ITEMID: 001-69672
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF OKYAY AND OTHERS  v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award
TEXT: 9. The case concerns the national authorities' failure to implement the domestic courts' order to shut down three thermal power plants which pollute the environment in the province of Muğla, in south-west Turkey.
10. The applicants are all lawyers who live and practise in İzmir, a city which is approximately 250 kilometres from the site of the power plants. Relying on Article 56 of the Constitution and section 3(a) of the Environment Act (see paragraphs 46 and 47 below), the applicants argued that it was their constitutional right to live in a healthy and balanced environment, and their duty to ensure the protection of the environment and to prevent environmental pollution.
11. The Yatağan, Yeniköy and Gökova thermal power plants have been operated for many years by the Ministry of Energy and Natural Resources and the public utility company Türkiye Elektrik Kurumu (“TEAŞ”) in Muğla, in the Aegean region of Turkey. In the course of their operation, the poor-quality coal used by the plants to produce energy has caused pollution and harmed the region's biological diversity.
12. By petitions of 16 April 1993, 28 April 1993 and 11 February 1994, the applicants called on the Ministries of Health, of the Environment and of Energy and Natural Resources, TEAŞ and the Muğla provincial governor to take action to halt the operation of the Gökova, Yatağan and Yeniköy thermal power plants. They claimed that these three power plants had failed to obtain the requisite licences and that their operation constituted a danger to public health and to the environment.
13. The above-mentioned administrative authorities did not reply to the applicants' request, which, under section 10(2) of the Administrative Procedure Act (Law no. 2577), amounted to a refusal.
14. On 16 July 1993, 18 July 1993 and 18 May 1994 the applicants brought three separate actions in the Aydın Administrative Court concerning the Gökova, Yatağan and Yeniköy power plants respectively, against the Ministries of Health, of Energy and Natural Resources and of the Environment, TEAŞ and the Muğla provincial governor's office. They requested that the administrative decision refusing to halt the power plants' operation be set aside. The applicants further asked the court to order an interim measure to suspend the activities of these power plants on the ground that they were causing irreparable harm to nature and to public health. As to their legal capacity to bring the proceedings in question, the applicants relied on Article 56 of the Constitution and sections 3 and 30 of the Environment Act (see paragraphs 46, 47 and 50 below).
15. The Aydın Administrative Court appointed a panel of experts, composed of three university professors who were experts in forestry, the environment and chemistry respectively, with a view to determining the effects of the three power plants' operation on the environment.
16. On 16 February 1996 the experts submitted their reports to the court. They concluded that the plants emitted considerable amounts of nitrogen dioxide and sulphur dioxide and were not equipped with the mandatory chimney filters. They found that the power plants constituted a danger to a zone measuring 25-30 kilometres in diameter. Accordingly, they recommended that the Gökova power plant be immediately shut down, that one unit in each of the Yeniköy and Yatağan power plants should cease to operate and that desulphurisation units should be installed in them.
17. On 20 June 1996 the Aydın Administrative Court issued an interlocutory injunction for suspension of the power plants' operation. It found that TEAŞ had been operating the plants since 1994 under the guise of “test operations”, without having obtained the requisite permits for construction, gas emissions and the discharge of waste water. On the basis of the experts' findings, the court noted that the plants had already caused pollution that was harmful to human health and the environment and that their continued operation could cause irreparable harm to the public. Consequently, it ruled that the administrative authorities' decision refusing to halt the plants' operation had been unlawful.
18. On 29 August 1996 the Regional Administrative Court in Aydın, an appellate body responsible for examining decisions given by a single judge in the administrative courts, dismissed the defendant authorities' appeal against the injunction of 20 June 1996.
19. The applicants alleged before the Administrative Court that the continued operation of the Gökova power plant would lead to environmental disaster. In particular, it would reduce the number of marine fish species, harm forests and agricultural areas and would have an adverse impact on tourism on account of the risk of hazardous emissions. In this connection, they claimed that the authorities had failed to prepare an environmental impact report and to obtain the necessary operating permits.
20. In its submissions to the Administrative Court, the Ministry of Energy and Natural Resources disputed the applicants' legal capacity to bring the action in question, alleging that they did not have a legal interest to bring such an action as required by section 5(2) of the Administrative Procedure Act (see paragraph 55 below). It further claimed, inter alia, that there was no requirement to obtain an environmental impact report and that the authorities had already applied for the requisite permits. It also noted that the authorities were taking the necessary steps to install a new flue gas desulphurisation system.
21. In addition to those submissions from the Ministry of Energy and Natural Resources, the Ministries of Health and of the Environment, TEAŞ and the Muğla provincial governor's office claimed that the case ought to be dismissed because the necessary equipment would be installed in the plant to prevent pollution.
22. On 30 December 1996 the Aydın Administrative Court set aside the defendant authorities' decision to refuse to halt the operation of the Gökova power plant. In its decision, the court first dismissed the objection concerning the applicants' alleged lack of a legal interest to bring an action to halt the plant's operation. Referring to section 2 of the Administrative Procedure Act, the court noted that there was no requirement to claim a violation of a personal interest in cases concerning the protection of the environment or the historical and cultural heritage, or which were closely related to issues of public interest (see paragraph 53 below). It further found that the thermal power plant was being operated as a “test operation” and did not have the requisite permits. In this connection, the court found, inter alia:
“... Furthermore, in order to determine whether the thermal power plant caused damage to the environment, a survey of the area was conducted by three experts, namely Professor M. Doğan Kantarcı, Professor Ayşen Müzzinoğlu and Professor İlker Kayadeniz. The [aforementioned experts'] report, on which this judgment is based, noted that the Kemerköy (Gökova) thermal power plant consisted of three units, each capable of generating 210 megawatts of electricity. The plant uses poor-quality lignite coal to generate energy. It has no equipment for filtering sulphur dioxide and nitrogen oxide gases discharged through its chimneys ... Each of the three units of the Kemerköy thermal power plant uses 1.4 million tonnes of coal. It is not possible to decrease air pollution by reducing the capacity of a thermal power plant which uses poor-quality coal. It appears that 110.5 million tonnes of coal are stocked on the thermal power plant's premises. Given that the annual amount of coal to be used by the three units is around 4.2 million tonnes, the thermal power plant would need to operate for twenty-six years to use up all the coal. If even one unit of the Kemerköy power plant were to operate, this would have a detrimental effect on the environment. The gas emitted from the chimneys disperses over an area measuring approximately 2,350 kilometres in diameter ... Should three units of the Kemerköy and two units of the Yeniköy thermal power plants be operated, the Datça and Betçe zones of the Reşadiye peninsula would be adversely affected by sulphur dioxide. The delivery of coal to the power plant by ship would also cause marine pollution. [It follows] that the operation of the Kemerköy power plant has a harmful effect not only on the areas in the vicinity but also on distant areas. [Accordingly], in order to remove the sulphur dioxide from the gas discharged through the chimneys, desulphurisation units must be installed. This would remove 95% of the sulphur dioxide.
Our country's electrical energy needs can never be disregarded. However, the electricity plants in operation, or to be constructed, must meet the requirements of the above-mentioned regulations, so that the public interest is respected. The public interest cannot be said to have been respected if irreparable harm is caused to the environment merely in order to generate electricity.
It appears that the requisite measures were not taken prior to the plant's construction and the start of operations. Despite the possibility of minimising the adverse environmental effects of the power plants, which represent a long-term State investment, it is obvious that the necessary steps were not taken or that little was done from the planning stage to the point of commencing operations.
The financial cost of installing a flue gas desulphurisation system must not be a deterrent. Discussion of the financial cost of the benefit that would accrue to the population from the measures to be taken by the administration is incompatible with the aim of a social State ...”
23. Given that the thermal power plant had caused environmental pollution, that no preventive measure had been taken and that the requisite permits for construction, operation, gas emission and the discharge of waste water had not been obtained, the court concluded that the refusal of the applicants' request to halt the plant's operation had been unlawful.
24. The applicants contended before the Administrative Court that the operation of the Yeniköy power plant without the requisite permits and installations would lead to environmental disaster. They therefore asked the court to set aside the administrative authorities' decision to refuse to halt the plant's operation.
25. The Ministry of Energy and Natural Resources claimed that the power plant had received the requisite construction permit and that TEAŞ was taking the necessary steps to install flue gas desulphurisation equipment. However, it denied that the power plant was polluting the environment and claimed that closure of the plant would give rise to energy shortages in the Aegean region.
