Постановление ЕСПЧ от 16.02.2016 <Дело Далаков (Dalakov) против России> (жалоба N 35152/09) [англ.] Часть 2

1   2

  1. Relevant domestic law
  1. Pre-investigation inquiry

 

  1. The Code of Criminal Procedure (hereinafter «the CCrP»), as in force at the material time, provided as follows:

Article 140. Grounds for opening a criminal case

«1. A criminal case may be opened in the event of:

1) a complaint of a crime…

  1. Sufficient data disclosing elements of a crime shall serve as grounds for opening a criminal case.»

Article 144. Procedure for examining a report of a crime

«1. An inquiry officer, inquiry agency, investigator, or head of an investigation unit shall accept and examine every report of a crime… and shall take a decision on that report… no later than three days after the filing of the report… [having] the right to order that the examination of documents or inspection be performed with the participation of experts…

  1. A head of an investigation unit or head of an inquiry agency… may extend the time period specified in paragraph (1) of this Article to up to ten days or, where the examination of documents or inspections are to be performed, up to thirty days…»

Article 145. Decisions to be taken following the examination of a report of a crime

«1. An inquiry officer, inquiry agency, investigator or head of an investigation unit shall issue one of the following decisions as a result of the examination of a report of a crime:

1) to open a criminal case, in accordance with the procedure established by Article 146 of the present Code;

2) to refuse to open a criminal case;

3) to transfer the report of a crime [to a competent investigating authority] with appropriate jurisdiction…»

Article 148. Refusal to open a criminal case

«1. In the event of absence of grounds for opening a criminal case, a head of an investigation unit, an investigator, inquiry agency or inquiry officer shall issue a decision about a refusal to open a criminal case…

  1. A refusal to open a criminal case may be appealed against to a prosecutor, head of an investigation unit or court, in accordance with the procedures established by Articles 124 and 125 of the present Code.
  2. …Having declared a refusal by an investigator… to open a criminal case unlawful or unfounded, the head of the appropriate investigation unit shall set aside the decision and open a criminal case, or remit the materials for additional examination together with his or her instructions fixing a deadline for their execution.
  3. Having declared a refusal to open a criminal case unlawful or unfounded, a judge shall issue a decision to that effect and transmit it for execution to a head of an investigation unit… and shall duly notify the applicant.»

Article 149. Referral of a criminal case

«After taking a decision to open a criminal case…

2) an investigator shall start a preliminary investigation…

Article 125. Judicial examination of complaints

«1. The decisions of an inquiry officer, investigator, or head of an investigation unit refusing to open a criminal case… or any other decisions and acts (failure to act) which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court…

  1. A judge shall examine the legality and the grounds of the impugned decisions or acts… within five days of receipt of the complaint…

  1. Following examination of the complaint, the judge shall issue one of the following decisions:

1) to declare the decisions or acts (failure to act) of the official unlawful or unfounded and order the official to rectify the breach committed;

2) to dismiss the applicant’s complaint…»

 

  1. Preliminary investigation

 

  1. Preliminary investigations are regulated by Section VIII (Articles 150 — 226) of the CCrP. Investigative measures to establish the facts of a criminal case and collect evidence, which can be taken in the course of a preliminary investigation, include, inter alia, the questioning of a suspect, an accused, a victim, or a witness; confrontations between individuals whose statements are contradictory; on-site verification of statements; identification of a person or object; search of persons and premises; seizure of items and documents; phone-tapping; and reconstruction of acts or circumstances. If, on the completion of a preliminary investigation, there is sufficient evidence to support charges against an accused, the investigating authority shall prepare an indictment which, subject to prior approval by a prosecutor, is then forwarded to a court for trial.
  2. Investigative measures such as the examination of a crime scene, examination of a dead body and physical examination of a suspect, an accused, a victim, or a witness, may be carried out, if necessary, before a criminal case is opened (Articles 176 § 2, 178 § 4 and 179 § 1 of the CCrP).

 

THE LAW

  1. Alleged violation of Article 2 of the Convention

 

  1. The applicant complained of a violation of Article 2 of the Convention as a result of the killing of his nephew by State agents and the failure of the domestic authorities to investigate the matter. The relevant part of that provision reads as follows:

«1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

  1. 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.»

