AS TO THE ADMISSIBILITY OF
Application no. 5108/02
by Layla Magomedovna KHATSIYEVA and Others
The European Court of Human Rights (Fifth Section), sitting on 23 October 2006 as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr A. Kovler, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 25 September 2001,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants are:
1. Ms Layla (also spelled Leyla) Magomedovna Khatsiyeva, born in 1934;
2. Ms Khazman Yunusovna Akiyeva, born in 1943;
3. Mr Nasip Khizirovich Khatsiyev, born in 1952;
4. Mr Abu-Rashid Khizirovich Khatsiyev, whose date of birth is unknown;
5. Ms Malikat Khasmagomedovna Akiyeva, born in 1962;
6. Ms Zhanna Khasmagomedovna Akiyeva, born in 1974;
7. Ms Zarema Vakhayevna Khayauri, born in 1976.
The applicants are Russian nationals. They are represented before the Court by lawyers from the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant is the mother of Khalid Khatsiyev, born in 1969, and of the third and fourth applicants. The second applicant is the mother of Kazbek Akiyev, born in 1970, and of the fifth and sixth applicants. The seventh applicant was married to Kazbek Akiyev. The applicants live in the village of Arshty in the Sunzhenskiy District of the Republic of Ingushetia. This district borders on Chechnya.
Khalid Khatsiyev and Kazbek Akiyev were married and had two and four children respectively. At the material time both men lived in Moscow and came to Arshty in August 2000 to help their families with seasonal agricultural work.
1. The attack of 6 August 2000
(a) The applicants’ version
The applicants did not witness the events described below and the following account is based on eye-witness statements submitted by them.
In August 2000 the residents of Arshty were cutting grass. The work was done collectively by all villagers in small groups of five to six people.
On 6 August 2000 about a hundred people divided into small groups were working in the surrounding hills. One of the groups was formed by Khalid Khatsiyev, Kazbek Akiyev, their cousin Ilyas Akiyev, born in 1964, and three persons who had come to Arshty as internally displaced persons from Chechnya – Baymurza Aldiyev, born in 1982, Aslambek Imagamayev, born in 1968, and Aslambek Dishiyev.
Aslambek Imagamayev stated that while working they had seen several helicopters bombing a forest area near the village of Bamut in Chechnya, about ten kilometres away from them.
Around 12 noon two military helicopters appeared from the direction of Bamut and started circling low above the field. Aslambek Imagamayev identified them as MI-24. The men in the field were frightened, dropped their scythes and ran for cover to the nearby trees. The group in which the applicants’ relatives were working had at first continued to cut grass, arguing that it was obvious that they posed no danger and that they ran the risk of not finishing the work before the end of the day.
One of the helicopters then launched a non-guided missile which exploded about 300 metres from them. The men threw down their scythes, ran to a white Niva car and drove down the hill. Baymurza Aldiyev and Aslambek Imagamayev claimed that the helicopters had then flown away. The men stopped the car, collected their scythes and got back into the car to go home for lunch. Then the helicopters reappeared and the men saw them right above the car, at low altitude. They stopped the vehicle and ran for cover in different directions.
The helicopters launched missiles and strafed the Niva car from large calibre machine-guns with the result that its back tyres were flattened. They then chased the men. One of the helicopters fired a missile at the place where Khalid Khatsiyev and Kazbek Akiyev were hiding. They were both killed and Ilias Akiyev, who was nearby, was wounded by shrapnel in his leg.
Aslambek Imagamayev stated that he had run through the forest to tell the villagers what had happened. He stated that he had heard the helicopters shooting for some time. Baymurza Aldiyev testified that he had run towards the river and had hidden there in a bush. He estimated that the attack on the Niva car had continued for about an hour and a half. After the helicopters had left, he returned to the vehicle and found the bodies of Khalid Khatsiyev and Kazbek Akiyev about 50 metres away from the car.
The bodies were brought to the village in the damaged Niva.
The attack and the deaths were reported by human rights NGOs and the Russian mass-media in August 2000.
