Постановление Европейского суда по правам человека от 08.04.2010 «Дело Абдурашидова (abdurashidova) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ABDURASHIDOVA v. RUSSIA
(Application No. 32968/05)
JUDGMENT*
(Strasbourg, 8.IV.2010)
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*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 Abdurashidova v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren}*Nielsen, Section Registrar,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Having deliberated in private on 18 March 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 32968/05) 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 Zulpa Abdurashidova ("the applicant"), on 22 July 2005.

2. The applicant was represented before the Court by lawyers of the International Protection Centre, an NGO registered in Moscow. The Russian Government ("the Government") were represented by Mrs V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their new Representative, Mr G. Matyushkin.

3. On 22 April 2008 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. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).

4. 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.

THE FACTS
I. The circumstances of the case
5. The applicant was born in 1978. She lived in the village of Solnechnoye in the Khasavyurt district of Dagestan, Russian Federation. Currently she lives abroad after seeking asylum. The applicant is the mother of Summaya (also spelled Sumaya) Abdurashidova, born in 1998.

A. The events of 14 March 2005
1. The applicant's account
6. At about 5.30 a.m. on 14 March 2005 approximately fifty men in two APCs (armoured personnel carriers) and a white VAZ 2121 Niva car with the registration plate 008 26 arrived at the applicant's house in Solnechnoye.

7. The men were armed and equipped with portable radio sets. They neither introduced themselves nor produced any documents. The applicant thought that they were State servicemen. It appears that the servicemen arrived to apprehend the applicant's husband and two men who were staying in the house that night. The men broke into the applicant's house and opened gunfire. The applicant's husband shouted to the servicemen: "Do not shoot! There are children in the house." In spite of the warning the servicemen continued shooting. They took the applicant's husband outside; the applicant's three children remained in their rooms and the applicant was in the corridor.

8. During the shooting the applicant's two sons Bilal (born in 1997) and Ilyas (born in 2002) ran out from their bedrooms into the corridor. At some point Bilal ran out of his sister's bedroom, screaming that Summaya had been wounded and was bleeding. It appears that Summaya Abdurashidova had been hit by a fragment of a rifle grenade.

9. The applicant tried to go into her daughter's room, but the servicemen pushed her outside the house into the yard. When the applicant asked them to let her go inside, the servicemen forbade her under gun point. She was made to lie down on the ground with her hands behind her head.

10. When the shooting was over, their neighbour Mr I.I. went into the house and carried out the body of Summaya Abdurashidova.

11. As a result of the shooting the two men who were staying in the applicant's house were killed, and the applicant's husband was taken to the Department of the Interior of the Khasavyurt district ("the Khasavyurt ROVD").

12. After the shooting the applicant saw that her house, as well as her family possessions in it, had been damaged by the gunfire. In addition, the family's identity documents, including passports and birth certificates, had been taken away by the servicemen.

13. The applicant submitted that after the shooting, the servicemen had taken away two plastic bags with the applicant's family documents and valuables, including the applicant's golden bracelet and two rings.

14. The applicant's description of the events of 14 March 2005 is based on several undated accounts provided by her to her representatives and on the letters which the applicant sent to the authorities. The applicant also submitted articles published in the newspaper "Druzhba" (Дружба) on 8 April 2005 and on 15 April 2005 and an article published in the newspaper "Niyso-Dagestan" (Нийсо-Дагестан) on 14 April 2005.

2. Information submitted by the Government
15. The Government submitted, with reference to the documents from the criminal investigation file (see below), that the two men who had been at the applicant's house on the night of 14 March 2005 had been suspected of the armed robbery of a woman and of an attack on a serviceman of the traffic police, Mr M.M., who had later died. The crimes had been committed by three persons on 31 December 2004, and on 1 January 2005 the Khasavyurt district prosecutor's office (the district prosecutor's office) opened a criminal investigation into the incident. The investigation was assigned file number 5111. It has been established that during the attack the criminals took hold of M.M.'s police identity document and his PM service pistol with a known serial number.

16. The police obtained information that two suspects, Mr S.Ya. and Mr R.Yu., had found refuge at the applicant's house and that they had stored weapons and armaments there, including the PM pistol. On 14 March 2005 the investigator of the district prosecutor's office decided to carry out an urgent search at the applicant's house with the aim of finding the two suspects and the weapons. Since the suspects could have been armed, the prosecutor had been assisted by servicemen of the Khasavyurt ROVD and of the special police force of Dagestan.

17. Upon arrival at the applicant's house, police officers Mr P.A. and Mr S.O. informed the applicant and her husband about the aim of their visit and suggested that they evacuate the building for their own safety. The applicant, her husband and their two sons Bilal and Ilyas came out of the house. Then the applicant informed the policemen that her daughter Summaya had remained in the house. Mr P.A. and Mr S.O. returned to the house in order to take the child out, but Mr S.Ya. and Mr R.Yu., who had taken refuge in the house, threw hand grenades at them. Both policemen were injured. Their colleagues, in order to cover them, opened gunfire and killed both suspects.

18. After the skirmish was over, the site was inspected by the investigator of the district prosecutor's office and by forensic and medical experts, in the presence of two attesting witnesses. They discovered the bodies of Mr S.Ya. and Mr R.Yu. and of the applicant's daughter, Summaya Abdurashidova. In the room where the two fugitives had been hiding, they also found safety pins from hand grenades and a PM hand pistol with the serial number corresponding to the one stolen from M.M.

