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FIRST
SECTION
CASE OF
KHAMBULATOVA v. RUSSIA
(Application
no. 33488/04)
JUDGMENT
STRASBOURG
3 March
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Khambulatova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Christos
Rozakis,
Peer
Lorenzen,
Elisabeth
Steiner,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 10 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33488/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Ms Amnat (also spelled as
Aminat) Khambulatova, on 15 September 2004.
- The
applicant was represented by lawyers of the NGO EHRAC/Memorial Human
Rights Centre. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, the
Representative of the Russian Federation at the European Court of
Human Rights.
- The applicant alleged that
her son had been unlawfully detained, ill treated and then
killed by State agents and that there had been no adequate
investigation into the matter. She relied on Articles 2, 3, 5 and 13
of the Convention.
- On
20 September 2007 the Court decided to apply
Rule 41 of the Rules of Court and to grant priority treatment to
the application and to give notice of the application to the
Government. Under the provisions of the former Article 29 § 3 of
the Convention, it decided to examine the merits of the application
at the same time as its admissibility. The President of the Chamber
acceded to the Government’s request not to make publicly
accessible the documents from the criminal investigation file
deposited with the Registry in connection with the application (Rule
33 of the Rules of Court).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having
considered the Government’s objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957. At the material time she lived in
Saveliyevskaya, Chechnya. She now lives in Poland. The applicant is
the mother of Mr Timur (also spelled Temur) Khambulatov, who was born
in 1980.
A. Detention and subsequent death of Timur Khambulatov
1. Information submitted by the applicant
Events of 18-20 March 2004
(i) Detention of Timur Khambulatov
- At
the material time the applicant and her son Timur Khambulatov lived
together at 8 Dzerzhinkskogo Street in the village of Saveliyevskaya
in Naurskiy District, Chechnya.
- On
the night of 17-18 March 2004 the applicant and her son were at home.
At about 2.30 a.m. two armoured personnel carriers (“APCs”)
and two UAZ vehicles without registration numbers arrived at the
applicant’s house. Around ten or fifteen armed men in
camouflage uniforms broke down the outer door and rushed in. The
intruders spoke unaccented Russian; the majority of them were masked
and those without masks were of Slavic appearance.
- The
servicemen locked the applicant in one of the rooms and woke up Timur
Khambulatov. Then, without producing any warrant, they searched the
house. They found a bottle-shaped object wrapped in foil and asked
Timur Khambulatov if he knew what it was; he replied in the negative.
- The
servicemen handcuffed Timur Khambulatov, took him out of the house,
put him into one of the vehicles and drove away.
- In
the morning of 18 March 2004 the applicant visited the Naurskiy
district department of the Federal Security Service (“the FSB”)
and unsuccessfully inquired about her son’s whereabouts.
(ii) Timur Khambulatov’s confession
- In
the morning of 18 March 2004 Mr V.T., an officer of the Naurskiy
district department of the interior (“the Naurskiy OVD”),
wrote down Timur Khambulatov’s confession. The text of the
document, signed by the applicant’s son, included the
following:
“... Today the policemen found at my place a
home-made explosive device made from a plastic bottle, which
contained a TNT explosive cartridge, ball bearings and an electric
detonator... I made that device because I have no money and my family
members are unemployed... I thought that the policemen would not find
that home-made explosive device. The device was seized, packed and
sealed in my presence and that of the attesting witnesses; a [search
and seizure] report was drawn up and I signed it. I plead guilty and
repent of what I have done.”
(iii) Timur Khambulatov’s death
- In
the morning of 18 March 2004 (in the submitted documents the date is
also stated as 19 March 2004) Timur Khambulatov was found dead in a
detention cell of the Naurskiy OVD. On the same date the Naurskiy
district prosecutor’s office (“the district prosecutor’s
office”) notified the applicant of this and told her that she
could pick up the body from the Mozdok town morgue. The applicant
brought her son’s dead body home and took photographs of it. On
an unspecified date in 2004 Timur Khambulatov was buried.
2. Information submitted by the Government
- The
Government disputed some of the circumstances of the case. They
submitted that Timur Khambulatov had been arrested and taken to the
Naurskiy OVD. According to their submission on the admissibility and
merits of the application of 17 December 2007 (page 5),
“... On 18 March 2004 as a result of the special
operation ... servicemen of the 231st special separate
battalion of the Internal Troops of the Ministry of the Interior took
Mr T. Khambulatov, in whose household a home-made explosive device
had been discovered, to the Naurskiy OVD.
On 18 March 2004 an investigator of the Naurskiy OVD
opened criminal case no. 40560 under Article 222 of the Criminal
Code [illegal possession of firearms, ammunition or explosives].
15. However,
the Government disputed the circumstances of Timur Khambulatov’s
death by submitting the following (pages 5-6):
“... In the criminal investigation office of the
Naurskiy OVD, while being questioned by police officers, T.
Khambulatov suddenly fell to the floor and died without regaining
consciousness.
An examination of the dead body revealed numerous
injuries, such as abrasions and bruises.
On 29 June 2004 ... a criminal case was opened under
Article 286 of the Criminal Code [abuse of authority] in respect of
injuries caused to T. Khambulatov by law enforcement officers...
... The cause of Timur Khambulatov’s death was a
health problem: secondary cardiomyopathy
complicated by pulmonary heart disease. This diagnosis was confirmed
by histological study and by the lack of symptoms of other conditions
or injuries which could possibly have caused his death.
There is no direct causal link
between the blunt traumas to the head, body and extremities [of Timur
Khambulatov] and his death ...
(Pages
7-8):
“... Mr T., a police officer of the Naurskiy OVD,
stated that ... the FSB officers had put Timur Khambulatov into their
car ... and proceeded to the Naurskiy OVD. They had not stopped
anywhere on the way. ... the FSB officers brought ...
Timur Khambulatov, who had two abrasions and a swelling around
his left ear, to the OVD. The FSB officers handed him over [to the
policemen of the Naurskiy OVD] and left ... ”
- In
the very same submission of 17 December 2007 the Government further
stated (page 13):
“... according to the letter of 1 April 2005 from
Mr L., the head of the Internal Security Department of the Chechnya
Ministry of the Interior, Timur Khambulatov’s arrest was
effected by FSB officers, who, on the way to the Naurskiy OVD, used
physical force against him. On arrival at the OVD Timur Khambulatov
was questioned. At the end of the questioning in the Naurskiy OVD he
lost consciousness, fell off his chair and died ...”
