Akhmadov and Others v. Russia
The ECHR case of Akhmadov and Others v. Russia (application no. 21586/02).
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
AKHMADOV AND OTHERS v. RUSSIA
The Court held unanimously that there had been:
· a violation of Article 2 (right to life) of the European Convention on Human Rights as regards the deaths of Amkhad Gekhayev and Zalina Mezhidova;
· a violation of Article 2 of the Convention on account of the authorities’ failure to carry out an adequate and effective investigation into the deaths of Amkhad Gekhayev and Zalina Mezhidova;
· no violation of Article 3 as regards the alleged mental suffering of the applicants;
· no violation of Article 5 (right to liberty and security);
· a violation of Article 13 (right to an effective remedy) in conjunction with Article 2;
· no violation of Article 13 in conjunction with Articles 3 and 5;
· no violation of Article 14 (prohibition of discrimination); and,
Under Article 41 (just satisfaction), the Court awarded 9,500 euros (EUR) to Zalina Mezhidova’s children in respect of pecuniary damage. In respect of non-pecuniary damage, it awarded EUR 5,000 to Amkhad Gekhayev’s grandfather, EUR 40,000 jointly to his parents, EUR 20,000 jointly to Zalina Mezhidova’s parents and EUR 45,000 jointly to her husband and children. EUR 7,150 was awarded for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicants are eight Russian nationals: Abzat Abzotovich Akhmadov, Marzhan Abdulayevna Mezhidova, Amkhad Akhmedovich Mezhidov, Vakha-Khazha Abubakarovich Gekhayev, Ayna Abzotovna Gekhayeva, Makhmud Abzotovich Akhmadov, Magamed-Ali Makhmudovich Akhmadov and Iman Magomedovna Akhmadova, born in 1943, 1947, 1949, 1963, 1968, 1978, 1999 and 2001, respectively. They live in the Gudermes District (Chechen Republic).
The case concerned the applicants’ allegation that their close relatives, Amkhad
Vakha-Khadzhiyevich Gekhayev, 15 years’ old, and Zalina Amadovna Mezhidova, a
23-year-old mother of two small children, were attacked and killed by Russian servicemen.
According to the applicants, on 27 October 2001 Amkhad Gekhayev and Zalina Mezhidova, driving home from harvesting in nearby fields, were attacked by a Russian military helicopter. The applicants’ relatives stopped their car. Once landed, Russian servicemen fired on the car with machine guns and then carried the applicants’ relatives, who appeared to be wounded or dead, into the helicopter and left. A few days later their severely mutilated bodies were delivered to a district military commander’s office. The upper half of Zalina’s body was missing; Amkhad’s body had no lower limbs.
According to the Government, the lethal force used by its servicemen on 27 October 2001 had been no more than absolutely necessary. It claimed that the incident had been a special mission and that the servicemen had acted in full compliance with national legislation and regulations for securing the safety of the civilian population. In particular, the applicants’ relatives, following warning shots from the helicopter, had not stopped their car, with the result that the servicemen had mistaken them for members of an illegal armed group. When the servicemen had approached the vehicle to carry out an identity check, it had suddenly driven off. The officer in command, considering that the situation was life-threatening (it was common practice for illegal fighters to stop their vehicles following warning shots, then drive off and open fire), had ordered his men to shoot. Furthermore, on examining the car immediately after the incident, the servicemen had found a grenade and grenade launcher in the boot.
An investigation was launched the same day: in particular, the scene of the incident and the car were inspected; and, fragments of bullets, documents concerning the special mission and the servicemen’s weapons and ammunition were seized. Since that date, the investigation has been repeatedly suspended and resumed, and remains pending. A forensic examination, ordered on 30 October 2001 and terminated on 19 February 2002, concluded that Amkhad Gekhayev had died as a result of abundant loss of blood from a bullet wound to his chest and that his lower limbs had been amputated through an explosive device. The results of the examination concerning Zalina Mezhidova reported three bullet wounds to her right buttock, thigh and pubic area; the exact cause of death was not confirmed.
Ultimately, the applicants were told that it had been established who had been responsible for the killing of their relatives, but were informed that the criminal proceedings against those individuals had been discontinued, partly on the ground that there had been no evidence of a crime and partly due to an amnesty act.
It is not clear whether any of the applicants were ever granted victim status in the criminal proceedings.
The Russian Government failed to submit a complete investigation file in the case – despite specific requests from the European Court – on the ground that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure. In particular, the Government refused to reply to the Court’s question on the planning and execution of the special mission of 27 October 2001 and any instructions to avoid civilian casualties, stating that such information was classified.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 9 April 2002 and declared partly admissible on 3 May 2007.
Judgment was given by a Chamber of seven judges, composed as follows:
Christos Rozakis (Greek), President,
Nina Vajić (Croatian),
Anatoly Kovler (Russian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian),
Giorgio Malinverni (Swiss), judges,
and also Søren Nielsen, Section Registrar.
The applicants complained, in particular, about the killing of their relatives by Russian servicemen and the authorities’ inadequate investigation into the incident. They relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 13 (right to an effective remedy), 14 (prohibition of discrimination) and Article 38 § (a) (obligation to furnish necessary facilities for the examination of the case).
