FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58701/00 
by Kheyedi MAKHAURI 
against Russia

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 20 June 2000,

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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Kheyedi Shamilovna Makhauri, is a Russian national, who was born in 1959 and was a resident of Grozny, Chechnya. She is currently residing in Ingushetia. She 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 attack on the applicant 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

The applicant lived in the Tashkala settlement1 in the Staropromyslovskiy district in Grozny at 201 Pugacheva Street. She lived in a private house together with her husband and five children, born in 1980, 1982, 1986, 1987 and 1997. In September 1999 the applicant’s four elder children went to Ingushetia to stay with the relatives, while the applicant, her husband and the youngest child remained in Grozny to look after the house and property.

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 taken.

At the end of October the applicant and her family also moved to Ingushetia fleeing from the bombardments. There they rented housing in the village of Nesterovskaya. In Nesterovskaya the applicant met her neighbour from Grozny, Larisa (also known as Satsita) D.

On 20 January 2000 the applicant saw a program on the all-Russian ORT TV station about the situation in Grozny. The report allegedly stated that the Tashkala settlement had been under full control of the federal forces and that civilians started to return. The applicant and Larisa D. decided to go to Grozny to check their houses. In addition the applicant wanted to find her children’s documents she had left there.

In the morning on 21 January 2000 the applicant and Larisa D. started off to Grozny. The applicant took her passport and 500 roubles, of which she paid 100 roubles for the bus trip to the Grozny outskirts. They spent the night of 21 to 22 January with the applicant’s relatives in Grozny. On 22 January 2000 at a military roadblock, where about 20 other women were waiting to be let through, they met another neighbour from Tashkala, who had also seen in the news about the return of civilians, Nura. At that time the applicant did not know Nura’s family name. Nura joined them, and the three of them went to Tashkala on foot.

When they reached the applicant’s house, she went into the courtyard and saw that the house and all the property had been destroyed. She was unable to find the documents. The women consoled her and they went to Larisa D.’s house also situated in the Pugacheva Street. They walked another block when they noticed in 60 – 90 metres further along the street a group of 30-40 soldiers and three or four armoured personnel carriers (APCs). The soldiers were taking valuables out of the houses and stacking them into the APCs. The applicant and two other women were aware of stories when soldiers killed witnesses of looting and became very scared. They immediately turned around and wanted to walk away, but the soldiers noticed them and ordered them to approach and to produce identity documents. The soldiers were dressed in camouflage and spoke Russian, they addressed each as “Lekha” and “Magomed”. Some spoke with an accent and the applicant guessed that they had come from the Northern Caucasus.

The applicant’s passport was in order, as well as the passports of other women, and all three had permanent addresses in Grozny. The soldiers checked their passports and told the women to empty their bags and pockets. They then asked if they had forgotten anything, but the applicant was too frightened to understand that they had implied “any valuables”. The soldiers accused them of being fighters’ informants and told them to get into the APCs to be taken to the military commander’s office for an identity check. The women were scared to get into the APC and asked if they could walk instead. The soldiers permitted them to walk, but their eyes were tied with their own scarves. When the women asked why they had covered their eyes, the soldiers replied rudely that that had been “an order from the superior”.

They walked about 50 metres further and the soldiers took them into the courtyard of a destroyed house. The applicant was walking first, the two women were following her. She sensed that something went wrong, lifted her scarf and saw a machine gun aimed at her. The soldiers shot in the air and forced the women to the entrance of a half-destroyed shed. The women started to cry and to plead for mercy. Nura approached the soldiers, while the applicant and Larisa D. stood by the entrance, and asked the soldiers what they wanted from them and pleaded for mercy. One of them shot Nura in the head. Then they shot at Larisa and the applicant. Larisa was in front and received most of the bullets, the applicant was also wounded. She fell, hit a cement step with her head and lost consciousness.

She was awoken by the pain in her ear when one of the soldiers tore a golden earring from her. They also picked up her ring and a chain from her neck. She realised that she should pretend to be dead or they would kill her. She fainted again.

She awoke for the second time to a strong pain in her leg and when she opened her eyes she realized that Larisa and herself were lying partially within the shed, with their legs on the steps outside, covered with a mattress set on fire. The mattress was too damp to burn and was smouldering, but the applicant smelled diesel and realised that it had been spilled around. Her leg was burnt. Nura’s body was lying a few metres away. The applicant then heard the sound of a car leaving. She climbed out of the shed, took a few steps and fainted again.

