Khambulatova v. Russia
The ECHR case of Khambulatova v. Russia (application no. 33488/04).
CASE OF KHAMBULATOVA v. RUSSIA
(Application no. 33488/04)
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,
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:
1. 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.
2. 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.
3. 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.
4. 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).
5. 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.
I. THE CIRCUMSTANCES OF THE CASE
6. 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
7. 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.
8. 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.
9. 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.
10. The servicemen handcuffed Timur Khambulatov, took him out of the house, put him into one of the vehicles and drove away.
11. 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
12. 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
13. 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
14. 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 …
“… 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 … ”
16. 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 …”
17. 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
19. 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
20. On 27 March 2004 the applicant requested the district prosecutor’s office to open a criminal investigation into her son’s detention and death.
21. 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.
22. On 24 May 2004 the applicant requested the district prosecutor’s office to carry out another post-mortem examination of her son’s body.
23. 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.
24. 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.
25. 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 …”
26. 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.
27. 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
28. 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.
29. 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
30. 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.
31. 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.
32. 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
33. 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.
34. 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.
35. 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.
36. 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.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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.
43. 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.
44. 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.
45. 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”
46. On 26 April 2004 the Mozdok forensic expert assessment office completed its examination of Timur Khambulatov’s body (see paragraph 19 above).
47. 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.
48. 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).
49. 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.
52. On 20 September 2004 the applicant was granted victim status in the criminal case.
53. 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.
54. On 10 March 2005 the applicant was familiarised with the report of the forensic examination of April 2004.
55. 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.
56. 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.
57. On 18 July 2005 the investigators ordered the exhumation of Timur Khambulatov’s body.
58. 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.
59. 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.
60. 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.
61. 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.
62. 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.
63. 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.
64. 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.
65. On 30 September 2006 the investigation in the criminal case was suspended for failure to identify the perpetrators.
66. 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.
67. On 21 November 2007 the supervising prosecutor overruled the decision of 30 September 2006 and ordered that the investigation be resumed.
68. 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.
69. According to the Government, the applicant had been duly informed of all decisions taken during the investigation.
70. 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
71. 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:
1) the person is caught while the crime is being committed or immediately afterwards;
2) the victim or witnesses points out the person as the perpetrator of the crime;
3) obvious traces of crime are discovered on the person, his/her clothing or in their place of residence.
72. 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.
73. 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.
74. 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.
I. THE GOVERNMENT’S OBJECTION REGARDING NON-EXHAUSTION OF DOMESTIC REMEDIES
A. The parties’ submissions
75. 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.
76. 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
77. 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).
78. 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.
79. 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.
80. 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.
81. 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
82. 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
83. 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.
84. 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
85. 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.
(a) The alleged violation of the right to life of Timur Khambulatov
86. 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).
87. 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.
88. 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.
89. 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.
90. 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
91. 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).
92. 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.
93. 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.
94. 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.
95. 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).
96. 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).
97. 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.
98. 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.
99. 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.
100. 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
101. 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
102. 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.
103. The applicant maintained her submissions.
B. The Court’s assessment
104. 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.
105. 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).
106. 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).
107. 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.
108. 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.
109. 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.
110. 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
111. 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
112. 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).
113. 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
114. 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.
115. 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).
116. 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).
117. 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.
118. 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.
119. 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
120. 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.”
121. 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).
122. 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
123. Lastly, the applicant complained under Article 34 that her right of individual petition had been infringed.
124. 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
125. 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
126. 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).
127. 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.
128. 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.
129. The total amount of pecuniary damages claimed by the applicant comprised 140,436 pounds sterling (GBP, EUR 166,725).
130. 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.
131. 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
132. 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.
133. The Government found the amount claimed excessive.
134. 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
135. 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).
136. 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
137. 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).
138. The Government did not dispute the reasonableness of and justification for the amounts claimed under this head.
139. 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).
140. 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.
141. 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.
142. 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
143. 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
1. Decides to join to the merits the Government’s objection as to non-exhaustion of criminal domestic remedies and rejects it;
2. Declares the complaints under Articles 2, 3 and 13 of the Convention admissible and the remainder of the application inadmissible;
3. Holds that there has been no substantive violation of Article 2 of the Convention in respect of Timur Khambulatov;
4. 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;
(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;
10. 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