FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57935/00 by Zay nap TANGIYEVA against Russia

The European Court of Human Rights ( First Section), sitting on 18 May 2006 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mr D. Spielmann , Mr S.E. Jebens, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 29 April 2000 ,

Having regard to the decision to grant priority to the above application unde r Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in r eply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

The applicant , Mrs Zay nap Abdul-Va gapovna Tangiyeva , is a Russian national and was born in 1958 . She was a resident of Grozny , Chechnya , which she left for Ingushetia where she currently resides . The applicant is represented before the Court by Ms D. Vedernikova, Mr Kirill Koroteev , M r Philip Leach and Mr William Bowring, lawyers of EHRAC /Memorial, a human rights NGO with offices in London, as well as in Moscow and in the Northern Caucasus . The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The submissions of the parties on the facts concerning the circumstances of the applicant ’ s relatives ’ deaths and the ensuing investigation are set out in Sections 1 - 2 below. A description of the relevant materials submitted to the Court is contained in Part B.

1. The events of January 2000

The applicant and her family lived in the Staropromyslovskiy district of Grozny in their own house at 166 Derzhavina Street .

In October 1999 hostilities resumed in Chechnya between the Russian forces and the Chechen fighters. Grozny and its suburbs came under heavy bombardment. Staropromyslovskiy district , situated in the northern and central parts of the town, was bombarded from the air and by artillery . The applicant submits that most residents of the district left for safer areas. Following heavy fighting , as of December 1999 , the Russian forces started to regain control over the city starting from the north , and by end of January 2000 the central parts of the city were finally taken.

In the winter of 1999 – 2000 the applicant, her father Abdul-Vagap Tangiyev (born in 1926), her mother Khirzan Ibragimovna Gadaborsheva (born in 1932), her uncle Ismail Ibragimovich Gadaborshev (born inn 1924) and her sister Khanifa Gazdiyeva remained in their house in Grozny . In December 1999 they were joined there by five neighbours, all women, because their house had a large cellar where they could hide from shelling.

The applicant, her sister and neighbour submitted written accounts of the events of December-January 2000. According to them, the district first came under heavy bombardment on 22 November 1999 , when one of the women who had been staying with them in the cellar was killed. On the same day the applicant ’ s mother was slightly wounded by shrapnel. After that the shelling intensified, and the applicant and her family could not leave the town.

After 23 December 1999 the shelling became very intense, and the persons who stayed in their cellar decided to move somewhere safer.

On 26 December 1999 most of them moved to a nearby five-storey building with a larger cellar in Pugacheva Street . The applicant ’ s father, uncle and one neighbour remained in their house to look after the property and cattle. In the evening of the same day the applicant heard the noise of tank engines in the streets. She submits that they were all relieved because they expected an end of the shelling.

In the morning on 27 December 1999 the applicant ’ s uncle met a group of Russian servicemen on the way from his house to the Pugacheva Street and told them that a group of 40-45 civilians were hiding in the cellar of that house. The servicemen came into the cellar and checked the identity documents of the men, most of whom about 50 years old. The soldiers then took up battle positions in the surrounding blocks.

In the morning of 28 December 1999 the applicant noted that their house in the Derzhavina Street was partially destroyed. When she and her mother arrived there, they found her father and neighbour who had remained in the building alive, because they had remained in the cellar all day long upon the orders of the soldiers who were stationed around the house.

On 28 and 29 December 1999 servicemen came to the cellar of the building at Pugacheva Street where the applicant stayed and ordered the men, under threats, to help them collect the bodies of six servicemen.

On 1 January 2000 a detachment of the OMON (special police forces) arrived in the district and took up position in a dormitory building near Pugacheva Street . On the same day servicemen from that unit took away three men from the cellar at Pugacheva Street . The applicant later learned that they had been shot.

Each day on 3-10 January 2000 the applicant went to check upon her relatives in the house at Derzhavina Street . On several occasions there they met an officer who said his name was Tima and who was the commander of a tank crew stationed at 164 Koltsova Street . The officer was drunk and aggressive, and threatened to shoot them all, but the applicant ’ s father managed to calm him down. Tima said that he was from Ossetia and that he had fought in Dagestan before. The applicant submits that she could still identify him or compose a sketch of him. The applicant submits that the situation was very tense, because the soldiers were regularly visiting both houses for identity checks, under threats ordered the residents to help them collect dead bodies, selected men for “exchange” with the fighters, etc. The applicant also systematically saw the houses in the neighbourhood being set on fire.