26. The Ministry of Health submitted that the plaintiffs did not have a legal interest to bring such an action as required by section 5(2) of the Administrative Procedure Act (see paragraph 55 below). It contended, inter alia, that the relevant authorities were taking the necessary steps to prevent the plant from polluting the environment.
27. The Ministry of the Environment maintained that it did not have authority to issue an operating permit for power plants but was nonetheless required to submit its opinion on such permits. It noted that it had already sent an opinion to the Ministry of Health and to TEAŞ. In its view, no environmental impact report was required in respect of the power plant, since it had been constructed prior to the enactment of the Environment Act.
28. For its part, TEAŞ asserted that the plaintiffs did not have a legal interest in the action and that the case should therefore be dismissed. It alleged, inter alia, that the power plant had received the requisite permits from the authorities and that it had been equipped with electronic chimney filters. The company further claimed that there was no alternative energy supply, and that the power plant's closure would result in energy shortages in the region.
29. On 30 December 1996 the Aydın Administrative Court delivered a judgment similar to that in the case of the Gökova thermal power plant, and set aside the administrative authorities' decision to refuse to close the Yeniköy thermal power plant. Relying on the experts' report, the court noted that the Yeniköy plant did not have the necessary operating permits and that it had already polluted the environment. It therefore found that the administrative authorities' decision had been unlawful.
30. The applicants argued before the Administrative Court that the Yatağan power plant had been in operation since 1982 and that the damage it caused to the environment had been observed since 1985. They contended that the defendant authorities had failed to obtain the requisite permits for the power plant's operation. They therefore asked the court to set aside the administrative authorities' decision to refuse to close the plant.
31. As they had done in the cases of the Gökova and Yeniköy plants, the defendant administrative authorities challenged the applicants' legal interest to bring an action in the Administrative Court for the purpose of shutting down the Yatağan plant. They denied that the plant polluted the environment and claimed that the necessary permits would be obtained and that flue gas desulphurisation equipment would be installed. The administrative authorities also pointed out that there would be a significant energy shortage in the region if the plant's operation were to be halted. They asked the court to dismiss the action.
32. On 30 December 1996 the Aydın Administrative Court dismissed the defendants' objection concerning the applicants' alleged lack of legal interest and set aside the administrative decision to continue the plant's operation without obtaining the requisite permits. Referring to the experts' report, the court reasoned that the plant was polluting the environment and therefore concluded that the administrative decision to refuse to halt the plant's operation had been unlawful.
33. By decisions of 3 and 6 June 1998, the Supreme Administrative Court upheld the above-mentioned three judgments of the Aydın Administrative Court.
34. On 26 April 1999 the Supreme Administrative Court rejected the defendant authorities' requests for rectification.
35. By virtue of section 28 of the Administrative Procedure Act and of Article 138 § 4 of the Constitution, the administrative authorities are obliged to comply with court decisions and to enforce them within thirty days following service of the decision (see paragraphs 57 and 58 below).
36. By a decision of 3 September 1996, the Council of Ministers, composed of the Prime Minister and other cabinet ministers, decided that the three thermal power plants should continue to operate, despite the administrative courts' judgments. The Council of Ministers reasoned that closure of the plants would give rise to energy shortages and loss of employment and would thus affect the region's income from tourism. Taking the view that the necessary measures were being taken by the authorities with a view to preventing the plants from polluting the environment, the Council of Ministers decided that the plants' operation should not be halted.
37. In letters of 6 and 14 September 1996, the applicants asked the defendant administrative authorities to enforce the judgments of the Aydın Administrative Court.
38. On 11 November 1996 the applicants filed criminal complaints with the offices of the Ankara Chief Public Prosecutor and of the public prosecutors in the jurisdictions in which the plants were situated. They asked the prosecutors to institute criminal proceedings against the members of the Council of Ministers and other relevant administrative authorities for failure to execute the court decisions.
39. In a letter of 20 November 1996, the Ministry of Energy and Natural Resources informed the applicants that the operation of the three thermal power plants would not be halted. It was noted that the power plants were responsible for 7% of the country's total electricity production and that their contribution to the economy was estimated at around five hundred billion Turkish liras. The Ministry further argued that 4,079 people would lose their jobs and the region's tourist sector would be adversely affected if these plants were to cease to operate. It was further claimed that contracts had already been signed for the installation of new flue gas desulphurisation systems and that the necessary measures were therefore being taken to protect the environment and public health.
40. On 27 November 1996 the Ankara Chief Public Prosecutor issued a decision not to prosecute the Prime Minister and other ministers, having regard to Article 100 of the Constitution which stipulated that the prosecution of these authorities would require a parliamentary investigation.
41. On 25 December 1996 the Yatağan Chief Public Prosecutor issued a decision not to prosecute the director of the Yatağan thermal power plant, given that the Aydın Administrative Court's judgment had not been served on him, and that TEAŞ's directors were not responsible for taking action to comply with the court's judgment.
42. On 12 March 1997 the Milas Chief Public Prosecutor issued a decision not to prosecute the directors of the Yeniköy and Gökova thermal power plants. The Chief Public Prosecutor stated that the directors of the power plants were merely implementing the Council of Ministers' decision of 3 September 1996 and that there were no grounds for considering that they were deliberately refusing to comply with the administrative courts' judgments.
43. The applicants submitted a copy of nine judgments given by the Yatağan Magistrates' Court in civil matters (sulh hukuk mahkemesi). In these cases, brought against TEAŞ, the plaintiffs, who were farmers living in the vicinity of the Yatağan thermal power plant, alleged that the quality and quantity of their olive and tobacco production had been adversely affected by the poisonous gas and ash emitted by the power plant and that they had therefore suffered pecuniary damage (Files nos. 1998/80, 1998/81, 1999/68, 2000/225, 2000/226, 2000/499, 2001/72, 2001/73, 2001/76; and decisions nos. 1998/108, 1998/113, 1999/339, 2000/164, 2000/183, 2001/59, 2001/75, 2001/78, 2001/79).
44. The Yatağan Magistrates' Court acceded to the plaintiffs' claims and awarded each of them compensation. Relying on expert reports on the plaintiffs' land, the court found that the hazardous gas emitted by the power plant had caused considerable damage to cultivation in the region, in that olive trees and tobacco plants suffered from incomplete leaf growth and were unable to produce a sufficient yield.
45. The Court of Cassation upheld all nine judgments of the Yatağan Magistrates' Court.
46. Article 56 of the Constitution provides:
“Everyone has the right to live in a healthy, balanced environment. It shall be the duty of the State and the citizens to improve and preserve the environment and to prevent environmental pollution. ... The State shall perform this task by utilising and supervising health and social welfare institutions in both the public and private sectors. ...”
47. Section 3 of the Environment Act (Law no. 2872), published in the Official Gazette on 11 August 1983, reads:
“The general principles governing environmental protection and the prevention of environmental pollution shall be as follows:
(a) Protecting the environment and preventing environmental pollution are the duty of individuals and legal entities as well as of all citizens, and they are required to comply with the measures to be taken and the principles laid down in reference to these matters. ...”
48. Section 10 provides:
“Establishments and concerns which propose to carry out activities which might cause environmental problems shall draw up an environmental impact report. This report shall concern, inter alia, the measures proposed to reduce the detrimental effects of waste materials and the necessary precautions to this end.
The types of project for which such a report shall be required, its content and the principles governing its approval by the relevant authorities shall be determined by regulations.”
49. Section 28 reads:
“Whether or not negligence has occurred, a person who pollutes and harms the environment shall be responsible for the damage resulting from that pollution or the deterioration of the environment.
This liability is without prejudice to any liability which may arise under general provisions.”
50. Section 30 provides:
“Individuals and legal entities that suffer damage from or have information regarding an activity which pollutes or harms the environment may request that the activity be stopped by applying to the administrative authorities.”
51. In June 1992 the United Nations Conference on Environment and Development, meeting in Rio de Janeiro (Brazil), adopted a declaration (“the Rio Declaration on Environment and Development”, A/CONF.151/26 (vol. I)) intended to advance the concept of States' rights and responsibilities with regard to the environment. “Principle 10” of this Declaration provides:
“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”
52. On 27 June 2003 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1614 (2003) on environment and human rights. The relevant part of this recommendation states:
“9. The Assembly recommends that the Governments of member States:
i. ensure appropriate protection of the life, health, family and private life, physical integrity and private property of persons in accordance with Articles 2, 3 and 8 of the European Convention on Human Rights and by Article 1 of its Additional Protocol, by also taking particular account of the need for environmental protection;
ii. recognise a human right to a healthy, viable and decent environment which includes the objective obligation for States to protect the environment, in national laws, preferably at constitutional level;
iii. safeguard the individual procedural rights to access to information, public participation in decision making and access to justice in environmental matters set out in the Aarhus Convention;
...”
