CASE OF ABDULKHADZHIYEVA AND ABDULKHADZHIYEV v. RUSSIA
Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+2-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2-1 - Life;Effective investigation;Article 2 - Right to life);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
5. The applicants were born in 1953 and 1957 respectively and live in the village of Savelyevskaya, in the Naurskiy District of the Chechen Republic. The second applicant is the first applicant’s brother-in-law. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. At the material time, a counterterrorist campaign – involving intense military clashes between federal troops and local rebels – was taking place in the Chechen Republic. The law-enforcement bodies and the courts were not functioning. Upon the arrival of the military in Savelyevskaya, the local residents did not flee but remained in their homes. The village and the area around it were under the control of federal troops that were stationed in the vicinity. 8. At the beginning of October 1999 the outskirts of the village came under artillery fire, which forced the residents to seek the military’s permission to evacuate their cattle. 9. After permission to evacuate the cattle was obtained, on 8 October 1999 (in the documents submitted the date was also referred to as 8 October 2000), at around noon, the applicants and their neighbours, Mr R.M. and Mr M.R., arrived at the agreed spot at a copse of trees next to Savelyevskaya and approached the Russian federal servicemen who were stationed in the vicinity. The servicemen agreed to let them pass through to the field where their cattle were pastured to retrieve them. However, after the applicants, Mr R.M. and Mr M.R., had walked about several dozen metres away in the direction of the pasture, the servicemen opened fire on them. As a result, both applicants received wounds to the upper extremities (верхние конечности) and fell on the ground. Having witnessed the attack, a civilian, Mr D., tried to approach the servicemen, but was shot dead in the presence of the applicants and Mr M.R. Meanwhile, Mr R.M. managed to crawl away and inform the local authorities about the incident. 10. Both applicants and Mr M.R. remained on the ground for several hours; each time they tried to get up they were subjected to gunfire. Then three military servicemen approached, blindfolded them and took them to the premises of military unit no. 54262. In the meantime, after Mr R.M. informed the authorities of the incident, the head of the local administration, Mr Kh.S., arrived at the military unit, spoke to the servicemen and had the detainees released. As a result of the injuries she had sustained during the attack the first applicant was left with a permanent disability of the third degree. 11. The applicants’ cattle remained under the control of the servicemen and were never returned. According to the first applicant, as a result of the incident she lost sixteen head of cattle and the second applicant four head of cattle. In November 1999, after military unit no. 54262 had changed its stationing location from the vicinity of Savelyevskaya to a site elsewhere, the applicants and their relatives found the remains of seven cows whose meat had been consumed by the military unit; nine head of cattle were missing completely. 12. In July 2000, as soon as the local law-enforcement bodies had begun functioning again in their district, the applicants lodged an official complaint in respect of the events of 8 October 1999 with the local police (see paragraph 15 below). Towards September 2000 the law-enforcement bodies in other parts of Chechnya started to function again. 13. In support of their account of the events of 8 October 1999 the applicants furnished the Court with statements from witnesses Mr M.R. and Mr R.M., both dated 10 July 2008. 14. The Government did not contest the applicants’ account of the attack against them on 8 October 1999 and the loss of their cattle, but stressed that the perpetrators had not been identified. In their observations on the admissibility and merits of the application of 9 April 2012, they stated, in particular, the following: “... the damage to the applicants’ health occurred as a result of unidentified persons opening fire on them on 8 October 1999 in the village of Savelyevskaya in the Naurskiy District. After the shooting the unidentified persons stole cattle belonging to the applicants ...” 15. On 17 July 2000 the first applicant complained in writing of the infliction of bodily injuries and the theft of her livestock to the Naurskiy district temporary department of the interior (Наурский Временный Отдел Внутренних Дел) (hereinafter “the Naurskiy VOVD”). 16. In her complaint she described the circumstances of the attack and stated, in particular, that she had been wounded by military servicemen, who had then blindfolded her and taken her and two other men to the premises of their military unit. She further stated that after her release the cattle had remained in the hands of the military and that all her efforts to recover them had been to no avail. 