- The
same submission also contained the following statement (page 13):
“... the doctor’s assistant stated that when
she had arrived [at the Naurskiy OVD] to provide medical first aid to
Timur Khambulatov, he was conscious. She had asked his name and he
had told her that his name was Timur. She had also asked whether he
had been beaten [in the OVD]. He had told her that he had been
brought there as he was. To her question as to where it hurt he had
told her that he had pain all over his body. To her question as to
where it hurt the most, he replied that he was under the impression
that something inside him had torn off. She had wanted to give him a
painkilling injection, but while she was preparing the syringe
Timur Khambulatov died ...”
B. The official investigation into the events
1. Information submitted by the applicant
(a) Information provided by the Federal
Security Service
18. On
20 March 2004 the Naurskiy district department of the FSB (“the
Naurskiy FSB”) wrote to the head of the Naurskiy OVD
informing him of a special operation carried out in respect of Timur
Khambulatov by FSB officers with representatives of the Naurskiy OVD
and the military servicemen. The letter read as follows:
“FSB special unit servicemen
arrested T. Khambulatov. Captain V.V.T. and Sergeant V.N.V. of the
Naurskiy OVD searched the house and found a home-made explosive
device intended to be used in a terrorist attack.
On the way to the police station, T.
Khambulatov attempted to grab a machine gun from one of the FSB
officers and jumped out of the back of the UAZ vehicle. During the
pursuit and capture T. Khambulatov received immobilising blows to the
torso and was put back into the vehicle.
At 4.00 a.m. Khambulatov was brought
to the Naurskiy OVD and handed over to the duty unit.”
(b) Autopsy on Timur Khambulatov
- On
18 March 2004 the district prosecutor’s office ordered an
autopsy on Timur Khambulatov’s body. Between 19 March and 26
April 2004 an expert from the Mozdok forensic assessment office
carried out the autopsy. Its results were given in a six-page report,
which described the circumstances of Timur Khambulatov’s death
as follows:
“It can be seen from the [prosecutor’s]
decision that on 18 March 2004, in the course of the ... special;
operation... Timur Khambulatov, from whom a home-made explosive
device had been seized, was arrested and brought to the Naurskiy OVD.
While being questioned in the Naurskiy OVD T. Khambulatov fell to the
floor and died without regaining consciousness.”
The
forensic assessment read as follows:
“Blunt complex trauma of the
head, body, both upper and lower extremities, with numerous bruises,
grazes and a haemorrhage in the musculocutaneous flap in the head.
Secondary cardiomyopathy: hypertrophy of the heart..., diffuse
dystrophy of cardiac myocytes, fragmentation of cardiac myocytes and
sclerosis of subepicardial arteries. Pulmonary heart disease.
Cerebral oedema. Pulmonary oedema. Expressed venous plethory of
viscera. Dark thin blood in the cavities of the heart and major blood
vessels.”
The
expert concluded that:
“[t]he injuries were caused by
blows from a hard blunt item or items or by impact against such
item(s) ... and had been sustained in the twenty-four hours before
the time of death. Given the multiple localisation of the injuries,
their character and dimensions, [one might conclude that] this blunt
complex trauma to the head, body and extremities generally causes, if
the person survives, a short-term health problem which lasts for less
than twenty-one days and is qualified as LIGHT damage to health
[minor injuries].
Timur Khambulatov’s death was
caused by a health problem: secondary cardiomyopathy complicated by
developing pulmonary heart disease, which was confirmed by histolytic
examination ... and by the absence of symptoms of other illnesses or
injuries capable of causing death.
Hence there is no direct causal link
between the blunt complex trauma of the head, body and extremities
and the death [of Timur Khambulatov].”
(c) Actions taken by the prosecutors’
offices
- On
27 March 2004 the applicant requested the district prosecutor’s
office to open a criminal investigation into her son’s
detention and death.
- On
21 April 2004 the Memorial Human Rights Centre, acting on the
applicant’s behalf, requested the Prosecutor General’s
Office, the Russian Ministry of the Interior and the head of the
Russian FSB to inform them about the progress in the investigation of
the criminal case.
- On
24 May 2004 the applicant requested the district prosecutor’s
office to carry out another post-mortem examination of her son’s
body.
- On
29 May 2004 the Chechnya prosecutor’s office informed the
applicant that her son had been arrested in the course of a special
operation carried out by the FSB, the military and two policemen of
the Naurskiy OVD. They further stated that the military prosecutor’s
office of military unit no. 20111 had decided not to institute
criminal proceedings against the FSB servicemen and the military
personnel, that the criminal proceedings against the policemen of the
Naurskiy OVD were pending and that an exhumation of Timur
Khambulatov’s body had been planned.
- On
3 June 2004 the applicant again requested the district prosecutor’s
office to carry out another post-mortem examination of her son’s
body.
- On
29 June 2004 the district prosecutor’s office instituted an
investigation into the death of Timur Khambulatov under Article 105 §
2 of the Russian Criminal Code (aggravated murder). The case file was
given the number 40046 (in the submitted documents also referred to
as 40560, 40026 and 40506). The text of the document included the
following:
“... On 18 March 2004 ...Timur Khambulatov was
detained and brought to the Naurskiy OVD ... [where] during
questioning by a police officer Timur Khambulatov suddenly fell down
and died at 8.20 a.m. without regaining consciousness...
... Numerous abrasions and haematomas were discovered on
Timur Khambulatov’s body during a preliminary examination ...”
- On
11 May 2006 Mr T., an investigator from the Chechnya prosecutor’s
office, informed the applicant that the case had been transferred
from the Nadterechniy district prosecutor’s office to the
Chechnya prosecutor’s office and that for the sake of progress
in the investigation it was necessary to exhume Timur Khambulatov’s
body, because the photographs and videotapes of it had disappeared
from the investigation file. At some point later the applicant gave
her consent to have her son’s body exhumed, but only in the
presence of an independent expert. The investigators replied that
this was impossible.
- On
13 June 2006 the applicant visited the Chechnya prosecutor and told
him that she would allow an exhumation on condition that it was
carried out in Moscow in the presence of a panel of experts. The
prosecutor replied that he would discuss her proposal with the
Prosecutor General’s Office.
(d) The applicant’s interview with
Amnesty International
- On
11 June 2004 the applicant gave an interview to representatives from
Amnesty International. She described the circumstances of
Timur Khambulatov’s arrest and reported the conversations
that she had had with State officials after her son’s death.
She also described the injuries that she had discovered on her son’s
body. The interview was videotaped.