53. Section 2 of the Administrative Procedure Act (Law no. 2577) provides that anyone whose personal interests have been violated as a result of an unlawful administrative act can bring an action for annulment of that act. An administrative court suit can also be brought on account of a violation of a personal right by an administrative act or action.
54. In its judgment of 2 February 1990 (File no. 1989/430, decision no. 1990/18), the Supreme Administrative Court distinguished a personal interest from a personal right:
“... the violation of an interest does not have the same meaning as the violation of a right. It indicates a relation which is serious and reasonable. The interest violated does not necessarily need to be of an economic or pecuniary nature. ...”
55. Section 5(2) of Law no. 2577 reads:
“The filing of an action by a common petition by more than one person requires a common right or interest on the part of the plaintiffs and similarity in respect of the facts and legal reasons.”
56. Section 10(2) of Law no. 2577 provides:
“[If the administrative authorities] do not respond [to a petition] within sixty days [after its receipt], the request shall be considered to have been rejected.”
57. Article 138 § 4 of the Constitution provides:
“The bodies of executive and legislative power and the authorities must comply with court decisions; they cannot in any circumstances modify court decisions or defer enforcement thereof.”
58. The relevant parts of section 28 of Law no. 2577 read:
“(1) The authorities shall be obliged to adopt a decision without delay or to take action in accordance with the decisions on the merits or a request for a stay of execution issued by the Supreme Administrative Court, the ordinary or regional administrative courts or the courts dealing with tax disputes. Under no circumstances may the time taken to act exceed thirty days following service of the decision on the authorities.
...
(3) Where the authorities do not adopt a decision or do not act in accordance with a decision by the Supreme Administrative Court, the ordinary or regional administrative courts or the tax courts, a claim for compensation for pecuniary or non-pecuniary damage may be brought before the Supreme Administrative Court and the relevant courts against the authorities.
(4) In the event of deliberate failure on the part of civil servants to enforce judicial decisions within the thirty days [following the decision], compensation proceedings may be brought both against the authorities and against the civil servant who refuses to enforce the decision in question.”
59. Section 52(4) of Law no. 2577 provides:
“The setting aside of a judgment gives rise ipso facto to a stay of execution of the decision.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108741
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ANDREJEV v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: The applicant, Mr Juri Andrejev, is an Estonian national who was born in 1947 and lives in Narva-Jõesuu.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant owned a cable television network in Narva-Jõesuu. His activities in connection with the retransmission of programmes of various television channels through his network gave rise to several sets of judicial proceedings.
In the applicant’s submission, on 1 January 2003 and 27 September 2004 two sets of criminal proceedings were initiated against him, both of them in respect of suspected infringement of rights related to copyright (Article 220 of the Penal Code (Karistusseadustik)). Soon afterwards these proceedings were joined. The prosecutor modified the bill of indictment twice. The third and final bill of indictment, given to the applicant on 26 May 2006, stated that the offence which previously fell under Article 220 of the Penal Code was now to be dealt with under Article 223 § 1 of the Penal Code (unlawful retransmission for commercial purposes). This bill of indictment concerned retransmissions of the television channels ORT, RTR and NTV between 26 May 2003 and 29 September 2005.
On 28 August 2009 the Viru County Court convicted the applicant under Article 223 § 1 of the Penal Code and sentenced him to four months’ imprisonment.
The applicant appealed, arguing that his conviction had been unlawful and that several procedural violations had occurred.
By a judgment of 19 February 2010 the Tartu Court of Appeal upheld the County Court’s judgment in substance but modified the sentence and fined the applicant 15,000 kroons (EEK, approximately 959 euros, (EUR)) instead of the prison sentence given by the lower court.
The applicant filed an appeal with the Supreme Court, mainly challenging the interpretation of the criminal law by the lower courts. He did not raise the issue of the excessive length of the criminal proceedings.
On 19 April 2010 the Supreme Court decided not to examine the appeal. He was informed of this decision by a letter dated 22 April 2010.
In separate criminal proceedings the Viru County Court convicted the applicant on 23 May 2006 of infringement of rights related to copyright (unlawful retransmission of programmes of the television channels PBK and TVC). On 18 October 2006 the Viru Court of Appeal quashed the judgment and acquitted the applicant. The applicant’s subsequent criminal complaints against the public prosecutor and the first-instance judge were dismissed by the Public Prosecutor’s Office. His complaint to the Viru Court of Appeal was rejected on 14 February 2008, because it had not been drawn up by a lawyer as required by law.
Furthermore, it appears that on 29 September and 27 October 2005 police officers endeavoured to conduct a search of the applicant’s residence. There was a dispute between him and the officers and he was taken to the police station. Later he was charged with refusing to comply with lawful orders given by representatives of the State authority. On 6 February 2006, in misdemeanour proceedings, the Narva City Court acquitted the applicant of the charge, finding that he had not committed the offence. In the meantime, on 29 October 2005 the applicant made a criminal complaint against the police officers. The Public Prosecutor’s Office refused to open proceedings. On 18 February 2008 the applicant lodged a complaint with the Viru Court of Appeal. It appears that the complaint was rejected as it had not been drawn up by a lawyer as required by law.
By a decision of 30 December 2008, in constitutional review proceedings (case no. 3-4-1-12-08), the Constitutional Review Chamber of the Supreme Court rejected a complaint concerning the length of criminal proceedings, noting that the complainant could raise the issue in criminal proceedings before the court hearing the criminal case. It held:
“23. If the court comes to the conclusion that [the complainant’s] right to proceedings within a reasonable time has been violated, the court can, in the light of all the circumstances and on the basis of Article 6 § 1 of the Convention, terminate criminal proceedings due to inappropriateness, render a judgment of acquittal or take the fact that reasonable time was exceeded into account when passing sentence.”
The above decision of the Supreme Court is more extensively quoted in the case of Malkov v. Estonia (no. 31407/07, § 32, 4 February 2010).
By a judgment of 27 January 2009 the Tartu Court of Appeal found that the criminal proceedings in the case it was examining had not been conducted within a reasonable time and the defendant’s sentence was reduced accordingly (see Malkov, cited above, § 29).
The Criminal Chamber of the Supreme Court has also found in several judgments that excessive length of proceedings can serve as grounds for the termination of criminal proceedings, the defendant’s acquittal or taking the length of proceedings into account in the sentence (judgments of 27 February 2004 (case no. 3-1-1-3-04) and 28 December 2009 (case no. 311-100-09)).


ITEMID: 001-77396
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ESTAMIROV AND OTHERS v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection partially dismissed (non-exhaustion of domestic remedies);Preliminary objection partially joined to merits (non-exhaustion of domestic remedies);Violation of Art. 2 (inadequate investigation);Violation of Art. 2 (deaths of the applicants' relatives);Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicants are relatives. They are:
1) Ruslan Khasmagomedovich Estamirov, born in 1965;
2) Leyla (also spelled Layla) Khasmagomedovna Yandarova (maiden name Estamirova), born in 1961, the first applicant'sister;
3) Sovdat Khasmagomedovna Dakayeva (maiden name Estamirova), born in 1970, the first applicant'sister;
4) Yakha Estamirova, born in 1934, their mother;
5) Khuseyn Khozhakhmedovich Estamirov, born in 1996, the first applicant's nephew;
6) Khabirat Khasmagomedovna Zaurbekova (maiden name Estamirova), the first applicant's sister, born in 1960;
7) Khabira Khasmagomedovna Tatasheva (maiden name Estamirova), the first applicant's sister, born in 1958.
9. Until 1999 the applicants were residents of Grozny, Chechnya. The first, the fourth and the fifth applicants now live in the United States of America, where they were granted political asylum. The other applicants live in Ingushetia and in Moscow.
10. The facts surrounding the deaths of the applicants' relatives and the ensuing investigation were partially disputed. In view of this the Court requested the Government to produce copies of the entire investigation file opened in relation to the applicants' relatives' deaths.
11. The submissions of the parties on the facts concerning the circumstances of the applicants' relatives' deaths and the ensuing investigations are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B.