When she regained consciousness, she had lost a lot of blood and was very weak. She could not walk, so she crawled out into the street. She walked about 300 metres to a cellar of a five-story building called “the pilots’ house” in the Reznaya Street, where she knew someone was living. When she reached the cellar it was already dark. She started to knock on a pipe leading into the cellar, and was picked up by old women who lived in that cellar. They carried her into the cellar and gave her first aid. The applicant had received a perforating wound – the bullet entered her right arm and exited in the left side of her neck.

On the second day the women told her that the soldiers had been looking for her because they did not find her body at the place of the execution. Soldiers visited their cellar but the women dressed the applicant in their clothes and told them that she was one of them. They told her that two girls from 166 Derzhavina Street had stayed with them 10-12 days before that and that their relatives had also been killed by soldiers (see Tangiyeva v. Russia, no. 57935/00).

On 24 January 2000 two relatives of the applicant came from Ingushetia to pick her up. They were alerted by the neighbours who had found her passport with bullet holes. With assistance of a military officer the applicant got to Ingushetia.

The applicant submitted a hand-drawn plan of the relevant part of the district with indications of the places to which she refers.

2. Subsequent events and investigation

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.

The applicant spent two months in the Ordzhonikidze village hospital where her wounded hand was operated on. In the hospital she was visited by a number of Russian and foreign journalists, members of human rights NGOs. The applicant attached copies of press articles and NGO reports where her story had been related. She was also visited by Nura’s and Larisa D.’s relatives who later told her that they had found their bodies and buried them.

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 death of Larisa D. and Nura, based on an interview with the applicant in Ingushetia.

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 14 February 2000 the NGO Memorial addressed the General Prosecutor with information about the applicant’s case. It requested that a criminal case be opened on the basis of the applicant’s statement concerning the attack on her and murder of Larisa D. and Nura by the Russian soldiers. On 15 and on 25 February 2000 Memorial was informed by the Chief Military Prosecutor’s Office that their letters had been forwarded to the Military Prosecutor of the Northern Caucasus Circuit. On 18 April 2000 Memorial forwarded to the prosecutors additional information concerning the applicant, including her temporary address in Ingushetia.

On 9 June 2000 the military prosecutor of the military unit no. 20102 (located in Khankala, the main Russian military base in Chechnya) replied to Memorial with information concerning several cases of alleged crimes against civilians. According to this letter, a criminal case was opened on 31 May 2000 upon the applicant’s complaint. The investigation was opened under Article 105 part 2 of the Criminal Code – murder in aggravating circumstances.

On 18 August 2000 the applicant received a telegram by which she had been called to arrive to the Khankala military base on 19 August at 11 a.m. “to take part in the investigative actions related to the murder of Nura D.” (the telegram referred to Larisa’s family name). The applicant did not go to Khankala, because it is the largest Russian military base, heavily guarded and surrounded by numerous check points and she was afraid to travel there alone. In October 2000 some officers from the military prosecutor’s office came to the applicant’s temporary lodging in Ingushetia but she was in the hospital at that time.

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.

On 19 November 2003 Memorial wrote a letter to the Military Prosecutor of the Northern Caucasus Circuit, with a copy to the Chief Military Prosecutor, asking for details in the criminal investigation of the applicant’s case. The letter also asked for a possibility for the applicant or her representatives to access the criminal investigation file. On 26 December 2003 the Chief Military Prosecutor forwarded their request to the Military Prosecutor of the Northern Caucasus and referred to the “criminal case no. 34/33/0262-00” concerning murder of two women, referred to by last names, and wounding of the applicant. From this letter the applicant for the first time learnt the number of the criminal case file and Nura’s family name. No further information was received.

The applicant submits that she was never informed whether she was granted victim status in the criminal proceedings.

As a result of the wound received on 21 January 2000 the applicant’s left hand was left partially paralysed and she suffers from pains and contractions in that hand. In July 2000 and in October 2001 the applicant was again operated on her left arm. Each time she remained in a hospital for about a month. In July 2003 she spent a week in a hospital. She cannot lift weights heavier than five kilograms. In 2002 she was granted disabled status and receives a monthly disability pension of RUR 1,044 (EUR 30). She continues to live in Ingushetia where she rents an apartment, while her house and all her property in Chechnya have been destroyed. The applicant submits that she continues to suffer from the consequences of the attack: she is scared to return to Chechnya, is afraid for her family and has nightmares. The applicant submits that she is afraid of men in camouflaged uniform and every time she sees them she has difficulty breathing and her legs go numb.