- At
some point later Amnesty International provided the tape and the
photographs of Timur Khambulatov’s body to the applicant’s
representatives, who submitted them to the Court on 13 July 2007,
along with the transcript of the interview.
2. Information submitted by the Government
(a) Criminal proceedings against Timur
Khambulatov
- On
18 March 2004 officer T. of the Naurskiy OVD conducted a crime scene
examination in the applicant’s house. The examination was
carried out with the assistance of a trained search dog. As a result,
some items of clothing and an object resembling a home-made explosive
device were collected from the scene.
- On
18 March 2004 the Naurskiy OVD opened criminal case no. 40560 in
connection with the discovery of a home-made explosive device in the
applicant’s house.
- On
19 April 2004 the Chechnya forensic assessment office concluded that
the device found in the applicant’s house was an intact
home-made explosive device.
(b) Official investigation of Timur
Khambulatov’s death
- On
18 March 2004 investigator T. from the district prosecutor’s
office examined Timur Khambulatov’s body. As a result it was
established that the body, head and extremities had numerous traumas,
abrasions and injuries of various dimensions.
- On
18 March 2004 the investigator ordered a forensic examination of
Timur Khambulatov’s body, which was to be carried out in
Mozdok, North Ossetia.
- On
18 March 2004 investigators from the district prosecutor’s
office questioned the doctor’s assistant of the Naurskiy OVD,
Ms V.L., who stated that at about 8 a.m. on 18 March 2004 she had
been asked by police officer V.T. to provide medical help to an
arrested man who had lost consciousness while being questioned in the
OVD. She had found the detainee lying unconscious on the floor; she
had given him some injections, but all her efforts were in vain as he
had died.
- On
the same date the investigators questioned Ms V.L. for the second
time. She stated that when she had arrived at the office
Timur Khambulatov had been conscious, on the floor, and that he
had been able to say his name. He had been beaten up. Then she had
asked him who had beaten him up, and Timur Khambulatov had told her
that he had not been beaten in the Naurskiy OVD, but that he was
already in this state when he was brought there and that he had pain
all over his body. Then Timur Khambulatov died.
- On
the same date the investigators questioned the police officer of the
Naurskiy OVD, Mr V.V., who stated that he had taken part, with his
search dog, in the special operation against Timur Khambulatov, that
the latter had been arrested at home and taken somewhere by masked
armed men, and that the next morning he had learnt that the arrested
man had died.
- On
the same date, 18 March 2004, the investigators questioned police
officer Mr V.T., who stated that he had taken part in the special
operation against Timur Khambulatov; the latter had been brought from
his house to the Naurskiy OVD by FSB officers in a UAZ car and that
after that, in the OVD, after the FSB officers had left, he had
noticed that Timur Khambulatov had two abrasions on his face and
a swollen left ear. After that he had questioned the arrested man
alone; the latter had confessed to making the explosive device and
taking part in terrorist attacks in 2000. Then Timur Khambulatov had
suddenly fallen off his chair; the witness had asked the doctor’s
assistant to provide Timur Khambulatov with medical help. When it had
been established that Timur Khambulatov had died, the witness had
notified the head of the Naurskiy OVD of the incident. On the same
date the investigators questioned officer V.T. for the second time.
He added to his previous statement that he had asked neither the FSB
officers nor Timur Khambulatov about the origins of the injuries on
the latter’s face.
- On
23 March 2004 the investigators questioned Mr A.B., an officer of the
Naurskiy OVD, who stated that at about 8.15 a. m. on 18 March 2004 he
had arrived at work and had seen in his office his colleague Mr V.T.,
who was writing down the statement given by Timur Khambulatov.
Mr V.T. had explained to him that the applicant’s son had
been arrested as a result of a special operation. After that the
witness had left the office for a meeting. At some point later, after
he had gone to the office of the head of the OVD, officer V.T. had
entered and informed those present that Timur Khambulatov had
died.
- On
24 March 2004 the investigators questioned two servicemen of military
unit no. 6841, Privates A.K. and N.P., both of whom stated that
they had participated in the special operation against Timur
Khambulatov and that during the operation and after it nobody had
used any physical force against the applicant’s son. On 28 June
2005 the investigators questioned Private N.P. for the second time;
he confirmed his previous statement. On 10 February 2006 the
investigators questioned private N.P. for a third time; he confirmed
his previous statements.
- On
25 March 2004 the investigators questioned the head of the Naurskiy
FSB, Mr V.Kh., who stated that on the night of 17-18 March 2004
officers of his department had participated, along with members of
other law-enforcement agencies, in a special operation against
Timur Khambulatov. The next morning the head of the criminal
investigation division of the Naurskiy OVD, Lieutenant-Colonel A.P.,
informed him that Timur Khambulatov had died, and that when the FSB
officers had handed Timur Khambulatov over to the police officers in
the OVD the arrested man had had numerous injuries. After that,
Lieutenant Colonel A.P. had asked the witness to give him a
statement to the effect that the FSB officers had caused the injuries
on Timur Khambulatov’s body. Then the witness had written
the required statement for Lieutenant-Colonel A.P., stating that
while being transported from his home to the Naurskiy OVD Timur
Khambulatov had attempted to abscond and that the FSB officers had
had to give him “immobilising blows to the torso”. The
witness further stated that he had made up this account and that in
fact his officers had not used any physical force against
Timur Khambulatov whatsoever and that the written statement
which he had given to Lieutenant-Colonel A.P. had been false.
According to the witness, he had spoken with his subordinates, the
FSB officers who had participated in the special operation, and all
of them had stated that Timur Khambulatov had had no sign of the use
of physical force on him before he had been brought by them to the
Naurskiy OVD, and that they had no idea what had happened to him in
the police station.
- On
26 March 2004 the investigators questioned an officer of the Naurskiy
OVD, Mr N. Sh., whose statement about the events was similar to the
ones given by Privates A.K. and N.P.
- On
27 March 2004 the investigators questioned the applicant, who stated,
among other things, that at about 4 a.m. on 18 March 2004 her son
Timur Khambulatov had been taken away by armed men in camouflage
uniforms who were speaking Russian and who had arrived in two APCs
(armoured personnel carriers), two GAZ minivans (tabletka) and
two UAZ cars. The men had not hit Timur Khambulatov; they had not
even handcuffed him.
- On
5 April 2004 the investigators questioned servicemen of military unit
no. 93489, officers S.S., A.T., and A. Sh., all of whom stated that
they had taken part in the special operation against Timur
Khambulatov and that from Timur Khambulatov’s arrest at his
home to his delivery to the Naurskiy OVD nobody had used physical
force against him.