12. The applicants' family lived in the Oktyabrskiy district of Grozny at 1 Podolskaya Street. The household consisted of two houses, built by the family over a period of 15 years, since the end of 1980s, and united by a common courtyard. During the hostilities in 1994 - 1996 one house was burnt and the second one was hit by a shell. After 1996 the applicants' family restored one house. They attempted to obtain compensation for the lost property, but failed to comply with the procedural requirements.
13. In November 1999 the first applicant, his mother and his four-year old nephew (the fourth and fifth applicants) left Grozny for Ingushetia because of the renewed hostilities. A part of the family remained in Grozny to look after the house and property. They were the first applicant's father, Khasmagomed Estamirov (born in 1933), the first applicant's brother Khozhakhmad (also spelled as Khozhakhmed) Estamirov (born in 1963), his pregnant wife Toita Estamirova (born in 1971) and their son Khasan Estamirov (born in January 1999), and Khasmagomed Estamirov's cousin Said-Akhmed Masarov (born in 1950). The first applicant submits that they tried to convince their father, who was partly disabled, to move to Ingushetia, but he decided to remain in the house, and one of his sons with his family stayed to look after him.
14. Some time in February 2000 the first applicant's aunt went to Grozny. She met another relative, the first applicant's uncle Vakhid M., who told her that the family members who remained in Grozny had been killed by the Russian soldiers on 5 February 2000. M., who had suffered a nervous breakdown, told her that he went to the house on 5 February 2000 in the afternoon and found the Estamirov family members dead. The bodies of the first applicant's father and brother were in the courtyard, his uncle's body in the doorway of the house, partly burned. The bodies of the first applicant's sister-in-law, who was at the ninth month of pregnancy, and her one-year old son were in the corner of the courtyard. All bodies had gunshot wounds. The woman's ring and earrings were gone. In the courtyard he found the first applicant's father's purse lying empty on the ground. Many items from the house were missing. Their car in the garage and the cowshed with two calves inside were burned. On the same day M. buried the bodies on a patch of land by the house, having wrapped them into pieces of cloth.
15. The first applicant's aunt returned to Ingushetia and told the other family members about the deaths. On 22 February 2000 the fourth applicant sent a request to the Prosecutor General to initiate criminal proceedings into the killings of five members of her family, looting and destruction of their property on 5 February 2000 by the Russian troops during a “mopping up” operation in Grozny.
16. On 4 April 2000 the first and the second applicants travelled to Grozny. There they sought permission to exhume the bodies and to bury them at the Prigorodnoye cemetery. At first the district military commander refused the permission, because the cemetery could have been mined. But then the head of the city administration gave the permission and ordered that the investigators and the police attend the exhumation.
17. On 8 April 2000 the applicants went to the Oktyabrskiy temporary district office of the interior (VOVD) of Grozny and produced the permission for exhumation. Several policemen accompanied them to 1 Podolskaya Street, one of them had a camera.
18. Once the bodies were exhumed, the cloths enveloping the bodies were lifted only from the faces to take photographs. No pathologist was present, and no forensic examination took place. The bodies were then brought to the Prigorodnoye cemetery and buried. A certificate was issued to the first applicant by the investigator of the Oktyabrskiy VOVD Major S. to confirm that on 8 April 2000 the exhumed bodies of Estamirov Kh., born in 1933, Estamirov Kh. Kh., born in 1963, Estamirov Kh. Kh., born in 1999, and Estamirova T., born in 1971, were handed over to the first applicant for burial. It also stated that “the bodies were examined by the investigator of the Oktyabrskiy VOVD, evidence of a violent death was established, material was handed over to the Grozny prosecutor's service”.
19. After the exhumation the police wanted to leave, but the first applicant interfered and asked them to examine the courtyard for relevant evidence: tank or armoured personnel carrier (APC) tracks in front of the house, empty alcohol bottles, a pair of shoes in the courtyard. The policemen drew a report of the site and collected some other evidence, such as cartridges and bullets.
20. On 4 July 2000 the Malgobek Town Court in Ingushetia, at the first applicant's request, certified the deaths of Khasmagomed Estamirov, born in 1933, Khozhakhmed Khasmagomedovich Estamirov, born on 12 February 1963, Toita Khavazh- Bagaudinovna Estamirova, born in 1971, Khasan Khozhakhmedovich Estamirov, born on 20 January 1999, which had occurred on 5 February 2000 in the Oktyabrskiy district of Grozny, Chechnya. The court based its decision on the statements of the applicant and two witnesses in which they testified that the applicant's father, brother, sister-in-law and nephew had remained in Grozny in the winter of 1999-2000. In March 2000 the first applicant learned from his uncle M. that his family had been shot by the Russian OMON (special police force). The court also reviewed the applicant's internal passport with registered residence in Grozny at 1 Podolskaya Street, the exhumation certificate issued by the Oktyabrskiy VOVD on 8 April 2000, the certificate of the Malgobek town administration confirming that the first, the fourth and the fifth applicants had been registered there as forced migrants from Chechnya since 26 September 1999. The court noted that the death certificates were required to apply for allowances for loss of bread-winner.
21. In August 2000 the Oktyabrskiy district civil registration office of Grozny issued four death certificates for the applicants' relatives. They also recorded the date of death as 5 February 2000.
22. The applicants submit that other civilians were killed on the same day in the Novye Aldy suburb of Grozny, which is only 10-15 minutes walk (1,5 kilometres away) from Podolskaya Street. They refer to the Human Rights Watch report of June 2000 entitled “February 5: A Day of Slaughter in Novye Aldy”, which puts the blame for extra-judicial execution of about sixty civilians in the suburbs of Grozny, Novye Aldy and Chernorechye, on the Russian OMON and military forces. The document reports the deaths of the five Estamirov family members, based on the interviews with the family members in Ingushetia, and mentions copies of the reburial photographs.
23. They also refer to the Human Rights Centre Memorial report entitled “Mopping Up. Settlement of Novye Aldy, 5 February 2000 - Deliberate Crimes Against Civilians” («Зачистка». Поселок Новые Алды, 5 февраля 2000 - преднамеренные преступления против мирного населения), which lists five members of their family together with other civilians murdered on that day in Novye Aldy – in total 56 names.
24. On 21 April 2000 the office of the Military Prosecutor for the North Caucasus military circuit wrote to the NGO Memorial stating that the military prosecutor of military unit no. 20102 had reviewed information related to the crimes against civilians committed in Aldy on 5 and 10 February 2000. The military units of the Ministry of Defence and of the Ministry of the Interior, over which the military prosecutor's office had competence, had not conducted military operations or checked passports in the area on the given dates. In view of this, on 3 March 2000 the criminal proceedings opened by the military prosecutor were closed due to the absence of corpus delicti. The letter further stated that it was established that the “mopping up” (“zachistka”) in Aldy on 5 and 10 February 2000 had been conducted by the servicemen of OMON of the Ministry of the Interior from St. Petersburg and Ryazan, over whom the military prosecutor had no competence. The case file had been forwarded to the Grozny Town Prosecutor for appropriate action. All further requests should be addressed to him or to the Prosecutor of the Chechen Republic.
25. On 8 August 2000 the first and the fourth applicants filed a civil claim against the Ministry of Defence, the Ministry of the Interior and the Ministry of Finance with the Supreme Court of Russia. They submitted that five members of their family had been murdered on 5 February 2000 in their house in Grozny, during a so-called “mopping up” operation. Their house and car had been set on fire and their property looted. They referred to the Malgobek Town Court decision of 4 July 2000 and the certificate of exhumation issued by the Oktyabrskiy VOVD. They submitted that these acts must have been committed by the federal servicemen, because on that date Grozny had already been under control of the Russian forces. On the same day summary executions took place in Aldy, which is 15 minutes away from their home on foot. They submitted that on 22 February 2000 they had applied to the General Prosecutor requesting a criminal investigation, but no proper investigation had taken place. They also stated that there were no courts in Chechnya, and that many of the relevant documents were burnt in the house. They sought compensation for pecuniary and non-pecuniary damage. It appears that on 31 August 2000 the Supreme Court refused to consider the claim for lack of jurisdiction and the applicants were advised to apply to a competent district court.
26. On 16 October 2000 the NGO Human Rights Watch wrote to the Prosecutor General and asked for information about the investigation into the Novye Aldy murders. On 31 October 2000 the General Prosecutor replied that the request had been forwarded to the Prosecutor of the Chechen Republic, who should reply in substance.