(b) The Government’s version
According to the Government, since the beginning of the counter-terrorist operation within the territory of the Chechen Republic, the civil and military authorities had taken all necessary steps to secure the safety of civilians residing in the North Caucasus. The residents of the Republic of Ingushetia had been notified of the risk of being at the administrative border with Chechnya as well as of the actions they should perform when in the area of a counter-terrorist operation so as to indicate that they did not belong to illegal armed formations. In particular, once they had established “visual contact” with representatives of the federal forces, residents were to stop moving, mark themselves with a piece of white cloth and wait for the arrival of a group of servicemen for an identity check.
On 6 August 2000 the authorities carried out one of their special operations aimed at preventing criminal activity and detaining IAF members in Chechnya. During that operation, a federal transport MI-8 helicopter was hit by members of illegal armed formations in the vicinity of the village of Arshty and crashed to the ground. Orders were given to evacuate the crew and servicemen on board the helicopter from the site of the crash. The airspace above the area of the rescue operation was patrolled by a pair of military MI-24 helicopters.
At about 1 p.m., while patrolling over the area situated four kilometres to the west of Arshty, the pilots of MI-24 helicopters saw a Niva car and a group of at least five men with automatic firearms. The pilots observed the men through a target control system of tenfold magnification from a distance of two kilometres and at an altitude of 100-150 metres.
According to the Government, the pilots reported to the command centre and having received the respective order fired warning shots at a spot situated 50 metres away from the car and the people. The men immediately got into the car and started driving away, instead of staying where they were and waiting for the arrival of ground troops for an identity check. The pilots again reported to their superiors, received the respective order and fired warning shots for the second time, but the car continued moving. In order to prevent the Niva car with unidentified armed men inside from driving further without authorisation in the close vicinity of the zone of the rescue operation, the pilots, pursuant to their superiors’ order, fired at the car with the result that Khalid Khatsiyev and Kazbek Akiyev were killed and Ilias Akiyev was wounded.
2. Official investigation
In the evening of 6 August 2000 several officials from the prosecutor’s office of the Sunzhenskiy District (прокуратура Сунженского района – “the Sunzhenskiy prosecutor’s office”) and the prosecutor’s office of the Republic of Ingushetia (прокуратура Республики Ингушетия – “the republican prosecutor’s office”) arrived at the scene of the incident. They also brought a forensic expert from the city of Nalchik, in the Republic of Kabardino-Balkaria. The officials questioned the witnesses to the attack, collected several scythes damaged by shrapnel and examined the bodies. They noted the wounds caused by shrapnel and by large-calibre guns.
According to the applicants, at the same time the head of the village administration contacted the military authorities. Two armoured personnel carriers with servicemen arrived in the village, and together with some local officials they proceeded to the site, but soon afterwards the local officials returned because the military allegedly refused to proceed further.
The Government submitted that on 6 August 2000, on the basis of the information received from the Arshty administration, the republican prosecutor’s office had instituted criminal proceedings under Article 105 § 2 (a) and (f) of the Russian Criminal Code (murder of two or more persons committed by a generally dangerous method). The case file was assigned the number 20600055. After the initial investigative measures had been taken, the case was transferred to military prosecutors and given the number 34/32/0189-01. The Government did not indicate to which military prosecutor’s office the case had been referred.
According to the applicants, in the absence of any news of the investigation for several weeks after the incident, they applied to the Sunzhenskiy prosecutor’s office and then to the republican prosecutor’s office in Nazran. They were informed that a criminal investigation had been opened on 6 August 2000 and that the case file had been given the number 20600055. In response to their subsequent requests to the prosecutors at various levels the applicants received hardly any substantive information about the investigation into the attack. On several occasions they received copies of letters by which their requests had been forwarded to different prosecutors’ offices.
On 29 August 2000 the Main Military Prosecutor’s Office (Главная военная прокуратура), in reply to a request made by a deputy of the State Duma from Ingushetia on the applicants’ behalf, stated that the criminal investigation into the killing of two persons near the village of Arshty had been supervised by the military prosecutor’s office of the North Caucasus Military Circuit (военная прокуратура Северо-Кавказского военного округа) and that he would be informed of any results of the investigation.
On 14 November 2000 the applicants were informed by the republican prosecutor’s office that on 9 August 2000 the file in case no. 20600055 had been transferred for investigation to garrison prosecutor’s office no. 59 (59 военная прокуратура гарнизона) in Mozdok, North Ossetia.
