CASE OF NAKAYEV v. RUSSIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);No violation of Art. 2 (substantive aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
5. The applicant was born in 1979 and lives in Urus-Martan, Chechnya. 6. In 1999 the Russian Government launched a counter-terrorist operation in Chechnya. 7. In the autumn of 1999, because of the armed clashes, the applicant and his family moved temporarily to the house of their relative, Mr S. Kh., at 9 Trudovaya Street, Martan-Chu, in Urus-Martan district. The village administration recorded the applicant as an internally displaced person. 8. According to the applicant, on 4 December 1999 between 11 a.m. and 12 noon advancing Russian federal forces subjected the area around MartanChu to indiscriminate shelling. He submitted that the army had used “Grad” (“Град”) or “Uragan” (“Ураган”), multiple rocket launch systems, which were stationed about ten kilometres from the village. Several projectiles hit the village. One of them landed in the yard of Mr S. Kh. and hit a car which was parked there. The applicant was standing next to the car and received numerous splinter wounds, including to the head. According to the applicant’s submissions made to the Court, in June 2005 a part of the projectile which had wounded the applicant remained in Mr S. Kh.’s yard. 9. On 19 December 1999 the administration of Martan-Chu issued a paper which stated that the applicant and his cousin had been wounded as a result of the bombardment of the village on 4 December 1999 and that on the same date they had been taken to the hospital in Novyie Atagi, in Grozny district. 10. As a result of the wounding the applicant’s health deteriorated; he had become unable to work, which was recognised in 2001 by a forensic examination as second-degree disability. He receives a monthly disability pension. 11. According to the submitted documents, the applicant underwent several rounds of treatment in connection with his injuries. Between 4 and 21 December 1999 the applicant was in Novyie Atagi hospital. On 2 February 2000 a splinter was removed from his head. Between 2 and 29 August 2001 the applicant received post-operative treatment. 12. On 2 November 2004 the Urus-Martan district hospital summarised the state of the applicant’s health. According to the document, the applicant’s health had been monitored by the hospital since 2000; he required constant rehabilitation therapy. 13. Between 25 and 29 April 2008 the applicant was examined by the experts of the Chechnya Bureau of Forensic Expertise. According to their evaluation, the applicant had a penetrating wound to the right part of the frontal lobe with damage to the brain; such a wound could have been caused by a shell splinter and was qualified as serious damage to the applicant’s health. 14. On 11 March 2002 the applicant’s mother wrote to the Russian Ombudsman and asked for assistance in relation to the applicant’s situation. She indicated that her son had been injured on 4 December 1999 as a result of the shelling of Martan-Chu and that the family had been bearing the costs of complex medical interventions. 15. On 28 May 2003 the applicant’s mother informed the UrusMartan district prosecutor’s office (“the district prosecutor’s office”) about the applicant’s injury received during the bombardment on 4 December 1999. She alleged that the shelling of the village had been carried out by the servicemen of the “245th regiment”. 16. On 14 August 2003 the applicant’s mother complained about the applicant’s injuries to the Urus-Martan district police department (“the ROVD”) and requested the authorities to institute a criminal investigation into the events. 17. On 16 September 2003 the ROVD refused to institute criminal proceedings in connection with the applicant’s wounding on 4 December 1999. The decision stated that the authorities had conducted an inquiry, which had established the following: a number of armed clashes, including exchanges of gunfire, had taken place between Russian forces and illegal armed groups in the area of the applicant’s residence in 1999. As a result of the bombardment of Martan-Chu the applicant was injured, which had been confirmed by the witness statements of Ms R. N., Mr R. Kh. and Mr B. The projectile, which had hit the yard of Mr S. Kh. and wounded the applicant, had been launched by one of the parties to the conflict. However, it was impossible to establish which party had launched the projectile. Thus, taking into consideration that the applicant had been injured as a result of an accident, the request for the institution of criminal proceedings was to be rejected pursuant to Article 24 § 1 (2) of the Criminal Procedure Code owing to the lack of corpus delicti. 18. On 16 September 2003 the ROVD informed the applicant about their decision concerning the refusal to institute criminal proceedings. 19. On 15 April 2004 the applicant brought proceedings against the Ministry of Finance. The applicant stated that as a result of the wounding on 4 December 1999 he had become incapacitated and unfit for work. He demanded compensation for pecuniary damage in the amount of 184,256 Russian roubles (RUB) and non-pecuniary damage in the amount of RUB 1,500,000. 20. In response to the applicant’s specific request, on 19 November 2004 the Martan-Chu administration issued a note that they “had no information about unprovoked artillery and air strikes” on the village, except for the air strikes which had occurred on 5 December 1999 and hit the households of Mr L.I. and Mr S.E. 21. On 2 December 2004 Urus-Martan Town Court (“the town court”) rejected the applicant’s claim. It stated that although as a result of the shelling on 4 December 1999 the applicant had been wounded and became partially incapacitated, he had failed to provide sufficient evidence which would allow the court to establish a causal link between the actions of the artillery of the Russian armed forces and the damage alleged by the applicant. In its ruling the court referred to the decision of 16 September 2003 to refuse criminal proceedings. 22. On 8 December 2004 the Martan-Chu administration issued a note to confirm that both on 4 and 5 December 1999 the village had been subjected to indiscriminate bombardment from the direction of the advancing Russian forces. On 4 December 1999 one of the projectiles had hit Mr S. Kh.’s yard and had destroyed his property, as confirmed by an official evaluation of damages and by witness statements. The shelling was also confirmed by the villagers’ statements. At the relevant time the applicant had been registered as an internally displaced person, was living with his relatives in MartanChu and had become partially incapacitated as a result of the injury received on 4 December 1999. 