27. On 4 December 2000 the Chechnya Prosecutor replied to the Human Rights Watch that on 14 April 2000 the Grozny Town Prosecutor's Office had initiated criminal proceedings no. 12023 under Article 105 part 2 of the Criminal Code (murder of one or more persons) and that the investigation was under their supervision.
28. On 8 August 2001 the second applicant wrote to the Chechnya Prosecutor asking for information about the investigation. She inquired what measures had been taken to identify and prosecute the culprits, if the investigation had been suspended, and asked the Prosecutor to forward her a copy of the appropriate order. She received no answer to that request.
29. On 14 August 2001 the SRJI wrote to the Chechnya Prosecutor asking for up to date information on the criminal proceedings no. 12023 opened into the murder of five members of the Estamirov family. They received no answer to that request.
30. On 11 October 2001 the second applicant wrote to the General Prosecutor, saying that she had received no reply to her letter to the Chechnya Prosecutor of 8 August 2001. On 16 November 2001 the Prosecutor General's office informed her that her inquiry had been forwarded to the Chechnya Prosecutor.
31. In a letter of November 2001 the Chechnya Prosecutor's Office informed the second applicant that the investigation was conducted by the Grozny Town Prosecutor's Office, that the Chechnya Prosecutor's Office monitored its progress and that “investigative measures aimed at establishing the perpetrators were being conducted”. The letter also stated, mistakenly, that the applicant's relatives were murdered in April 2000.
32. The investigation into the applicants' relatives' deaths was adjourned and reopened several times. The investigation carried out by the Grozny Town Prosecutor's Office produced no tangible results. It appears that it focused on the version of events initially submitted by the applicants, alleging that the killings had been committed by a Russian military detachment, but that it also considered other possible versions. The investigation did not identify the detachment which was responsible and no one was charged with the crimes (see Part B below for a description of the documents in the investigation file). It does not appear that the investigation connected the murder of the applicants' family members with the investigation of the killings in the Novye Aldy settlement of 5 February 2000.
33. In March 2003 the seventh applicant applied to the Leninskiy District Court of Grozny, asking for a review of the prosecutor's decision to suspend the investigation in the criminal case concerning the killing of her relatives.
34. In June 2003 the application was communicated to the Russian Government, who were requested at that time to submit a copy of investigation file no. 12023. In September 2003 the Government submitted a copy of the file as summarised below. In May 2005 the Court declared the application admissible and requested the Government to submit an update of the investigation.
35. The Government responded in August 2005 that the investigation was pending, but no final conclusions as to the identity of the perpetrators were reached. They also stated that the investigation had examined the criminal investigation file no. 12011 concerning the mass murder of civilians in Novye Aldy on 5 February 2000. It had obtained no evidence to conclude that the murders had been committed by the same persons, and therefore no grounds were established to join these proceedings. The Government further stated that the disclosure of the latest documents from the criminal investigation file no. 12023 would be in violation of Article 161 of the Code of Criminal Procedure, because they contained sensitive information of military and security nature, as well as names and addresses of witnesses who had participated in the counter-terrorist operation in Chechnya and other participants of the proceedings.
36. The parties submitted a number of documents concerning the investigation into the killings. The main documents of relevance are as follows:
37. The Government submitted a copy of the investigation file in criminal case no. 12023, which comprised one volume, and a list of 97 documents contained therein. Of those, 50 documents are dated 20-24 July 2003. The most important documents contained in the file can be summarised as follows.
38. On 14 April 2000 the investigator of the General Prosecutor's Office Department for the Northern Caucasus opened a criminal investigation under Article 105 § 2 (a) and (j) of the Criminal Code into the murder of five members of the Estamirov family, found on 8 April 2000 at 1 Podolskaya Street with signs of violent death.
39. In May 2000 the investigation was transferred to the Grozny Town Prosecutor's Office.
40. On 8 April 2000 two documents were drawn up by the investigators of the Oktyabrskiy VOVD of Grozny at 1 Podolskaya Street.
41. The first report was written and signed by an investigator, two witnesses and an expert. It contains the following text:
“Examination of the site 6 by 4 metres in the courtyard of 1 Podolskaya Street, Grozny. ... An excavation is made of an opening 1,5 by 2 metres, 50-60 cm deep. The pit is covered with wooden planks and corrugated iron. In the opening there are four bodies of different sizes wrapped in cellophane. Mr. Vakhid M., taking part in the excavations, explained that on 9 February 2000 he had buried those bodies in the pit. From left to right these are: Estamirov Kh. Kh. born in 1931, Masarov S.A., born in 1951, Estamirov Kh.Kh., born in 1963, Estamirov Kh.Kh., born in 1999. The bodies are wrapped in cellophane and tied with ribbons of white cloth. The second opening is 50 cm by 1,5 metre, about 2 metres away from the first pit, depth about 40-50 cm. In the pit there is a cellophane bundle wrapped with white cloth ribbon, about 160-165 cm long. Mr M. explained that here on 9 February 2000 he had buried Estamirova T. Kh.-B., born in 1971. The bodies were taken out of the pits so that the relatives could organise a burial in the village of Prigorodnoye. Photographs were made. No additions or corrections.”
42. The second document was drawn up at the same location, and contains a description of the household, traces of fire and bullets, and a burnt vehicle Zhiguli VAZ-2106. The document further lists 18 cartridges and one bullet taken from the site, collected and sealed for further expertise. Several photographs of the site, the bodies and the bullet traces were appended to the documents, as well as a sketch plan of the household.
43. On the same day the investigator of the Oktyabrskiy VOVD in charge of the exhumation procedure submitted a report to the head of the VOVD, where he stated that five bodies of the Estamirov family members had been exhumed and transferred to the relatives for burial. The bodies bore signs of violent death, and the deaths most probably had occurred between 4 and 9 February 2000.
44. On 24 July 2003 an investigator of the Grozny Town Prosecutor's Office again inspected the site at 1 Podolskaya Street and produced a report. The report noted that the house was burnt and abandoned, and described numerous bullet holes in the walls and furniture and the burnt car in the courtyard. Four bullets from an AK-7,62 sub-machine gun were collected. The report was accompanied by photographs of the site and sketches of the house.
45. On 8 April 2000 investigators of the Oktyabrskiy VOVD questioned the fourth applicant about the known circumstances of the murder of her husband and other family members. She stated that while she stayed in Ingushetia, her husband Khasmagomed Estamirov, her son Khozhakmed Estamirov with his wife Toita and son Khasan, and her husband's cousin Said-Akhmed Masarov, remained in Grozny in the family house at 1 Podolskaya Street. She did not therefore witness the killings herself, but was informed of it by her other relatives from Grozny. On 4 April 2000 she arrived in Grozny and saw the place of her relatives' burial. Her relative Vakhid M. asked VOVD officers to attend the exhumation on 8 April 2000. She further stated that she was told by others that on 4 February 2000 there had been a “sweeping” operation in the neighbourhood, during which the drafted soldiers checked the residents' documents and left. Later there came “contract” soldiers and killed everyone who was there. By that time the district was under firm control of the federal forces, and there was no more fighting.
46. On 8 April 2000 Vakhit M. explained that he lived in the Oktyabrskiy district of Grozny. On 9 February 2000 he came to visit his relative Said-Akhmed Masarov, who had sent his family to Ingushetia and remained with his cousin Khasmagomed Estamirov at the latter's house. He found the gates opened and a sign on the gates said “People live here”. Inside the courtyard he saw a burnt car, behind the car there were two bodies – of Khasmagomed Estamirov and his son Khozhakhmed Estamirov. Khasmagomed Estamirov's body was partially burnt, his left hand and left foot were missing, there were gunshot wounds to his body. Khozhakhmed Estamirov's body was badly burned. Further, in about six metres, was the body of Toita Estamirova, who had been eight months pregnant. She was lying face down in a pool of blood, and when M. lifted the body he saw numerous gunshot wounds to the chest. Nearby was the body of her one-year old son, Khasan, with gunshot wounds to the head and leg. Then M. walked into the house and at the entrance to the bathroom found the body of his relative Said-Akhmed Masarov, which had been badly burnt. He buried the bodies in the courtyard of the house. He had not seen the perpetrators and did know who they were.
47. Also on 8 April 2000 the investigators questioned the mother of Toita Estamirova, resident of the nearby Zavodskoy district of Grozny, the settlement of Aldy. In February 2000 the witness was in the Tver region. On 25 February 2000 she was told by her relatives that her pregnant daughter had been killed together with her husband, son and other relatives. The witness did not know who had killed them but had heard from other residents that it were soldiers of the federal forces.