 

  1. The parties’ submissions
  1. The Government

 

  1. The Government submitted that the application should be dismissed as manifestly ill-founded for the applicant’s failure to exhaust domestic remedies and comply with the six-month time-limit. In particular, they pointed out that on 23 September 2008 the Karabulak District Court rejected the applicant’s complaint concerning the failure of the Karabulak investigating department to initiate an investigation into his nephew’s killing, and that the applicant, who had been duly informed of that decision, failed to either appeal against it or bring his complaint to the Court within six months of that date. The applicant’s assertion that he was not informed of the decision of 23 September 2008 was based solely on his lawyer’s statement to that effect. In any event, after having been informed of the decision to terminate proceedings in criminal case. 27520028 of 2 November 2007 or at the latest of the decision of 23 September 2008, the applicant should not have waited until 30 May 2009 to lodge his application with the Court.
  2. The Government further contented that the taking of Mr Apti Dalakov’s life had been in accordance with subparagraphs (a) and (b) of paragraph 2 of Article 2 of the Convention, namely that it was in defence of others from unlawful violence and in order to effect a lawful arrest. In their submission the Government referred to the findings of the investigation in criminal case no. 27520028, according to which Mr Apti Dalakov had refused to obey the law-enforcement agents’ orders, and therefore the FSB officer had opened fire in order to eliminate the threat to his own life and health and that of the others. The Government further submitted «the investigation of criminal case no. 27520028 was effective and in compliance with the requirements of Article 2 of the Convention».

 

  1. The applicant

 

  1. The applicant contended that he had lodged his application with the Court within six months of 30 November 2008, the date when he had realised that the domestic remedies were ineffective, as his complaint of the failure to initiate a criminal investigation in connection with his nephew’s killing had not been examined by the Karabulak District Court. The applicant submitted that he had not been informed of the decision allegedly taken by the District Court on 23 September 2008, and therefore on 16 April 2009 he had complained to the Ingushetia Supreme Court that the District Court had failed to examine his complaint. According to the applicant’s submission, the decision of 23 September 2008 provided by the Government contained inconsistencies demonstrating that the document had been backdated. Therefore, the six-month time-limit for the submission of his complaint to the Court should be calculated from 30 November 2008, and his complaint of 16 April 2009 to the Ingushetia Supreme Court proved that the complaint of 14 August 2008 had not been examined by the District Court.
  2. The applicant further submitted that the arrest of Mr Apti Dalakov had not been planned appropriately to minimise the risk to his life in violation of the State’s positive duty to protect it. For instance, the FSB officers had failed to identify themselves, they were not in uniform, and their vehicle did not have official registration numbers. In addition, the FSB officers had aggressively refused to obey the orders of the police who had arrived at the crime scene and to identify themselves. The investigation of criminal case no. 27520028 had demonstrated that the authorities’ version of the events had been in contradiction to the statements collected by the investigators and the documents contained in the criminal case file. The investigation into Mr Apti Dalakov’s death was inadequate, as no criminal case was opened in connection with his killing, and criminal case no. 27520028 was terminated in spite of the investigator’s failure to take the necessary steps and comply with the supervisors’ orders (see paragraphs 27 and 30 above). The conclusions of that investigation were based solely on the statements given by the FSB officers implicated in the incident. The applicant further alleged that there was no effective domestic remedy in his case under Article 125 of the Russian Criminal Procedure Code, as domestic judges had no right to prescribe which actions should be taken by the investigation.

 

  1. The Court’s assessment
  1. Admissibility

 

  1. The Court considers that the questions whether the applicant exhausted domestic remedies and complied with the six-month time-limit in respect of this complaint are closely linked to the question of whether the domestic authorities carried out an effective investigation into his allegations. These issues relate to the merits of the applicant’s complaint under Article 2 of the Convention. The Court therefore decides to join these issues to the merits, which are to be examined below.
  2. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits

 

