AS TO THE ADMISSIBILITY OF
Application no. 58643/00
by Yelena Vitalyevna GONCHARUK
The European Court of Human Rights (First Section), sitting on 18 May 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 3 February 2000,
Having regard to the decisions 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 applicant,
Having deliberated, decides as follows:
The applicant, Mrs. Yelena Vitalyevna Goncharuk, is a Russian national who was born in 1962. Before 2000 she was a resident of Grozny, Chechnya, which she left for Ingushetia. She currently resides in Norway where she sought asylum. The applicant is represented before the Court by Ms D. Vedernikova, Mr Kirill Koroteev, Mr Philip Leach and Mr William Bowring, lawyers of EHRAC/Memorial, a human rights NGO with offices in London, as well as in Moscow and in the Northern Caucasus. The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The submissions of the parties on the facts concerning the circumstances of the events of 19 January 2000 and the ensuing investigation are set out in Sections 1 - 2 below. A description of the materials submitted to the Court is contained in Part B.
1. The attack on the applicant on 19 January 2000
The applicant and her family lived in the Staropromyslovskiy district in Grozny.
In October 1999 hostilities resumed in Chechnya between the Russian forces and the Chechen fighters. Grozny and its suburbs came under heavy bombardment. Staropromyslovskiy district, situated in the northern and central parts of the town, was bombarded from the air and by artillery. The applicant submits that most residents of the district left for safer areas. Following heavy fighting, as of December 1999, the Russian forces started to regain control over the city starting from the north, and by the end of January 2000 the central parts of the city were finally taken.
The applicant lived in the Katayama settlement in the Staropromyslovskiy district in Grozny at 10 Skvoznoy Lane.1 The applicant has a daughter born in 1982. They lived in Kazakhstan until 1990 and then moved to Grozny to her parents’ flat. In 1993 the applicant took her daughter out of Chechnya, after the school which she had attended came under attack. Along with few other remaining residents of the district the applicant, who stayed because of her poor health, spent the winter of 1999-2000 hiding from bombardments in the cellars.
On 19 January 2000 there started a massive attack by the federal forces on their district. The applicant and five other persons were hiding in a garage at 4th Neftyanoy Lane and when the shelling intensified they ran to a nearby cellar. While running, the applicant was wounded for the first time in her leg. When the shelling subsided, several military servicemen appeared and ordered everyone out of the cellar. The applicant and others walked out, with their hands on their heads. The soldiers told them that they had an order to kill everyone and that those who remained in the city had assisted the fighters (“boyeviki”).
The applicant submits that the soldiers did not listen to their explanations and refused to look at their identity documents. They ordered them back into the cellar, and once they descended, threw tear-gas grenades into it. The people in the cellar asked them to stop and cried, and finally the soldiers ordered them to come out again, one by one. The applicant, who was wounded, could not walk herself, and was assisted by a Chechen man. Two Russian women and another Chechen man walked out first and were shot at the entrance to the garage by machine guns. The soldiers then shot at the third woman and at the applicant and her helper, who covered her with his body.
The applicant lost consciousness, and when she awoke, she realised that the others were dead. She was wounded in the chest and was bleeding from her mouth. When night fell, the applicant walked over to a neighbouring street, where the Khashiyev family lived (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005). They gave her first aid and allowed her to stay in their shed. They said that they were expecting a second check and were afraid to let her into the house.
The applicant, who was bleeding and afraid to remain in Grozny, changed clothes and walked to the roadblock with a white flag. There the soldiers checked her documents and let her cross. The applicant did not tell them about the attack on her. In the morning on the next day the applicant was taken along by Petimat Goygova (applicant in the application no. 74240/01) who had been looking for her relatives in the Staropromyslovskiy district (they were later found killed) to Ingushetia.
The applicant remained in the Ordzhonikidze village (Sunzhenskiy district) hospital until 7 February 2000. There she was diagnosed with gunshot and shrapnel wounds to the knee joints, chest, a head concussion and neurotic asthenia. She was treated and her wounds were operated on.
While in hospital, the applicant was interviewed by human right activists, who later reported her story. It was also related in several publications in the media.
After discharge from the hospital the applicant stayed in Ingushetia, in the premises of an old pig farm used by other refugees from Chechnya. In summer 2000 the applicant went to Grozny to find out about the state of her flat and property. Her neighbours told her that some people had been looking for her.
2. Investigation and subsequent events
It appears that the applicant did not seek any direct contacts with law-enforcement bodies immediately after the attack. Nevertheless the events in the Staropromyslovskiy district became known to the relevant authorities shortly after due to NGO and media reports.
Several human rights NGOs addressed the law-enforcement authorities in relation to the events in Staropromyslovskiy district of Grozny in January 2000, when allegedly several dozen local residents were executed by unidentified detachments of the Russian military.