48. On 22 July 2003 Vakhit M. was granted victim status in the proceedings, as a close relative of Said-Akhmed Masarov. On the same day he was questioned for the second time about the circumstances of the killings. He confirmed his statements concerning the discovery of the bodies on 9 February 2000. He also testified about the exhumation of the bodies on 8 April 2000 in the presence of the officials, and added that they had been buried on the same day in the Prigorodnoye cemetery. He did not permit the exhumation of his relative's body.
49. On 23 July 2003 the investigators questioned Rashid M., another relative of Said-Akhmed Masarov. He stated that in the winter of 1999 – 2000 he, a resident of Grozny, was in Ingushetia with his family. In April 2000 he learnt that his relative and the Estamirov family had been killed in Grozny. They arrived there and on 8 April 2000 in the presence of the VOVD officials unearthed the bodies. He described in more details the wounds on the bodies of his relatives. According to the witness, the bodies of Khasmagomed Estamirov, Khozhakhmed Estamirov and Said-Akhmed Masarov were burnt, but the witness could recognise and identify them. The bodies of Toita and Khasan Estamirov were not burnt. He then gave detailed submissions about the apparent gunshot wounds to the heads and bodies of his relatives. He also explained that the bodies were found in two pits, Toita Estamirova's body was buried in a separate place, about one metre away. He confirmed that the house and the car in the courtyard were burnt, and stated that there were lots of cartridges from Kalashnikov sub-machine guns on the ground. He also noted empty vodka bottles and clearly visible APC or tank tracks on the ground. He also recalled that on the gates of the house at 1 Podolskaya Street there was a sign in chalk “4.II. 2000.” The witness further stated that he was aware from other residents, whose names he could not recall, that on 4 February 2000 there was a “sweeping” operation in the district, and that the soldiers were moving from Podolskaya Street towards Kirova Street in the Oktyabrskiy District. Rashid M. objected to the exhumation of his relative's remains. On the same day he was granted victim status in the proceedings.
50. On 24 July 2003 the investigators questioned another local resident, who stated that on 8 April 2000 he was present at 1 Podolskaya Street at the time of the excavations. He confirmed other witnesses' statements about the circumstances of the discovery of the five bodies.
51. On 4 and 5 May 2000 an investigator of the Grozny Town Prosecutor's Office ordered forensic reports of the bodies and of the cartridges and bullet collected at the site.
52. In June 2000 the ballistic experts concluded that the 18 cartridges and one bullet had been used by at least four Kalashnikov sub-machine guns, calibre 7,62 mm and 5,45 mm.
53. On 24 July 2003 four more bullets collected at 1 Podolskaya Street were sent for a ballistic report.
54. As to the forensic reports, it appears that none were drawn up, and on 21 July 2003 they were again ordered by the investigator in charge of the case. The experts were asked to resolve questions related to the cause and date of the victims' deaths on the basis of the site reports drawn on 8 April 2000 by the officers of the Oktyabrskiy VOVD. On 21 July 2003 the investigators questioned a forensic expert in Grozny, who explained that the documents given to him contained no description of the bodies and could not serve as grounds for a forensic report. He also stated that an exhumation would be useless, because no forensic laboratory was functioning in Grozny. On 22 July 2003 the expert produced five identical reports, which stated that the questions could not be resolved on the basis of the submitted documents, because they contained no description of the bodies.
55. On 22 July 2003 the investigator of the Grozny Town Prosecutor's Office applied to the Oktyabrskiy District Court of Grozny seeking to obtain a permission for exhumation of the five bodies of the Estamirov family buried on 8 April 2000 at the Prigorodnoye cemetery.
56. On 20-24 July 2003 the Grozny Town Prosecutor's Office sent a number of requests to various authorities in an attempt to identify and question the applicants, other victims and witnesses of the crime. Among others, the requests were sent to find the officers of the Oktyabrskiy VOVD who had been at the time on mission in Chechnya from the Khanty-Mansiysk Region. The investigators also requested information from the Chechnya Department of the Federal Security Service (FSB) if they had any information about Khozhakhmed Estamirov's and Said-Akhmed Masarov's possible involvement in the illegal armed groups.
57. On 22-24 July 2003 the investigators questioned a number of local residents, who stated that the Estamirov family had been killed in early February 2000, apparently by the “contract” soldiers of the federal forces. All the witnesses spent the winter of 1999 – 2000 outside of Grozny, and could not testify about the events of February 2000 other than by hearsay. The witnesses denied that anyone from the Estamirov family was ever involved in the illegal armed groups or any other illegal activities, or that they could have had a personal feud with anyone.
58. On several occasions the investigators in charge of the criminal case raised the question of identifying the units of the army (Ministry of Defence) or of the Ministry of the Interior, possibly involved in the killings.
59. On 14 February 2001 the Grozny Town Prosecutor's Office put this question to the Oktyabrskiy VOVD of Grozny. In response, on 16 March 2001 the head of the VOVD replied that “on 4-9 February 2000 no 'sweeping' operations or recognisance action were undertaken by the officers of the Oktyabrskiy VOVD, which was set up on 17 February 2000”.
60. On 21-22 July 2003 the investigator in charge of the case sent requests to the Ministry of the Interior, the military prosecutor of the Northern Caucasus, the commander of the United Group Alliance, chief of staff for the Northern Caucasus military circuit. The letters requested to identify military units deployed in Grozny “in the end of February 2000, during the fighting to liberate Grozny from illegal armed groups,” and to find out whether any special operations had been carried out by them around Podolskaya Street in the Oktyabrskiy district. The letters further referred to the results of the ballistic expertise and requested to identify military units that could possibly use cartridges with recorded numbers.
61. At different stages of the proceedings several orders were produced by the prosecutors of the Chechnya Prosecutor's Office enumerating the steps to be taken by the investigators. The order of 30 November 2000 instructed them to question and grant victim status to the relatives of the killed, to find out if any military or “sweeping” operations had taken place in the area on the given dates, to locate the bodies and to obtain from the relatives a permission for exhumation, to identify other witnesses of the crime. Similar directions are contained in the orders of 20 August 2002 and 20 July 2003.
62. The case was adjourned three times and four times reopened. At least on seven occasions it was transferred from one investigator to another. On 23 July 2003 a group of eight investigators was put in charge of the case. More then half of the documents in the criminal case file submitted by the Government were produced on 20-24 July 2003. The submitted case-file contains no documents dated after 24 July 2003, though it appears that the investigation continued after that date.
63. The applicants submitted a number of additional documents relating to the circumstances of their relatives' murder and discovery of the bodies. In particular, they submitted a number of press reports concerning the progress of the Russian troops in their fight for control over Grozny, which indicate that different parts of the city came under Russian control at the end of January – beginning of February 2000. On 1-3 February 2000 several reports mentioned a retreat or withdrawal of a large group of Chechen fighters from Grozny, following which the control over the city was largely taken by the Russian troops.
64. The applicants also submitted a number of reports about the events of 5 February 2000 in the southern suburbs of Grozny, notably in the Novye Aldy settlement. The reports by the Human Rights Watch, Memorial and media spoke of a “pattern of summary executions” carried out by the Russian troops in the suburbs of Grozny, and linked the killing of the Estamirov family members with the murders committed in Aldy on 5 February 2000.
65. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).
66. The 1960 CCP required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed. That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction. The decision whether or not to institute criminal proceedings had to be taken within three days of the first report on the relevant facts (Articles 3, 108-09). Where an investigating body refused to open or terminated a criminal investigation, a reasoned decision was to be provided. Such decisions could be appealed to a higher-ranking prosecutor or to a court (Articles 113 and 209).
67. During criminal proceedings, persons who had been granted victim status could submit evidence and file applications, had full access to the case file once the investigation was complete, and could challenge appointments and appeal decisions or judgments in the case. At an inquest, the close relatives of the deceased were to be granted victim status (Article 53 of the old CCP). Similar provisions were contained in the new CCP.
68. Article 161 of the new CCP establishes the rule of impermissibility of disclosure of the data of the preliminary investigation. Under part 3 of the said Article, the information from the investigation file may be divulged with the permission of a prosecutor or investigator and only so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. Divulging information about the private life of participants in criminal proceedings without their permission is prohibited.
69. Article 214 part 4 of the Code of Civil Procedure (Гражданский процессуальный Кодекс РСФСР), which was in force until 1 February 2003, provided that the court had to suspend consideration of a case if it could not be considered until completion of another set of civil, criminal or administrative proceedings.