- On
6 April 2004 the military prosecutor’s office of military unit
no. 20111 refused to initiate a criminal investigation in
connection with Timur Khambulatov’s death. The decision stated,
amongst other things, the following:
“... after examination of the information
concerning the death of T. Khambulatov after the special operation
carried out against him by representatives of various law-enforcement
agencies the following was established:
... T. Khambulatov was detained at about 3 a.m. on 18
March 2004... at about 4 a.m. he was taken to the Naurskiy
OVD...The head of the Naurskiy FSB, Colonel V. Kh., stated that ...
the head of the criminal police division of the Naurskiy OVD,
Lieutenant-Colonel A.P., had told him that the arrested man [T.
Khambulatov] had died and that the suspect [T. Khambulatov] had been
brought to the Naurskiy OVD with numerous injuries and asked the
Colonel to provide him with a statement to the effect that T.
Khambulatov’s injuries had been caused by the FSB officers. ...
He [the Colonel] had written the required statement for the attention
of the head of the OVD [stating] that after the arrest T. Khambulatov
had attempted to abscond, and, therefore his [the FSB] officers had
given him “immobilising blows to the torso”. [The
Colonel] stated [to the investigation] that he had made up this
account, ... as his officers had not used violence against T.
Khambulatov and that the latter had not attempted to abscond ...
... The operational-search officers of the Naurskiy FSB,
Mr S.P. and Mr N. Sh., confirmed the Colonel’s statement and
added that...on the way [to the Naurskiy OVD] T. Khambulatov had
behaved quietly, had not resisted arrest and nobody had used physical
force against him...In the morning of 18 March 2004 he [Mr S.P.] had
learnt that T. Khambulatov had died in the Naurskiy OVD. He had asked
one of the witnesses what had happened after T. Khambulatov had been
brought to the OVD and the latter had explained to him that he had
seen a police officer hitting T. Khambulatov several times on
the body ...
... The statements given to the investigation by
witnesses Mr A. Kh. and Mr N.P. were similar to the ones given by the
operational-search officers of the Naurskiy FSB [Mr S.P. and Mr N.
Sh.] and stated that... when they had been in the office of the
criminal investigation division of the Naurskiy OVD... Mr A. Kh. had
seen one of the police officers demanding a confession from the
arrested man [T. Khambulatov] and kicking him in the hips ...
... It follows from the above that...neither the
servicemen of military unit no. 93489 and the officers of the
Naurskiy FSB nor the servicemen of unit no. 231 of the Internal
Troops of the Ministry of the Interior who had participated in this
special operation [against T. Khambulatov] broke the law ...
The investigation conducted by the military prosecutor’s
office of military unit no. 20111] decided to refuse to open a
criminal case in connection with their participation in the special
operation against T. Khambulatov ... for lack of corpus
delicti...in the actions of the above-mentioned servicemen”
- On
26 April 2004 the Mozdok forensic expert assessment office completed
its examination of Timur Khambulatov’s body (see paragraph 19
above).
- On
12 May 2004 the investigators questioned forensic expert Mr P.L.,
who stated that on 19 March 2004 he had conducted a forensic
examination of Timur Khambulatov’s body. According to the
witness, the body had had numerous injuries and abrasions on the
head, torso and the extremities, which in his opinion could be
qualified as minor injuries; at the same time it had been established
that Timur Khambulatov had had signs of pulmonary
heart disease.
- On
29 June 2004 the district prosecutor’s office initiated a
criminal investigation into the circumstances of Timur Khambulatov’s
death under Article 286 § 3 (a) of the Criminal Code (abuse of
authority with use of physical force).
- On
16 and 17 July 2004 the investigators questioned the applicant’s
neighbours Ms B.M., Ms L.A. and Ms R. Kh., all of whom provided
positive references as to Timur Khambulatov’s character and
behaviour.
50. On
21 July 2004 the investigators again questioned Mr A.K. (see
paragraph 40 above) who had witnessed Timur Khambulatov’s
arrest and taken part in the search of the applicant’s house.
He stated, among other things, that Timur Khambulatov had been taken
to the Naurskiy OVD, where he had been put face down on the floor.
51. On
various dates in the summer of 2004 the investigators questioned a
number of other representatives of law-enforcement agencies and the
military, such as Mr A.K., Mr S.S., Mr S.G., Mr B.A., Mr G.V., Mr
S.T., Mr A.G., Mr A.O., Mr I.P. and Mr I.K. All their statements were
similar to each other and could be reduced to them neither having
seen anyone beating Timur Khambulatov nor
beating him themselves during or after the special operation.
- On
20 September 2004 the applicant was granted victim status in the
criminal case.
- On
5 March 2005 the investigators questioned Ms V.L. for the third time.
She stated that Timur Khambulatov had told her that he had pain all
over his body and that something had torn off inside him. Then
officer V.T., who had questioned the applicant’s son, had
suggested taking Timur Khambulatov to hospital, but the latter
had died. Ms V.L. was of the opinion that Timur Khambulatov had died
from internal bleeding.
- On
10 March 2005 the applicant was familiarised with the report of the
forensic examination of April 2004.
- On
7 July 2005 the investigators questioned the applicant for the second
time. She informed them that she did not agree with the results of
the forensic examination of her son’s body and requested that
the investigators order an additional expert assessment of Timur
Khambulatov’s body. She further stated that in her opinion the
police officers of the Naurskiy OVD had killed her son. The applicant
requested the investigators to exhume her son’s body for an
additional forensic examination as she did not agree with the
conclusions of the initial forensic examination.
- On
12 July 2005 the investigators ordered a forensic examination of
tissue samples taken from the internal organs of Timur Khambulatov
during the forensic examination in April 2004. The text of the
document did not provide the reasons for the forensic examination of
the tissue.
- On
18 July 2005 the investigators ordered the exhumation of
Timur Khambulatov’s body.
- On
the same date the applicant made a request to the investigators for
the exhumation of her son’s body to be carried out in the
presence of independent experts.
- On
12 May 2006 the Chechnya prosecutor’s office informed the
applicant that she should find an appropriate forensic expert
assessment office for the new expert examination of Timur
Khambulatov’s body.
- On
25 May 2006 the applicant informed the investigators that she was
insisting on a forensic assessment of her son’s body by
independent experts and therefore she was against the exhumation of
Timur Khambulatov’s body by representatives of local
law-enforcement agencies. She emphasised that she did not trust the
findings of the previous forensic examination, as the local
law-enforcement agencies had attempted to cover up her son’s
death and make it look like an accident.