On 14 November 2000 a person acting as the applicants’ representative went to Mozdok to find out about the investigation. There he submitted an application stating the facts of the attack and asking for an update on the investigation. An officer of the prosecutor’s office showed him a register of cases, according to which the case had been transferred to a military prosecutor in Vladikavkaz, North Ossetia, for further investigation.
On 15 November 2000 the representative went to Vladikavkaz and talked to the military prosecutor, who informed him that the case had been sent to the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) based in Khankala, the main Russian military base in Chechnya. On the same day the applicants’ representative filed a request for an update on the investigation, on the second applicant’s behalf.
On 24 November 2000 the second applicant wrote to the military prosecutor of military unit no. 20102. She stated the facts of the case, referred to the number of the criminal investigation file communicated to her by the Sunzhenskiy prosecutor’s office and asked for an update on the investigation. She also requested that she be granted the status of victim in the proceedings. The second applicant received no reply to that letter.
On 29 January 2001 the fourth applicant was informed by the military prosecutor of military unit no. 20102 that his complaint had been included in the criminal investigation file opened in relation to his brother’s death. The date of the fourth applicant’s complaint was not specified.
On 30 May 2001 the second applicant wrote to the military prosecutor of military unit no. 20102 and to the military prosecutor of the North Caucasus Military Circuit. She enquired about developments in the investigation and requested that she and the first applicant be declared victims, in accordance with the Russian Code of Criminal Procedure. She received no reply to those queries, apart from a letter of 21 June 2001 by which the military prosecutor of the North Caucasus Military Circuit informed her that her letter had been forwarded to garrison prosecutor’s office no. 59 in Mozdok.
On 29 August 2001 the civil registration office of the Sunzhenskiy District issued death certificates numbered 376 and 405 for Khalid Khatsiyev and Kazbek Akiyev respectively. The date and place of death for both was recorded as 6 August 2000, village of Arshty, Sunzhenskiy District.
It is unclear whether any investigative activity took place between 2001 and beginning of 2003.
On 24 March 2003 the military prosecutor’s office of military unit 20102 informed the applicants that the investigation into the death of Khalid Khatsiyev and Kazbek Akiyev had been resumed.
By letter of 17 April 2003 the SRJI, acting on the applicants’ behalf, requested the military prosecutor of military unit no. 20102 to inform them of the latest development in the case and to grant the status of victim to the first two applicants.
In a letter of 24 April 2003 the military prosecutor’s office of military unit no. 20102 informed the applicants that on the same date, with the consent of garrison prosecutor’s office no. 59, the criminal proceedings instituted in connection with the death of Khalid Khatsiyev and Kazbek Akiyev had been discontinued in the absence of evidence of a crime in the attack of 6 August 2000.
According to the Government, that decision had been taken in view of the investigating authorities’ finding that the pilots of the MI-24 helicopters had fired at the Niva car, with the result that the applicants’ two relatives had been killed, pursuant to an order that had been given by the command centre and that had thus been binding on them. Accordingly, the pilots’ action did not constitute a criminal offence. The actions of superior officers who had given the order to destroy the Niva vehicle did not constitute a criminal offence either, given that after the warning shots the car had continued moving in the close vicinity of the counter-terrorist operation in a situation of active armed resistance, with the members of illegal armed formations threatening the lives of federal servicemen and other persons. The Government did not mention the names of the pilots who had participated in the attack of 6 August 2000 or those of their superiors who had given the order in question. Nor did they submit any documents from the file of case no. 34/32/0189-01 instituted in connection with the attack, despite a specific request from the Court. In this latter respect, relying on the information obtained from the Prosecutor General’s Office, the Government stated that, even though the investigation had been discontinued, the disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure since the file contained information of a military nature and personal data concerning the witnesses.
3. The applicants’ attempts to gain access to the case file
On 21 May 2003 the military prosecutor of military unit no. 20102 informed the SRJI that the file in the criminal case relating to the death of Khalid Khatsiyev and Kazbek Akiyev had been transferred to the prosecutor’s office of the North Caucasus Military Circuit on 9 February 2001 in order to determine which body had the competence to carry out the investigation. The prosecutor’s letter referred to case no. 14/33/0429-00.
On 7 July 2003 the military prosecutor of military unit no. 20102 again replied to a request from the SRJI, stating that case no. 14/33/0429-00 instituted in relation to the death of Khalid Khatsiyev and Kazbek Akiyev had been forwarded to the prosecutor’s office of the North Caucasus Military Circuit on 9 February 2001.