VIOLATED_ARTICLES: 13
2


ITEMID: 001-93882
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GLADYSHEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1943. He is currently serving a sentence in Kostroma OT-15/1 correctional colony.
6. On 9 May 2001 policeman S. stopped the applicant for allegedly driving under the influence of alcohol. Mr S. then drew up an administrative offence report, noting that the applicant had committed an offence under Article 117 of the RSFSR Code of Administrative Offences (alcohol-impaired driving).
7. On 10 May 2001, early in the morning, police officers came to the applicant's home and brought him to Manturovo police station. At the police station several police officers demanded that the applicant confess to killing policeman S. According to the applicant, when he refused to do so he was severely beaten several times. As a result of the beating the applicant wrote a confession statement. After that the applicant was questioned by a prosecutor in the presence of a lawyer P. appointed by the investigator. On 11 May 2001 the applicant repeated his confession statements during the reconstruction of events.
8. On 24 August 2001 the criminal case against the applicant was referred to the Kostroma Regional Court.
9. During the trial the applicant withdrew his self-incriminating statements made during the initial inquiry and pleaded not guilty. He stated that he had been forced to incriminate himself, and provided the court with his medical record. In the course of the proceedings the court requested the Regional Prosecutor to examine the applicant's complaints (see paragraph 22 below) and twice ordered forensic medical examinations of the applicant's injuries (see paragraphs 26 and 28 below). According to the last forensic medical report of 22 October 2002 (see paragraph 29 below), the applicant had a chest trauma with a fracture of the seventh, eighth and tenth ribs which could have occurred on 10 May 2001, the day of the applicant's arrest. These injuries were caused by the impact of a blunt hard object with a narrow surface, possibly by blows with fists or kicks with a booted foot.
10. On 27 December 2002 the court convicted the applicant of the murder of a law enforcement official and illegal manufacture and possession of weapons, and sentenced him to eighteen years' imprisonment. It was found that the applicant had requested Mr S. not to charge him with an administrative offence, and when the latter had refused to do so the applicant had killed him. The applicant's conviction for murder was based on his self-incriminating statements obtained on 10 May 2001, similar statements made by him during the reconstruction of events on 11 May 2001 and during further interrogations on 30 May and 6 August 2001, statements of witnesses to whom the victim had complained the previous day that the applicant had threatened him, and the presence of the applicant's pistol not far from the crime scene. While the court agreed that the applicant could have received a chest trauma with fractured ribs on 10 May 2001, with respect to the applicant's confession it found as follows:
“...at the same time the court considers that the bodily injuries of the defendant are not linked to his confession statements during the preliminary investigation, since Gladyshev gave these statements under circumstances which excluded any physical or mental pressure on the part of police officers of the Manturovo police station”.
The court considered the applicant's confession statements a mitigating circumstance.
11. The applicant and his lawyer challenged the judgment before the Supreme Court. They contested the admissibility of the evidence obtained as a result of ill-treatment and stated that the judgment was unsubstantiated as there had been no direct evidence of the applicant's guilt. They stressed that no expert examination confirmed that the victim had been killed by the pistol found at the crime scene and the court had failed to examine the applicant's allegation that this pistol had been taken from his home and had been planted at the crime scene.
12. On 26 June 2003 the Supreme Court dismissed the appeal and upheld the judgment of 27 December 2002. It rejected the applicant's inadmissibility plea having referred to the first instance court's finding that the use of force had not been established.
13. After being questioned on 10 May 2001 the applicant felt unwell and lost consciousness, and was taken for a medical examination. The forensic expert recorded various injuries to the applicant's body including a suspected chest trauma with fractured ribs.
14. On next day, 11 May 2001, the applicant was escorted to the Manturovo Central Hospital. An X-ray examination did not show fractured ribs. The expert however reported two bruises on the applicant's body which had been inflicted by blunt objects not more than a day before the examination.
15. On 14 May 2001 the applicant's mother requested the Manturovo District Prosecutor to institute criminal proceedings against the police officers for alleged torture and to conduct a medical examination of the applicant. She also complained that the applicant's lawyer could not have access to him. On 15 May 2001 a similar complaint was submitted by the applicant's wife.
16. On 17 May 2001 the applicant was transferred to the SIZO and placed in the SIZO's medical unit as he had hypertonic crisis (severely reduced muscle function) and paraplegia - the applicant was unable to move.
17. On 29 May 2001, the Assistant Prosecutor of Manturovo District issued a decree refusing to institute criminal proceedings against police officers, having found that the applicant's injuries had been caused prior to his arrest. He referred to the applicant's written submissions, his medical record and statements of the lawyer P. that the applicant had not complained of ill-treatment, and concluded that it was in the applicant's interests “to discredit the police officers in order to avoid criminal responsibility”.
18. On 1 June 2001 the forensic medical report indicated a bruise on the applicant's abdominal wall and several scratches, which had occurred more than ten days before the examination.
19. On 6 June 2001 the Deputy Kostroma Regional Prosecutor quashed the decision of 29 May 2001 and remitted the matter for further investigation. Questioned on 21 June 2001, the applicant explained that when he was arrested two police officers had severely kicked him. He complained that his mouth was taped and a gas mask put on him in order to shut him up. He also stated that he had written his confession statement in a break between the first and second beatings and suggested that the police officers had ill-treated him out of revenge for the murder of their colleague.
20. On 6 August 2001 investigator M. of the Kostroma Regional Prosecutor's Office, who had investigated the applicant's criminal case, again refused to institute criminal proceedings against police officers on the ground that there was no evidence that an offence had been committed. He questioned the applicant, who had alleged cruelty, and police officers O., T. and L., who had denied any violence, and decided that there was no ground to challenge the credibility of the latter's statements.
21. On 3 September 2001 an X-ray examination showed fractures of the applicant's tenth and eighth left ribs.
22. On 24 September 2001, during the criminal proceedings against the applicant, the Kostroma Regional Court requested the Kostroma Regional Prosecutor to verify the ill-treatment referred to by the applicant. The investigator then ordered an additional medical forensic expert examination.
23. On 15 October 2001 an additional medical forensic expert examination was conducted. It reported a bruise of 40 x 10 cm, which had been inflicted by blunt objects (it had appeared not earlier than two to three days before the applicant's examination of 18 May 2001); a fracture of the eighth rib (it had appeared not more than twelve weeks before the examination of 15 October 2001) and the tenth rib (it had appeared not more than sixteen weeks before the examination of 15 October 2001). The experts thus ruled out the above injuries occurring on 10 May 2001.
24. On 15 October 2001 investigator Ya. of the Kostroma Regional Prosecutor's Office refused to institute criminal proceedings against police officers O., N., L., P., B. and S.. In the course of his investigation, he has questioned the police officers, the applicant, and also the prosecutor who had opened the criminal proceedings against the applicant. The prosecutor confirmed that when he first saw the applicant after questioning on 10 May 2001 the latter could hardly move and had complained that he had been beaten by the policemen. The investigator however relied on the above expert examination to the effect that the injuries complained of could not have been inflicted on 10 May 2001.
25. The Government submitted that on 31 October 2001 the Manturovo District Court had found the decision of 15 October 2001 unlawful. A copy of this decision was not provided.
26. In a view of discrepancies between the experts' conclusions, on an unspecified day the Kostroma Regional Court ordered an additional comprehensive forensic medical examination to be conducted by the Kostroma Regional Bureau of Forensic Medical Examinations. This examination was conducted on 12-19 November 2001, and the relevant part of the report reads as follows:
“Given an integral assessment of the character and degree of intensity of bruises in their dynamics, coincidence of areas of bruises and rib fractures, as well as particularities of consolidation of rib fractures, the forensic medical experts conclude that the above injuries occurred within a limited period of time, most likely on 10 May 2001.
These injuries were caused by repeated impacts of a blunt firm object with a narrow surface...
These injuries cumulatively led to a lengthy impairment of health for more than three weeks, and consequently caused bodily harm of medium gravity...”
27. Between 10 and 18 December 2001 one of the experts who conducted the above examination, Mr A., was questioned by the court. He confirmed that experts had concluded that the most probable date of the applicant's injuries was 10 May 2001. With respect to results of the previous examination of 15 October 2001 he expressed an opinion that the expert assessed only rib fractures and had not made a global assessment of all injuries.
28. Given that the above examination had not fully dealt with all discrepancies concerning the applicant's injuries, on 18 December 2001 the court ordered the Russian Centre of Forensic Medical Examinations at the Ministry of Health to give a conclusion on the applicant's injuries on the basis of the case materials.
