Albekov and Others v. Russia
The ECHR case of Albekov and Others v. Russia (application no. 68216/01).
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EUROPEAN COURT OF HUMAN RIGHTS
707
9.10.2008
Press release issued by the Registrar
CHAMBER JUDGMENT
ALBEKOV AND OTHERS v. RUSSIA
The European Court of Human Rights has today notified in writing its Chamber judgment in the case of Albekov and Others v. Russia (application no. 68216/01).
The Court held unanimously that there had been:
· a violation of Article 2 (right to life) of the European Convention on Human Rights on account of the State’s failure to comply with its positive obligation to protect the lives of Vakhazhi Albekov, Khasayn Minkailov and Nokha Uspanov;
· a violation of Article 2 of the Convention on account of the failure to conduct an effective investigation in respect of the deaths of Vakhazhi Albekov and Khasayn Minkailov and the injuries sustained by Nokha Uspanov;
· a violation of Article 13 (right to an effective remedy) in conjunction with Article 2;
· a failure to comply with Article 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case) in that the Government had refused to submit documents requested by the Court.
Under Article 41 (just satisfaction), and in respect of non-pecuniary damage, the Court awarded the brothers of Vakhazhi Albekov and Khasayn Minkailov 35,000 euros (EUR), each, and EUR 20,000 to the mother of Nokha Uspanov. The applicants were awarded EUR 1,619.27 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicants are three Russian nationals who live in the Chechen Republic. Ramzan Abukhadzhiyevich Albekov was born in 1948 and lives in Kurchaloy, and Khusain Khamzatovich Minkailov and Raiman Akhmedovna Uspanova were born in 1980 and 1944, respectively, and live in Akhkinchu-Barzoy. The first applicant is a brother of Mr Vakhazhi Albekov, the second applicant is a brother of Mr Khasayn Minkailov and the third applicant is the mother of Mr Nokha Uspanov.
The applicants’ relatives were killed (Vakhazhi Albekov and Khasayn Minkailov) or injured (Nokha Uspanov) in October 2000 by anti-personnel mines planted in a forest close to the village of Akhinchu-Barzoy. The applicants alleged that the mines were laid by military personnel, whilst the Government claimed that they had been planted by illegal armed gangs. Mr Albekov had failed to return after leaving to bring in his cattle. Mr Minkailov and Mr Uspanov had been involved in the search for Mr Albekov.
In statements submitted by the applicants, the head of the local administration and other residents alleged that there had been several incidents since March 2000 in which cattle and people had been injured by mines. The head of the administration stated that he had asked the military to remove the mines from the land used by the villagers but that the incidents had continued.
According to the Government, the population of Akhkinchu-Barzoy had been regularly warned by the military that mines had been laid by armed gangs in the forest. They said that the minefield around the military unit was marked.
The day after Mr Vakhazhi Albekov’s disfigured body had been found, a group of officials including police, military and prosecuting officials, arrived at Akhkinchu-Barzoy. They filmed the corpse at Mr Albekov’s home and also the site where the body had been found, and questioned several witnesses who had participated in the search for Mr Vakhazhi Albekov.
However, the first official inquiry did not take place until July 2004. The investigation was formally instituted in March 2005, after the Court had communicated the application to the respondent Government. In the course of the investigation the authorities questioned a considerable number of witnesses in order to establish the circumstances of the explosions and those responsible for laying the mines in the vicinity of Akhkinchu-Barzoy.
According to the Government, the investigation is still in progress and that justified their refusal to disclose the investigation file when requested to do so by the European Court of Human Rights.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 10 December 2001 and declared admissible on 13 September 2007.
Judgment was given by a Chamber of seven judges, composed as follows:
Christos Rozakis (Greek), President,
Nina Vajić (Croatian),
Anatoly Kovler (Russian),
Elisabeth Steiner (Austrian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian), judges,
and also André Wampach, Deputy Section Registrar.
Complaints
Relying on Article 2 (right to life), Article 13 (right to an effective remedy), Article 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case) and Article 34 (right of individual petition), the applicants alleged, in particular, that the State was responsible for the death of their relatives and that it had failed to conduct an effective investigation in this respect.
Decision of the Court
Article 2
Concerning the alleged violation of the right to life
The Court left open the question who had laid the mines in the vicinity of Akhinchu-Barzoy. However, since the Government did not deny that the authorities had been aware that mines had been laid in the area, it found that the domestic authorities had been under a positive obligation to protect the residents from the risks involved.
In view of the State’s failure to endeavour to locate and deactivate the mines, to mark and seal off the mined area so as to prevent anybody from freely entering it, and to provide the villagers with comprehensive warnings concerning the mines laid in the vicinity of their village, the Court concluded that the State had failed to comply with its positive obligation under Article 2 of the Convention to protect the lives of Mr Vakhazhi Albekov, Mr Khasayn Minkailov and Mr Nokha Uspanov and there had therefore been a violation of that provision in that respect.
Concerning the alleged inadequacy of the investigation
The investigation had fallen short of such essential requirements as promptness, exemplary diligence, initiative on the part of the authorities and public scrutiny, and taking into account the failure to take other investigative measures in a timely and appropriate manner, the Court concluded that the investigation had failed to meet the minimum standards of effectiveness.
With regard to the Government’s preliminary objection that the applicants had failed to exhaust their domestic remedies, which had been joined to the merits of the complaint, the Court observed that the applicants, having had no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged actions or omissions by the investigating authorities before a court. Furthermore, taking into account that the effectiveness of the investigation had already been undermined in its early stages by the authorities’ failure to take necessary and urgent investigative measures, it was highly doubtful that the remedy relied on would have had any prospects of success. Accordingly, the remedy relied on by the Government was ineffective in the circumstances.
The Court therefore found that the authorities had failed to carry out an effective criminal investigation into the deaths of Vakhazhi Albekov and Khasayn Minkailov and the injuries of Nokha Uspanov and that there had been a violation of Article 2 on this account also.
Article 13 in conjunction with Article 2
In circumstances where, as here, a criminal investigation into the deaths and injuries had been ineffective and the effectiveness of any other remedy that may have existed, including civil remedies, had been consequently undermined, the State had failed in its obligation under Article 13 of the Convention.
Consequently, there had been a violation of Article 13 in conjunction with Article 2 of the Convention.
Articles 34 and 38 § 1 (a)
In a case where the application raised issues as to the effectiveness of the investigation, the documents of the criminal investigation were fundamental to the establishment of the facts and their absence might prejudice the Court’s proper examination of the complaint both at the admissibility and at the merits stage.
Despite the Court’s repeated requests for a copy of the investigation file opened into the deaths of Vakhazhi Albekov and Khasayn Minkailov and the injuries sustained by Nokha Uspanov, the Government had refused to produce such a copy, invoking Article 161 of the Code of Criminal Procedure. The Court recalled that in previous cases it has already found this reference insufficient to justify refusal.
Referring to the importance of a respondent Government’s cooperation in Convention proceedings, the Court found that the Government had fallen short of their obligations under Article 38 § 1 of the Convention because of their failure to submit copies of the documents requested.
In view of this finding, the Court considered that no separate issues arose under Article 34.