B. Documents submitted by the parties

The parties submitted numerous documents concerning the attack and the investigation into it. The main documents of relevance are as follows:

1.   Documents from the investigation file

The Government submitted a copy of the investigation file in criminal case no. 14/33/0262 (joined in July 2004 with the criminal case no. 50100), which comprises four volumes, and a list of documents contained therein. The first volume contains 159 documents, the second – 87, the third – 93 and the fourth - 80. The most important documents contained in the file can be summarised as follows:

a)  Decision to open a criminal investigation

On 3 May 2000, following a letter from the Memorial Human Rights Centre, the military prosecutor of military unit no. 20102 based in Khankala opened a criminal investigation under Article 105 part 2 (a) and (j) of the Criminal Code concerning murder of two women and the wounding of the applicant by “unidentified soldiers” on 22 January 2000. In December 2003 the investigation was transferred to the civil Chechnya Prosecutor’s Office.

Independently from the above, in May 2000 the Grozny Town Prosecutor’s Office opened criminal case file no. 12038 into “mass murder of civilians in the Katayama settlement by the ‘205-th brigade’”, following the publication of an article entitled “Freedom or Death” in the Novaya Gazeta newspaper on 27 April 2000. In September 2003 the investigation decided that the information concerning the attack on the applicant and the killing of two women constituted a separate episode and forwarded a part of the file to the Staropromyslovskiy District Prosecutor for further investigation. On 9 September 2003 the District Prosecutor’s Office opened criminal investigation file no. 50100.

In July 2004 the two files were joined at the Staropromyslovskiy District Prosecutor’s Office under the file no. 50100.

b)  Statements by the applicant and the search for her

The case file contains the applicant’s “explanations” collected from her by a military prosecutor on 2 May 2000. It gives a detailed account of the attack, including the description of two soldiers aged about 18-20 who had shot at the applicant and her two companions. The applicant stated that she would be able to recognise at least one of them. The document did not contain the applicant’s new address.

On 20 July 2000 and in March 2001 the investigator of the military prosecutor’s office requested the prosecutors in Ingushetia to locate and question the applicant. On 18 August 2000 the applicant was invited by a telex to appear for questioning to the military prosecutor in Khankala.

On 9 April 2001 the military prosecutor in Ingushetia reported that the applicant had left for Chechnya and could not be questioned.

In August 2001 the applicant’s neighbour in Grozny testified that she had come to Grozny occasionally but was afraid to stay there. He also stated that the applicant had suffered from the consequences of the attack, feared armed men and men in uniforms and was afraid to speak of what had happened to her.

In October 2001 – January 2002 the investigation on several occasions requested the military and civil prosecutors and the local bodies of the interior in Ingushetia to locate and question the applicant. Several of her relatives and neighbours were questioned about her whereabouts. In November 2001 the applicant’s daughter (born in 1986) stated that her mother had left for Kazakhstan for treatment. In February 2002 another applicant’s relative in Ingushetia confirmed this information.

In April 2002 the applicant’s sister-in-law Alimat U. testified that the applicant resided in Ingushetia, but every month came to Grozny, where she was registered, to receive social benefits. She confirmed that the applicant continued to suffer from stress and was afraid of men in uniforms.

On 29 April 2002 the applicant was finally questioned in Ingushetia by a military prosecutor. She gave a detailed statement about the attack of 22 January 2000 and described in details the servicemen who had detained them, escorted them to the house in the Koltsova Street and shot at them. She described their camouflage uniform of “pale” colour, similar to the one of police, and stated that some of them had been wearing black bullet-proof jackets and portable radios. The applicant stated that she could identify one of the servicemen, addressed by others as “Magomed”.