29. On 22 October 2002 the Centre presented their report, according to which the applicant had a chest trauma with fractures of the seventh, eighth and tenth ribs which could have occurred on 10 May 2001, the day of the applicant's arrest. These injuries were caused by “at least two to three impacts of a blunt firm object with a narrow surface, possibly blows with fists or kicks with a booted foot”. The experts ruled out the injuries being the result of a fall.
30. On 22 May 2006 the Manturovo Town Court dismissed an appeal by the applicant against the Prosecutor's Office decision of 15 October 2001.
31. On 13 July 2006 the Kostroma Regional Court quashed this decision and remitted the case for a fresh examination.
32. On 25 July 2006 the Manturovo Town Court again dismissed an appeal by the applicant against the decision of 15 October 2001.
33. On 31 October 2006 the Manturovo Town Court allowed the applicant's complaint, recognised the decision of 15 October 2001 as illfounded and obliged the Prosecutor's Office to rectify shortcomings.
34. On 6 June 2007 the investigator of the Manturovo District Prosecutor's Office quashed the decision of 15 October 2001 and instituted criminal proceedings on the basis of alleged ill-treatment of the applicant on 10 May 2001.
35. On 1 April 2008 the applicant lodged a claim with the Sverdlovskiy District Court of Kostroma against the Kostroma Region Police Department, seeking compensation for non-pecuniary damage caused by alleged ill-treatment. On 3 June 2008 the proceedings were suspended following court orders sent to the Manturovo and Yaroslavl Courts.
36. On 5 August 2008 the preliminary investigation of the alleged illtreatment was suspended in accordance with Article 208 (1) § 1 of the Russian Code of Criminal Procedure (failure to identify the culprits).
37. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to a person shall be compensated in full by the tortfeasor. Pursuant to Article 1069, a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage.
38. Article 117 § 2 (f) of the Criminal Code of the Russian Federation makes acts of torture punishable by up to seven years' imprisonment. Pursuant to Article 286 § 3 (a) and (в) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of up to ten years' imprisonment.
39. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, the CCrP), establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual or obtaining information about the offence committed from other sources (Articles 140 and 146). Within three days of receipt of such a complaint the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken. The refusal to open criminal proceedings is amenable to an appeal to a higher prosecutor or a court of general jurisdiction (Articles 144, 145 and 148).
40. Article 29 § 4 of the Code provides that if the trial of a criminal case reveals circumstances that facilitated the commission of an offence, or violations of citizens' rights and freedoms, the court may render a special ruling (частное определение) to draw the attention of appropriate organisations and officials to such circumstances or violations of the law, which require adequate measures to be taken.
41. Article 77 of the RSFSR Code of Criminal Procedure provided that a conviction cannot rest solely on the admission of the accused.
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84644
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KOLECKAR v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Pavel Kolečkář, is a Czech national who was born in 1961 and lives in Rousínov. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 November 1990 the applicant lodged an action for damages against the State, represented by the Ministry of Justice, with the Prague 2 District Court (obvodní soud), seeking payment of the sum of 90,760 CZK (3,387 EUR). The court transferred the case to the Vyškov District Court (okresní soud).
On 2 August 1996 the Brno Regional Court (krajský soud) decided to disqualify all the judges of the District Court and, at the same time, referred the case to the Brno Municipal Court (městský soud).
It appears that the proceedings are still pending.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-78433
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF DOBAL v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1947 and lives in Košice. He is a selfemployed entrepreneur. In that capacity he had dealings with a private company S. which included arranging insurance for its vehicles.
5. On 6 August 1993 S. brought a civil action against the applicant in the Košice II District Court (then Obvodný súd, at present Okresný súd) claiming a sum of money in connection with their previous business.
6. On 11 August 1993 the Košice II District Court found that the action fell within the jurisdiction of the Košice I District Court and decided to transmit the case to the latter.
7. On 10 December 1993 the Košice II District Court quashed its above decision of 11 August 1993 on the ground that, according to up-to-date information, the defendant’s business was within its judicial district. The case thus remained with the Košice II District Court.
8. On 19 August and 24 October 1994 the District Court requested the defendant to pay court fees and to specify its claim for legal costs. The defendant replied on 30 September and 19 December 1994, respectively.
9. On 28 December 1994, in summary proceedings, the District Court issued a payment order (platobný rozkaz) against the applicant for the amount claimed.
10. On 19 January 1995 the applicant successfully appealed (protest). The order was ex lege vacated and the matter fell to be determined in ordinary proceedings.
11. On 16 June and 25 October 1995 the District Court requested the applicant to pay court fees for his appeal. The applicant replied that he could not pay as he had no money, but he eventually paid on 9 February 1996.
12. The District Court held hearings on 24 January and 30 May 1997. Both hearings were adjourned, the former due to the absence of the plaintiff’s lawyer, the latter at the plaintiff’s request since he wished to explore the possibility of settling the case out-of-court.
13. On 26 February 1998 the applicant counterclaimed that the defendant owed him money and sought an order for repayment.
14. Another hearing was scheduled for 17 March 1998 but did not take place because the judge was absent for health reasons.
15. On 9 June 1999 the Košice Regional Court (Krajský súd) declared the plaintiff company insolvent and appointed a receiver. As a result, by operation of Article 14 § 1 (d) of the Bankruptcy Code (Law no. 328/1991 Coll., as amended), all actions by and against the plaintiff were automatically stayed. However, under that provision, actions by the insolvent entity could resume if their defendants so required.
16. In a letter of 16 June 1999 the District Court informed the applicant that the proceedings had been stayed.
17. The proceedings are still stayed.
18. The insolvency order was issued on 9 June 1999 and, in the absence of an appeal, it became final on 1 July 1999.
19. On 2 August 1999 the Regional Court appointed a new receiver as the original one had resigned due to a conflict of interests.
20. The applicant registered his claim (see paragraph 13 above) in the insolvency proceedings.
21. On 9 May 2001 the Regional Court held a meeting of creditors (schôdza veriteľov). At the meeting the creditors approved a summary of the insolvency estate and the proposal for its sale. The Regional Court subsequently held a hearing (prieskumné pojednávanie) with a view to establishing the claims of the different creditors in the insolvency proceedings. At the hearing, which the applicant did not attend, the receiver rejected his claim. It was decided that the applicant and other creditors whose claims had been rejected and who had been absent would be informed in writing that they could seek judicial recognition of their claims by way of a separate action (incidenčná žaloba) under Article 23 § 2 of the Bankruptcy Code.
22. In a letter of 27 February 2002 the Regional Court informed the applicant of the above possibility. The applicant then brought proceedings for recognition of his claim. They are described in detail below.
23. The receiver subsequently held 21 rounds of sales of items belonging to the estate. The sales were supervised by the Regional Court.
24. On 9 March 2005 the receiver filed a report with the Regional Court on the progress of the proceedings. He stated inter alia that it had not been possible to conclude the proceedings thus far because the estate was involved in 9 other court proceedings which were all still pending.
25. The insolvency proceedings are still pending.
26. On 12 March 2002 the applicant responded to the Regional Court’s above letter of 27 February 2002. From the contents of his letter it can be understood that he insisted on his claim and disagreed with its rejection.
27. In a letter of 18 April 2002 the Regional Court informed the applicant that his submission did not meet the formal requirements for an action for recognition of a claim in insolvency and advised him in detail of the relevant requirements.
28. On 23 April 2002 the applicant resubmitted the action.
29. On 17 July 2003 the Regional Court discontinued the proceedings observing that the applicant had withdrawn the action.
30. On 31 March 2004 the Supreme Court (Najvyšší súd) upheld the decision on the applicant’s appeal.
31. On 2 October 2002 the applicant filed a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd) about the length of the above proceedings before the Košice II District Court.
32. On 19 February 2003 the Constitutional Court declared the complaint inadmissible. In line with its established practice it held that, as the proceedings had been lawfully stayed for a legitimate reason (the insolvency), no unjustified delays could be imputed to the Košice II District Court at that time. The part of the proceedings before the District Court before they had been stayed could not be reviewed because they had been stayed outside the statutory two-month time-limit for lodging a constitutional complaint. It was noted that the applicant had not complained of delays in the insolvency proceedings which were pending before the Regional Court.
As regards any delays in the proceedings which might have occurred prior to the decision of 16 June 1999 to stay the proceedings in the Košice II District Court, the applicant had filed his constitutional complaint after the expiry of the statutory two-month time-limit.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1