(a) General principles

  1. Article 2 of the Convention, which safeguards the right to life and sets out the circumstances in which deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. Together with Article 3 of the Convention, 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 of the Convention be interpreted and applied so as to make its safeguards practical and effective (see Andronicou and Constantinou v. Cyprus, 9 October 1997, § 171; Reports of Judgments and Decisions 1997-VI, and Huohvanainen v. Finland, no. 57389/00, § 92, 13 March 2007).
  2. The text of Article 2 of the Convention, read as a whole, demonstrates that it covers not only intentional killing but also situations where it is permitted to «use force» which may result, as an unintended outcome, in the deprivation of life. Any use of force must be no more than «absolutely necessary» for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is «necessary in a democratic society» under Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims (see Kelly and Others v. the United Kingdom, no. 30054/96, § 93, 4 May 2001).
  3. In keeping with the importance of Article 2 of the Convention in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force, but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination. In determining whether the force used is compatible with Article 2 of the Convention, it may therefore be relevant whether a law-enforcement operation has been planned and controlled so as to minimise to the greatest extent possible recourse to lethal force or incidental loss of life (see Bubbins v. the United Kingdom, no. 50196/99, §§ 135 — 36, ECHR 2005II (extracts), and McCann and Others v. the United Kingdom, 27 September 1995, §§ 150 and 194, Series A no. 324).
  4. Furthermore, 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 Mustafa and Fecire v. Turkey [GC], no. 24014/05, §§ 169 — 82, 14 April 2015). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Makaratzis v. Greece [GC], no. 50385/99, § 73, ECHR 2004-XI). What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see Kelly and Others, cited above, § 94, and, mutatis mutandis,  v. Turkey [GC] no. 22277/93, ECHR 2000-VII, § 63). In addition, the investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 109, ECHR 2001-III).
  5. According to the Court’s constant case-law, for an investigation into an alleged unlawful killing by State agents to be effective, it is necessary for the persons responsible for carrying out the investigation to be independent of those implicated in the events (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 325, ECHR 2007-II, and v. Turkey, [GC] no. 21594/93, ECHR 1999-III, §§ 91 — 92). The investigation must also be effective in the sense that it is capable of ascertaining the circumstances in which the incident took place and of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible for an unlawful killing. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. A requirement of promptness and reasonable expedition is implicit in this context. Any deficiency in the investigation which undermines its capacity to establish the circumstances of the case or identify the person responsible is liable to fall foul of the required standard of effectiveness (see Leonidis v. Greece, no. 43326/05, § 68, 8 January 2009, and Anguelova v. Bulgaria, no. 38361/97, § 139, ECHR 2002-IV).

(b) Application to the present case

  1. It is common ground between the parties that the death of the applicant’s nephew, Mr Apti Dalakov, resulted from the use of lethal force by the State agents. The Court will firstly assess the adequacy of the investigation into the death of Mr Apti Dalakov and it will then turn to the assessment of the actions of those agents of the State who actually administered the force, and the planning and control of those actions.