In a letter of 8 July 2003 the SRJI requested garrison prosecutor’s office no. 59 to declare the first two applicants to be victims in criminal case no. 14/33/0429-00 and to grant them access to the case file.
On 10 July 2003 garrison prosecutor’s office no. 59 notified the first two applicants in reply to their query that the file of the case concerning the killing of their sons had been sent to the prosecutor’s office of the United Group Alignment (военная прокуратура Объединенной группы войск) in order to verify whether the decision to discontinue the proceedings had been lawful and well-founded.
In letters of 10 and 11 August 2003 garrison prosecutor’s office no. 59 stated that the first and second applicants respectively could have access to the case file in the garrison prosecutor’s office on any working day from 9 a.m. until 6 p.m. The letter referred to case file no. 34/32/0189-01D.
In a letter of 11 August 2003 garrison prosecutor’s office no. 59 also informed the SRJI, in reply to their query, that the criminal proceedings in case no. 34/32/0189-01D had been discontinued on 24 April 2003 in the absence of evidence of a crime in the attack of 6 August 2000, and that therefore there were no grounds in domestic law for declaring the first two applicants to be victims of a crime. The letter added that the first two applicants could have access to the case file on any working day between 9 a.m. and 6 p.m.
On 9 March 2004 the SRJI applied on the applicants’ behalf to garrison prosecutor’s office no. 59. They stated that on 29 August 2003 the applicants’ legal counsel had attempted to gain access to the documents in case no. 34/32/0189-01D but this had been refused on the ground that the case file had been transmitted to the military prosecutor’s office of the Republic of Ingushetia (военная прокуратура Республики Ингушетия). In this connection the SRJI requested garrison prosecutor’s office no. 59 to notify them of the reasons for the transfer of the case to the military prosecutor’s office of the Republic of Ingushetia and of any new developments in the investigation, together with the date on which, and the place where, the first two applicants and their lawyers could study the case file.
On the same date the SRJI sent a similar letter to the military prosecutor’s office of the Republic of Ingushetia.
On 18 March 2004 the Main Military Prosecutor’s Office forwarded the request of the SRJI to the military prosecutor’s office of the United Group Alignment for examination.
In a letter of 23 March 2004 garrison prosecutor’s office no. 59 informed the SRJI that the file in criminal case no. 34/32/0189-01D had been referred to the military prosecutor’s office of the United Group Alignment for examination and then, after 1 September 2003, to a newly organised military prosecutor’s office of military unit no. 04062 (военная прокуратура – войсковая часть 04062) in the Republic of Ingushetia. The letter thus invited the applicants and their representatives to apply to the last mentioned prosecutor’s office.
On 2 June 2004 garrison prosecutor’s office no. 59 stated that they had replied to all the queries from the SRJI in a letter of 23 March 2004.
On 2 July 2004 the military prosecutor’s office of the United Group Alignment informed the first two applicants and the SRJI that the criminal proceedings in case no. 34/32/0189-01D had been discontinued on 24 April 2003 and that no subsequent investigative measures had been taken. The military prosecutor’s office of the United Group Alignment had studied the case materials and found the aforementioned decision of 24 April 2003 to have been substantiated. The case file had then been forwarded to the military prosecutor’s office of military unit no. 04062 and the applicants could gain access to the file there.
According to the applicants, all their efforts to gain access to the case file have so far proved unsuccessful.
B. Relevant domestic law
Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).
Article 161 of the new CCP enshrines the rule that data from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission.
1. The applicants complained under Article 2 of the Convention that the right to life of Khalid Khatsiyev and Kazbek Akiyev had been violated and that no proper investigation had been carried out into the matter.
2. The applicants relied on Article 6 § 1 of the Convention stating that under domestic law they were barred from bringing a civil claim to obtain compensation for the deaths of their relatives in the absence of any tangible results from the criminal investigation.
3. The applicants claimed that the killings of their close relatives had constituted an unlawful and brutal interference with their family life, in breach of Article 8 of the Convention.
4. The applicants claimed that they had no effective domestic remedies in respect of the above violations, contrary to Article 13 of the Convention.