17. On 20 July 2000 the investigators questioned the first applicant, who stated that on 8 October 1999 she, the second applicant and Mr M.R. had gone to the pasture where cattle had been grazing, including a number of cows belonging to her. On the way there, at around noon, she had seen one of her cows lying shot and dying on the ground. The first applicant had approached her cow, but had been stopped by a group of military servicemen in light-coloured camouflage uniform, armed with machine guns, standing next to an armoured personnel carrier (hereinafter “the APC”). The first applicant had asked for their permission to drive the cattle home; one of the servicemen had gone to the APC and spoken to someone on the radio. After that he had returned and said that the applicants and Mr M.R. could proceed and collect their cattle. The applicant had walked just several metres away when she and her two companions had been subjected to gunfire, as a result of which she had been wounded in the left arm and the second applicant in the right arm. They had fallen to the ground and stayed there for about three to five hours; each time they had tried to get up, shots had been fired in their direction. Then three military servicemen had approached them, ordered them to put their hands behind their heads, blindfolded them and taken them in the APC to the premises of military unit no. 54262. The applicant provided the investigators with a detailed description of those three servicemen’s appearance. At the military unit the applicants had been given medical assistance. The applicant had asked the unit commander to drive her cattle over to pasture land lying closer to the village. The commander had promised to do that but he had not kept his promise and her cattle had gone missing. Then the head of the village administration had arrived and taken the applicants and Mr M.R. home. The applicant provided the investigators with a detailed description of the unit commander. She further stated that after the military unit had left the place where it had been stationed, she had gone to the field and found an envelope with the address of one of the servicemen who had been stationed there and that she still had the envelope and could provide it to the investigators. Subsequently the unit commander, Vadim, had visited her at home with a nurse to assist with the treatment of her wounded arm. Between August 1999 and February 2000 the applicant had not been able to seek official medical assistance, as hospitals in Chechnya had not been functioning. In February 2000, when the local hospital had resumed its activities, she had gone there and sought medical assistance for her wounded arm; she had stayed in the hospital for one month but had been left with a disability. 18. On 20 July 2000 the investigators questioned the second applicant and Mr M.R., both of whom stated that on 8 October 1999 they and the first applicant had gone out to drive their cattle home. On their way to the pasture they had met military servicemen who had given them permission to take their cattle home. However, after they and the applicant had then walked a dozen metres away from the servicemen the latter had opened fire. The first applicant had fallen to the ground, bleeding. Then the second applicant and Mr M.R. had screamed, asking the servicemen to stop firing, but to no avail. As a result, the second applicant had been shot in the upper extremities. Then they had fallen to the ground and after several hours had been found by the servicemen and taken to the military unit. 19. On 12 October 2000 the Naurskiy VOVD opened criminal case no. 30471 on account of the infliction of minor bodily injuries on the applicants (Article 112 § 2 of the Criminal Code). The decision stated: “... on 8 October 1999 during the day unidentified persons intentionally inflicted bodily injuries on [the applicants] ...” 20. On 20 October 2000 the investigators granted the first applicant victim status in the criminal case and questioned her again. She reiterated her earlier statement (see paragraph 17 above) and added that the unit commander’s name had been Vadim and that he had had the rank of lieutenant-colonel. She also provided a detailed description of her disappeared cattle and reiterated that as a result of the incident she had lost sixteen cows. 21. On 20 October 2000 the investigators seized the envelope found by the applicant on the former premises of the military unit (see paragraph 17 above). 22. On 23 October 2000 the investigators granted the second applicant victim status in the criminal case and questioned him again. His statement was similar to that of the first applicant (see paragraph 17 above). In addition, he stated that after the servicemen had taken him, the first applicant and Mr M.R. to the military unit’s premises, they had provided him with medical assistance for his wounded arm and that the unit commander, a lieutenant-colonel named Vadim, had given him his apologies for his soldiers’ actions. Subsequently, the officer had visited him at home with a nurse to assist with the treatment of his wounds, as the local hospitals had not been functioning at that time. The second applicant also provided the investigators with a detailed description of his four cows, which had disappeared as a result of the incident. 23. On 24 October 2000 the investigators granted Mr M.R. victim status in the criminal case and questioned him. His statement concerning the incident was similar to the ones given by the applicants (see paragraphs 17 and 18 above). In addition, he provided a detailed description of the three servicemen who had approached him and the applicants after the shooting. He also stated that the commander’s name had been Vadim and that his military rank had been that of lieutenant-colonel. Two days after the events, on 10 October 1999, he had gone to the place of the incident and found the corpses of two of his cows, which had been shot. Two other cows had gone missing. 