- On
2 June 2006 the investigators questioned the applicant for the third
time; she insisted on an independent forensic examination of her
son’s body.
- On
2 June 2006 the Chechnya prosecutor’s office informed the
applicant that the participation of independent experts in the
further forensic examination of her son’s body would be
impossible.
- On
27 September 2006 the investigators questioned Mr M.Ch., an expert
from the Chechnya forensic assessment office, who stated that on the
basis of two photographs of Timur Khambulatov’s body shown to
him by the investigators, it was necessary to conduct a forensic
expert examination of the actual body in order to determine the cause
of death.
- On
29 September 2006 the investigators questioned Mr V.Kh., officer of
the Naurskiy OVD, who informed them that the applicant had left
Russia with her family.
- On
30 September 2006 the investigation in the criminal case was
suspended for failure to identify the perpetrators.
- On
14 January 2007 the investigators ordered a complex forensic
examination of the cause of Timur Khambulatov’s death, to be
based on the documents contained in three volumes of the criminal
case file no. 40046.
- On
21 November 2007 the supervising prosecutor overruled the decision of
30 September 2006 and ordered that the investigation be resumed.
- According
to the documents submitted by the Government, the investigation was
suspended and resumed on several occasions, and has so far failed to
identify the cause of death of the applicant’s son.
- According
to the Government, the applicant had been duly informed of all
decisions taken during the investigation.
- Despite
specific requests by the Court the Government did not disclose most
of the contents of criminal case no. 40046, providing only 248
pages of copies of documents. The Government
requested the Court to apply Rule 33 § 3 of the Rules of Court
concerning confidentiality of the submitted documents and to
restricting
public access to the submitted documentation. In their request the
Government stated that the criminal investigation was still in
progress and that public disclosure of the documents could be
detrimental to the interests of participants in the criminal
proceedings.
II. RELEVANT DOMESTIC LAW
- Article
91 of the Code of Criminal Procedure of the Russian Federation (the
CCP) sets out the grounds for the arrest of a suspect. The
investigators or the prosecutor have the right to detain a suspect on
suspicion of the commission of a crime punishable by deprivation of
liberty on one of the following grounds:
the person is caught
while the crime is being committed or immediately afterwards;
the victim or
witnesses points out the person as the perpetrator of the crime;
obvious traces of
crime are discovered on the person, his/her clothing or in their
place of residence.
- Article
92 of the CCP sets out the procedure for the arrest of a suspect. The
detention record must be drawn up within three hours of the time the
suspect is brought to the investigating authorities or the
prosecutor. The detention record must include the date, time, place,
grounds and reasons for the arrest. It should be signed by the
suspect and the person who made the arrest. Within twelve hours of
the time of the arrest the investigator must notify the prosecutor of
it in writing. The suspect must be questioned in accordance with the
questioning procedure and a lawyer must be provided to him/her at
his/her request. Before the questioning the suspect has the right to
a confidential two-hour meeting with a lawyer.
- Article
125 of the CCP sets out the judicial procedure for the consideration
of complaints. Orders of the investigator or prosecutor refusing to
institute criminal proceedings or terminating a case, and other
orders and acts or omissions which are liable to infringe the
constitutional rights and freedoms of the parties to criminal
proceedings or to impede the citizens’ access to justice, may
be appealed against to a local district court, which is empowered to
check the lawfulness and grounds of the impugned decisions.
- Article
161 of the CCP prohibits disclosure of information from the
preliminary investigation file. Under part 3 of the Article,
information from the investigation file may be divulged only 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 parties to
the criminal proceedings or prejudice the investigation. Divulging
information about the private lives of parties to criminal
proceedings without their permission is prohibited.
THE LAW
I. THE GOVERNMENT’S OBJECTION REGARDING
NON EXHAUSTION OF DOMESTIC REMEDIES
A. The parties’ submissions
- The
Government contended that the application should be declared
inadmissible for non-exhaustion of domestic remedies. They submitted
that the investigation into the death of Timur Khambulatov had not
yet been completed. They further argued that it had been open to the
applicant to lodge civil claims or to challenge in court any acts or
omissions on the part of the investigating authorities, but that she
had failed to do so.
- The
applicant contested that objection. She stated that the only
potentially effective remedy in her case, the criminal investigation,
had proved to be ineffective.
B. The Court’s assessment
- The
Court will examine the arguments of the parties in the light of the
provisions of the Convention and its relevant practice (for a
relevant summary, see Estamirov and Others v. Russia, no.
60272/00, §§ 73-74, 12 October 2006).
-
The Court notes that the Russian legal system provides, in principle,
two avenues of recourse for the victims of illegal and criminal acts
attributable to the State or its agents, namely civil and criminal
remedies.
- As
regards a civil action to obtain redress for damage sustained through
alleged illegal acts or unlawful conduct on the part of State agents,
the Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention (see
Khashiyev and Akayeva v. Russia, nos. 57942/00 and
57945/00, §§ 119-21, 24 February 2005, and Estamirov and
Others, cited above, § 77). In the light of the above, the
Court confirms that the applicant was not obliged to pursue civil
remedies. The Government’s objection in this regard is thus
dismissed.
- As
regards criminal-law remedies, the Court observes that the applicant
complained to the law-enforcement authorities shortly after the death
of Timur Khambulatov and that an investigation has been pending since
29 June 2004. The applicant and the Government dispute the
effectiveness of the investigation.
- The
Court considers that the Government’s objection raises issues
concerning the effectiveness of the investigation which are closely
linked to the merits of the applicant’s complaints. Thus, it
decides to join this objection to the merits of the case and
considers that the issue falls to be examined below.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained under Article 2 of the Convention that her son
had been deprived of his life by State agents and that the domestic
authorities had failed to carry out an effective investigation of the
matter. Article 2 reads:
“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.”
A. The parties’ submissions
- The
Government contended that Timur Khambulatov had died from natural
causes and that State agents could not be held responsible for his
death. They further stated that the criminal investigation into the
death of the applicant’s son had taken all possible measures to
establish the relevant circumstances. The Government further stated
that the applicant herself had impeded the investigation by refusing
to grant permission for the exhumation of her son’s body and by
leaving Chechnya.
- The
applicant argued that Timur Khambulatov had been arrested and
subsequently killed by State agents. The applicant pointed out that
prior to his arrest her son had been in good health and had no
history of heart disease and that the forensic examination of his
body conducted by the authorities had established that his body bore
clear marks of beatings. She also argued that the investigation had
not met the effectiveness and adequacy requirements laid down by the
Court’s case-law. In particular, she pointed out that the
investigators could identify all the State agents who had been
involved in the arrest of Timur Khambulatov but that the authorities
had nonetheless failed to establish the circumstances of his death.
