Tangiyeva v. Russia
The ECHR case of Tangiyeva v. Russia (application no. 57935/00).
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
TANGIYEVA v. RUSSIA
The Court held:
· by five votes to two, that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the killing of Khirzhan Gadaborsheva, Abdul-Vagap Tangiyev and Ismail Gadaborshev.
It further held, unanimously:
· that there had been a violation of Article 2 of the Convention concerning the authorities’ failure to carry out an effective investigation into the circumstances of their deaths;
· that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) concerning the applicant;
· that there had been a violation of Article 13 (right to an effective remedy); and
· that there had been a failure to comply with Article 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case).
Under Article 41 (just satisfaction), the Court awarded Ms Tangiyeva 60,000 euros (EUR) in respect of non-pecuniary damage and EUR 6,556 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicant, Zaynap Abdul-Vagapovna Tangiyeva, is a Russian national who was born in 1958. She used to live in Grozny (Chechnya) and now lives in Ingushetia (Russia).
The case concerned the applicant’s allegation that her mother, Khirzhan Gadaborsheva, father, Abdul-Vagap Tangiyev, and uncle, Ismail Gadaborshev, were killed in January 2000 by the Russian military.
In October 1999 hostilities resumed between the Russian military and Chechen fighters and Grozny came under heavy bombardment. According to the applicant, she, her mother, father, uncle and sister remained in their house on Derzhavina Street in the Staropromyslovskiy district of Grozny and, during shelling, took shelter in their cellar. At the end of December, the shelling intensified and the applicant decided to move to another cellar on Pugacheva Street which was safer. The applicant regularly went to check up on her father and uncle who had remained in their house. She claimed that the situation was very tense: Russian soldiers frequently visited both houses to carry out identity checks, ordered residents, under threat, to help collect dead bodies of soldiers in the street and selected men for “exchange” with the fighters. On 10 January 2000, the applicant decided to leave Grozny. The following day in the morning, along with her sister and three other women, she went to the house on Derzhavina Street to pick up her uncle and say good-bye to her parents. The house had been set on fire. Access to the cellar was impossible due to the flames. In the kitchen, they found the bodies of the applicant’s father and a neighbour, both with gunshot wounds. The applicant and her sister escaped immediately to Ingushetia but returned on 12 January to collect their father’s body for burial. It was still impossible to go down into the cellar because it was smouldering. On 6 March 2000 the charred remains of the applicant’s mother and uncle were extracted from the cellar.
To corroborate her claims, the applicant submitted three witness statements by her sister, her cousin (Ismail Gadaborshev’s son) and a neighbour who was present when the bodies were discovered on 11 January 2000. Her sister and neighbour notably confirmed the presence of the Russian army and police (OMON) in her district at the relevant time and their involvement in the killings.
A number of NGOs and the press reported on the applicant’s story. In particular, Human Rights Watch issued a report in which it accused the Russian military of murdering at least 38 civilians in the district of Staropromyslovskiy between December 1999 and January 2000.
The applicant further submitted that the investigation into the killings was slow and she was not properly informed of its progress. She also complained that she was not granted promptly the status of a victim 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.
The file which was submitted by the Government provided documents showing that Grozny Town Prosecutor’s Office opened a criminal investigation into the killings on 3 May 2000 following which the applicant and her brother were questioned. That investigation was continued by Staropromyslovskiy District Prosecutor’s Office which concluded, on 20 August 2003, that no crime had been committed and suggested that the applicant’s relatives had died as a result of shelling. Following the reopening of the investigation in April 2004, other witnesses were questioned, the crime scene was inspected, a ballistic report was carried out and attempts were made to identify the military units which could have been involved in the murders. The file also showed that the applicant’s brother was granted the status of a victim in May 2004 and the applicant herself in May 2005.
The Government claimed that the applicant and her brother hindered the investigation in that they repeatedly objected to the exhumation of the bodies for forensic testing.
To date, no death certificates have been issued for the applicant’s mother or father and those responsible for the killings have not been identified.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 29 April 2000 and declared admissible on 18 May 2006.
