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|Publication:||[not yet received]|
|Title:||Estamirov and others v. Russia|
|Date of reference by Commission:|
|Date of reference by State:|
|Date of Judgment:||12-10-2006|
|Conclusion:||Violation of article 2|
Violation of article 13
|Keywords:||LIFE / EFFECTIVE REMEDY|
The applicants were born in 1965, 1961, 1970, 1934, 1996, 1960 and 1958 respectively and are all related. Until 1999 they were residents of Grozny, Chechnya. Ruslan Estamirov, Yakha Estamirova, and Khuseyn Estamirov now live in the US, where they were granted political asylum. The other applicants live in Ingushetia (Russia) and in Moscow. In late February Ruslan Estamirov was informed by his aunt who had recently visited Grozny that on 5 February 2000 his uncle went to the Estamirov family home and found the dead bodies of Ruslan Estamirov's father and brother, his sister-in-law, who was nine months pregnant, and her one-year old son and his uncle. All the bodies had gunshot wounds. There was also some evidence of looting and their car in the garage and the cowshed with two calves inside were burned. His uncle immediately buried the bodies on a patch of land by the house. On 22 February 2000 Yakha Estamirova sent a request to the Prosecutor General to initiate criminal proceedings.
At the request of Ruslan Estamirov and Leyla Yandarova the bodies were exhumed and the policemen accompanying them photographed the faces of the dead bodies. No pathologist was present, and no forensic examination took place. A certificate was subsequently issued by the investigator of Oktyabrskiy temporary district office of the interior (VOVD) of Grozny to confirm that on 8 April 2000 the exhumed bodies were handed over to Ruslan Estamirov for burial. It also stated that "the bodies were examined by the investigator of the Oktyabrskiy VOVD, evidence of a violent death was established, material was handed over to the Grozny prosecutor's service". The policemen drew up a report of the site and collected some other evidence, such as cartridges and bullets. On 8 August 2000 Ruslan Estamirov and Yakha Estamirova filed a civil claim against the Ministry of Defence, the Ministry of the Interior and the Ministry of Finance with the Supreme Court of Russia. They submitted that five members of their family had been murdered on 5 February 2000 in their house in Grozny, during a so-called "mopping up" operation. Their house and car had been set on fire and their property looted. They claimed that those acts must have been committed by the federal servicemen, because on that date Grozny had already been under the control of the Russian forces. On the same day summary executions took place in Novye Aldy, which was in walking distance from their home. They submitted that, on 22 February 2000, they had applied to the Prosecutor General requesting a criminal investigation, but no proper investigation had taken place. The Supreme Court, however, refused to consider the claim for lack of jurisdiction and the applicants were advised to apply to a competent district court.
The applicants wrote to the Chechnya Prosecutor on several occasions asking for information about the investigation but they received no reply. In November 2001 the Chechnya Prosecutor's Office informed Leyla Yandarova that the investigation was being conducted by Grozny City Prosecutor's Office, that the Chechnya Prosecutor's Office was monitoring its progress and that "investigative measures aimed at establishing the perpetrators were being conducted". The letter also stated, mistakenly, that the applicant's relatives were murdered in April 2000. The investigation into the applicants' relatives' deaths was adjourned and reopened several times. The investigation carried out by the Grozny Town Prosecutor's Office produced no tangible results. The investigation did not identify those responsible and no one was charged with the crimes. It did not appear that the investigation connected the murder of the applicants' family members with the investigation of the killings in the Novye Aldy settlement of 5 February 2000. In June 2003 the European Court of Human Rights communicated the application to the Russian Government. The Government submitted a copy of the investigation file but refused the Court's request in May 2005 for an update of the investigation, claiming that it contained sensitive information of military and security nature. They also stated that the investigators had examined the criminal investigation file concerning the mass murder of civilians in Novye Aldy on 5 February 2000 but had obtained no evidence to conclude that the murders had been committed by the same people, and therefore no grounds were established to join those proceedings.
The applicants claimed that in February 2000 five members of their family were killed by agents of the Russian State in Grozny and that no effective investigation into their deaths was carried out. They relied on Articles 2 and 13 of the Convention.