B. Reaction of the authorities to the events
of 14 March 2005
1. The applicant's correspondence with the State authorities
concerning the death of Summaya Abdurashidova
19. Shortly after the shooting had ended, experts from the Khasavyurt ROVD took pictures of Summaya Abdurashidova and wanted to take her body to the morgue for an autopsy. The applicant and her relatives refused to give their permission and wrote down an official statement of refusal.

20. From the beginning of her correspondence with the authorities the applicant was assisted by Mr B., head of the local human rights organisation Romashka (Ромашка). The applicant and Mr B. contacted various official bodies, including the Russian President, the Dagestan Government, the Khasavyurt district administration, the mass media and prosecutors' offices at different levels, describing the circumstances of Summaya Abdurashidova's killing and requesting an investigation into the crime. The applicant retained copies of a number of their letters and submitted them to the Court. The relevant information is summarised below.

21. On 16 March 2005 the applicant wrote to a number of the State authorities, including the district prosecutor's office, the Dagestan prosecutor's office and the Prosecutor General. She described the events of 14 March 2005 and requested an investigation into the death of her daughter and prosecution of the culprits. The applicant also complained that her property had been unlawfully destroyed during the special operation and requested compensation for the pecuniary and non-pecuniary damage caused by the actions of the servicemen.

22. In March or April 2005 the applicant informed the Dagestan prosecutor's office that servicemen of the Khasavyurt ROVD had participated in the special operation on 14 March 2005.

23. On 20 April 2005 the Dagestan prosecutor's office informed the applicant that her complaint about unlawful actions of servicemen of the Khasavyurt ROVD during her husband's apprehension had been forwarded to the district prosecutor's office for examination.

24. On 26 April 2005 the district State registry office (ЗАГС) issued a statement confirming the death of Summaya Abdurashidova on 14 March 2005.

25. On 26 April 2005 the Solnechnoye village administration issued a death certificate for Summaya Abdurashidova.

26. On 28 April 2005 the applicant again wrote to the authorities, including the district prosecutor's office, the Dagestan prosecutor's office and the Prosecutor General. In her letter she pointed out that on 16 March 2005 she had already complained about her daughter's killing, but the authorities had failed to initiate a criminal investigation into the death. She requested explanations concerning the reasons for the failure to initiate the investigation and to prosecute the perpetrators.

27. On 17 May and 30 June 2005 the Dagestan prosecutor's office informed the applicant that her complaint about the death of Summaya Abdurashidova had been forwarded to the district prosecutor's office for examination.

28. On 25 May 2005 the Khasavyurt District Court sentenced the applicant's husband to three months' imprisonment for harbouring two criminals. In its judgment the court stated, inter alia, that his "minor daughter Summaya had been killed in the course of a special operation aimed at apprehending the criminals who had been hiding in the house". The applicant's husband accepted his guilt and did not appeal against the sentence.

29. It appears that Mr B., who had assisted the applicant in the preparation of her complaints to the domestic authorities, was arrested in November 2005 on suspicion of illegal possession of weapons. Following allegations of torture and ensuing public pressure, he was released and acquitted. He left Russia in 2006 and sought asylum in another country.

2. The destruction of the applicant's property
30. On 15 March 2005 a commission of the administration of Solnechnoye, including the head of the administration, the chief accountant and the applicant's two neighbours, visited the applicant's house. They examined the scene and drew up the following report on damage:

"During the special operation on 14 March 2005 the house... was practically destroyed; as a result of gunfire and explosions the windows and doors were blown out, the roof was damaged by shots, a powerful blast resulted in cracks in the walls and in the ceiling; the furniture in the living room and in the kitchen, the refrigerator and the TV set were rendered unusable."
According to the report, the applicant's house was uninhabitable and required major repairs. The report further estimated the cost of repairs at between 650,000 and 800,000 Russian roubles (RUB), without specifying additional details.

3. Information submitted by the Government
31. In response to a specific request from the Court, the Government submitted 26 pages of documents from the criminal investigation files mentioned above. Although this was not marked on many documents, it appears that the Government submitted copies of the decisions to open the criminal proceedings in the cases assigned file numbers 5111, 51151 and 51153.

32. The Government submitted that on 14 March 2005 the district prosecutor's office had opened criminal investigation No. 51151 into the attack on the police officers and the unlawful purchase and storage of arms and ammunition. The investigation was opened in view of the wounding of two policemen, Mr P.A. and Mr S.O. The decision did not mention the suspects' and the applicant's daughter's deaths. The investigation obtained information that Mr S.Ya. and Mr R.Yu. had been involved with illegal armed groups and had fought against the authorities in Chechnya. Thus, on 14 March 2005, the district prosecutor's office opened a new investigation file concerning participation in illegal armed groups, which was assigned number 51153.

33. On 14 March 2005 the investigator of the district prosecutor's office, assisted by medical and forensic experts, in the presence of two witnesses, examined the body of Summaya Abdurashidova. They noted two large open wounds: one measuring 10 cm by 8 cm to the head and one measuring 10 cm by 6 cm to the upper part of the torso. The Government submitted a copy of the expert report. The experts also took photographs; however, as follows from subsequent documents and the Government's submissions, the photographs could not be developed because the film was defective.

34. On 21 March 2005 criminal investigation files Nos. 51151 and 51153 were joined and assigned number 51151. The decision did not refer to the death of the applicant's daughter or to the deaths of the suspects.

35. No separate criminal investigation was opened into the applicant's daughter's death. The Government submitted that in the course of the investigation of file No. 51151 the authorities had established that