In the evening of 10 January 2000 the applicant, her family and some neighbours finally decided to leave Grozny on the following day, until the situation calmed down. The applicant and her sister went to get water from the dormitory where the OMON troops were stationed and warned an officer there that old people were staying in the house at Derzhavina Street, and that they should not shell it or shoot at them when they were carrying water. She then returned to the house at Pugacheva Street , while her mother, father, uncle and neighbour Valentina Fotiyeva stayed in their family home.

In the morning of 11 January 2000 the applicant, her sister and three other women went to the house at Derzhavina Street to pick up her uncle and to say good-bye to her parents. They found the gates closed and smoke coming out of the house. They received no response to their calls, and forced the doors open. The cellar was burning and they could not descend. In the kitchen they found the applicant ’ s father ’ s body and the body of Fotiyeva, both with gunshot wounds. The documents, money and valuables were intact. The applicant and her sister took the two bodies out of the burning house, but did not have time to extinguish the flames or to bury them because they were afraid that the killers would come back. They ran to the house in Pugacheva Street and related what had happened. A neighbour told them to leave immediately and promised to take care of the burials. The applicant and her sister took only their personal documents and walked several kilometres to the roadblock in Sobachevka, where they took a bus to Ingushetia.

On the following day, 12 January 2000 , the applicant returned to Grozny with two cars, in order to collect and bury the bodies. At one of the military roadblocks on the way they took three servicemen as an escort for security. They also met by chance the neighbour who explained where he had buried the applicant ’ s father ’ s body. When they arrived at 166 Derzhavina Street , the house was completely burned down. They could not descend into the cellar, because it was still smouldering. They dug out the applicant ’ s father ’ s body and took it away for burial in the village of Chermen in North Ossetia .

One month later relatives of Valentina Fotieyeva collected her body and buried it in a cemetery in Grozny .

Later, on 6 March 2000 , the charred remains of the applicant ’ s mother and uncle were extracted from the cellar by the officials of the Russian Ministry of Emergencies (Emercom). Personal belongings and bullets were found near the bodies. The applicant ’ s family buried them at a village cemetery in Ingushetia.

In addition to her own detailed statements and three witness statements, the applicant submitted drawings of the neighbourhood and of their household at 166 Derzhavina Street , with indications of the places referred to and the locations of the bodies of her relatives. She also submitted photographs of the ruins of their house at 166 Derzhavina Street and of the cellar at Pugacheva Street , as well as photographs of the excavated remains of her mother and uncle.

2. Subsequent events and investigation into the killings

It appears that the applicant did not apply to any authorities or a medical doctor immediately after the incident. Her story was related in a number of press articles and NGO reports, copies of which t he applicant submitted to the Court .

On 26 January 2000 the Literaturnaya Gazeta in the article “Welcome to Hell! Interviews with Persons Who Escaped from Besieged Grozny” reported the story of the killing of the applicant ’ s relatives. The article reported that the killings had been perpetrated by servicemen.

In February 2000 Human Rights Watch issued a report entitled “Civilian Killings in Staropromyslovskiy District of Grozny” in which it accused the Russian forces of deliberately murdering at least 38 civilians between late December and mid-January. Human Rights Watch interviewed survivors, eyewitnesses and relatives of the dead. The report conta ins information about the deaths of Abdul-Vagap Tangiyev, Khidzhan Gadaborsheva, Ismail Gadaborshev and Valentina Fotiyeva, based on interview s with the applicant and another witness in Ingushetia.

Several human rights NGOs assisted the applicant and addressed the law-enforcement authorities in relation to the events in Staropromyslovskiy District of Grozny in January 2000, when several dozen local residents are alleged to have been executed by unidentified detachments of the Russian military.

On 10 February 2000 Human Rights Watch addressed the Russian authorities, including the President, the General Prosecutor and the Minister of Defence with a request to investigate credible allegations of the mass murder of civilians in the Staropromy slovskiy District .

On 3 May 2000 the applicant was questioned by a prosecutor in the Staropromyslovskiy District Prosecutor ’ s Office. The applicant submits that the investigator asked her questions about the killings, to which the applicant herself was not a witness. When she stated that only the Russian servicemen stationed around the house could have committed the murders, and told the stories of their previous visits and threats, the investigator told her that there were no direct witnesses of the murder, and that she could be held responsible for false accusations. The applicant suggested that officer Tima could be responsible for the killings, and the investigator told her that he had died. After that the applicant was convinced that the investigation would not be an effective one and did not turn to official bodies.

She was called for questioning once again, as a witness, on 31 May 2000 , but it appears that she failed to attend.