(i) The State’s procedural obligation under Article 2 of the Convention

  1. The Court observes that on 2 September 2007, shortly after the incident, the domestic authorities opened criminal case no. 27520028 against Mr Apti Dalakov. The investigation of that criminal case was terminated on three occasions because of the death of the suspect: 2 November 2007, then on 3 January and 6 February 2008 (see paragraphs 26, 29 and 31 above); on the first two occasions that decision was overruled as unsubstantiated. In addition, on 30 January 2008 the military investigations department refused to initiate an investigation into the use of lethal force against Mr Apti Dalakov by the FSB officers for lack of corpus delicti in the actions of the latter (see paragraph 33 above). The applicant was not informed of those decisions, and, most importantly, of the last one, which concerned the refusal to open a criminal case in connection with his nephew’s killing.
  2. Therefore, from the documents submitted it follows that no criminal investigation, other than a pre-investigation inquiry by the military investigations department, was officially carried out in connection with the death of Mr Apti Dalakov. Thus, the Court is bound to assess the circumstances on the basis of the documents furnished as part of criminal case no. 27520028 and the pre-investigation inquiry which resulted in the decision not to initiate a criminal investigation.
  3. The information collected by the investigators in criminal case no. 27520028 contained clear indications of the conflicting versions of the circumstances of Mr Apti Dalakov’s death (see, for example, paragraphs 14 — 16, 18, 22, 23 and 34 above) and, therefore, should have prompted the authorities to initiate a fully-fledged criminal investigation into the matter. However, in spite of the evidence contained in the file and the applicant’s consistent complaints that the actual circumstances of his nephew’s killing were in contradiction to the official version, the authorities limited themselves to the pre-investigation inquiry and refused to investigate the applicant’s allegations. The Court reiterates in this regard, that Article 2 of the Convention implies that there should be some form of effective, impartial investigation where deprivation of life occurs.
  4. As a result, neither the local residents nor the police officers from the Karabulak town police department and the Ingushetia OMON who could have shed light on the circumstances of Mr Apti Dalakov’s death were questioned as witnesses in the investigation into his death. Meanwhile, the implicated FSB officer gave «an explanation», which did not commit him in the same way as it would have in the context of criminal proceedings if they had been opened against him, and did not entail the necessary safeguards inherent in an effective criminal investigation, such as criminal liability for perjury (see paragraph 34 above). No confrontation was ever held between him and Ms F.Kh.Ts., or between the FSB officers and the police officers concerning the alleged placing of the grenade under the body of Mr Apti Dalakov (see paragraphs 14, 17, 22 and 26 above). The Court observes further that the applicant consistently requested that the authorities take measures aiming at opening of a criminal case and grant him victim status in the criminal proceedings (see paragraphs 36, 38 and 40 above). However, he was never given that opportunity. As noted above (see paragraph 52), the questioning of witnesses, confrontations and identification parades are among the investigative measures which can be carried out in the course of a criminal investigation only once a criminal case has been opened.
  5. The Court has already found that a pre-investigation inquiry alone is not capable of leading to punishment of those responsible as regards allegations concerning such serious violations as ill-treatment by State agents (see Lyapin v. Russia, no. 46956/09, § 135, 24 July 2014). In the present case, where the situation concerned deprivation of life, the Court’s findings in Lyapin are of particular relevance. The Court reiterates that the «pre-investigation inquiry» (if it is not followed by a «preliminary investigation»), especially in the view of conflicting versions of the events, as in the present case, is unable to elucidate the circumstances of the use of lethal force.
  6. The documents submitted indicate that the domestic court found the applicant’s complaint concerning the failure to open a criminal investigation into his nephew’s death unsubstantiated, despite the evidence referred to by the applicant. It is noteworthy that the applicant, being excluded from the proceedings in criminal case no. 27520028, and, as the Court explains below (see paragraph 74 below), not being informed of the only decision he could appeal against concerning his nephew’s death (see paragraph 33 above), had no options to induce the authorities to initiate a criminal investigation other than to complain to the domestic court. In a situation where he did not have procedural status enabling him to appeal against decisions taken within criminal case no. 27520028 (see, for a similar situation, Abdurashidova v. Russia, no. 32968/05, § 57, 8 April 2010), and when no proceedings concerning the death of Mr Apti Dalakov were pending, the applicant’s complaint concerning the failure to open a criminal case could have led the courts to decide either that the refusal to open a criminal case was unlawful or that the applicant’s complaint was unsubstantiated (see paragraphs 51 — 53 above).
  7. The documents submitted indicate that taking the decision to dismiss the complaint as unsubstantiated, the district court — without exercising its own independent scrutiny — satisfied itself with the information provided by the investigative committee’s own hierarchy (see paragraphs 42 and 43 above), and disregarded the applicant’s arguments and evidence referred to in his complaint (see paragraph 41 above). In this regard, the Court cannot but notice the prosecutor’s submission before the domestic court concerning the severance of a part of the criminal case for the investigation by the military prosecutors when they had been already informed of the latter’s decision not to open a criminal case (see paragraphs 42 and 33 above) and the inconsistencies in the domestic court’s documents concerning the hearing of the applicant’s complaint and the text of the decision of 23 September 2008 (see paragraphs 42 and 43 above).
  8. The Government raised the non-exhaustion plea, stating that the applicant had failed to appeal against the court’s decision of 23 September 2008. In this regard, the Court observes that the Government did not present any evidence showing that the decision had been dispatched and reached the applicant. In these circumstances, the Court is not persuaded that the domestic authorities had notified the applicant of the decision in such a way as to provide him with an opportunity to appeal against it in due time. Furthermore, even assuming that the applicant did receive the court’s decision of 23 September 2008 at some point, in the circumstances of the present case it is highly doubtful that an appeal would have led to the initiation of a criminal investigation into his nephew’s death considering that the applicant’s allegations could not have been sufficiently corroborated owing to the inability of the pre-investigation inquiry to elucidate the circumstances of the use of lethal force (see paragraph 71 above).
  9. It is thus established that an appeal against the District Court’s decision of 23 September 2008 would not have been an effective remedy in the applicant’s case.
  10. Further, as to the compliance with the six-month rule, the Court reiterates that where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the six-month period starts from the date when the applicant first became or ought to have become aware of those circumstances (see Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001). Considering that it has been established that the applicant did not receive the decision of 23 September 2008, and keeping in mind the applicant’s complaint to the Ingushetia Supreme Court (see paragraph 49 above) uncontested by the Government, the Court finds that on 30 November 2008 the applicant realised that his complaint against the refusal to initiate a criminal investigation had not been examined by the District Court. Therefore, the Court accepts that the six-month time-limit could not have started to run before 30 November 2008, which was when the applicant realised the ineffectiveness of the domestic remedy.
  11. In the light of the foregoing, the Court dismisses the Government’s preliminary objections in respect of the complaints under Article 2 of the Convention.
  12. The documents submitted indicate that despite the contradictory information collected by the investigation in criminal case no. 27520028 and the applicant’s credible and consistent complaints, the domestic authorities, including the investigating committee, the military investigations department and the Karabulak District Court, failed to demonstrate a proper response to the serious allegations of inappropriate use of lethal force by agents of the State. By failing in its duty to carry out an effective investigation, the State fostered the State agents’ sense of impunity. The Court stresses that a proper response by the authorities in investigating serious allegations of use of lethal force by agents of the State in compliance with the Article 2 of the Convention standards is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion or tolerance of unlawful acts (see, among other authorities, Hugh Jordan, cited above, § 108, and Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167, ECHR 2011).
  13. In view of the foregoing, the Court concludes that there has been a violation of Article 2 of the Convention under its procedural head.