In February 2000 Human Rights Watch issued a report entitled “Civilian Killings in Staropromyslovskiy District of Grozny” in which it accused the Russian forces of deliberately murdering at least 38 civilians between late December and mid-January. Human Rights Watch interviewed survivors, eyewitnesses and relatives of the dead. The report contains information about the attack on the applicant and the killing of five people in a cellar, based on an interview with her.
On 10 February 2000 Human Rights Watch addressed the Russian authorities, including the President, the General Prosecutor and the Minister of Defence with a request to investigate credible allegations of murder of at least 38 civilians in the Staropromyslovskiy district, with reference to the applicant’s case.
On 12 July 2000 Mrs Roza Akayeva (applicant in the application no. 57945/00) complained to the Chief Military Prosecutor about the murder of her brother Adlan Akayev, found killed in his house in the Staropromyslovskiy district of Grozny on 25 January 2000. In her letter she referred to the applicant’s story and submitted that on 9 February 2000 she had seen five bodies (three women and two men) in a garage at 4th Neftyanoy Lane. She gave the applicant’s full name and stated that she had talked to her in Ingushetia.
In February 2001 the Human Rights Watch issued a Memorandum on Domestic Prosecutions for Violations of International Human Rights and Humanitarian Law in Chechnya, in which it reported a lack of progress in the investigation into the attack on the applicant.
The applicant submits that certain persons looked for her and wanted to punish her for relating her story. She submits that from 2001 to 2004 her father in Kazakhstan, a friend in Ingushetia, her former boyfriend and sister in the Stavropol region were contacted by various persons asking about her whereabouts. Her former boyfriend was beaten and threatened to “keep away” from her. The applicant, who still suffers from the consequences of her wounds, is afraid of approaching the authorities for fear that her whereabouts may become known to her persecutors. She submits that in July 2004 she undertook medical treatment in Moscow for neurological problems resulting from the attack.
The Government submit that the applicant failed to apply to the authorities with a complaint, as a result the circumstances of the attack have only become known to them after the communication of the present application. On 26 April 2005 the Chechnya Prosecutor’s Office initiated criminal investigation file no. 43037 under Article 111 § 1 of the Criminal Code (inflicting serious injuries). The investigation confirmed the attack on the applicant and the killing of several residents of the house where the applicant used to live in January 2000. The investigation also confirmed the applicant’s stay in the hospital in Ingushetia with gunshot wounds. More than 25 witnesses were questioned. However, the investigation could not question the applicant because she did not make her whereabouts known to the authorities. The investigation was adjourned and reopened, and was on-going. It failed to locate and question the applicant or to identify the culprits. In October 2005 the Government forwarded to the Court a request by the Chechnya Prosecutor’s Office to help find the applicant and a copy of the decision to grant her victim status in the proceedings of the criminal investigation no. 43037, to be countersigned by her.
The details of the investigation file submitted by the Government are summarised below in Part B.
The Government also informed the Court that the Staropromyslovskiy District Prosecutor’s Office was investigating criminal case no. 50115 which concerned the finding in January 2000 of five bodies with signs of violent death in the cellar of house no. 11 at 4th Neftyanoy Lane, however the house number did not correspond to the statement of facts submitted by the applicant to the European Court.
B. Documents submitted by the parties
The parties submitted numerous documents concerning the attack and the investigation. The main documents of relevance are as follows:
1. Documents from the investigation file
The Government submitted 103 pages of documents from the investigation file in criminal case no. 43037 opened by the investigative department of the Chechnya Ministry of the Interior (Следственное управление при МВД ЧР). The documents were submitted without a list and with random page numbers. A number of important procedural documents are missing, such as the decision to open the criminal investigation file, to adjourn and reopen the proceedings. The most important documents submitted by the Government can be summarised as follows:
a) Search for the applicant
The investigation made several unsuccessful attempts to locate and question the applicant, through the bodies of the interior in Chechnya, Ingushetia and in the Stavropol region.
In April 2005 the housing bureau of the Staropromyslovskiy district informed the local department of the interior (ROVD) that the house no. 10 at Skvoznoy Lane was unsuitable for habitation and that the applicant was not listed among the residents.
In May 2005 the investigation questioned a friend of the applicant’s residing in Ingushetia. The woman stated that she had collected the applicant from the Sunzhenskiy hospital in February 2000 and that the latter had stayed in her house for a month afterwards. She confirmed that the applicant had told her that she had been shot at by armed men during a “mopping-up” operation in Grozny and that five or six people were killed during the same attack. The witness was not aware of the applicant’s current whereabouts.