The applicant ’ s cousin, the son of Ismail Khadaborshev, testified that he had difficulties to obtain a death certificate for his father and for other relatives. It appears that death certificates were not issued to the relatives.

The applicant ’ s representatives, NGO Memorial, on several occasions asked prosecutors at various levels to submit information about the investigation of the killings of civilians in the Staropromyslovskiy district. In response, they received conflicting information with references to different criminal case numbers. On several occasions they were informed that their requests had been forwarded to different prosecutors ’ services for processing.

On 19 June and 18 July 2002 the Chechnya Republican Prosecutor ’ s Office informed Memorial that criminal case no. 12011 had been opened on 5 March 2000 into murders committed in Grozny on 10 January 2000 and that it had been transferred for further investigation to the Northern Caucasus Department of the General Prosecutor ’ s Office.

However, on 22 August 2002 the Northern Caucasus Department of the General Prosecutor ’ s Office forwarded Memorial ’ s request for information to the Chechnya Republican Prosecutor and asked them to provide an update into the investigation of the criminal case no. 12011 concerning the murder committed in Grozny on 10 January 2000.

On 17 February 2004 the applicant wrote to the Prosecutor of the Staropromyslovskiy District of Grozny asking for news about the investigation into her relatives ’ murder. She did not receive any response.

On 28 May 2004 the investigator of the Staropromyslovskiy District Prosecutor ’ s office issued an order by which the applicant ’ s brother Shamsudin Tangiyev was granted victim status in criminal case no. 33024 into the murder of his parents and uncle in Grozny on 11 January 2000 .

In response to the Court ’ s request, the Government submitted information about the investigation of the applicant ’ s relatives ’ deaths. Referring to the General Prosecutor ’ s Office, the Government submit that the investigation established that in January-February 2000 a detachment of the federal forces had conducted a counterterrorist operation in the Staropromyslovskiy district of Grozny. Within the same period several inhabitants of the district, including the applicant ’ s relatives, were killed by unknown persons.

On 3 May 2000 the Grozny Town Prosecutor ’ s Office opened criminal investigation file no. 12038 under Article 105 part 2 of the Criminal Code (murder of two or more persons in aggravating circumstances). Within these proceedings the applicant ’ s brother was questioned. On 14 August 2003 the investigation decided that the killing of four persons at 166 Derzhavina Street constituted a separate episode and forwarded the relevant part of the file to the Staropromyslovskiy District Prosecutor for further investigation. On 20 August 2003 the district prosecutor ’ s office refused to carry out investigation under Article 24 part 1.2 of the Criminal Procedural Code – in the absence of information permitting to conclude that the deaths had occurred as a result of criminal actions.

On 2 April 2004 the Chechnya Prosecutor ’ s Office quashed that decision. On 16 April 2004 the Staropromyslovskiy District Prosecutor ’ s Office opened criminal investigation file no. 33024 under Article 105 part 2 of the Criminal Code into the applicant ’ s relatives ’ murder.

A number of investigative actions were conducted by the prosecutors. On 17 April 2004 they inspected the Tangiyevs ’ household. On 28 May 2004 the applicant ’ s brother Shamsudin Tangiyev was questioned and granted victim status in the proceedings. On 5 May 2004 the applicant, her sister and two relatives were also questioned and granted victim status in the proceedings. On the same day the investigation recovered from the applicant two cartridges collected by her at the crime scene near the body of her father. A ballistic expertise was carried out and concluded that they belonged to a round of ammunition used for automatic rifle calibre 5,45 mm and were suitable for identification of the firearm.

The Government submit that the applicant and her relatives refused to submit the bodies of their relatives for exhumation and forensic expertise. They also refused to identify their places of burial, which made it impossible to establish the cause of deaths.

The Government further informed the Court that in April – July 2004 the investigation had questioned more than 20 neighbours and acquaintances of the Tangiyev family. They stated that they had no information about the perpetrators of the killings. One witness stated that the Staropromyslovskiy district was a scene of heavy fighting between the federal forces and the illegal armed groups. Another witness stated that the applicant ’ s father had a conflict with the members of the illegal armed groups. The investigation failed to identify the relatives and the place of burial of Valentina Fotiyeva, the woman who had been killed in the Tangiyevs ’ house.