(ii) The responsibility of the State for the death of Mr Apti Dalakov

  1. The Court notes that it is common ground between the parties that the applicant’s nephew was shot and killed on 2 September 2007 in Karabulak as a result of a special operation carried out by State agents. However, the parties disagreed on the key circumstances of the incident, such as whether he was armed and whether his behaviour and actions necessitated the use of lethal force against him.
  2. The Court will have to determine whether the way in which the special operation was conducted showed that the FSB officers had taken appropriate care to ensure that any risk to the life of the applicant’s nephew was kept to a minimum. In carrying out its assessment of the planning and control phase of the operation from the standpoint of Article 2 of the Convention the Court must have particular regard to the context in which the incident occurred as well as to the way in which the situation developed (see Andronicou and Constantinou, cited avove, § 182).
  3. The Court notes that its ability to evaluate the operation has been seriously hampered by the absence of any meaningful investigation into the State agents’ conduct. Nevertheless, the Court will assess the organisation of the operation on the basis of the material available to it, in particular by relying on the relevant evidence submitted by the Government, which is not disputed by the applicant.
  4. First of all, the Court notes that the operation was not spontaneous, and the FSB officers had arrived in Karabulak that day searching for Mr Apti Dalakov and Mr I.D. The officers were well-equipped and were intending to arrest the two men. However, there is nothing in the documents reviewed by the Court to suggest that any serious consideration was devoted at the planning stage of the operation to the possibility that the suspects would try to escape.
  5. The documents submitted to the Court state that according to the FSB officer A.K., when he ran after Mr Apti Dalakov he fired one warning shot into the air prior to opening fire on him (see paragraph 34 above) and then, when Mr Apti Dalakov turned towards him with a grenade in his hand, he fired at him to eliminate the danger posed by the grenade. However, from the crime scene examination report it follows that at least forty shots were fired during the special operation, and the grenade was found under Mr Apti Dalakov’s body (see paragraph 14 above). Further, according to the forensic expert examination, the four bullet wounds sustained by Mr Apti Dalakov were all in the back and the back of the head. Therefore, the account of the FSB officer A.K., that he fired just one warning shot and had to use lethal force only after seeing the grenade in Mr Apti Dalakov’s hand in front of him, does not appear either plausible or convincing. In addition, from the statements given by the other FSB officers implicated in the incident (see paragraphs 24 and 25 above) it appears that more than one officer ran after Mr Apti Dalakov and that they saw two of their colleagues standing next to his body. This was confirmed by the statements of Ms F.Kh.Ts and the police Captain G.G., according to whom two men were running after the applicant’s nephew and firing at him as they ran. Therefore, it is clear that by opening fire on Mr Apti Dalakov while running after him, the FSB officers subjected him to a high risk of death.
  6. From the documents submitted by the Government it does not appear that any precautions were taken by the State agents with a view to safeguarding the life of Mr Apti Dalakov. Instead, it appears that he was shot several times in the back in a situation where there was no immediate threat to the security of any of the FSB officers or other persons. While bearing in mind the limitations on the scope of its review, as mentioned above, the Court finds that such conduct by the State agents could hardly be found to be compatible with the requirement to minimise the risk to life of persons in need of protection.
  7. Finally, the Court notes the lack of diligence displayed in the immediate aftermath of the incident where the FSB agents openly resisted giving any explanations to the police officers, and provoked a scuffle to an extent which necessitated the use of physical force against them (see paragraphs 15 and 19 above).
  8. In the light of the foregoing, the Court concludes that the actions of the authorities in respect of the planning, control and execution of the operation were not sufficient to safeguard the life of Mr Apti Dalakov. The authorities failed to take the reasonable measures available to them in order to prevent the death of the applicant’s nephew.
  9. There has accordingly been a violation of the substantive aspect of Article 2 of the Convention.

