THIRD SECTION

DECISION

Application no . 27240/09 Vaid Isayevich GISAYEV and others against Russia

The European Court of Human Rights (Third Section), sitting on 29 August 2017 as a Chamber composed of:

Branko Lubarda, President, Luis López Guerra, Helen Keller, Dmitry Dedov, Alena Poláčková, Georgios A. Serghides, Jolien Schukking, judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 27 April 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants are four Russian nationals, Mr Vaid Isayevich Gisayev (“the first applicant”), Ms Birlant Pashayeva Gisayeva (“the second applicant”), Ms Zarema Vaidovna Gisayeva (“the third applicant”) and Ms Zareta Vaidovna Gisayeva (“the fourth applicant”).

2. The applicants were represented by Mr Z.Z. Dzagashtov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G. Matyuskin, the Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicants were born in 1938, 1948, 1973 and 1978 respectively and live in Nalchik, Kabardino -Balkariya. They are the father, mother and the sisters, respectively, of Imran Gisayev. At the material time the applicants lived in Grozny.

5. In 1990 Imran Gisayev took part in a brawl in which a certain S. was fatally wounded, his death occurring shortly afterwards. While nobody was prosecuted for the death, it appears that S. ’ s relatives considered that Imran Gisayev was responsible for it.

6. Imran Gisayev was shot several times in 1992 but survived. According to the applicants, one of S. ’ s brothers carried out the attack in an attempt to avenge S. ’ s death. Nobody was prosecuted for it.

7. On 11 December 1998 Imran Gisayev was shot dead by an unknown person. The attack happened in the street around noon while the victim was taking his three-year-old nephew to a playground.

8. On 14 December 1998 the Grozny town prosecutor ’ s office opened an investigation into the shooting. The crime scene was inspected on the same day and three cartridges were found and sent to a ballistics expert. Several people, including the first and fourth applicant, were questioned. They alleged that the murder had been committed by somebody from S. ’ s family in revenge for his killing.

9. On 29 December 1998 the prosecutor acting in the case questioned U.S., S. ’ s father, who stated that his second son had unsuccessfully tried to kill Imran Gisayev in 1992 to avenge S. ’ s death. However, it had been his nephew, K.S., who had killed Imran Gisayev because his second son had died in 1995. In his view, the killing had been just as it had been part of a blood feud. He added that the gun which had been used in the killing was at his home.

10 . On 7 February 1999 U.S. was questioned again. This time he stated that he was not sure who had killed Imran Gisayev but confirmed that it must have been one of his relatives as revenge for the killing of his son. On 9 February 1999 he testified in similar vein that he did not know who exactly had killed Imran Gisayev but that it must have been one of his relatives as part of a blood feud by applying the principle of “a death for a death”.

11. On 11 February 1999 the investigator at the Grozny prosecutor ’ s office who was in charge of the preliminary investigation was questioned by a senior prosecutor after the first applicant alleged that he had promised S. ’ s family that he would not arrest the murderer. The investigator admitted that it was true that he had spoken to S. ’ s family and had asked them to tell him who had killed Imran Gisayev. In exchange, he had promised not to arrest the murderer. However, in his view, that did not mean that he absolutely would not have arrested the murderer and, moreover, he had always intended to act in accordance with the law.

12. On 20 February 1999 a new investigator put in charge of the case issued an arrest warrant for K.S. because he had not responded to several previous requests to appear for questioning.

13. On 4 May 1999 the first applicant was granted victim status in the criminal case.

14. On 23 May 1999 U.S. was charged with inducing K.S. and another unidentified person to murder Imran Gisayev to avenge the death of his son.

15. On 24 May 1999 U.S. was questioned as a person charged with a crime. He stated that he had asked K.S. to kill Imran Gisayev to avenge his son. He had bought a gun for that purpose that he had given to K.S. He had visited K.S. after the killing and he had informed him that he had fulfilled the terms of the blood feud. U.S., however, denied that he had incited any other person to carry out the killing.

16. On 26 May 1999 the investigator separated the case against U.S. from the rest of the investigation. The decision noted that the other suspect, K.S., was in hiding.

17. On 1 June 1999 the Grozny prosecutor ’ s office sent the case against U.S. to the Supreme Sharia Court of the Chechen Republic.

18 . Following the launch of a military operation in the territory of the Chechen Republic in early October 1999, the first applicant took the criminal case file from the prosecutor ’ s office in order to save it from destruction. According to the first applicant all the physical evidence in the file had been lost during its transfer to court.