The applicants complained under Article 2 of the Convention of the killing of their relatives and of the domestic authorities’ failure to carry out an effective investigation in this connection. The applicants also alleged that they had had no access to a court, contrary to Article 6 § 1 of the Convention, as they had been unable to bring a civil action for compensation for the deaths of their relatives since the investigation had produced no results. The applicants further complained under Article 8 of the Convention of an infringement of their right to respect for their family life as a result of the killing of their close relatives. They averred that they had been deprived of effective remedies in respect of those violations, in breach of Article 13 of the Convention. The respective Articles, in their relevant parts, read as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
“1. Everyone has the right to respect for his ... family life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
1. Exhaustion of domestic remedies
(a) Submissions by the parties
The Government contended that the applicants had failed to exhaust the domestic remedies available to them. In particular, the applicants had never lodged, either before senior prosecutors or in court, any complaints during the criminal proceedings in connection with the deaths of Khalid Khatsiyev and Kazbek Akiyev, nor had they appealed against the decision of 23 April 2003, by which those proceedings had been discontinued. The Government argued that the applicants could also have filed a claim for compensation in the civil proceedings, but had never availed themselves of that remedy.
The applicants contested that objection. They stated that an administrative practice consisting in the authorities’ continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya or Ingushetia rendered any potentially effective remedies inadequate and illusory in their case. In this connection they relied on applications submitted to the Court by other individuals claiming to be victims of similar violations, documents of human rights NGOs and media reports. The applicants further contended that they had been excluded from the criminal proceedings as none of them had ever been recognised as a victim of a crime, and therefore they had no right under national law to challenge decisions of the investigating authorities. Nevertheless, they had actively attempted to participate in the investigation and repeatedly applied to law-enforcement bodies, including various prosecutors, requesting them to inform them of the investigative measures that had been taken and of any developments in the case as well as to grant the status of victim to the first two applicants, the mothers of the persons killed. The applicants thus argued that they had had recourse to the remedies usually available in domestic law, but that those remedies had proved futile in their case.
(b) The Court’s assessment
The Court considers that the question of the exhaustion of domestic remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings.
The Court therefore decides to join this objection to the merits.
2. As to the merits of the application
(a) The Government
The Government conceded that the applicants’ relatives had been deprived of their lives by State agents. The Government, however, argued that the applicants’ relatives had been killed in the course of a counter-terrorist operation carried out by the federal forces in order to effect lawful detention of illegal paramilitaries and to prevent further criminal activity by the latter and thus to secure public safety in the region. When pursuing that operation, the federal servicemen, both commanding officers and their subordinates, had acted in full compliance with national legislation and regulations for securing the safety of the civilian population as well as those relating to the use of lethal force. The Government further argued that even though they had been warned against staying within the area of the counter-terrorist operation, including the vicinity of the administrative border between the Republic of Ingushetia and the Chechen Republic, a group of five men including the applicants’ relatives had been found within that area and in close proximity to the site where a federal helicopter had crashed. Moreover, those men had breached the necessary requirements, in particular failing to mark themselves with white cloth, and had tried to escape in their car with the result that the pilots of the federal MI-24 helicopters had taken them for members of illegal armed formations. Finally, it was not before the pilots had coordinated their actions with the superiors’ orders and fired several warning shots that they had fired at the Niva car, leading to the death of the applicants’ relatives. The Government thus contended that the use of lethal force in the present case was no more than absolutely necessary for the purposes of Article 2 § 2 (a) and (b). They also claimed, relying on the opinion of the Prosecutor General’s Office, that the investigation carried out in the present case had met the Convention requirement of effectiveness.
In the Government’s submission, throughout the investigation and after its termination it had been open to the applicants to bring civil proceedings for compensation for the deaths of their relatives and they therefore had had access to a court, as required by Article 6 § 1 of the Convention.
The Government further argued that there was no direct link between the killing of the applicants’ relatives and a breach of the applicants’ right to respect for their family life and that, in any event, the alleged interference with that right had been justified under Article 8 § 2 of the Convention.
