DIBIROVA v. RUSSIA
Inadmissible
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
The applicant, Mrs Khanipat Dibirova, is a Russian national who was born in 1937 and lives in Alkhazurovo, Chechen Republic (Chechnya). She was represented before the Court by Ms L.A. Khamzayeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The facts of the attack at the applicant’s house are disputed by the parties. According to the applicant, on 16 July 2002 federal forces carried out an air strike on Alkhazurovo village. A missile hit the applicant’s house at 56 Voroshilova Street, completely destroying it and causing injuries to the applicant. The applicant submitted that her grandson was also wounded. The applicant submitted two undated notes which, according to her, had been issued by the Urus-Martan district hospital (the signatures and stamps are unreadable and the notes do not have letterheads). The note in respect of the applicant states that she had presented herself at the hospital “after the air strike of 16 July 2002” and had been diagnosed with splinter wounds to her left shoulder, body and legs. On 17 July 2002 an expert from the State construction company and the applicant co-signed a damage certificate (дефектный акт). The certificate described the damage to the house situated at 56 Voroshilova Street in Alkhazurovo caused by flooding on 22-23 June 2002. It estimated the destruction of the three-room house built of sun-dried bricks with metal roofing at 80-100 %. It indicated the size of the house at 65 square metres (two premises, of 40 and 25 sq m), plus a covered part of the yard with an area of 54 square metres. On 30 January 2003 the Urus-Martan district administration issued a note to the effect that the applicant’s household was situated at 56 Voroshilova Street in Alkhazurovo. The household measured 232 sq. m, including 100 sq. m of habitable space, and had been entirely destroyed on 16 July 2002 as a result of a direct hit by an aviation bomb. The Government submitted that no air strike had been carried out on Alkhazurovo on 16 July 2002. They conceded that an air strike had been carried out in July 2002 on a target in the vicinity of Alkhazurovo, but argued that the circumstances of the attack on the applicant’s house had not been established. On 29 April 2009 the Commander in Chief of the Ground Forces of the Ministry of Defence wrote to the Representative of the Russian Federation at the Court and informed him that there were no documents to confirm the carrying out of a special operation by the army or the deployment of aircraft on 16 July 2002 in Alkhazurovo. At the same time, the Government referred to the copy of the expert report, which had concluded that the fragments collected at the applicant’s house had belonged to a 100-mm artillery shell (see below). They argued that this shell could have been launched either by the military or by illegal armed groups active in the district. On 17 July 2002 the Urus-Martan District prosecutor’s office opened a criminal investigation in respect of deliberate destruction of property. On 18 September 2002 the investigation was suspended as no suspects had been identified. On 22 October 2002 the prosecutor’s office informed the applicant that the case would be transferred to a military prosecutor, as the alleged offence had been committed by military forces. On 24 October 2002 the prosecutor’s office of the North Caucasus Military Circuit transferred the applicant’s case to the military prosecutor’s office of the United Group Alignment. On 18 November 2002 the latter informed the applicant that her complaint had been forwarded to the military prosecutor’s office of military unit no. 20102. On 31 January 2003 a prosecutor of the unit wrote to the applicant that on 16 July 2002 federal air forces had attacked a fighters’ base situated two and a half kilometres to the south of Alkhazurovo. The attack had been carried out by military aircraft based in Yeysk [Krasnodar region]. The navigation system used by the air forces allowed a margin of error of up to two kilometres. On 26 February 2003 the prosecutor’s office of the Chechen Republic informed the applicant that on 21 February 2003 they had set aside the decision of 18 September 2002 to suspend the investigation. They further noted that they had sent the case to the Urus-Martan District prosecutor’s office and had ordered it to carry out a number of investigative measures, in particular to interview the applicant, to grant her the status of victim and civil claimant, and to assess the pecuniary damage inflicted. In their observations of 20 January 2010 the Government referred to the statements made by the applicant given on 15 April 2003 and submitted that she had been accorded victim status on the same day. According to the Government, during the questioning the applicant stated that she had learnt from other villagers that her house had been destroyed by a bomb. No transcript of this statement or of the decision to accord victim status has been provided. On 6 May 2003 the Forensic Science Centre of the Ministry of the Interior of Chechnya (Экспертно-криминалистический центр МВД Чеченской Республики) produced an expert report in respect of over 200 pieces of metal collected at the applicant’s house. The report concluded that the fragments were parts of 100-mm artillery shells, fired from a gun of the same calibre. The Government informed the Court that the investigation into the attack had been adjourned and reopened on several occasions and that the latest decision to adjourn the proceedings had been taken on 5 June 2004. They submitted that the applicant had been informed of all the relevant decisions taken in the case but had failed to submit any complaints or requests, and had not asked for access to the file. No documents related to the investigation after 6 May 2003 had been submitted by the parties. On 21 April 2003 two of the applicant’s neighbours drew up a list of belongings which on 16 July 2002 had been destroyed by a missile which struck her house at 56 Voroshilova Street. The list was co-signed by the head of the local municipality. On 28 April 2003 the applicant brought an action for damages against the Russian Government. Neither the applicant nor the Government submitted any documents related to these proceedings; however they described their progress in the following manner. On 21 July 2003 the applicant’s lawyer obtained information from the State Committee on Statistics about the average price of one square metre of residential property in the Russian Federation during 2002 and the first and second quarters of 2003. On several occasions between 6 November 2003 and 21 April 2004 the hearings at the Basmanny District Court of Moscow were adjourned due to the applicant’s failure to appear. On 29 June 2004 the court rejected the applicant’s claim. The hearing took place in the applicant’s absence, at her request. The applicant did not appeal against this decision. The Government stated that a copy of the decision had been sent to the applicant’s representative on 8 September 2004. The applicant stated that she had not received a copy of the said decision, and that her previous representative, Mr Khamzayev, had died on 13 June 2004. It does not appear that she had taken any steps to obtain a copy of the decision at any stage, to appeal against it or to seek reinstatements of the terms of appeal. The Government submitted in their observations of 17 February 2010 that the applicant had obtained compensation for the property lost as a result of the attack. Without providing copies of any documents or indicating the dates on which these events had taken place, they submitted that the assessment carried out by the local State construction company had estimated the applicant’s losses to the house and property at 337,236 Russian roubles (RUB). Under the procedure provided for by Government Decree No. 404 (see Relevant national law below), the applicant had been paid compensation of RUB 300,000 for the lost real estate and RUB 50,000 for personal belongings. The applicant submitted a copy of the assessment report of unclear date produced by the State construction company, which calculated damages to the house and property at 56 Voroshilova Street at RUB 337,236. She did not comment on the issue of compensation apparently paid to her on the basis of this assessment. The Federal Law on Suppression of Terrorism of 25 July 1998 (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом» – “the Suppression of Terrorism Act”), as in force at the relevant time, provided as follows: “For the purposes of the present Federal Law the following basic concepts shall be applied: ... ‘suppression of terrorism’ shall refer to activities aimed at the prevention, detection, suppression and minimisation of consequences of terrorist activities; ‘counter-terrorist operation’ shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts; ‘zone of a counter-terrorist operation’ shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...” “On the basis of the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally protected interests, in the course of a counter-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.” Governmental Decree no. 404 of 4 July 2003 established the right of all permanent residents of the Chechen Republic who had lost their homes and any possessions in them after 12 December 1994 to receive compensation in the amount of RUB 300,000 for their home and RUB 50,000 for possessions.