The Chechnya Prosecutor’s Office also took steps to find the applicant while investigating the criminal case no. 12038 into the murders in the Staropromyslovskiy district. In October 2003 the applicant was questioned in Ingushetia about the circumstances of the attack. She confirmed that the perpetrators had belonged to the federal forces, referring to the uniforms, military vehicles and the fact that they had spoken pure Russian.

c) Statements by the relatives of Larisa D. and Nura, other neighbours

On 3 June 2000 the military prosecutor questioned Larisa D.’s sister, Zara A. who testified on 23 January 2000 she had learned of her sister Larisa’s (Satsita) death in Grozny. She learnt this from the applicant’s relatives in Ingushetia. Also on 23 January the witness talked to the applicant in the Sunzhenskiy hospital and saw her wounds and the burns on her leg. On the following day, on 24 January, the witness with two other women went to the address indicated by the applicant in the Koltsova Street and there they found two bodies – those of her sister Larisa and of the second woman. The body of Larisa had numerous wounds to the chest area, while the body of the other woman had the upper part of the head missing. Both bodies were damaged by animals. The witness concealed the bodies in the courtyard and left to seek help. Both women were buried around 28 January 2000 in one grave in the cemetery of the Oktyabrskiy sovkhoz bordering the Staropromyslovskiy district, with the assistance of a local imam. Zara A. agreed to identify the burial place and to permit her sister’s body exhumation for the purposes of a forensic expert report. In November 2003 Zara A. was again questioned by the civil investigators in Grozny and confirmed her previous statements.

On 3 June 2000 the investigation questioned Larisa D.’s widower, Usman S., whose cousin was also married to the applicant. He testified that in the morning of 20 January 2000 he saw Larisa and the applicant to the bus to Grozny. Two days later he learnt that his wife, the applicant and a third woman had been shot at in Grozny by servicemen. They had two daughters in the marriage. He also did not object to the exhumation of his wife’s body for forensic purposes. Usman S. was questioned by the civil prosecutors in November 2003 and gave similar statements. In May 2004 he was again questioned and granted victim status in the proceedings. In July 2004 Usman S. was again questioned and this time he expressly objected to the exhumation of his wife’s remains.

Zayna M., Larisa’s other sister, and her husband Mouldy M. gave testimony in November 2001, which followed the statements of Zara A. They indicated, in addition, that near the body of Nura they had a found her passport and thus learnt her family name. The passport was kept with the imam who later gave it to her relatives. They indicated the date of burial as 3 February 2000. Zayna M. also gave detailed statements about the discovery of the bodies. She stated that the clothes on the bodies of her sister and Nura had been opened, as if they had been searched. They found an open wallet which they guessed had belonged to Nura and an empty pocket which her sister Satsita had worn around her neck and where she had kept her golden jewellery. Zayna M. produced a detailed drawing of the site and gave a description of the district, with indication of the places to which she had referred. She indicated the locations occupied by the military units, but could not identify these units by names or otherwise. She also stated her firm conviction that the murders had been committed by servicemen, based on the accounts of the applicant and the women who had sheltered her in the cellar. The witness asserted that by 20 January 2000 there had been no fighters left in the district, and therefore the armed men could only be soldiers. On 8 November 2001 Zayna M. was granted victim status.

The investigation questioned a number of local residents of the Staropromyslovskiy district in the attempt to find witnesses of the attack on the applicant. In November 2001 the local imam testified that on 3 February 2000 he had assisted in the burial of two women, found in the courtyard of a house in the Koltsova Street with gunshot wounds. He identified them as Larisa D. and Nadezhda (Nura) T.

In November 2001 the investigation forwarded requests for information about the family of Nura T. to the town of Achkhoy-Martan where her family had resided.

Other local residents questioned in the Staropromyslovskiy district did not have any additional information about the attack, because most of them had spent the winter of 1999 – 2000 out of Grozny.

d) Death certificates

On 1 June 2000 the Staropromyslovskiy district civil registration office issued a death certificate for Satsita Akhmadovna D. The date and place of death were recorded as 21 January 2000, Staropromyslovskiy district of Grozny. The death has occurred due to gunfire wound to the head, recorded on the basis of a medical death certificate no. 95 issued on 29 May 2000 by the [Grozny] town hospital no. 3.

The investigation requested corresponding information from the hospital, and in November 2001 they responded that the medical document had been issued on the basis of the report by an officer of the Staropromyslovskiy VOVD issued on 27 May 2000.

The investigation also unsuccessfully tried to find out whether the death of Nura T. had been recorded by medical authorities or by the civil registration bodies in Grozny or in Achkhoy-Martan.

e) Examinations of the site and the ballistic expertise

On 27 June and 29 July 2000 the military investigators examined the site of the attack in the courtyard of the house 204 Koltsova Street. During the first examination in the courtyard there were collected 71 cartridges from automatic rifle calibre 5,45 mm and 62 cartridges from automatic rifle calibre 7,62 mm. During the second examination there was collected one bullet calibre 5,45 mm. To the reports were attached photos and a drawing of the site.