The alleged inadequacy of the investigation:
The Court noted that the investigation was plagued by inexplicable delays. In particular it noted that the investigation was opened one week after the applicants had notified the authorities of the crime. Furthermore the majority of the documents in the case-file were produced in July 2003, after the case had been communicated to the Russian Government, and more than three years after the events in question.
The steps that were taken in July 2003 included such crucial steps as identification and questioning of witnesses, an additional examination of the site and attempts to identify the military units that could have been involved in the murders. The results of the ballistic expert reports were only sent out to the relevant authorities in July 2003, even though they were available already in June 2000. The Court stressed that it was crucial in cases of deaths in contentious situations for the investigation to be prompt. The Court found that those unexplained delays, not only demonstrated the authorities' failure to act on their own initiative but also constituted a breach of the obligation to exercise exemplary diligence and promptness.
The Court observed that a number of crucial steps were never taken. In particular a comprehensive forensic report, including a full autopsy, would have undoubtedly provided substantially more details as to the manner of deaths; no such reports were carried out..
Also, none of the applicants, apart from Yakha Estamirova, were questioned, they were not granted victim status in the proceedings and were not informed about the progress of the investigation. Accordingly, the Court found that the investigation did not ensure sufficient public accountability and it did not safeguard the interests of the next-of-kin.
Finally, the Court noted that the investigation was adjourned and resumed a number of times and that the supervising prosecutors on several occasions pointed out deficiencies in the proceedings and ordered measures to remedy them, but those instructions were not complied with.
The Court concluded that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the deaths of the applicants' relatives and held unanimously that there had been a violation of Article 2.
The failure to protect the right to life:
The Court noted that it was undisputed that the applicants' relatives were victims of unlawful killings.
The applicants and other witnesses consistently stated that the killings had been perpetrated by members of the army or police. Although no direct witnesses of the events could be identified, the Court found that the investigators could have used other means to verify that version of events. The Government refused to provide the Court with an updated case-file which could have contained answers to such crucial information about the identification of the cartridges and bullets collected at the site of crime or about the carrying out of a military or security operation in the area on the relevant dates.
The Court noted that the death certificates recorded the date of deaths as 5 February 2000, the same day as the killings that occurred in the neighbouring settlement of Novye Aldy. The Court further noted that, at that time, the district was under the control of the federal forces.
The applicants and other witnesses systematically argued that the killings of the Estamirov family had been committed on the same day as the events in Novye Aldy by the same members of the "special forces". That possibility could not be excluded, given the similar circumstances of the deaths in both cases - residents were shot with machine-guns in their houses or in the courtyards and the houses were set on fire - and the proximity of Novye Aldy to the applicants' house. In the documents submitted to the Court no link was made to the investigation in the Novye Aldy case and it was therefore difficult to evaluate the validity of that conclusion. The Court also had regard to the reports by the human rights groups and documents submitted by international organisations, which supported the applicants' version of events and listed their relatives among those killed on 5 February 2000 during a mopping-up operation in the southern parts of Grozny.
The Court concluded that the applicant's relatives' deaths could be attributed to the Russian State and that, in the absence of any justification in respect of the use of lethal force by their agents, the Court held unanimously that there has been a violation of Article 2.
The Court noted that the applicants should have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation, for the purposes of Article 13. Since, the criminal investigation into the killings was ineffective and any other remedy that might have existed was consequently undermined, the Court found that the Russian State had failed in its obligation under Article 13. Consequently it held unanimously that there had been a violation of Article 13 in connection with Article 2.
Under Article 41 (just satisfaction) the Court awarded 2,076 euros (EUR) to Yakha Estamirova and EUR 5,675 to Ruslan Estamirov on behalf of his nephew, Khuseyn Estamirov, for pecuniary damage, and EUR 35,000 to Ruslan Estamirov and Leyla Yandarova each, EUR 10,000 to Sovdat Dakayeva, Khabirat Zaurbekova and Khabira Tatasheva each, EUR 50,000 to Yakha Estamirova and EUR 70,000 to Khuseyn Estamirov, for non-pecuniary damage. The Court also awarded the applicants EUR 11,637.17 for costs and expenses. (The judgment is available only in English.)
|Last Modified: 13-01-2014 16:18:19 (Documentation SIM)