for and under the firm control of the relevant personnel. Moreover, the applicant had not adduced any evidence which would enable the court to establish the type and ownership of the weapon which had destroyed the applicant’s housing. 33. The court also noted that the applicant had submitted no documents confirming the value of her lost property. It noted in this respect that witness statements obtained during the hearing only enabled it to establish the existence of the possessions in the applicant’s flat prior to the destruction and the fact that those possessions had been new. The court made no findings regarding the applicant’s property rights in respect of the destroyed flat. 34. The applicant’s claims for compensation for non-pecuniary damage could not be granted either, in the absence of any fault or unlawful actions on the part of the defendants. In view of the above, the court concluded that there were no grounds for granting the first applicant’s compensation claim for the destroyed property. 35. It does not appear that the applicant ever sought the first-instance court’s assistance in obtaining evidence relating to the weapon that had destroyed her housing. In her appeal against the judgment of 3 December 2001 the applicant did not complain of her inability to obtain the evidence in question. 36. On 30 January 2002 the Stavropol Regional Court upheld the first-instance judgment on appeal. 37. On 30 January 2002, following the decision of the Stavropol Regional Court, the judgment of 3 December 2001 became final and binding. 38. According to the applicant, at some point the District Court issued a writ of execution and sent it to the Ministry of Finance for execution on 30 April 2002. 39. In the Government’s submission, the writ of execution was received by the Ministry of Finance on 24 November 2004. 40. On 16 March 2006 the Ministry of Finance sent the applicant a letter inviting her to indicate the details of her bank account to enable the said Ministry to transfer the judgment debt to her. 41. The applicant provided the necessary information on 5 May 2006. 42. On 30 October 2006 the full amount due pursuant to the judgment of 3 December 2001 was transferred to the applicant’s bank account. 43. In October 2006, at the communication stage, the Government were invited to produce a copy of the investigation file of case no. 12005 instituted in connection with the killing of the applicant’s husband and other persons on 6 January 2000. Relying on the information obtained from the Prosecutor General’s Office, the Government refused to submit a copy of the entire file, stating that the disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure since the file contained personal data concerning the witnesses. They, however, produced a number of documents from the file, which can be summarised as follows. 44. By decisions of 27 February 2000 the Grozny prosecutor ordered that criminal proceedings be instituted in connection with the killing of the applicant’s husband and three other persons by a man named Khalid using a machine gun on 6 January 2000 and that an investigative group be organised for the investigation. 45. By a decision of 27 February 2000 the investigator in charge declared the applicant the victim of a crime. 46. By a decision of 15 March 2000 an investigator of the Grozny prosecutor’s office took up the case. 47. By a decision of 23 April 2000 the investigator in charge suspended the proceedings in case no. 21005. The decision stated that the term established for the preliminary investigation had expired, that all possible investigative actions had been carried out, but that it was impossible to establish the identity of the alleged perpetrator. The decision did not list the actions that had been taken during the investigation. 48. In a letter of 23 or 28 [the hand-written date is unclear] April 2000 the applicant was informed that the investigation in case no. 12005 had been stayed, as it was impossible to establish the identity of the person responsible. 49. On 7 June 2000 the Grozny prosecutor ordered that the investigation be resumed, citing “the necessity of carrying out investigative actions”. He did not indicate which particular actions should be taken. By a decision of the same date an investigator of the Grozny prosecutor’s office took up the case. 50. A decision of 10 December 2001 of the first deputy prosecutor of Grozny ordered that the investigation in criminal case no. 12005 be resumed. It stated, in particular, that “...the investigation ... [had been] extremely superficial and was limited to carrying out several investigative actions and to including in the materials of the case file reports of investigating officers on the performed work and the results”. It went on to say that the decision of 7 July 2000 by which the investigation had been suspended for failure to establish the alleged perpetrator had been premature, before all investigative steps had been taken, and should be quashed. The decision of 10 December 2001 further listed a number of investigative steps that should be taken during an additional investigation. 51. In a letter of 12 December 2001 the Grozny prosecutor’s office informed the applicant in reply to her query that the criminal proceedings had been suspended on 7 July 2001 [apparently a misprint, the correct date is 2000] in the absence of any persons identifiable as the perpetrators. The letter went on to say that a study of the case file had shown the preliminary investigation into the circumstances of the death of the applicant’s husband to have been superficial, and that the proceedings had therefore been resumed on 10 December 2001 and the investigator in charge had been instructed to carry out an additional investigation. 52. By decisions of 14 December 2001 an investigator of the Grozny prosecutor’s office took up case no. 12005 and requested that 14 January 2002 be fixed as the term of the preliminary investigation. 53. On 14 January 2002 the investigator in charge ordered that the proceedings be stayed, as “during the additional investigation it [had been] impossible to establish those responsible”. The decision did not specify whether any investigative steps had been taken, or if so, what they were. 54. By a decision of 21 April 2005 a deputy prosecutor of the Zavodskoy District prosecutor’s office set aside the decision of 14 January 2002 and ordered that the investigation in case no. 12005 be reopened. The decision stated that “the investigation [had been] carried out superficially, haphazardly and unprofessionally” and that “the decision [of 14 January 2002] suspending the preliminary investigation [had been] premature and unfounded, without all the circumstances of the serious crime committed having been studied”. The prosecutor thus ordered that the decision of 14 January 2002 be set aside, given, in particular, the fact that the prosecutor’s instructions of 10 December 2001 had not been complied with. The decision did not list any particular investigative actions to be performed. 55. On 22 April 2005 an investigator of the Zavodskoy District prosecutor’s office took up the case, and on the same date informed the applicant of the reopening of the investigation. 