On 11 August 2000 the ballistic expertise concluded that the bullet belonged to a standard round of ammunition used for Kalashnikov automatic rifle, calibre 5,45 mm, and that no other information could be derived due to deformation of the bullet.

On 18 August 2000 the collected cartridges were forwarded by the investigator for a ballistic report with a number of questions. However, it appears that on the same day, i.e. on 18 August 2000, the military prosecutor of the North Caucasus military circuit stated that the carrying out of the expert report would be useless and its conclusions would have no evidential value, in view of the passage of considerable time (over five months) between the murders and the finding and the collection of the cartridges.

Another examination of the site was carried out in November 2001, when the investigators, together with a sister of Larisa D., Zayna M., travelled around the Staropromyslovskiy district. Zayna M. showed her route on 24 January 2000 and indicated the cellar of the house in the Partizanskaya Street where she had first seen the wounded applicant, two military roadblocks (still functioning), the former dormitory of a radio plant where at the relevant time there had been stationed a detachment of the OMON troops from North Ossetia and, finally, the house at 204 Koltsova Street where she had found the bodies of her sister and of Nura T.

In 2003 and 2004 the investigators of the Staropromyslovskiy District Prosecutor’s Office again examined the house and courtyard at 204 Koltsova Street, but did not collect anything of interest.

f) Documents relating to identification of the relevant military units

The investigation sent dozens of requests and collected a variety of information related to the participation of military units of the Ministry of Defence and of the Ministry of the Interior in the operations in the Staropromyslovskiy district of Grozny in January 2000.

In June 2000 the military prosecutor requested the head of staff of the United Group Alliance (UGA) (начальник штаба ОГВ), the head of staff of the Internal Troops Alliance in the Northern Caucasus (начальник штаба группировки ВВ МВД РФ на территории Северо-Кавказского региона) and the head of staff of the Northern Caucasus military circuit to submit copies of the combat situation maps and situation reports of Grozny and, in particular, of Staropromyslovskiy district for 21 and 22 January 2000.

In July 2000 the military prosecutor again requested the head of staff of the UGA, the head of staff of the Internal Troops Alliance in the Northern Caucasus and the head of the mobile detachment of the Ministry of the Interior in Grozny (мобильный отряд МВД РФ г. Грозный) to identify the exact temporary location of their respective units at the relevant time, to identify the commanding officers and to retrieve combat situation maps, situation reports and mission orders, to submit information related to vehicles used, including APCs, types and numbers of weapons etc.

On 4 June 2000 the Grozny Department of the Federal Security Service notified the investigation that they had no information relevant to the case. It appears that in July 2000 the headquarters of the UGA responded to the military prosecutor that no copies of such documents existed. On 30 July 2000 the headquarters of the Internal Troops Alliance in the Northern Caucasus responded that all the relevant information had been transferred to the central archive of the Internal Troops. On 15 August 2000 the head of staff of the UGA responded that all information related to the counter-terrorist operation in the Northern Caucasus prior to 15 May 2000 had been forwarded to the archives of the Northern Caucasus military circuit. In June-July 2001 the archives of the Northern Caucasus military circuit and the central archive of the Internal Troops stated that they did not have the documents requested.

In January 2001 the headquarters of the Interior Troops of the Ministry of the Interior informed the investigation that on 21-22 January 2000 no detachments of the Ministry had been based or operated in the Staropromyslovskiy district or the Tashkala settlement.

In October 2001 the investigation requested similar information from the commander-in chief of the Internal Troops and the archives of the Northern Caucasus Military circuit. The archives again stated that they did not have the documents requested.

In November 2001 the investigation again requested the UGA to disclose the information about the engagement of military units in the Staropromyslovskiy district on the relevant dates and to indicate which military unit had been based in the territory of the former metal storage facility in the Tashkala settlement. The letter referred to the previous correspondence with the archives of the Northern Caucasus military circuit that had denied receiving any such information from the UGA. Another request to identify the temporary and permanent positions of the named military units was sent to the staff of the UGA in January 2002.

In August 2002 the investigation again requested the head of staff of the Northern Caucasus military circuit to submit details about the deployment and positioning on 20-22 January 2000 in the Staropromyslovskiy district of 30 military units previously communicated to the investigation. In September 2002 the staff responded that they had no information about the operations in question and submitted the addresses of the relevant military units.

In April 2002 the investigation requested access to the relevant documents at the headquarters of the UGA. The response stated that the documents in question had been either transferred to the archives of the Northern Caucasus military circuit or destroyed.