In June 2005 the investigation questioned Olga Zh., the applicant’s sister living in the Stavropol region, at whose address the applicant had a formal registration. The witness stated that the applicant had stayed with her in 2002, after which she had left and the witness was not aware of her address. The applicant told her that she had received wounds in her legs and chest during a “mopping-up” operation in Grozny in January 2000, when armed men had killed several people in the cellar. The witness stated that her sister continued to suffer from the consequences of the attack, that she could not talk about the incident and that remembering it provoked nervous breakdowns in her.
In September 2005 the investigation requested the criminal police of Chechnya to assist in finding the applicant and to investigate her complaint about harassment by unknown persons in retribution for her complaint. Similar requests were forwarded to the Stavropol regional investigation Department of the Interior and to the Staropromyslovskiy ROVD.
b) The applicant’s medical documents
In May 2005 the Sunzhenskiy district hospital in Ingushetia informed the investigation that the applicant had remained there from 22 January to 8 February 2000 with gunshot wounds in the knee caps and chest.
Further to this information, the investigation questioned medical personnel in the accident ward of the Sunzhenskiy district hospital. They confirmed that in January – February 2000 the applicant had been treated there for gunfire wounds to the knees and chest. The applicant’s medical record had been destroyed by a fire in the hospital, except for a registration log containing basic information about the applicant’s stay in the hospital. A copy of the registration log was included in the criminal investigation file.
c) Statements by the relatives of other victims of the attack on the applicant
In May 2005 the investigation questioned Tamara R., whose brother Kasum had been killed during the same attack during which the applicant had been wounded. The witness stated that around 20 January 2000 she had visited the applicant in the hospital and learnt from her that her brother had been killed in a cellar of a garage in 4th Neftyanoy Lane by armed men in camouflaged uniforms. The witness and her two sisters travelled to Grozny and in the cellar of the house no. 9 in 4th Neftyanoy Lane found seven or eight bodies with gunshot wounds. The witness and her sisters took out the body of their brother Kasum, which bore numerous gunfire wounds, and took it to the Nadterechny district for burial. No questions were put to the witness about the death certificate or any other documents issued in respect of her brother’s death, nor was she asked if an investigation had been mounted into it.
d) Statements by the local residents of the Staropromyslovskiy district and information about other murders
Several local residents questioned by the investigators in April 2005 stated that in winter 1999 – 2000 they had been outside Grozny and that they were not aware of the circumstances of the attack on the applicant or of her whereabouts. They were aware however, mostly by hearsay, of the murders of the residents who had remained in Grozny committed in January 2000 by unknown men in military uniforms. Several witnesses stated that they were aware that the murders had been committed during a “mopping-up” operation. In particular, several witnesses were aware of the killing of the Khashiyev family, of Magomed Goygov and of Adlan Akayev (see Khashiyev and Akayeva v. Russia mentioned above).
Zhabrail Ye. testified that he was aware of a murder of five persons and wounding of a woman named Yelena in the garage of the house no. 9 at 4th Neftyanoy Lane.
In May 2005 the investigation questioned Fatima Goygova whose mother and brother had been killed in the Staropromyslovskiy district in January 2000 during a “mopping-up” operation. She stated that she was aware of the attack on the applicant, but had no information about the exact circumstances of the attack or of the applicant’s whereabouts.
e) Examinations of the site
On 14 April 2005 the investigator from the Staropromyslovskiy ROVD examined the courtyard and the buildings at house no. 9 in 4th Neftyanoy Lane. They found the house and the garage destroyed and uninhabited. Nothing of interest to the investigation was noted.
f) Decision to recognise the applicant as a victim
On 30 August 2005 an order to grant the applicant victim status in the proceedings was issued by the investigation. As the applicant’s whereabouts were not established, she did not countersign the document.
g) Documents relating to identification of the relevant military units
In May 2005 an officer of the Staropromyslovskiy ROVD in charge of collecting information on the applicant’s case reported to the head of the ROVD that as a result of questioning of the local residents it could be presumed that “the crime could have been committed by military servicemen, possibly of Ossetian ethnic background, possibly enrolled on contractual basis. Numbers of military units, vehicles and armoured vehicles could not be established”.
In September 2005 the Staropromyslovskiy ROVD informed the investigator in charge of the case that they were unable to identify the units of the army which had conducted the special operations in the district.