Judgment was given by a Chamber of seven judges, composed as follows:
Loukis Loucaides (Cypriot), President,
Nina Vajić (Croatian),
Anatoli Kovler (Russian),
Elisabeth Steiner (Austrian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian), judges,
and also André Wampach, Deputy Section Registrar.
Relying on Articles 2, 3 and 13, Ms Tangiyeva alleged that her mother, father and uncle had been killed by the Russian military in January 2000 and that the investigation into her allegations had been inadequate. She also relied on Article 3, claiming that she had personally suffered fear, anguish and distress. She lastly alleged that the Russian Government had failed in their obligation to provide information required by the European Court, in violation of Article 34 (right of individual petition) and Article 38 § 1 (a).
Decision of the Court
Article 38 § 1(a) and Article 34
The Court recalled that it had, on several occasions, asked the Government to submit a copy of documents from the investigation file because it considered the evidence they contained to be crucial to the establishment of the facts. The Government had refused to provide most of the important documents, notably witness statements, descriptions of the crime scene or results from the ballistic expert reports.
The Court found the reasons given by the Government to be insufficient to justify withholding key information.
The Court concluded that it could draw inferences from the Government’s behaviour and, bearing in mind the importance of a Government’s cooperation in Convention proceedings, found that, in failing to submit the documents requested, the Russian Government had failed to meet their obligations under Article 38 § 1.
In view of that finding, the Court considered that no separate issues arose under Article 34.
Concerning the killing of the applicant’s relatives
The Court recalled the Government’s failure to submit a complete file on the investigation and the inferences that could be drawn from that behaviour. The applicant had provided sufficient evidence to prove that her relatives had been killed by the Russian military on the night of 10 to 11 January 2000 whereas the Government had failed to provide any other satisfactory or convincing explanation as to what had happened. Therefore, the Court found it established that the State had been responsible for the death of the applicant’s relatives. As the Government had not suggested that any exception for the use of force could be applied in the applicant’s case, the Court held that there had been a violation of Article 2.
Concerning the investigation into the killings
The Court noted that the authorities had been aware of the crime on 3 May 2000 at the latest. It did not appear at that time that any steps to solve the crime, other than questioning the applicant and her brother, had been taken. More than three years later, on 20 August 2003, Staropromyslovskiy District Prosecutor’s Office had refused, without having taken any further steps, to open a criminal investigation.
Even the most basic procedural measures had only been taken after April 2004, more than four years after the killings. It was obvious that those measures, if they were to produce any meaningful results, should have been taken immediately after the crime had been reported to the authorities, and certainly as soon as the investigation had been launched. The Court reiterated that it was crucial in cases where a death had occurred in suspicious circumstances for the investigation to be prompt and diligent. The passage of time inevitably eroded the amount and quality of evidence, cast doubt on the good faith of the investigative efforts and dragged out the ordeal for the members of the family.
Similarly, no autopsy or forensic report had ever been made. The investigation could therefore not establish the state of the bodies, the type of injuries sustained or the cause of death. The Court considered that the applicant’s refusal to allow exhumation could not free the authorities from their obligation to obtain such information. It did not appear that the prosecutors had ever tried to otherwise pursue the matter.
The applicant’s brother and the applicant herself had only been granted the status of a victim in 2004 and 2005, respectively. After that they had been informed of the proceedings having been adjourned or reopened but not of any other significant developments.
In conclusion, the Court found that the authorities had failed to carry out an effective criminal investigation into the circumstances surrounding the deaths of Khidzhan Gadaborsheva, Abdul-Vagap Tangiyev and Ismail Gadaborshev. Recourse to domestic remedies had therefore been equally ineffective. Accordingly, the Court held that there had been a violation of Article 2 as concerned the investigation.
The Court noted that, in circumstances where, as in the applicant’s case, the criminal investigation 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 did not doubt that the death of the applicant’s mother, father and uncle had caused her profound suffering, it nevertheless found, in the context, no basis for finding a violation of Article 3.