In the meantime, having obtained a list of all military units involved in operations in Grozny in December 1999 – February 2000, in August 2000 the investigators requested the head of staff of the Internal Troops Alliance in the Northern Caucasus and the head of staff of the UGA to submit detailed information about the participation of these military units in the operations in the Staropromyslovskiy district. The investigation received responses from the relevant authorities containing some of the requested information. On the basis of these, the investigators sent dozens of requests to the locations of the military units and to the military prosecutors in these regions. The investigation also forwarded a number of requests to the relevant civil prosecutors and the departments of the interior in the regions whose detachments had been deployed in Grozny in winter 2000.

It appears that the military and interior servicemen questioned about their participation in the operations in Grozny all denied that their detachments had taken part in the operations in or near the Koltsova and Pugacheva Street. In particular, the commander of the OMON from North Ossetia wrote to the investigators and stated that their servicemen had not been on mission in Chechnya between December 1999 and January 2000. Other military units responded that had no information relevant to the investigation of the criminal case.

In May and June 2002 the military prosecutor in Budenovsk, Stavropol region, reviewed the operative reports, orders and log book of the 205-th motor rifle brigade (205 омсбр) for December 1999 – February 2000 and concluded that they contained no information relevant to the investigation of the criminal case. Two officers of that military unit stated that their unit had been engaged in the Staropromyslovskiy district in January 2000, but that by 22 January they had moved forward to the centre of the city. They stated that their unit had no APCs and that their servicemen had not been involved in patrolling of the territory on their own or in cooperation with other military units. They denied having any information about the attack on the applicant or any other attack on the civilians.

The Chechnya Prosecutor’s Office also attempted to identify the relevant military units while investigating the murders of civilians. In December 2003 the staff of the Northern Caucasus military circuit forwarded to the Staropromyslovskiy District Prosecutor’s Office information about the military operations in the district in January-February 2000, from which it followed that the 205-th motor rifle brigade was involved in the operations in the Staropromyslovskiy district from 1 January to 13 February 2000. On 17-22 January 2000 the brigade was taking positions in the Pugacheva Street.

In April 2004 the Chechnya Prosecutor’s Office requested the military prosecutor of the UGA to provide them with the information concerning the relevant military units and to question their servicemen.

g) Information from the Staropromyslovskiy district authorities

The investigation questioned several servicemen of the Staropromyslovskiy VOVD who stated that their office had been set up on 7 February 2000. The servicemen of the office of the district military commander stated that their office had been set up on 18 February 2000. Both offices had no information relating to the events preceding these dates and were staffed by servicemen from different regions on short-term missions to Chechnya. They had no information related to the crime, but stated that in January 2000 a group of the police special forces (OMON) from the Perm region and a group of servicemen of the Moscow Regional Department of the Interior had been on mission in Chechnya.

In August 2001 and again in October 2001 the investigation requested the Staropromyslovskiy VOVD to submit information about the location and manning of roadblocks in the district on 21-22 January 2000.

In October- November 2001 the servicemen of the Staropromyslovskiy VOVD informed the investigation that a criminal case into the murder of two women and wounding of the applicant had been opened by the Grozny Town Prosecutor’s Office in 2000. They also stated that the applicant and her relatives did not live in the district and could not be found, nor did they identify any witnesses of the crime.

In December 2001 the head of the Staropromyslovskiy district department of the interior (ROVD) informed the military prosecutor that the killings in question had been committed by a group of servicemen stationed at the relevant time in the Derzhavina Street. He also notified the family name of Nura T., and stated that her body had been buried by her relatives in Achkhoy-Martan in 2000. He also stated, in November 2001, that no witnesses of the crimes could be identified in view of the passage of time, and that the applicant did not live at her permanent address.

The investigation requested information about the case from the Grozny Town Prosecutor’s Office, but it appears that no response was received.