56. By a decision of 22 May 2005 the investigator in charge stayed the investigation on account of the failure to establish the alleged perpetrator. The decision stated that during the additional investigation a query had been sent to the Ministry of the Interior of the Chechen Republic with a view to establishing the alleged perpetrator’s whereabouts, and that, upon receipt of a reply to that query, a request was sent to the Shali district prosecutor’s office with a view to organising interviews with persons having personal details similar to those of the alleged perpetrator. The decision did not indicate whether any other steps had been taken. A letter of the same date informed the applicant of this decision. 57. By a decision of 8 December 2006 a deputy prosecutor of the Zavodskoy district prosecutor’s office ordered that the decision of 22 May 2005 be set aside and the proceedings in case no. 12005 reopened. The decision stated, in particular, that the decision to suspend the investigation had been unfounded and that the investigator in charge had failed to take all measures which could be taken in the absence of a person identifiable as a perpetrator. The decision further listed investigative measures that should be taken during an additional investigation. On the same date an investigator of the Zavodskoy district prosecutor’s office took up the case and informed the applicant of the reopening of the proceedings. 58. A report on the exhumation dated 8 June 2000 contains a detailed description of the site of the burial and the exhumed bodies. 59. In June 2000 (the date is unclear) forensic medical experts drew up reports on the results of the examination. The report drawn up in respect of the body of the applicant’s husband attested the presence of gunshot wounds to the head and neck. 60. On 19 June 2000 the investigator in charge sent a query to the Prosecutor General’s Office in an attempt to find out whether any criminal proceedings had ever been brought against Khazir (Khamed) Ismailov, aged 43, who had been an officer of the security services established by rebel fighters, and if so, to obtain his full personal details and photographs, or in the absence of photographs to have people who might have known him questioned. 61. During an interview of 27 February 2000 the applicant re-stated the circumstances of the incident of 6 January 2000. She described in detail the appearance of Khalid, the man who, according to her, had shot her husband and three other persons. She stated that he was of Chechen origin and, since December 1999, had shared a flat in their block of flats with another man of Chechen origin, who had been their neighbour. Both of them had been armed with machine guns. She further stated that on the night of the incident Khalid had come down to their basement in a drunken state and shot her husband and three others with his machine gun. She had managed to hide in a dark corner of the basement. Immediately after the incident the applicant ran to a neighbouring block of flats where rebel fighters had been quartered and told them about the killing. According to her, they had taken Khalid out of the basement and started beating him with the butts of their machine guns and had promised her that they would commit him for trial. On the following day, with the assistance of her two neighbours, the applicant had buried those killed near their block of flats. On the same day in the courtyard she had seen Khalid armed with a machine gun. 62. One of the neighbours who had helped the applicant with the burial stated in her witness interview of 27 February 2000 that she had learnt about the killing of the applicant’s husband and three others from the applicant. She gave oral evidence similar to that of the applicant and added that during the burial a man who had described himself as the former head of a security service established by rebel fighters had said that he knew Khalid and indicated the approximate vicinity of Khalid’s residence. 63. Transcripts of witness interviews held on 20 and 21 May 2005 reveal that the investigating authorities questioned three persons who were born in 1966, 1971 and 1983 and had the surname Ismailov and the first names of Khalid or Khazir. All of them stated that they had not been in Grozny during the period in question, did not know the man described by the applicant, and had no information regarding the incident of 6 January 2000. 64. Transcripts of witness interviews on 8 and 9 December 2006 reveal that the investigating authorities questioned six persons, apparently the applicant’s neighbours. They all stated that they did not know, and had no information about, the man described by the investigators. 65. The Government also adduced the transcript of a hearing held by the Leninskiy District Court of Stavropol on 3 December 2001. According to this document, both the applicant and her legal counsel, Mr V. Tretyakov, attended the hearing. It is clear from this document that both parties to the proceedings received explanations in respect of their rights and obligations, in particular, those established by Article 50 of the Code of Civil Procedure (see paragraph 67 below). The transcript further reveals that the court heard both parties, the applicant having made statements similar to her written submissions to the court, and then four witnesses, who described the belongings that had been in the applicant’s flat prior to the destruction. The witnesses did not indicate the value of that property. As can be seen from the document, neither the applicant nor her representative had any questions, nor filed any motions. It is also clear that the court examined the following pieces of evidence: a copy of the marriage certificate, a copy of the passport, a housing warrant, a copy of the death certificate, an extract from a medical history card, two certificates, two letters, a copy of an identity document, parties’ written submissions, and summons. 66. Article 109 of the Code of Criminal Procedure of 1960 in force at the relevant time provided that the competent authorities were under an obligation to take a decision in respect of any written or oral complaint concerning a criminal offence within three days, or in exceptional cases ten days, from the date on which the complaint was received. 67. Article 50 of the Code of Civil Procedure of 1964 in force at the relevant time stated that each party to proceedings must prove those circumstances to which it refers in support of its submissions. A court decides what circumstances are relevant for the case and which party must prove them and proposes those circumstances for discussion even if some of them have not been referred to by any of the parties. Evidence is submitted by the parties and other persons involved in the proceedings. A court may propose that the parties or other persons involved in the proceedings submit additional evidence. If it is complicated for the parties or other persons involved in the proceedings to submit additional evidence, the court, on their request, assists them in obtaining that evidence. 68. Section 9 of the Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit. 69. Under Section 13, enforcement proceedings should be completed within two months following receipt of the writ of enforcement by the bailiff.