The investigation requested several agencies of the Ministry of Defence and of the Ministry of the Interior to provide them with information about the location and activities of their units in January 2000 in the Katayama settlement of the Staropromyslovskiy district. In response they were informed that such information was unavailable because the currently functioning structures were organised after January 2000 and had no information relevant to the preceding periods.
h) Information about another criminal case
In September 2005 the Staropromyslovskiy District Prosecutor’s Office wrote to the local ROVD and informed them that their office was investigating criminal case no. 50115 related to the discovery of five bodies at “house no. 11 in 4th Neftyanoy Lane”. The letter alleged that the information received from the European Court indicated that the applicant had been a witness of the murder of five people at “house no. 4 Neftyanoy Lane”. It further stated that the applicant had never applied to the authorities with information about the incident and instructed the ROVD to carry out a verification of the facts, including locating and questioning the applicant, examination of the site as indicated by her.
1. The applicant submits that the circumstances of the attack of 19 January 2000 and the suffering inflicted on her by its consequences constitute violations of Articles 2 and 3 of the Convention. She also complains under the same Articles about a failure to carry out an effective and speedy investigation into the attack.
2. The applicant complains that she had no effective remedies against the above violations, contrary to Article 13 of the Convention.
3. The applicant claims that she received threats connected to her application to the European Court and alleges a breach of Article 34 of the Convention.
The applicant alleges violations of Articles 2, 3 and 13 and also invokes Article 34 of the Convention.
1. Exhaustion of domestic remedies
The Government request the Court to declare the application inadmissible as the applicant has failed to exhaust the domestic remedies available to her. She never applied to any authorities with a complaint about the attack on her. Moreover, she continues to avoid any contacts with the authorities and could not be questioned in the proceedings initiated upon the information obtained from the European Court.
The applicant argues that she had no effective remedies to turn to. First, she claims that in January 2000 there were no functioning legal institutions in Chechnya. She further argues that the criminal investigation mounted into the complaint was wholly ineffective. As to civil law remedies, they would be inappropriate to deal with this type of complaint and in any way, would be ineffective in the absence of the outcome of the criminal investigation. The applicant asks the Court to join the objection to the merits of the case.
The Court considers that in the particular circumstances of the present case it does not have sufficient information to enable it to make a ruling on the question of exhaustion of domestic remedies. Furthermore, this question 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 applicant’s complaints
a) The Government
The Government do not dispute the facts of the attack on the applicant. They note however that the identity of the perpetrators was not established. They underline that the applicant’s failure to appear for questioning severely impedes the progress of the criminal case and submit that the investigation into the attack is in compliance with the legislation in force and is on-going.
Under Article 13, the Government state that the applicant had access to effective domestic remedies in accordance with the Constitution and the applicable legislation. They stress that the applicant’s disregard of these proceedings cannot be considered as an indication of their ineffectiveness.
b) The applicant
The applicant maintains her complaints. Under Article 2 the applicant argues that there can be no reasonable doubt that the unlawful attack on her life has been carried out by the servicemen. She relies on the Court judgment in Khashiyev and Akayeva (§ 16 and 145, mentioned above) to support her allegation of control of the Russian forces over the district by that time. She refers to the documents of the investigation file which support the version of the attack carried out by servicemen.
The applicant alleges that the authorities failed to conduct an effective investigation into the circumstances of the life-threatening attack on her, in violation of the procedural obligations under Article 2. She argues that the investigation fell short of the standards of the European Convention and of the national legislation. She argues that the investigation was not prompt because of the delay in opening and in taking of important steps. A number of investigative actions were never taken, such as securing the relevant evidence and questioning the servicemen who could have been involved. The applicant specifically notes the failure of the authorities to investigate the events in the Staropromyslovskiy district in January 2000 in their entirety, even though there was clearly a pattern to the killings and the information about them was available already in January-February 2000. The applicant refers, for example, to the earlier investigation files, such as the one produced by the Government in the Khashiyev and Akayeva case and opened in 2000, which referred to the applicant’s case and other similar incidents.
Under Article 3 the applicant submits that she was subjected to torture in breach of Article 3, and that the State, for the same reasons as mentioned above, failed to comply with its positive obligation to investigate an arguable claim of ill-treatment. The applicant also asserts that she was deprived of an effective domestic remedy for her Convention complaints, as required by Article 13.
The applicant submits that she had no recourse to effective remedies against the said violations, contrary to Article 13.
Finally, the applicant argues that the Government do not deny her allegations of threats issued to her by unknown persons in relation to her complaint and requests the Court to find Russia to be in breach of its obligation not to hinder in any way the right of individual petition under Article 34 of the Convention.
c) The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the case 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 as to the exhaustion of domestic remedies;
Declares the application admissible, without prejudging the merits of the case.
Søren Nielsen Christos Rozakis
1 The inhabitants of Grozny traditionally refer to “settlements” within the Staropromyslovskiy District, such as Tashkala, Aldy, Chernorechye etc., even though administratively they are a part of the city.
GONCHARUK v. RUSSIA DECISION
GONCHARUK v. RUSSIA DECISION