Communicated on 5 July 2018

THIRD SECTION

Application no. 36255/16 Malika Dzaynduyevna TURAYEVA against Russia lodged on 14 June 2016

STATEMENT OF FACTS

The applicant, Ms Malika Turayeva , is a Russian national, who was born in 1959 and lives in Katar -Yurt. She is represented before the Court by lawyers from Stichting Russian Justice Initiative (with partnership with NGO Astreya ) (SRJI/ Astreya ).

The applicant is the widow of Mr Zila (also spelt as Zil ) Turyaev , who was born in 1956.

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

A. The circumstances of the case

1. Death of the applicant ’ s husband

In October 2014 Mr Zila Turyaev was working as a lorry driver on a construction site in the village of Bamut in the Achkhoy-Martan district, the Chechen Republic.

At about 4 p.m. on 20 October 2014, whilst he was working on the site, his lorry was blown-up as a result of hitting a mine and he was seriously injured. He was immediately taken to the hospital, where he died shortly after arrival.

2. The applicant ’ s attempts to initiate a criminal investigation into the incident

(a) Preliminary inquiry into the death of the applicant ’ s husband

On 20 October 2014 the applicant complained of the incident to the Achkhoy-Martan inter-district investigations committee (the investigators). The investigators immediately initiated a preliminary inquiry into the incident; the inquiry file was given the number 306 пр -14.

On 20 October 2014 the investigators examined the crime scene. The remains of the explosive device, Zila Turayev ’ s clothing and other objects were collected and forwarded for forensic examination.

On 20 October 2014 the investigators questioned five colleagues of Mr Turayev who stated that during the military campaign in the region between 2000 and 2009, a federal military unit had been stationed in the vicinity of the explosion site.

On the same date, the investigators asked the Bamut village administration to inform them who had been stationed in the vicinity of the explosion site. In their reply they stated that a military unit of the Russian Ministry of Defence had been stationed there until 2009.

On 23 October 2014 the investigators requested the commander of the United Group Alignment in the North Caucasus Region (the UGA) to provide information as to which military unit had been stationed on the site.

On 23 October 2014 the investigators forwarded the preliminary inquiry file to the 3rd military investigations department of the South Military Circuit (the military investigators) in Khankala , Chechnya, stating that “the inquiry has established the involvement of military servicemen in the crime”. The file was forwarded for further examination and taking decision on whether to open a criminal case. The applicant was informed of the decision.

On 10 December 2014 the military investigators decided to return the inquiry file to the investigators in Achkhoy-Martan stating that “the involvement of military servicemen has not been established” and that the results of the forensic examination of the remains of the explosives had not been received. The applicant was not informed of that decision.

It appears that the inquiry file was not sent back to the investigators until 16 October 2015.

Meanwhile, on 18 September 2015 the applicant complained to the Chechnya prosecutor, stating that on 16 September 2015 she had personally visited the military investigators ’ office in Khankala , where she had been told that the inquiry file had been returned to the investigators in Achkhoy ‑ Martan . The applicant requested that the prosecutor solve the question of jurisdiction between the military and civilian investigators and complete the inquiry into her husband ’ s death in order to prosecute the persons responsible. No reply was given to this complaint.

On 5 November 2015 the investigators again sent the preliminary inquiry file to the military prosecutors for the same reason, namely the involvement of military servicemen in the incident.

(b) The applicant ’ s appeals to courts

( i ) Appeal to the military court

On 8 October 2015 the applicant appealed before the Grozny Garrison Court against the military investigators ’ decision of 10 December 2014 to return the inquiry to the civilian investigators. She argued, in particular, that the involvement of military servicemen had been confirmed by the witness statements, the crime scene examination report, the examination of her husband ’ s clothing and the statement of information provided by the local administration. All of those documents showed that a military unit had been stationed in the vicinity of the explosion site and that therefore, in accordance with the rules of jurisdiction, the inquiry should be carried out by military investigators. Referring to Article 2 of the Convention, the applicant alleged that the authorities were under an obligation to conduct an effective investigation into deprivation of life and that the investigators had failed to inform her of progress in the inquiry.

On 21 October 2015 the Grozny Garrison Court rejected her appeal as unsubstantiated, reasoning as follows:

“ the contents of the inquiry file do not contain concrete information objectively demonstrating to whom the unidentified explosive device belonged or that military servicemen had been involved in its installation [at the scene]”.

On 23 October 2015 the applicant appealed against the above decision to the North-Caucasus Circuit Military Court.

On 17 December 2016 the North-Caucasus Circuit Military Court upheld the rejection of 21 October 2015. In its decision, the court stated, amongst other things, that no assessment of evidence could be carried out within the framework of a preliminary inquiry and that the court ’ s findings were limited to the examination of the investigators ’ compliance with the existing procedure, which had been done by the military investigators.

(ii) Appeal to the civilian court

On 8 October 2015 the applicant complained to the Achkhoy-Martan District Court that the authorities had been protracting the investigation into the death of her husband, that she was not informed of any progress in the inquiry, and that the lack of information was depriving her of any effective appeal against the investigators ’ inaction. She requested that the court recognise the investigators ’ inaction as unlawful and order them to initiate a criminal investigation into her husband ’ s death and to provide her with access to the inquiry file.

On 25 November 2015 the Achkhoy-Martan District Court rejected the applicant ’ s appeal, stating that within the framework of a preliminary inquiry the court ’ s findings were limited to the examination of the investigators ’ compliance with the existing procedure, which had been done in the applicant ’ s case.

The applicant appealed against the above decision to the Chechnya Supreme Court arguing, in particular, that the procedural limitations within the framework of a preliminary inquiry rendered, it impossible to establish unequivocal evidence showing the involvement of military servicemen in the crime. She contended that the investigators should take further steps and open a criminal case in order to obtain such evidence and should only then transfer the case to the military investigators. Referring to Article 13 of the Convention, she alleged that the absence of a fully-fledged criminal investigation into her husband ’ s death deprived her of effective legal remedies.

On 10 February 2016 the Chechnya Supreme Court upheld the District Court ’ s decision and rejected the applicant ’ s appeal in a summary fashion.

B. Relevant domestic law

For a summary of the relevant domestic law see Albekov and Others v. Russia , no. 68216/01, §§ 66-69, 9 October 2008 and Dalakov v. Russia, no. 35152/09 , §§ 51-53, 16 February 2016.

COMPLAINTS

The applicant complains under Article 2 of the Convention that the State violated its positive obligation by failing to clear the construction site of mines and to erect signs indicating its vicinity for the local population.

Under the procedural aspect of Article 2 of the Convention, the applicant complains that the authorities failed to investigate her husband ’ s death and that due to the unsolved issues of jurisdiction and the procedural limitations of a preliminary inquiry the authorities never opened a fully-fledged investigation into the circumstances of the crime.

Under Article 13 of the Convention, the applicant complains that she has no effective remedies in respect of her complaint under Article 2 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the right to life of the applicant ’ s husband Mr Zila Turayev , ensured by Article 2 of the Convention, been violated in the present case? In view of the Court ’ s case-law (see Osman v. the United Kingdom , judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, § 115 ‑ 116) under Article 2, did the authorities comply with their positive obligation in respect of Mr Zila Turayev ?

2. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

3. Did the applicant have at her disposal an effective domestic remedy for her Convention complaints under Article 2, as required by Article 13 of the Convention?

4. The Government are requested to produce a copy of all the contents of both the preliminary inquiry file no. 306 пр -14 and the file of the criminal case opened in connection with the death of Mr Zila Turayev as well as an update on the proceedings concerning the applicant ’ s case.