19. Shortly thereafter the applicants left Chechnya and went to Kabardino -Balkariya Region.

20 . U.S. died on 29 September 2006.

21. On 29 November 2006 the first applicant resubmitted his criminal complaint about his son ’ s killing to the Grozny town prosecutor ’ s office.

22. On 30 November 2006 the Grozny town prosecutor ’ s office again opened criminal proceedings concerning the death of Imran Gisayev. The criminal file from 1999 was joined to the new case as material evidence. On the same date the first applicant was again granted the status of the victim of a crime.

23. On 1 December 2006 K.S. was arrested. He was placed in detention the next day.

24. On 11 December 2006 K.S. was charged with the murder of Imran Gisayev under Article 105 § 1 of the Russian Criminal Code. During his questioning, K.S. denied any participation in the crime. He said that he had been approached by U.S. and another person to help avenge S. ’ s death, which he had refused. As far as he knew, U.S. had killed Imran Gisayev.

25. Over the following days several of K.S. ’ s relatives were questioned as witnesses. They all stated that U.S. had killed Imran Gisayev. In particular, K.K., one of U.S. ’ s daughters, testified that her father had accepted the blame for killing Imran Gisayev and that K.S. had had nothing to do with it.

26 . On an unspecified date thereafter the prosecutor questioned A.V., a friend of Imran Gisayev and the only direct witness of the crime. He stated that two young men had carried out the killing, however, he was unable to describe them owing to the passage of time. When shown a photo of K.S. he did not recognise him.

27. On 20 December 2006 M.B., a local imam and a relative of the Gisayev family, testified that Imran Gisayev had been killed by members of S. ’ s family in a blood feud over the death of S. That act of vengeance had been in accordance with traditional practices and local customs so their family had decided not to make any claims against S. ’ s family. U.S. had taken responsibility for the killing upon himself. There was therefore no reason to suspect K.S. was the killer.

28. Similar testimony was given the following day by V.G., the first applicant ’ s brother, who was head of the family in 1998, and A.D., another relative of the applicants. A.D. added that he had tried to discourage the first applicant from pursuing the case as it was not in accordance with their customs because the killing of Imran Gisayev had been justified as part of a blood feud.

29 . On an unspecified date in 2007 Grozny City Hospital informed the Grozny Town Prosecutor ’ s Office in reply to an enquiry that all the medical files from 1999 and 2000 had been destroyed during the military operation.

30. A forensic expert ’ s opinion produced on 5 March 2007 concluded that it was not possible to give a definite answer as to the cause of Imran Gisayev ’ s death as his body had never been examined. However, based on the findings of the investigators and doctors from 1999 it was possible to say with a high degree of probability bordering on certainty that he had had at least four bullet wounds in the chest. Such wounds could be characterised as lethal and could consequently have caused his death.

31. On 19 March 2007 the first applicant stated that he opposed the exhumation of his son ’ s body for religious reasons.

32. On 18 May 2007 the prosecutor for the case at Grozny town prosecutor ’ s office terminated K.S. ’ s prosecution and released him from pre-trial detention. He held that the evidence that had been collected proved that K.S. had not participated in Imran Gisayev ’ s killing.

33. On 29 May 2007 the prosecutor informed the first applicant that the investigation had been suspended for failure to establish the identity of the alleged perpetrator.

34. On 7 August 2007 the deputy prosecutor dismissed a complaint by the first applicant that the investigation up to that date had been biased in favour of the suspects.

35 . In the following months the first applicant sent several complaints to various authorities, in particular the Grozny town prosecutor ’ s office and its investigations department, alleging that the investigation had been ineffective.

36. On 23 June 2008 the investigations department of the Grozny prosecutor ’ s office informed the first applicant that the investigation into the killing of his son had been resumed.

37. The first applicant received the same information on 9 September 2008.

38. On 9 October 2008 the investigation was suspended again. Following a complaint by the first applicant, it resumed again, only to be suspended on 29 January 2009.

39 . On 20 February 2009 the Republic Prosecutor informed the first applicant that the decision of 29 January 2009 to suspend the investigation had been set aside as unfounded because of a failure to take all the necessary investigative steps and to establish all the circumstances of the crime. The prosecutor acting on the case for the Grozny town prosecutor ’ s office was ordered to carry out an additional investigation.