23. The applicant appealed against the judgment of 2 December 2004 alleging that the town court had been partial and had failed to assess the evidence properly. 24. On 28 December 2004 the Chechnya Supreme Court upheld the judgment. It found that the applicant’s appeal concerned reassessment of the evidence examined by the first-instance court and confirmed that the applicant had failed to substantiate his allegations with appropriate evidence. The Supreme Court also pointed out that the applicant had failed to appeal against the authorities’ refusal to institute criminal proceedings on 16 September 2003, and emphasised that that decision was still valid and therefore had served legitimately as the basis for the court’s findings. 25. On 28 January 2005 the applicant asked the town court to set aside the ROVD decision not to institute criminal proceedings and to oblige the authorities to open a criminal investigation into his injuries. 26. On 18 February 2005 the town court allowed the applicant’s complaint and quashed the decision of 16 September 2003. The court stated that the police had failed to carry out basic investigative measures such as the examination of the crime scene, collection of evidence and forensic assessment of the applicant’s health. 27. On 29 May 2006 the applicant wrote to the ROVD and referred to the court decision of 18 February 2005. He asked about the latest developments in the case. 28. On 15 June 2006 the ROVD referred to their previous decision of 16 September 2003 not to institute criminal proceedings. 29. On 4 April 2008 the applicant again wrote to the ROVD and referred to the town court decision of 18 February 2005. 30. On 21 April 2008 the district prosecutor’s office remitted inquiry file no. 1159/809 opened in connection with the applicant’s complaint to the ROVD for additional examination and decision on the merits. Following this development, the ROVD carried out a number of investigative measures. 31. The Government, in response to the Court’s request, submitted thirty-five pages from the investigation file dated between April and July 2008. They argued that the remaining documents (no list or number of which has been provided) could not be disclosed, in the absence of guarantees by the Court to protect the data containing State secrets. Referring to Article 161 of the Criminal Procedural Code, the Government stated that the remaining documents could not be divulged without harming the interests of the investigation and the interests of the participants to the proceedings. The submitted documents and the parties’ submissions may be summarised as follows. 32. On 23 April 2008 the investigator examined Mr S.Kh.’s household and noted marks of shrapnel on some walls. Nothing of relevance to the investigation was collected. 33. According to the Government’s submissions, in April 2008 the local police in Martan-Chu had questioned two neighbours and the applicant’s cousin, who confirmed the circumstances in which the applicant was wounded on 4 December 1999. The police also questioned Mr M., who at the relevant time had headed the local administration in Martan-Chu. He corroborated the applicant’s submissions and testified that he had inspected Mr S.Kh.’s household shortly after the explosion and recorded the destruction. None of these statements were made available to the Court. 34. The police also obtained copies of the applicant’s medical file from the Achkhoy-Martan hospital. 35. According to the documents submitted, Mr S.Kh. died in May 2004. 36. The criminal investigation file was eventually opened by the ROVD on 2 May 2008 under Article 111 part 2 of the Criminal Code – causing of serious injuries by universally dangerous means. 37. The applicant was questioned on 23 April and 18 June 2008 (only the record of the latter has been submitted to the Court). He explained that on 4 December 1999 at about noon he and his cousin had been wounded as a result of a shell exploding in the courtyard of Mr S. Kh.’s house. 38. On 13 May 2008 the Chechnya Bureau of Forensic Expertise concluded that the applicant’s injuries could have been caused by a piece of shrapnel and that they constituted grievous bodily harm. 39. On 18 June 2008 the applicant was accorded the status of a crime victim in the proceedings. 40. On 18 June 2008 the applicant’s mother was questioned. She gave similar account about the applicant’s wounding and about the treatment he had to undergo. She indicated that she was not aware who exactly had shelled the village, but she had heard that these were troops headed by General Shamanov. 41. On 26 June 2008 the applicant sought an award of RUB 1,500,000 in compensation for damage to his health against the perpetrators of the crime. On the same day the investigator accorded the applicant the status of a civil claimant. 42. On 2 July 2008 the investigation was adjourned for failure to identify the culprits. The decision stated that in order to identify the persons who had committed the crime the investigator had sent a number of requests for information to the various bodies of the Ministry of Defence and the Ministry of the Interior. Nothing of relevance to the investigation was obtained. No copies of any such requests or answers have been submitted to the Court. 43. On 5 November 2008 the investigative department of the Ministry of the Interior of Chechnya ordered that the investigation be resumed. The reason for the decision was that unspecified investigative measures had not been taken. 44. In February 2009 the applicant collected additional statements from his cousin, two neighbours and his mother and submitted them to the Court. These detailed statements concern the shelling and subsequent developments. In particular, the applicant’s cousin stated that the attack had been carried out from the north and with the use of multiple-launch rocket systems. He further stated that for several years after the event parts of the “Grad” rockets could be found in the village and described the one found in their courtyard. He alleged that on 4 December 1999 twenty-eight rockets (“Grad” is designed to launch forty projectiles) had hit the village and listed other households and places where the explosions had taken place. He alleged that in early December 2008 an investigator had collected one part of the projectile from the village for an expert evaluation. The applicant’s mother alleged that the investigator had informed her on the telephone that the expert report had identified the metal object collected in autumn 2008 in Martan-Chu as the tail part of the “Grad” missile. It appears that the investigation is still pending.