The investigation into Timur Khambulatov’s death had been
opened several months after his death and had then been suspended and
resumed a number of times. The fact that the investigation had been
pending for such a long time without producing any known results was
further proof of its ineffectiveness.
B. The Court’s assessment
1. Admissibility
- The
Court considers, in the light of the parties’ submissions, that
the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. Further, the Court has already found that the Government’s
objection concerning the alleged non-exhaustion of domestic remedies
should be joined to the merits of the complaint (see paragraph 81
above). The complaint under Article 2 of the Convention must
therefore be declared admissible.
2. Merits
(a) The alleged violation of the right to
life of Timur Khambulatov
- Article
2, which safeguards the right to life and sets out the circumstances
when deprivation of life may be justified, ranks as one of the most
fundamental provisions in the Convention, to which no derogation is
permitted. Together with Article 3, it also enshrines one of the
basic values of the democratic societies making up the Council of
Europe. The circumstances in which deprivation of life may be
justified must therefore be strictly construed. The object and
purpose of the Convention as an instrument for the protection of
individual human beings also requires that Article 2 be interpreted
and applied so as to make its safeguards practical and effective (see
the McCann and Others v. the United Kingdom judgment of 27
September 1995, Series A no. 324, §§ 146-47).
- In
the light of the importance of the protection afforded by Article 2,
the Court must subject deprivations of life to the most careful
scrutiny, taking into consideration not only the actions of State
agents but also all the surrounding circumstances. Persons in custody
are in a vulnerable position and the authorities are under a duty to
protect them. Consequently, where an individual is taken into police
custody in good health and is found to be injured on release, it is
incumbent on the State to provide a plausible explanation of how
those injuries were caused. The obligation on the authorities to
account for the treatment of an individual in custody is particularly
stringent where that individual dies (Salman v. Turkey [GC],
no. 21986/93, § 99, ECHR 2000 VII.
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see the Ireland v.
the United Kingdom judgment of 18 January 1978, Series A no. 25,
§ 161). However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie
wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries and death occurring during such detention. Indeed, the
burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation.
- The Court recalls that the autopsy of Timur
Khambulatov’s corpse described the injuries found on his body
as not of a life-threatening character (see paragraphs 19 and 47
above). Further, the autopsy report stated that Timur Khambulatov had
died from a pre-existing heart condition. In the absence of any other
evidence to the contrary and in view of the standard of proof applied
by the Court, in the circumstances of this particular case the Court
cannot conclude that the authorities are to be held responsible for
the death of the applicant’s son. It will, however, examine the
issue of the injuries found on Timur Khambulatov’s body under
Article 3 of the Convention.
- Therefore,
the Court finds that there has been no violation of Article 2 of
the Convention in that respect.
(b) The alleged inadequacy of the
investigation of his death
- The
Court reiterates that the obligation to protect the right to life
under Article 2 of the Convention, read in conjunction with the
State’s general duty under Article 1 of the Convention to
“secure to everyone within [its] jurisdiction the rights and
freedoms defined in [the] Convention”, requires by implication
that there should be some form of effective official investigation
when individuals have been killed as a result of the use of force
(see, mutatis mutandis, Kaya v. Turkey, 28 July 1998,
§ 105, Reports of Judgments and Decisions 1998-I).
- In
that connection, the Court points out that the obligation mentioned
above is not confined to cases where it is apparent that the killing
was caused by an agent of the State. The applicant lodged a formal
complaint about the death with the competent investigation
authorities (see paragraph 20 above). Moreover, the mere fact
that the authorities were informed of the death in custody of Timur
Khambulatov gave rise ipso facto to an obligation under
Article 2 to carry out an effective investigation into the
circumstances surrounding his death (see, mutatis mutandis,
Ergi v. Turkey, 28 July 1998, § 82, Reports
1998-IV). This involves, where appropriate, an autopsy which provides
a complete and accurate record of possible signs of ill treatment
and injury and an objective analysis of clinical findings, including
the cause of death.
- In
the present case, the death of Timur Khambulatov was investigated.
The Court must assess whether that investigation met the requirements
of Article 2 of the Convention.
- The
Court notes at the outset that most of the documents from the
investigation were not disclosed by the Government. It therefore has
to assess the effectiveness of the investigation on the basis of the
limited number of documents submitted by the parties and the
information about its progress presented by the Government.
- The
Court notes that the authorities were immediately made aware of Timur
Khambulatov’s death in the police station. The investigation of
his death was instituted on 29 June 2004 that is more than three
months after the events in question. Such a delay, for which there
has been no explanation in the instant case, not only demonstrates
the authorities’ failure to act of their own motion but also
constitutes a breach of the obligation to exercise exemplary
diligence and promptness in dealing with such a serious incident (see
Öneryıldız v. Turkey [GC], no. 48939/99, §
94, ECHR 2004 XII).
- The
Court further notes that the investigation failed to question the
officers of the Naurskiy OVD who had been in the police station when
the applicant’s son was taken there. From the documents
submitted by the Government it follows that the investigators limited
themselves to questioning those officers and servicemen who had
participated in the special operation against Timur Khambulatov and
that their questions primarily concentrated on the circumstances
under which the explosive device had been discovered and not on the
circumstances in which Timur Khambulatov had been taken to the OVD
and questioned. In addition, the investigation for some reason
neither followed up the information received from the head of the
Naurskiy FSB concerning the request of his counterpart from the
Naurskiy OVD to explain the origins of the injuries on the body of
the applicant’s son and his subsequent retraction of the
statement he had made (see paragraphs 18 and 41 above) nor on the
witness statements to the effect that the police officers had been
seen hitting and kicking Timur Khambulatov in the police station
(see paragraph 45 above).
- The
Court also notes that even though the applicant was granted victim
status in the criminal case, she was not informed in timely fashion
of the significant developments in the investigation. Accordingly,
the investigators failed to ensure that the investigation received
the required level of public scrutiny and to safeguard the interests
of the next of kin in the proceedings.
- Finally,
the Court notes that the investigation was suspended and resumed on
several occasions and that there were lengthy periods of inactivity
on the part of the prosecutor’s office when no proceedings were
pending.
- Having
regard to the limb of the Government’s preliminary objection
that was joined to the merits of the complaint, inasmuch as it
concerns the fact that the domestic investigation is still pending,
the Court notes that the investigation, having being repeatedly
suspended and resumed and plagued by inexplicable delays, has been
pending for many years and has produced no tangible results.