The Government also contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using those remedies. In particular, the authorities had opened a criminal investigation on the date on which the applicants’ relatives were killed and during that investigation the applicants had had an opportunity to appeal, both to senior prosecutors and to a court, against the actions or omissions of the investigating authorities, or against the decision to discontinue the criminal proceedings. In addition, it was open to the applicants to file a claim for compensation in civil proceedings. In this latter respect the Government relied on the case of Khashiyev v. Russia in which the applicant had sought and obtained compensation for the death of his relatives (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2002).
(b) The applicants
The applicants disagreed with the Government and maintained their complaints. They disputed the Government’s version of the events of 6 August 2000 as unreliable, given in particular the Government’s refusal to submit a copy of the file in the criminal case instituted in connection with the attack of 6 August 2000 and their failure to corroborate their arguments with any documentary evidence. The applicants strongly denied the Government’s assertion that Khalid Khatsiyev, Kazbek Akiyev and the other three men had been armed when the pilots of the MI-24 helicopters saw them. The applicants referred to various mass-media reports and claimed that it had been obvious that those five persons had been civilians and that they had been cutting grass in the open field and posed no danger either to the civilian population or to servicemen. The applicants further argued, with reference to eye-witness statements, that the pilots of the MI-24 helicopters had never fired any warning shots before attacking the Niva car and killing their relatives. They also expressed doubts that the pilots had had an opportunity to coordinate their actions with their superiors’ orders, given that the attack had been very quick. The applicants stated that the authorities had not notified them of any special operation in the vicinity of Arshty on the day of the incident, and therefore their relatives had worked in the fields instead of staying at home. They further submitted with reference to statements of high-ranking officials in Ingushetia, that the federal MI-8 helicopter had been attacked from the territory of the Chechen Republic rather than from Ingushetia. The applicants also contended that the authorities had never given any explanations as to what actions civilians were to perform within the area of a counter-terrorist operation and that, in any event, the territory of the Sunzhenskiy District of the Republic of Ingushetia had never been part of such an area, as it was situated at quite a distance from the administrative border between Ingushetia and Chechnya.
The applicants thus contended that the use of force by the State which had led to the deprivation of their relatives’ lives had been clearly disproportionate and could not be regarded as justified under Article 2 § 2 of the Convention. They also claimed that the special operation carried out on 6 August 2000 had not been properly planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force (see McCann v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, § 194).
As regards the procedural aspect of Article 2 of the Convention, the applicants claimed that the authorities had failed in their obligations to carry out an effective investigation into the circumstances of their relatives’ deaths. They argued that the investigation had fallen short of the requirements of domestic law and the Convention standards. In particular, it had been pending for almost three years and during that period it had been suspended on at least five occasions. The applicants argued that a number of investigative measures had not been taken, or had been taken with a considerable delay. Throughout the investigation the first two applicants had requested that the status of victim of a crime be granted to them, but had received no replies to their requests. The authorities had never kept the applicants abreast of the developments in the investigations or informed them as to what investigative measures had been taken. Moreover, a copy of the decision of 24 April 2003 by which the criminal proceedings in connection with the death of the applicants’ relatives had been discontinued had never been served on them. In support of their argument regarding the inefficiency of the investigation the applicants also referred to the Government’s refusal to submit a copy of the file in the criminal case concerning the killing of their relatives.
The applicants further insisted that they were unable to file a civil claim for compensation, as they had not been declared victims in the criminal case and their attempts to gain access to the case file had proved unsuccessful. The applicants concluded that they had been denied access to a court, contrary to Article 6 § 1 of the Convention.
The applicants maintained their complaint about interference with their rights under Article 8 of the Convention as a result of the killing of their relatives and argued that in view of the Government’s refusal to produce the file of the criminal case it was impossible to ascertain whether that interference had been justified under Article 8 § 2 of the Convention.
Lastly, the applicants relied on Article 13 of the Convention, alleging that in their case the domestic remedies usually available had proved to be ineffective, given that the investigation had been plagued with defects, that they had never been granted the status of victim and had thus been excluded from the criminal proceedings and barred from bringing civil proceedings, and that all their applications to public bodies had remained unanswered or had only produced standard replies.
(c) The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the present application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Joins to the merits the Government’s objection concerning non-exhaustion of domestic remedies;
Declares the application admissible, without prejudging its merits.
Claudia Westerdiek Peer Lorenzen
KHATSIYEVA AND OTHERS v. RUSSIA DECISION
KHATSIYEVA AND OTHERS v. RUSSIA DECISION