In April 2002 the head and the deputy head of the Staropromyslovskiy ROVD testified about the events of January – February 2000. Both stated that they had arrived to the district around 22 January 2000 with the troops, that they were aware of the applicant’s case and that it was one of many instances where the servicemen had killed civilians in the district. The head of the Staropromyslovskiy VOVD stated that he was aware of about 40 similar cases in the district, all committed in the same style – people shot from automatic rifles in the courtyards and garages. Both servicemen also spoke of wide-spread looting committed by the same servicemen who had been conducting house-to-house searches. The witnesses testified that, according to their knowledge, the crimes against civilians had been committed by the servicemen of the Ministry of the Interior, most probably by a consolidated team of special police forces (SOBR) of the North-Western region, which had included servicemen of the Leningradskiy region and Komy Republic. The witnesses described them as well-built men aged more than 25, dressed in various types of camouflage and clearly distinguishable from the military units usually staffed by younger conscripts. They stated that various detachments of the Ministry of the Interior had been stationed in the district and they had refused to cooperate with the newly established ROVD, in contrast to the military units who had maintained a stricter discipline and better control of their staff.

h)  Information about other murders

The investigation questioned a number of local residents of the Staropromyslovskiy district in the attempt to find witnesses of the attack on the applicant and also in the attempt to find the applicant herself.

In August 2000 the investigation questioned Galina P. (born in 1937) who stated that in winter 1999-2000 she remained in Grozny. She moved in with the Tangiyev family at Derzhavina Street, where nine people had stayed in the cellar, and remained there until 24 December 1999. Then they moved to another house, at 144 Pugacheva Street, because the shelling was too intense and the first house had been damaged. In the big cellar at 144 Pugacheva Street there stayed about 60 people, mostly elderly people. The Chechen fighters left their district about 18 December 1999. The witness testified that the federal soldiers had regularly visited their cellar and forced the inhabitants to help them retrieve wounded and dead. On 1 or 2 January 2000 three youngest men from the cellar (aged less than 50) had been taken away by the soldiers and later found dead. The witness described the soldiers as wearing blue-grey camouflage uniform. She also testified that on 10 January 2000 she, together with two Tangiyev sisters, visited their house where four persons continued to live – the owner of the house and his wife, his brother and an elderly woman, Valya. They found the bodies of Tangiyev and Valya in the house with gunshot wounds, while the cellar had been closed and burning. A neighbour told them to go away and later told them that he had buried the four bodies in the courtyard. On the same day, 10 January 2000, the witness left for Ingushetia.

On the basis of this information, in 2000 the military investigators requested the Grozny Town Prosecutor’s Office to give them information about the murder of the three members of the Tangiyev family and the woman named Valentina. It appears that no response was received.

i)  Testimony by Anna Politkovskaya

Within the framework of the criminal case no. 12038 concerning the murders in the Staropromyslovskiy District, the Grozny Town Prosecutor’s Office questioned Anna Politkovskaya, author of the article “Freedom or Death”. She testified that in February 2000 she had been in Ingushetia and in the Staropromyslovskiy district of Grozny where she had interviewed several witnesses of the killings and the relatives of the deceased. She had also interviewed the applicant in the hospital in Ingushetia and the article contained a piece about the attack on her. Mrs Politkovskaya stated that in their interviews several witnesses had referred to the “205-th brigade” as being responsible for the murders.

j) The applicant’s medical documents

On 4 June and on 28 July 2000 the military prosecutor’s office ordered a medical report of the applicant. On 15 August 2001 another report of the applicant was ordered, and on 20 August 2001 the expert report was drawn on the basis of the applicant’s medical file from the Sunzhenskiy hospital. It concluded that the applicant suffered from a gunshot wound that could be received in the circumstances as described.

In September 2001 the Grozny Town Prosecutor’s Office also ordered a medical examination of the applicant while investigating the criminal case no. 20138 (mass murders in the Katayama settlement) and sought the relevant medical documents from the Sunzhenksiy hospital. Similar requests were sent again in 2003.

In October 2001 the Sunzhenskiy district hospital confirmed to the military prosecutors that the applicant had remained there from 24 January to 13 March 2000 with gunfire wounds.

k)  Decision to recognise the applicant as a victim

Several decisions were issued by the investigation by which the applicant was accorded victim status in the proceedings. None of them were countersigned by the applicant.

l)  The prosecutor’s orders

The case was adjourned and reopened on 12 occasions. In their decisions to resume the adjourned proceedings the supervising military and civil prosecutors on numerous occasions criticised the investigation as being “carried out at a low professional level”, “superficial and incomplete”, “failing to take the necessary steps to identify the culprits” etc.

The case-file concludes with the order of the Staropromyslovskiy District Prosecutor of 17 August 2004 to reopen investigation and to carry out a number of tasks, including questioning and granting of victim status to the applicant, identifying the culprits, carrying out the exhumation of the bodies and forensic expert reports etc.