40. On 3 March 2009 the investigation resumed.

41. On 14 March 2009 the first applicant lodged an appeal with the Grozny District Court (“the District Court”) under Article 125 of the Code of Criminal Procedure complaining of inactivity on the part of the investigative authorities.

42. On 26 March 2009 the District Court dismissed the appeal, noting that the investigation had reopened in the meantime and that measures were being taken with the aim of establishing the circumstances and the perpetrators of the crime. The first applicant appealed against that decision to the Supreme Court of the Chechen Republic (“the Supreme Court”).

43. In the meantime, on 2 April 2009 the investigator in the case once again suspended the investigation as it had been impossible to establish the identity of the perpetrator.

44. On 17 June 2009 the Supreme Court quashed the decision of 26 March 2009 and remitted the case to the District Court. It noted that copies of the relevant documents concerning the resumption of the investigation were not in the file. The court was thus unable to endorse the District Court ’ s decision.

45. On 30 June 2009 the District Court decided anew to dismiss the first applicant ’ s appeal. The prosecutor and investigator submitted copies of the relevant documents from the investigation file. On 2 April 2009 the investigation was suspended under Article 208 § 2 of the Code of Criminal Procedure for failure to establish the identity of the perpetrator. The court considered that by obtaining the copies of the relevant documents it had eliminated the shortcoming indicated in the Supreme Court ’ s judgment of 17 June 2009.

46. On 12 August 2009 the Supreme Court quashed that decision. It held that the District Court had not substantiated its ruling and had failed to take all the material in the case file into account.

47. On 5 October 2009 the District Court granted the first applicant ’ s appeal, considering the investigators ’ inactivity to be illegal. It held that the prosecutor had closed the investigation on 2 April 2009 without taking testimony from several witnesses and had failed to conduct the other investigative steps ordered by the Republic Prosecutor (see paragraph 39 above).

B. Information submitted by the Government

48. On 27 July 2013 the Deputy District Prosecutor quashed another decision (of unspecified date) to suspend the investigation.

49. According to the information available to the Court the investigation is still ongoing.

C . Relevant domestic law

50. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation .

51. Article 125 of the new Code provides that a decision by an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions, acts or omissions which are liable to infringe the constitutional rights and freedoms of parties to such proceedings or to impede citizens ’ access to justice are subject to appeal to a district court, which is empowered to review the lawfulness and grounds of the impugned decisions.

COMPLAINT

52. The applicants complained under Article 2 of the Convention that the investigation into the murder of their relative had not been effective.

THE LAW

53. The applicants complained of a violation of Article 2 of the Convention, which, in so far as relevant, provides as follows:

Article 2

“1. Everyone ’ s right to life shall be protected by law.... ”

A. The parties ’ submissions

54. The Government argued that the applicants had failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention. By taking the criminal case file from the prosecutor ’ s office in 1999, the first applicant had clearly demonstrated that he did not believe in the effectiveness of the domestic proceedings. It had taken the applicants more than seven years to contact the authorities in Chechnya and more than nine years to bring the case before the Court. The Government submitted that while the first applicant might have had a good reason to take the case file in 1999 in order to save it from destruction during the military operation, as he had stated, he had offered no explanation as to why he had kept it for such a long time and why he had failed to contact the authorities in Chechnya after the end of the 2000-2001 military operation. Moreover, the applicants had never made any attempt to inform the law-enforcement agencies in Kabardino -Balkariya of the crime.

55. The Government submitted further that between 1996 and the end of 1999 the Russian Federation had not had effective control over the Chechen Republic as it had been under the de facto control of separatist forces. As the respondent State it could therefore not be held responsible for any shortcoming in the investigation in that period. Accordingly, the application should be declared inadmissible as incompatible ratione personae .

56. Lastly, the Government argued that the complaint was in any event manifestly ill-founded. The investigation into the death of Imran Gisayev, instituted in 2006, had been in compliance with the procedural aspects of Article 2 of the Convention. The investigative authorities had taken all the necessary measures to identify the perpetrators. However, the long period of time that had passed between the commission of the crime and the time when the first applicant had informed the authorities of it had made it impossible to solve it promptly.

57. The applicants disagreed. In particular as regards the objection concerning the timeliness of the application, they submitted that there had been no final decision in the criminal case from which to calculate the six-month period. Once they had become aware of the ineffectiveness of the domestic proceedings, they had lodged their application with the Court. The first applicant had taken the case file in 1999 in order to save it from destruction. He had taken all the necessary steps to ensure that someone was prosecuted for the murder of his son.