The investigation checked the version that the killings could have been committed by the servicemen, but found no information to support it. According to the information from the Northern Caucasus Military Circuit, in January-February 2000 the detachments of the federal forces in the Staropromyslovskiy district were subjected to numerous attacks from the illegal armed groups, who could be implicated in the killings. On 3 June 2005 a military prosecutor questioned the commander of one of the military units which had taken part in the counterterrorist operation in Grozny . He stated that he was not aware of the applicant ’ s relatives ’ killings. The prosecutors continued to take investigative actions with the servicemen.

According to the Government, the criminal investigation file no. 33024 was adjourned four times – on 16 August and 26 September 2004 , on 26 May and 4 June 2005 - due to failure to identify the culprits. Last time it was reopened on 29 June 2005 . The victims were systematically informed of these developments. The investigation is currently pending with the Staropromyslovskiy District Prosecutor ’ s Office and is monitored by the General Prosecutor ’ s Office.

Despite the Court ’ s specific requests made on two occasions, the Government did not submit copies of the procedural documents to which they refer. Relying on the information obtained from the General Prosecutor ’ s Office, the Government state that the investigation is pending and the disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure because the file contains information of a military nature and personal data of the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place of the preliminary investigation with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right of making copies of the case-file and its transmission to the others”.

B. Relevant documents

In November 2004 the applicant submitted additional documentary evidence in support of her allegations. In addition to her own detailed statements of facts, the applicant submitted three witness statements

The applicant ’ s sister Khanifa Gazdiyeva stated that on 10 January 2000 they decided to leave Grozny on the following day because they were feeling threatened by the constant harassment of soldiers. In the morning of 11 January 2000 the witness, together with the applicant and two women named Galina and Birlant M. went to collect her parents and uncle from their house at Derzhavina Street . She then described in detail how they had discovered the bodies of her father and of Valentina, both with gunfire wounds to the heads. The house was turned upside down, there were a lot of bullet holes. Some furniture in the house was smouldering, and the cellar door was closed and it was burning. The women took the two bodies out of the house but could not extinguish the flames in the cellar. They then left the bodies with the neighbour out of fear that the soldiers may return and kill them as witnesses, and left Grozny on the same day. They buried their father ’ s body on 12 January 200 0 . On 6 March 2000 the remains of her mother and uncle were taken out with the assistance of the Emercom and buried in Ingushetia.

The applicant ’ s cousin, Magomet Gadabroshev, testified about the death of his father, the applicant ’ s uncle. The witness himself was in Ingushetia at the relevant time and learnt of his father ’ s death from the applicant and other relatives.

The applicant ’ s neighbour in Grozny , Galina P. testified that she had accompanied the applicant and her sister on 11 January 2000 when they had found their parents ’ and uncle ’ s bodies in the house at Derazhavina Street. The witness submitted that the Chechen fighters (“ boyeviki ”) had left the district by mid-December, and that before that they had caused no harm to the residents, and even sometimes helped them. Staring from 25 December 1999 the Russian servicemen started to enter the Staropromyslovskiy district. Some of the soldiers helped them and gave them food. Others asked them, and sometimes threatened, to assist them to collect the dead bodies of the servicemen, because the “fighters” would not shoot at civilians. She corroborated the relatives ’ statements about the discovery of the Tangiyev family on 11 January 2000 .

In addition to the documents submitted by the applicant, within the proceedings in the application no. 58701/00, Makhauri v. Russia , the Government submitted a copy of the investigation file in criminal case no. 14/33/0262 (joined in July 2004 with the criminal case no. 50100) opened by military investigators in relation to an attack on Mrs. Makhauri in January 2000 in the Staropromyslovskiy district. The file also contained a witness statement by Galina P. (born in 1937), made by her to the investigation in August 2000. On the basis of this information, in 2000 the military investigators requested the Grozny Town Prosecutor ’ s Office to give them information about the murder of the three members of the Tangiyev family and the woman named Valentina. It appears that no response was received.

Galina P. stated to the military investigators that in winter 1999-2000 she remained in Grozny . She moved in to the Tangiyev family house at Derzhavina Street , where nine people had stayed in the cellar, and remained there until 24 December 1999 . Then they moved to another house, at 144 Pugacheva Street , because the shelling was too intense and the first house had been damaged. In the big cellar at 144 Pugacheva Street there stayed about 60 persons, mostly elderly people. The Chechen fighters left their district about 18 December 1999 . The witness testified that the federal soldiers had regularly visited their cellar and forced the inhabitants to help them retrieve wounded and dead. On 1 or 2 January 2000 the three youngest men from the cellar (aged less than 50) had been taken away by the soldiers and later found dead. The witness described the soldiers as wearing blue-grey camouflage uniform. She also testified that on 10 January 2000 , together with two Tangiyev sisters, she visited their house, where four persons continued to live – Abdul-Vagap Tangiyev, his wife Khidzhan Gadaborsheva, his brother Ismail Gadaborshev and an elderly woman, Valya. They found the bodies of Mr. Tangiyev and Valya in the house with gunshot wounds, while the cellar was closed and burning. A neighbour told them to go away because the killers could return and later told them that he had buried the four bodies in the courtyard. On the same day, on 10 January 2000 , the witness left for Ingushetia.

