AS TO THE ADMISSIBILITY OF
Application no. 30651/05
by Yuriy KHOLODOV and Zoya KHOLODOVA
The European Court of Human Rights (First Section), sitting on 14 September 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 19 August 2005,
Having deliberated, decides as follows:
The applicant, Mr Yuriy Viktorovich Kholodov and Mrs Zoya Aleksandrovna Kholodova, are Russian nationals who were both born in 1937 and live in Moscow. They were represented before the Court by Ms K. Moskalenko and Mr M. Rachkovskiy, lawyers practising in Moscow.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are the parents of Mr Dmitriy Yurievich Kholodov, a journalist writing for the Moskovskiy Komsomolets newspaper, who was killed in his office on 17 October 1994 by a bomb explosion.
On 6 March 1995 the applicants were granted the victim status in the criminal case concerning their son’s assassination.
The investigation charged five officers of the Russian Army and one civilian with intentional murder of Mr D. Kholodov. It was alleged that the plot had been designed to put an end to Mr Kholodov’s publications about corruption in the Russian Army. The newspaper and another wounded journalist, but not the applicants, constituted themselves as civil parties in the criminal proceedings.
On 26 June 2002 the Military Court of the Moscow Command acquitted the defendants of all charges.
On 27 May 2003 the Military Division of the Supreme Court of the Russian Federation quashed the acquittal and remitted the matter for a new examination by a different formation.
The second trial began on 22 July 2003. On 10 June 2004 the Military Court of the Moscow Command again pronounced an acquittal.
On 14 March 2005 the Military Division of the Supreme Court upheld the acquittal in the final instance.
The applicants complained under Articles 2 and 13 of the Convention that their son had been murdered and that the Russian authorities had failed to carry out an effective investigation and to secure identification and punishment of those responsible.
The applicants complained under Article 6 of the Convention about various defects of the criminal proceedings. They also alleged that the final acquittal deprived them of an opportunity to file a civil claim for damages.
The applicants complained under Article 10 of the Convention that the murder of their son had been masterminded to stifle criticism of the Russian Army.
1. The applicants complained under Articles 2 and 13 of the Convention about the assassination of their son and the lack of an effective investigation into his death.
The Court observes that Mr Dmitriy Kholodov was killed in 1994, that is before the Convention entered into force in respect of the Russian Federation on 5 May 1998. In accordance with the generally recognised rules of international law, the Convention only applies in respect of each Contracting Party to facts subsequent to its coming into force for that Party. It follows that the Court may not take cognisance ratione temporis of the facts surrounding Mr Dmitriy Kholodov’s death in 1994.
Admittedly, the investigation into Mr Dmitriy Khodolov’s death and the trial of putative perpetrators continued long after the ratification of the Convention by the Russian Federation. However, the Court’s temporal jurisdiction is to be determined in relation to the facts constitutive of the alleged interference. The subsequent failure of remedies aimed at redressing that interference cannot bring it within its temporal jurisdiction (see Blečić v. Croatia [GC], no. 59532/00, § 77, ECHR 2006-...). Since the Court is prevented ratione temporis from examining the applicants’ assertions relating to the events in 1994, it cannot examine whether or not these events gave rise to an obligation on the part of the Russian authorities to conduct an effective investigation in the present case (see Moldovan and Others v. Romania (dec.), no. 41138/98, 13 March 2001). Likewise, the alleged failure to ensure identification and punishment of those responsible cannot be said to have constituted a continuous situation since the Court is unable to conclude that such an obligation existed (see Voroshilov v. Russia (dec.), no. 21501/02, 8 December 2005).
The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy where there is an “arguable claim” of a violation of a substantive Convention provision (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). As the Court has found that the applicants’ complaint under Article 2 of the Convention is outside its jurisdiction ratione temporis, it is not competent to examine whether the applicants had an “arguable claim” of a breach of a substantive Convention right. Accordingly, their allegations under Article 13 also fall outside the Court’s competence ratione temporis (see Meriakri v. Moldova (dec.), no. 53487/99, 16 January 2001).
It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
2. The applicants complained under Article 6 of the Convention about certain defects of the criminal proceedings and alleged a violation of their “right to a court” in that they could not file a civil claim for damages following the defendants’ acquittal.
(a) The Court notes that the criminal proceedings against the putative perpetrators did not determine any “criminal charge” against the applicants. Nor did these proceedings determine their “civil rights and obligations” because the applicants did not constitute themselves as a civil party. Accordingly, Article 6 of the Convention has no application.
It follows that the part of the complaint concerning defects of the criminal proceedings is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(b) As regards the applicants’ contention that they were not able to bring a civil action for damages, the Court notes that they did not constitute themselves as a civil party in the criminal proceedings or file a separate civil claim for damages. They did not indicate why they did not consider these remedies to be effective or what special circumstances would have exempted them from the requirement to pursue these remedies.
It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
3. The applicants complained under Article 10 of the Convention about a violation of their son’s right to freedom of expression.
The Court reiterates that the existence of a victim of a violation, that is to say, an individual who is personally affected by an alleged violation of a Convention right, is indispensable for putting the protection mechanism of the Convention into motion (see Karner v. Austria, 40016/98, § 25, ECHR 2003-IX). In the present case Mr Dmitriy Kholodov had died before the application was introduced. Whereas the individuals who are the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention, may apply as applicants in their own right, in the cases concerning an alleged violation of Article 10 of the Convention the next-of-kin do not have the requisite standing under Article 34 of the Convention (see Fairfield and Others v. the United Kingdom (dec.), no. 24790/04, 8 March 2005).
It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
KHOLODOVY v. RUSSIA DECISION
KHOLODOVY v. RUSSIA DECISION