B. The Court ’ s assessment

58. The Court considers that it should first examine whether the applicants have complied with the six-month rule laid down in Article 35 § 1 of the Convention.

59. The Court reiterates that the purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002, and Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002 ‑ III).

60. The Court further reiterates that if no remedies are available or if they are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and others v. Turkey (dec.), no. 62566/00, 10 January 2002). However, special considerations may apply in exceptional cases where an applicant avails himself or relies on an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective. In such cases it is appropriate to take as the start of the six-month period the date when he first became aware or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).

61. I n a number of cases concerning ongoing investigations into the deaths of applicants ’ relatives, the Court has examined the period of time from which an applicant can or should start doubting the effectiveness of a remedy and its bearing on the six-month limit provided for in Article 35 § 1 of the Convention ( see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005; Narin v. Turkey , no. 18907/02 , § 50, 15 December 2009; and Finozhenok v. Russia (dec.), no. 3025/06, 31 May 2011 ). The determination of whether the applicant in a given case has complied with the admissibility criteria will depend on the circumstances of the case and other factors such as the diligence and interest displayed by the applicant as well as the adequacy of the investigation in question (see Narin , cited above, § 43). The Court has found that in cases concerning instances of violent death the ineffectiveness of an investigation will generally be more readily apparent. The requirement of expedition may require an applicant to bring such a case to the Court within a matter of months, or at most, depending on the circumstances, a very few years after the events, to ensure that it may be properly and fairly resolved (see Varnava and Others v. Turkey [GC], nos. 16064/90 et al ., § 158, ECHR 2009 ‑ ...).

62. Turning to the present case, the Court notes that the applicants complained about an event which occurred in December 1998, when their relative, Imran Gisayev, was killed. The official investigation into the killing was opened three days a fter the event. F ollowing the launch of the military operation in the territory of the Chechen Republic in early October 1999, the first applicant took the case file from the prosecutor ’ s office. He justified his action with the need to save the file from destruction. While the first applicant ’ s action could be seen as having been justified in the circumstances, the Court cannot overlook the fact that he kept the case file for more than seven years before informing the Grozny Town Prosecutor ’ s Office on 29 November 2006 about the crime and investigation from 1998.

63. Following the end of the military operation in late 2001, the applicants never attempted before November 2006 to apply for information or otherwise communicate with investigators in Chechnya regarding the murder of their relative . The Court thus notes that there were n o domestic proceedings between October 1999 and November 2006 and that no communication between the authorities and the applicants took place.

64. The Court reiterates that it has held in cases concerning disappearances that with the lapse of time the memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospect that any effective investigation can be undertaken will increasingly diminish. Additionally, the Court ’ s own examination and judgment may be deprived of meaningfulness and effectiveness. Accordingly, applicants cannot wait indefinitely before coming to the Court (see Utsmiyeva and Others v. Russia , no. 31179/11, § 31).

65. In view of the foregoing, the Court considers that the applicants failed to display interest and diligence in pursuing their complaint. They did not use any domestic remedy for a period of more than seven years.

66. The round of investigation which had occurred in 2006 did not produce any tangible results. I n view of the considerable amount of time that had passed since the event in question it was unable to identify the perpetrators of the impugned act. While it is true that K.S. was arrested and charged with murder, the proceedings against him were discontinued as it could not be proved that he had participated in the killing of Imran Gisayev. The only eyewitness to the murder proved unable to identify the perpetrators due to the lapse of time. Moreover, the material evidence had been lost and another suspect, U.S., had died in September 2006 (see paragraphs 20 , 26 and 29 above). The investigation was suspended and resumed on several occasions owing to a failure to establish the identity of the perpetrators, and it is still formally ongoing. I t does not appear at this stage that the applicants have submitted any new information which could warrant a different conclusion. In those circumstances, the Court does not consider that the 2006 proceedings constituted a new development which could revive the procedural obligation under Article 2 (see Brecknell v. the United Kingdom , no. 32457/04, § 70-71, 27 November 2007; Gasyak and Others v. Turkey , no. 27872/03 , § 60 , 13 October 2009 ; and Finozhenok , cited above).

67. The Court finds therefore that the application has been lodged out of time and that it is inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 21 September 2017 .

             Stephen Phillips Branko Lubarda Registrar President