COMPLAINT S

1. The applicant complains under Article 2 of the Convention about the killing of her family o n 1 1 January 2000 and about the failure of the competent authorities to conduct an effective investigation.

2. The applicant submits that the loss of her aged parents and her uncle, the need to change her place and order of living, as well as the fear, anguish and distress suffered by her constitute d degrading treatment prohibited by Article 3 of the Convention.

3. The applicant complains that she had no effective remedies against the above violations, contrary to Article 13 of the Convention.

4. The applicant submits that the Government ’ s failure to disclose the documents from the criminal investigation file upon the Court ’ s requests constitutes a failure to comply with the obligations under Articles 34 and 38 § 1 (a) of the Convention.

THE LAW

The applicant alleges violations of Articles 2, 3 and 13 of the Convention and the Government ’ s failure to comply with their obligations under Articles 34 and 38 § 1 (a).

1. Exhaustion of domestic remedies

The Government request the Court to declare the application inadmissible as the applicant has failed to exhaust the domestic remedies available to her. They submit that the investigation into the killings is continuing, in accordance with the domestic legislation. The applicant did not apply to a court in Chechnya or further in the Northern Caucasus with any complaints, and therefore failed to use the domestic remedies available.

The applicant argues that she had no effective remedies to turn to. She submits that she exhausted the domestic remedies by applying to the prosecutors. Despite that, the criminal investigation mounted into the complaint was wholly ineffective, which constitutes a substantive part of her complaint. As to civil law remedies, they would be inappropriate to deal with this type of complaint and in any event, would be ineffective in the absence of the outcome of the criminal investigation.

The Court considers that in the particular circumstances of the present case it does not have sufficient information to enable it to make a ruling on the question of exhaustion of domestic remedies. Furthermore, this question is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings.

The Court therefore decides to join this objection to the merits.

2. As to the merits of the applicant ’ s complaints

a) The Government

The Government do not dispute the fact of the applicant ’ s relatives ’ deaths. They note, however, that the identity of the perpetrators was not established. There is no conclusive evidence to support the applicant ’ s allegations that the authorities are responsible for the deaths. Nor has the investigation obtained information to support the applicant ’ s allegation that she had been subjected to treatment in violation of Article 3. The investigation is being carried out in accordance with the domestic legislation and the Convention requirements.

Under Article 13, the Government state that the applicant had access to courts and other effective domestic remedies. The law-enforcement machinery in Chechnya is rebuilt and functioning, but the applicant did not apply to the domestic courts.

b) The applicant

The applicant maintains her complaints. She argues that there can be no reasonable doubt that the servicemen are responsible for the killing of her relatives in breach of Article 2 of the Convention. She relies on detailed and consistent witness statements given by her and other persons, as well as other numerous documents already submitted to the Court in the course of the present and other cases, all of which support the version of predominance of the Russian forces in the district at the relevant time and that the killings were carried out by the servicemen stationed there.

The applicant alleges that the authorities failed to conduct an effective investigation into the circumstances of the deaths of her parents and uncle, in violation of the procedural obligations under Article 2. She argues that the investigation fell short of the standards of the European Convention and of the national legislation . The investigation was not prompt because of the delay in opening and in taking of important steps. A number of investigative actions were never taken, such as securing the relevant evidence and questioning the servicemen who could have been involved. The investigation has been going on for a long time – more than five and a half years – without producing any tangible results.

The applicant also asserts that she was subjected to treatment in breach of Article 3 and deprived of effective domestic remedies for her Convention complaints, as required by Article 13.

Finally, the applicant contends that the Government ’ s failure to produce copies of requested documents from the criminal investigation file in the present case runs contrary to their obligations under Articles 34 of the Convention in that it hinders the effective exercise of the right to individual petition and under Article 38 § 1(a) in so far as the States are obliged to furnish all necessary facilities for the effective conduct of an investigation in admissible cases.

c) The Court ’ s assessment

The Court considers, in the light of the parties ’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Joins to the merits the Government ’ s objection as to the exhaustion of domestic remedies;

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis Registrar President