Decision of the Court
Alleged failure to protect the right to life
The Court first pointed out that it had taken into consideration the difficult situation in the Chechen Republic at the relevant time, namely an armed conflict, which had called for the State to take exceptional measures and to react to certain events without prior preparation.
However, the Court noted as a matter of grave concern that the Russian Government had failed to provide any copies of legal acts or regulations concerning safety of the civilian population, despite their claim that Russian servicemen involved in the incident of 27 October 2001 had acted in full compliance with such a legal framework. The Court could not therefore assess whether an appropriate legal framework on the use of force and firearms by military personnel had been in place and, if so, whether it had contained clear safeguards to prevent arbitrary deprivation of life.
Furthermore, it was unacceptable that the Government had categorically refused, with reference to military secrecy, to provide any information on the planning and execution of the special mission of 27 October 2001 or to reply to the question of whether military personnel had been instructed to avoid civilian casualties during that mission.
Moreover, certain important explanations had not been provided about the actions of the servicemen on the day of the incident. In particular: no orders or warnings had apparently been given to those sitting in the vehicle after it had stopped; no details had been provided concerning the angle with which the servicemen had approached the vehicle and whether they had or could have clearly seen through its windows to assess if the applicants’ relatives had represented a risk or indeed whether they could have used the weapons allegedly in their boot.
In the absence of such crucial information, the Russian Government could not be regarded, in the circumstances of the applicants’ case, as having accounted for the use of lethal force. The Court was not therefore persuaded that the killing of Amkhad Gekhayev and Zalina Mezhidova had constituted a use of force which had been absolutely necessary, in violation of Article 2.
Alleged inadequacy of the investigation
The Court observed that the civilian authorities had made fair attempts to promptly investigate the events of 27 October 2001 and to secure evidence concerning the incident.
However, the military investigating authorities could not be said to have continued the investigation with the same diligence. There had been inexplicable delays in the forensic examinations of the bodies: notably more than three months between the date when the examination had been ordered and terminated and then a further two years until the investigating authorities had received the results. Indeed, the Government had not submitted to the Court copies of any documents regarding the outcome of the examination. The fragmentary information which had been provided had not clarified the exact cause of Zalina Mezhidova’s death, or whether any findings had been made as regards the alleged mutilation of her body, given the applicants’ allegation that her upper half had been missing.
Furthermore, it was not clear on what grounds the decisions to discontinue the investigation had been taken, notably concerning the application of the amnesty act. Nor had the circumstances of the deaths of the applicants’ relatives been duly established or the actions of the servicemen on 27 October 2001 been adequately assessed, given that not only had they killed the applicants’ two relatives but they had also taken away their bodies and mutilated them using an explosive device.
According to the material in the Court’s possession, the applicants, who had never been granted victim status, had only been informed of developments in the investigation occasionally and had not been given a realistic opportunity to have access to the case file. The applicants had, in effect, been excluded from the criminal proceedings.
Drawing inferences from the Government’s refusal to submit the criminal investigation file, the Court concluded that the authorities had failed to carry out a thorough and effective investigation into the circumstances of the deaths of Amkhad Gekhayev and Zalina Mezhidova, in further violation of Article 2.
Alleged mental suffering of the applicants
The Court did not doubt the profound suffering caused to the applicants by the deaths of their relatives. It did not, however, find a find basis for a violation of Article 3 in the context of its case-law on the specific phenomenon of disappearances. Accordingly, there had been no violation of Article 3.
It could be ascertained from the parties’ submissions that the applicants’ relatives had died no later than two days after the attack. In the Court’s opinion, in a situation where a car had been fired upon by machine guns, inflicting multiple gunshot wounds on its occupants which had later been certified by forensic medical experts, it was more than likely that Amkhad Gekhayev and Zalina Mezhidova had died immediately, or in the aftermath of the incident. In such circumstances, the Court found that the applicants had not been detained in violation of the provisions of Article 5. Accordingly, there had been no violation of Article 5.
Given the above findings, the Court held that there had been no violation of Article 13 in connection with Articles 3 and 5.
However, the Court noted that, in circumstances where, as in the applicants’ case, the criminal investigation into the deaths of their relatives had been ineffective and the effectiveness of any other remedy that might have existed, had consequently been undermined, the State had failed in its obligations, in violation of Article 13 in conjunction with Article 2.
The Court observed that no evidence had been submitted to show that the applicants had been treated differently from persons in an analogous situation without objective and reasonable justification, or that they had ever raised that complaint before the domestic authorities. Accordingly, there had been no violation of Article 14.
Article 38 § (a)
The Court recalled that it had, on several occasions, asked the Government to submit a copy of the file on the investigation opened into the deaths of the applicants’ relatives. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts. It found the reasons given by the Government for its refusal to disclose the documents requested to be inadequate.
Referring to the importance of a Government’s cooperation in Convention proceedings and mindful of the difficulties associated with the establishment of facts in cases of such a nature, the Court found that, in failing to submit the documents requested, the Russian Government had failed to meet their obligations under Article 38 § 1.