 

  1. Alleged violation of Article 13 in conjunction with Article 2 of the Convention

 

  1. The applicant complained that he had had no effective remedy at his disposal in respect of the alleged violation of Article 2 of the Convention. He relied on Article 13 of the Convention, which 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.»

  1. The Court observes that this complaint concerns the same issues as those examined in paragraphs 66 — 79 above under the procedural limb of Article 2 of the Convention. Therefore, the complaint should be declared admissible. However, having regard to its conclusion above under Article 2 of the Convention, the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention (see Shumkova v. Russia, no. 9296/06, § 123, 14 February 2012; Perevedentsevy v. Russia, no. 39583/05, § 126, 24 April 2014; and Fanziyeva v. Russia, no. 41675/08, § 85, 18 June 2015).

 

III. Application of Article 41 of the Convention

 

  1. 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.»

 

  1. Damage

 

  1. The applicant did not claim pecuniary damage. In respect of non-pecuniary damage, he submitted that he had suffered frustration and helplessness in the face of the indifference that the Russian authorities had demonstrated in his case by failing to conduct an effective investigation into his complaints. He left the determination of the amount of the compensation to the Court.
  2. The Government did not comment on this part of the claim other than to mention that the applicant «did not participate in the investigation of the relevant criminal case».
  3. The Court has found violations of Articles 2 and 13 of the Convention on the account of the authorities’ failure to comply with the positive obligation to safeguard the right to life of the applicant’s nephew and effectively investigate his death. The Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations, and awards him 60,000 euros (EUR) in this respect, plus any tax that may be chargeable on that amount.

 

  1. Costs and expenses

 

  1. The applicant was represented by lawyers from EHRAC/Memorial Human Rights Centre, an NGO with offices in London and Moscow. He submitted a breakdown of costs borne by them, which included the following:

Three hours of work by the UK-based lawyer Mr William Bowring at the rate of 150 pounds sterling (GBP) per hour amounting to GBP 450; twenty hours and thirty minutes of work by the UK-based lawyer Mr Vahe Grigoryan at the rate of GBP 150 per hour, amounting to GBP 3,075; eight hours and five hours’ work respectively by the Moscow-based lawyers Ms Anastasia Razhikova and Mr Kirill Koroteev, at the rate of EUR 100 per hour, amounting to EUR 800 and EUR 500 respectively; four hours of work by a project support officer at GBP 30 per hour, amounting to GBP 120; GBP 382 of administrative expenses and GBP 1,038 for translation costs.

The aggregate claim in respect of costs and expenses related to legal representation amounted to GBP 5,065 and EUR 800. The applicant asked for the payment in respect of costs and expenses to be made to the representative’s account in London.

  1. The Government submitted that the amount of EUR 800 claimed by Ms Anastasia Razhikova was reasonable, as the documents in the case file demonstrated her direct involvement in the preparation of the applicant’s case. As for the amount claimed by the other three lawyers, it was unreasonable and unsubstantiated in view of the limited amount of the documentary evidence and the fact that the other representatives of the applicant were not involved in the preparation of the case to the extent claimed. In addition, the administrative and translation expenses were exaggerated.
  2. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,500 covering costs under all heads, together with any tax that may be chargeable to the applicant. The award is to be paid directly into the bank account of the applicant’s representative in the UK, as identified by the applicant.

 

  1. Default interest

 

  1. The Court considers it appropriate that the default interest rate 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,

 

  1. Joins to the merits Governments’ objections concerning the exhaustion of domestic remedies and compliance with the six-month rule, and rejects them;
  2. Declares the application admissible;
  3. Holds that there has been a violation of Article 2 of the Convention under its procedural head;
  4. Holds that there has been a violation of Article 2 of the Convention under its substantive head;
  5. Holds that it is not necessary to examine separately the complaint under Article 13 of the Convention;
  6. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, save in the case of the payment in respect of costs and expenses:

(i) EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the applicant’s representative’s bank account in the UK, as identified by the applicant;

(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;

  1. Dismisses the remainder of the applicant’s claim for just satisfaction.

 

Done in English, and notified in writing on 16 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GUERRA President

Stephen PHILLIPS Registrar

1   2

Добавить комментарий

Ваш e-mail не будет опубликован.

*

code