Accordingly, the Court finds that the remedy relied on by the
Government was ineffective in the circumstances and dismisses their
preliminary objection.
- In
the light of the foregoing, the Court holds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the death of Timur Khambulatov, in breach
of Article 2 in its procedural aspect.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant relied on Article 3 of the Convention, submitting that her
son Timur Khambulatov had been subjected to inhuman or degrading
treatment prohibited by Article 3 of the Convention and that the
authorities had failed to investigate the allegations effectively.
Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
- The
Government stated that the abrasions and haematomas discovered on
Timur Khambulatov’s body had been qualified by the forensic
examination report as minor injuries which could not be considered
ill-treatment. They further submitted that in order to investigate
Timur Khambulatov’s alleged ill-treatment the authorities
had opened criminal case no. 40046 in connection with the possible
abuse of authority by State agents.
- The
applicant maintained her submissions.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that the complaint is not inadmissible on any other grounds and
must therefore be declared admissible.
2. Merits
- The
Court reiterates that where an individual is taken into police
custody in good health and is found to be injured on release, it is
incumbent on the State to provide a plausible explanation of how
those injuries were caused (see, among other authorities, Selmouni,
cited above, § 87; Salman, cited above, § 99;
and Ribitsch v. Austria, 4 December 1995, § 34,
Series A no. 336).
- The
Court further reiterates that allegations of ill-treatment must be
supported by appropriate evidence. To assess this evidence, the Court
adopts the standard of proof “ beyond reasonable doubt ”
but adds that such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Ireland v. the United
Kingdom, cited above, § 161 in fine).
- The
Court has established that Timur Khambulatov had been detained on 18
March 2004 by State agents. It is common ground between the
parties that Timur Khambulatov was arrested in apparently good
health, then taken to the police station of the Naurskiy OVD, where
he died a few hours later, and that his body bore numerous abrasions
and hematomas, which was confirmed by the forensic examination
carried out by the authorities.
- In
such circumstances, taking into account that the Government failed to
put forward any plausible explanations as to the origins of the
injuries received by Timur Khambulatov while in the hands of State
agents, that is between his arrest and his death in the police
station, the Court considers that the evidence before it enables it
to find beyond reasonable doubt that Timur Khambulatov was
ill-treated in detention.
- It
follows that there has been a violation of Article 3 of the
Convention under its substantive limb in that the applicant’s
son was subjected to the inhuman and degrading treatment in breach of
this provision.
- Having
regard to the particular circumstances of this case and its finding
in respect of the procedural aspect of Article 2 of the Convention,
the Court does not deem it necessary to make a separate finding under
Article 3 of the Convention in respect of the alleged deficiencies in
the investigation (Salman v. Turkey [GC], no. 21986/93, §
117, ECHR 2000 VII).
IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that Timur Khambulatov’s right to liberty
and security had been violated. In particular, she stated that her
son had been detained in violation of the guarantees contained in
Article 5 § 1 of the Convention, which reads, in so far as
relevant:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law ...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...”
A. The parties’ submissions
- The
Government stated that Timur Khambulatov had been detained in
accordance with the provisions of Article 5 § 1 of the
Convention and Articles 91 and 92 of the Code of Criminal Procedure
(detention of a suspect) on account of the evidence found in his home
(see paragraph 14 above).
- The
applicant stated that her son’s detention had been unlawful as
it had failed to comply with the procedure prescribed by domestic
law.
B. The Court’s assessment
Admissibility
- It is common ground between the parties that Timur
Khambulatov was detained and taken to the Naurskiy OVD on suspicion
of having committed a crime. The parties
dispute, however, whether the procedure of his detention complied
with the requirements of Article 5 § 1 of the Convention.
- The
Court must determine whether the arrest and detention of the
applicant’s son were effected “in accordance with a
procedure prescribed by law”. It reiterates that the Convention
here refers essentially to national law and lays down an obligation
to comply with its substantive and procedural provisions, but also
requires that any measure depriving the individual of his liberty
must be compatible with the purpose of Article 5, namely to protect
the individual from arbitrariness (see, for example, Lukanov
v. Bulgaria, 20 March 1997, § 41, Reports 1997-II, and
Giulia Manzoni v. Italy, 1 July 1997, § 21, Reports
1997-IV).
- As
to the procedure for the detention of suspects set out in Article 92
of the Russian Code of Criminal Procedure, it prescribes that a
report of the detention must be drawn up within three hours of the
delivery of the suspect to the investigating authority (see paragraph
72 above). In the present case, Timur Khambulatov was taken to the
Naurskiy OVD at around 4 a.m. on 18 March 2004 (see paragraphs 18, 43
and 45 above). Within the next four hours, from 4 a.m. to 8 a.m., the
investigators questioned him, opened a criminal case against him and
obtained a confession from him (see paragraphs 12, 31 and 38 above).
These procedural documents indicated that Timur Khambulatov had been
detained and brought to the police station on the suspicion of
unlawful possession of an explosive device. However, it does not
appear that the police drew up a report of his detention before he
died at about 8 a.m. (see paragraphs 25 and 35 above).
- The
Court notes that the Russian legislation provides that a report
reflecting the suspect’s detention should be drawn up within
three hours from the suspect’s arrival at the police station.
In the present case the detention of the applicant’s son lasted
for about four hours and no report was drawn up by the authorities.
However, the Court notes that his detention was reflected in the
other procedural documents drawn up by the police (see paragraphs 12,
31 and 39 above). Therefore, it was acknowledged by the authorities
and there existed official record of Timur Khambulatov’s
detention by the police (see, by contrast, among many authorities,
Kurt v. Turkey, 25 May 1998, § 125, Reports of
Judgments and Decisions 1998 III and Imakayeva v. Russia,
no. 7615/02, § 176, ECHR 2006 XIII (extracts)). Taking
into account the above the Court considers that the delay in drawing
up the formal detention report does not amount to a violation of
Article 5 § 1 of the Convention in the circumstances of this
particular case.
- Having
regard to those factors, and bearing in mind its findings under the
substantive limb of Article 2 the Convention (see paragraph 90
above) the Court does not find that Timur Khambulatov’s
detention was incompatible with the very
purpose of Article 5 of the Convention.
- It
follows that the facts of the case do not disclose an appearance of a
violation of Article 5 of the Convention and this part of the
application must therefore be declared inadmissible pursuant to
Article 35 §§ 3 (a) and 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Article
13 of the Convention provides:
“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.”