24. On 24 October 2000 the investigators questioned two of the first applicant’s neighbours, Ms S.G. and Ms P.Kh., both of whom stated that they had not witnessed the incident in October 1999, but that they had been told that the first and second applicants had been shot and wounded by the military servicemen and one man had been shot dead by them and that as a result of the incident the applicants’ cattle had been lost. 25. On 30 October 2000 an expert examination ordered by the investigator took place; the examination identified the scars on the first applicant’s left forearm as likely to have resulted from a perforating firearms wound in the circumstances described by her and categorised them as bodily harm of “medium gravity”. 26. On the same day, 30 October 2000, the second applicant was also examined by the expert. The examination identified the scars on his right forearm and the fingers of the left hand as likely to have resulted from perforating firearms wounds and categorised them as bodily harm of “minor gravity”. 27. On 20 and 23 October 2000 respectively both applicants were granted victim status in the criminal case. The relevant decisions stated, amongst other things, that: “... on 8 October 1999 unidentified persons ... inflicted bodily injuries on [the applicants] and stole [their] cattle ...” 28. Two months later, on 12 December 2000, the investigation was suspended for failure to identify the perpetrators. The applicants were not informed of that suspension. 29. On an unspecified date between January 2001 and May 2005 the first applicant complained to a supervising prosecutor about the delays in the investigation. On 29 July 2005 the Naurskiy VOVD replied to the complaint, stating that the investigation had been suspended for failure to identify the perpetrators. 30. On an unspecified date in 2005, the first applicant also lodged an official complaint about his lack of access to the investigation file. On 28 December 2005 the Naurskiy district prosecutor’s office (hereinafter “the district prosecutor’s office”) replied to her, stating that she could access the file only upon the completion of the criminal investigation. 31. In 2005 the first applicant lodged several complaints about the delays in the investigation with the Prosecutor General’s office, which forwarded them to the district prosecutor’s office. The complaints remained unanswered. 32. It appears that as a result of the first applicant’s complaints, the investigation was resumed on 18 January 2006 and the applicants were informed accordingly. 33. On 28 January 2006 the investigators examined the envelope seized from the first applicant (see paragraph 21 above). As a result, the name and the address of officer B. (to whom it had been sent at an address in the town of Kostroma) were established. 34. On 6 February 2006 the investigators examined the crime scene in the vicinity of the village of Savelyevskaya. No evidence was collected. 35. On 20 February 2006 the investigators again questioned the first applicant, whose statement was similar to the ones she had given previously (see paragraphs 17 and 20 above). 36. On 22 February 2006 the investigators questioned the second applicant, who reiterated his earlier statements (see paragraphs 18 and 22 above). In addition, he stated that the body of the man who had been shot dead during the incident had been recovered by the villagers about a week after the events and buried shortly afterwards. 37. On 22 February 2006 the investigators questioned Mr Z. Kh., who stated that in October 1999 he had assisted in negotiating the applicants’ and Mr M.R’s release from the premises of the military unit. Mr Z. Kh. stated that he did not know what military unit it was. 38. On 22 February 2006 the investigators questioned Mr Kh.S., who stated that since 1999 he had been the head of the local administration. His statement was similar to those given by the applicants. In addition, he stated that the commander of the military unit had promised to drive the cattle back to the village, but that this had not happened. 39. On 22 February 2006 the investigators again questioned Mr M.R., whose statement was similar to the ones he had previously given (see paragraphs 18 and 23 above). 40. On 26 February 2006 the investigators terminated the investigation of criminal case no. 30471 because of the expiry of the time-limits for prosecution under Articles 78 and 112 of the Criminal Code. 41. On the same date (26 February 2006) the investigators refused (in the light of the expiry of the time-limit) to initiate a new criminal investigation into the injuries sustained by the applicants on 8 October 1999. 42. On 17 March 2006 investigators in Kostroma questioned officer B., who stated that in October 1999 he had been serving in military unit no. 54262, which had been stationed in the Naurskiy District, Chechnya. He had no information concerning the attack on the applicants and had no idea who had been the commander of the military unit at the material time. Officer B. stated that in December 2000 (while he had been in Chechnya) he had been questioned about the incident, but he could not remember by whom and under what circumstances. 43. On 26 April 2008 the head of the Naurskiy VOVD overruled the decision to terminate the criminal investigation as unsubstantiated and premature and ordered that the proceedings be reopened and the case file be transferred to another law-enforcement body, in accordance with the rules of jurisdiction. The reasoning for the decision stated, inter alia, the following: “... The investigation established that an unidentified person had opened fire and wounded in the arm [the first and the second applicants], causing them medium and minor gravity bodily harm, respectively [...] ... it was also established that unidentified persons had committed the theft of sixteen cows belonging to [the applicants] and of two cows belonging to Mr M.R. On 26 February 2006 the investigation of the criminal case was terminated for failure to identify the perpetrators. The examination of the contents of the criminal case file demonstrated that the victims [the applicants] had been shot at with firearms, from a distance ... and the location of their wounds showed that life-threatening damage could have been caused to them ... In addition, according to the information in the case file, Mr D. had been shot and killed on the spot in [the applicants’] presence. In the light of the above, the investigation of the criminal case failed to establish in full whether an attempt on the lives of [the applicants] had been made by the unidentified persons who [were responsible for] their gunshot wounds ...” 