2.  Documents submitted by the applicant

The applicant submitted a number of documents relating to the events of January 2000. The main documents of relevance are as follows:

a) NGO and press reports

The applicant’s story was related in a number of Russian and international publications submitted by the applicant. She was also cited in the Human Rights Watch and Memorial’s reports of February 2000 concerning the murders of civilians in the Staropromyslovskiy district.

On 9 February 2001 Human Rights Watch issued a Memorandum on the state of the national investigation into human rights and international humanitarian law violations in Chechnya. The report stated that the investigation into the mass murder of civilians in Grozny, including the applicant’s case, was not carried out effectively and produced no results. The report deplored the impunity and called the authorities to carry out a proper investigation into the allegations of the attacks on civilians.

b)  Information from the Office of the General Prosecutor

In his letter dated 25 April 2003, Deputy General Prosecutor Mr Fridinsky replied to a request for information sent by Mr Kovalev, a member of the State Duma. The letter contains information relating to the prosecution of army servicemen in Chechnya for crimes committed against civilians. Since the beginning of the “counter-terrorist operation”, 58 indictments have been forwarded to the courts by the military prosecutors and 74 persons have been indicted. Of those, 12 cases concerned murder, 13 – theft, four – abuse of power, five – careless driving of military vehicles, etc. 51 persons were found guilty, of whom seven were officers, 22 were professional soldiers and sergeants, 19 were conscript soldiers and three were non-commissioned officers. In addition, the Chechen Republican Prosecutor’s Office brought 17 charges against 29 servicemen of the Ministry of the Interior for crimes against the civilian population. From the description attached to the letter it follows that, in the majority of cases, the sentences were conditional or were lifted in application of an amnesty.

c)  Other sources

The applicant submitted an extract from the book “My War” by General Gennady Troshev, who at the relevant time had been the Commander of the Eastern Direction of the UGA in Chechnya (командующий восточным направлением Объединенной группировки Российских федеральных войск в Чечне). The book stated that by 3 January 2000 all major parts of the Staropromyslovskiy district of Grozny were under control of the Russian forces.

COMPLAINTS

1.  The applicant complains under Article 2 of the Convention about the attack of 22 January 2000 and about the failure of the competent authorities to conduct an effective investigation.

2.  The applicant submits that the circumstances of the attack of 22 January 2000 and the suffering inflicted on her by its consequences constitute inhuman treatment prohibited by Article 3 of the Convention. She also complains under Article 3 about a failure to carry out an effective and speedy investigation into a credible complaint about inhumane treatment.

3.  The applicant complains that she had no effective remedies against the above violations, contrary to Article 13 of the Convention.

THE LAW

The applicant alleges violations of Articles 2, 3 and 13 of the Convention.

1. The Government

The Government do not dispute the facts of the attack on the applicant. They submit that in the period between 10 December 1999 and 10 February 2000 the Staropromyslovskiy district of Grozny was occupied both by the federal forces and the illegal armed groups and that it was therefore impossible to ascertain the perpetrators of the attack on the applicant. Her right to life was not breached by the representatives of the State. The investigation into the attack is in compliance with the legislation in force and is on-going.

As to the applicant’s complaint under Article 3, the Government disagree that she was subjected to treatment proscribed under that Article.

The Government stress that the applicant was questioned on two occasions and granted victim status in the proceedings. However at some point the applicant changed her place of residence without notifying the authorities and has not contacted the law-enforcement bodies ever since.

2. The applicant

The applicant maintains her complaints. Under Article 2 the applicant argues that there can be no reasonable doubt that the attack has been carried out by the servicemen, and not by the members of the illegal armed groups. She refers to the information about the control of the Russian forces over the district by that time, widely cited by the official Russian media, including the ORT report which she had seen on 20 January 2000 and which had prompted her to go to Grozny. The applicant refers to the documents of the investigation file which exclusively investigated the version of the attack carried out by servicemen and to the witness statements pointing to the same.

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 points to the passage of considerable time – more than five years – without the investigation producing any conclusive results. 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 investigation failed to inform her of the progress and to properly recognise her victim status in the proceedings.

Under Article 3 the applicant submits that she was subjected to ill-treatment and inhuman and degrading treatment, 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.

3. The Court’s assessment

The Court considers, in the light of the parties’ submissions, that the complaints raise complex issues of law and fact, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that these complaints cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis 
 Registrar President

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.


MAKHAURI v. RUSSIA DECISION


MAKHAURI v. RUSSIA DECISION