- The
parties referred to their submissions on the effectiveness of the
investigation from the standpoint of Article 2 of the Convention (see
paragraphs 83 and 84 above).
- In
view of its findings above (see paragraph 100 above), the Court
considers that, although the complaint is admissible, no separate
issue arises under Article 13 of the Convention (see Nachova and
Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 123,
ECHR 2005 VII).
VI. OTHER ALLEGED VIOLATIONS OF THE
CONVENTION
- Lastly,
the applicant complained under Article 34 that her right of
individual petition had been infringed.
- However,
having regard to all the material in its possession, the Court finds
that the applicant’s complaint does not disclose any breach of
the State’s obligation under this provision.
VII. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
- The
applicant claimed damages in respect of loss of earnings by Timur
Khambulatov after his death on behalf of herself, her daughter
Ms Albina Khambulatova (who was born in 1979) and her younger
son Mr Shakhid Khambulatov (who was born in 1990).
- She
claimed that Timur Khambulatov had worked as a farmer and his monthly
income had been 17,500 roubles (RUB) (450 euros (EUR)). The applicant
assumed that she and her daughter Ms Albina Khambulatova and her
younger son Mr Shakhid Khambulatov would have been financially
dependent on Timur Khambulatov from the date of his detention to his
retirement at the age of 60. She calculated his earnings for the
period, basing them on the actuarial tables for use in personal
injury and fatal accident cases published by the United Kingdom
Government Actuary’s Department (“Ogden tables”) on
an unspecified year.
- The
applicant also claimed damages for loss of property as a result of
her move from Chechnya to Poland, which included claims for
replacement of household appliances, clothing, plates, dishes,
furniture, books and farming equipment and the house.
- The
total amount of pecuniary damages claimed by the applicant comprised
140,436 pounds sterling (GBP, EUR 166,725).
- The
Government regarded these claims as based on supposition and
unfounded. They also pointed to the existence of domestic statutory
machinery for the provision of a pension for the loss of the family
breadwinner and stressed that at the time of Timur Khambulatov’s
death neither the applicant nor her two other children could have
been considered by domestic law as dependent on Timur Khambulatov.
They further pointed out that it had been the applicant’s own
decision to move from Chechnya to Poland and that nobody had forced
her to do so. The Government also submitted that some of the property
which the applicant had included in the claim for pecuniary damages
had been sold by her and some of it remained in Russia and still
belonged to her.
- The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicant and the violation of the
Convention, and that this may, in an appropriate case, include
compensation in respect of loss of earnings. Having regard to the
lack of direct causal link between the alleged violation of
substantive aspect of Article 2 in respect of the applicant’s
son and the loss by the applicant of the financial support which he
could have provided, the Court makes no award under this head.
B. Non-pecuniary damage
- The
applicant claimed EUR 100,000 in respect of non-pecuniary damage
for the suffering she had endured as a result of the loss of her son.
She further claimed that the State’s
failure to conduct an effective investigation into her son’s
death and the Government’s refusal to submit a copy of the
entire investigation file to the Court had caused her emotional
suffering and distress, which required compensation in the above
amount.
- The
Government found the amount claimed excessive.
- The
Court observes that in the present case it has found violations of
the procedural aspect of Article 2 of the Convention and the
substantive aspect of Article 3 of the Convention. It accepts that
the applicant has sustained non-pecuniary damage which cannot be
compensated for solely by the finding of violations. It awards the
applicant EUR 35,000, plus any tax that may be chargeable on that
amount.
C. The applicant’s request
for an investigation
- The applicant also requested that an independent
investigation, which would comply with the requirements of the
Convention, be conducted into her son’s death. She relied in
this connection on the cases of Assanidze v. Georgia ([GC],
no. 71503/01, §§ 202-203, ECHR 2004-II).
- The
Court notes that in Kukayev v. Russia, no. 29361/02,
§§ 131 34, 15 November 2007, in comparable
circumstances, the Court decided that it was most appropriate to
leave it to the respondent Government to choose the means to be used
in the domestic legal order in order to discharge their legal
obligation under Article 46 of the Convention. The Court does not see
any exceptional circumstances which would lead it to reach a
different conclusion in the present case.
D. Costs and expenses
- The
applicant was represented by lawyers from the NGO EHRAC/Memorial
Human Rights Centre. The aggregate claim in respect of costs and
expenses related to the applicant’s legal representation
amounted to GBP 1,927 (EUR 2,288).
- The
Government did not dispute the reasonableness of and justification
for the amounts claimed under this head.
- The
Court has to establish first whether the costs and expenses indicated
by the applicant’s representatives were actually incurred and,
second, whether they were necessary (see McCann and Others
v. the United Kingdom, 27 September 1995, §
220, Series A no. 324).
- Having
regard to the details of the information and the documents submitted
by the applicant, the Court is satisfied that these rates are
reasonable and reflect the expenses actually incurred by the
applicant’s representatives.
- As
to whether the costs and expenses were necessary, the Court notes
that this case was rather complex and required a certain amount of
research and preparation.
- Having regard to the details of the claims submitted
by the applicant’s representatives, the Court awards them the
amount, as claimed, of EUR 2,288, together with any value-added
tax that may be chargeable to the applicant, the net award to be paid
into the representatives’ bank account in the UK, as identified
by the applicant.
E. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the Government’s
objection as to non exhaustion of criminal domestic remedies and
rejects it;
- Declares the complaints under Articles 2, 3 and
13 of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been no substantive
violation of Article 2 of the Convention in respect of Timur
Khambulatov;
- Holds that there has been a violation of Article
2 of the Convention in respect of the failure to conduct an effective
investigation into the circumstances of Timur Khambulatov’s
death;
5. Holds that there has been a violation of Article
3 of the Convention in respect of Timur Khambulatov;
6. Holds that it is not necessary to examine
separately the procedural aspect of Article 3 of the Convention;
7. Holds
that no separate issue arises under Article 13 of the Convention
in conjunction with Article 2 of the Convention;
8. Holds
that there was no breach of the State’s
obligation under Article 34 of the Convention;
9. Holds
(a) that
the respondent State is to pay, within three months of the date on
which the judgment becomes final in accordance with Article 44 §
2 of the Convention, the following amounts, to be converted into
Russian roubles on the date of settlement, save in the case of the
payment in respect of costs and expenses:
(i) EUR 35,000
(thirty-five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the applicant;
(ii) EUR 2,288
(two thousand two hundred and eighty-eight euros), plus any tax that
may be chargeable to the applicant, in respect of costs and expenses,
to be paid into the representatives’ bank account in the UK;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