44. On 29 April 2008 the re-opened criminal case file no. 30471 was forwarded to the Naurskiy Inter-district Investigations Department of the Chechnya Prosecutor’s office (hereinafter “the investigations department”) for investigation. 45. On 7 May 2008 the investigations department refused to institute criminal proceedings, noting that: “... [the applicants] had been injured in non-vital parts of their bodies, which was confirmed by expert examinations. Therefore, there are no grounds for thinking that the alleged perpetrators intended to commit ... ‘attempted murder’,.. as argued by [the applicants] ...” The decision did not mention anything about the applicants’ cattle. 46. On 14 May 2008 the investigations department adopted a decision terminating the investigation in criminal case no. 30741 because of the expiry of the time-limits for prosecution. 47. From the documents submitted it appears that on 10 July 2008 the supervising prosecutor overruled the above decision to terminate the criminal investigation as unsubstantiated and premature. 48. On 14 March 2012 the deputy Chechnya district prosecutor overturned the investigations department’s decision of 7 May 2008 to refuse to open a criminal case (see paragraph 45 above) as unlawful and unsubstantiated. The applicants were informed thereof. 49. On the same date (14 March 2012) the deputy Chechnya prosecutor also ordered that the criminal case file be sent to the Chechnya Investigations Committee for further investigation. The decision criticised the investigators’ failure to take basic steps and stated, amongst other things, the following: “... at the same time, the investigation established that the shooting had been aimed at them [the applicants, Mr M.R., Mr R.M. and Mr D.] and had been carried out with automatic firearms simultaneously, from the same place next to the forest; as a result [the applicants] had received gunshot wounds of varying gravity and [Mr D.] had been shot dead. Therefore, the above information provides grounds for concluding unequivocally that the unidentified person had the clear intention of killing [the applicants and Mr D.]; ... thus, the actions of the unidentified person should be deemed to constitute murder under parts 1 and 2 (subparagraph “a”) of Article 105 of the Russian Criminal Code, and the case file in respect of criminal case no. 30471 should be transferred to the Chechnya Investigations Committee for investigation and joined with criminal case no. 60012 [concerning the killing of Mr D.]. In addition, up until the present, no request for information concerning the exact place where military unit no. 546262 was stationed has been sent. Neither has any request for information concerning the possible stationing of a military unit next to Savelyevskaya in the Naurskiy District been forwarded. The military commander of the Naurskiy District, officer A.S. Kalugin, has not been questioned about the circumstances of the incident.” 50. As can be seen from the documents submitted, the investigation is still pending. 51. On 12 April 2008 the first applicant lodged a complaint before the Naurskiy District Court (hereinafter “the District Court”) challenging the decision of 26 February 2006 to terminate the investigation. She argued, inter alia, that she had been both the target of an attempted murder and a victim of theft and asked for the case to be transferred to the Military Prosecutor’s Office for a proper investigation. 52. On 26 April 2008, shortly before the scheduled start of the first-instance court hearing (see paragraph 43 above), the prosecutor quashed the decision of 26 February 2006 and as a result, by a decision of 28 April 2008 the District Court rejected the first applicant’s complaint as groundless. 53. On 19 June 2008 each applicant lodged a complaint before the District Court challenging the investigations department’s refusal of 7 May 2008 to initiate a criminal investigation. 54. On 10 July 2008 the District Court rejected the complaints, as the impugned decision had already been quashed earlier on the same date (see paragraph 47 above). 55. On an unspecified date between January and March 2009 the applicants lodged a complaint before the District Court about the defects in the investigation and the investigators’ failure to act with expedition. 56. On 8 April 2009 the District Court examined and partly rejected their complaint. It ruled that the investigators could only be criticised for their failure to inform the applicants in a timely manner about the procedural decisions in the criminal case. The decision stated, among other things, the following: “... the court has no legal rights to impose obligations on the investigation bodies concerning the order and direction of the conduct of the investigation. ... The complaint should be allowed only in part and only in so far as the investigator ... failed to inform [the applicants] in a timely manner about the decisions taken in the case ...”. 57. On 13 May 2009 this decision was upheld by the Supreme Court of the Chechen Republic on appeal.