Communicated on 27 June 2017

THIRD SECTION

Application no 76635/11 Tagir Magomedovich UZHAKHOV and Zalina Dzhabrailovna ALBAGACHIYEVA against Russia lodged on 26 October 2011

STATEMENT OF FACTS

The applicants are Mr Tagir Uzhakhov, who was born in 1957 and Ms Zalina Albagachiyeva, who was born in 1976. They are Russian nationals. The first applicant resides in Karabulak, Ingushetia, and the second applicant in Troitskaya, Ingushetia. They are the brother and wife of Mr Khamzat Uzhakhov, who was born in 1978.

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

A. Events of 25 November 2009

1. Search of the second applicant ’ s house

At the material time Khamzat Uzhakhov, the second applicant and their three minor children resided in Troitskaya, Ingushetia. Khamzat Uzhakhov was working as a taxi driver.

On 25 November 2009 the second applicant and her children were at home and Khamzat Uzhakhov was at work.

At about 4 p.m. on that day an armoured personnel carrier (“APC”) broke down the gates of their house and drove into the courtyard. The second applicant ran outside and saw that her house was surrounded by about twenty servicemen in camouflage uniforms with machine guns, snipers, several APCs, armoured UAZ-type vehicles and several GAZelle ‑ type minivans. The street was cordoned off.

The officer in charge of the group of servicemen ordered the second applicant bring out the other residents of the house and present their passports. When the second applicant went inside to get the documents, a group of about ten servicemen broke in and started searching the premises.

Without showing any documents authorising the search, the servicemen turned everything upside down. Then they tied the second applicant with a rope and lowered her into the basement with a video camera with orders to film everything in there. After that they pulled the applicant out and threw a grenade into the basement.

After that the applicant and her children were taken outside. As it was cold, they went to wait inside a neighbours ’ house. The servicemen continued the search.

Meanwhile, the first applicant had learnt of the search of his brother ’ s house and went there. The house was surrounded by the servicemen; he was not allowed to enter the premises and had to wait for the end of the search together with the second applicant and her children at the neighbours ’ house.

According to the applicants the search lasted for about an hour. The servicemen who conducted it took a number of belongings of the second applicant ’ s family, including two Korans, a DVD-player, a vacuum cleaner, binoculars, a notebook computer, a new mobile phone, a digital camera, a thermos, a tablecloth, the licence plate of the family ’ s Volvo car, three gold rings and 1,500 Russian roubles (RUB) in cash. In addition, a number of items of property were damaged or ruined, including the courtyard gates, the entrance door, ten roof slates, a sheepskin coat, a suitcase with a combination lock, eight house windows and the panels of the family ’ s Volvo car, which was parked in the courtyard. The explosion in the basement damaged the structure and blew up the potatoes stored inside.

After the servicemen left the house, the applicants waited for Khamzat Uzhakhov to return home.

2. Killing of Mr Khamzat Uzhakhov

In the morning on 26 November 2009 the applicants started searching for Khamzat Uzhakhov and learnt that on 25 November 2009 in Karabulak the Federal Security Service (“the FSB”) had conducted a special operation and killed a member of an illegal armed group, Mr T. A taxi driver who had picked him up had been killed as well.

The first applicant called his acquaintances who lived in the vicinity of the area where the special operation had been conducted and learnt that the bodies of two men killed during the special operation had been taken to a morgue in Nazran, Ingushetia.

On 25 November 2009 a federal news website RIA Novosti ( РИА Новости ) published the news concerning the elimination by the authorities in Ingushetia of members of an illegal armed group, including the applicants ’ relative Khamzat Uzhakhov.

At about 11 a.m. on 26 November 2009 the first applicant went to the morgue and identified his brother ’ s body. On the same date the body was released to the relatives and buried.

B. The applicants ’ attempts to have an investigation initiated

On 26 or 27 November 2009 the first applicant went to the local police and the prosecutor ’ s office requesting that a criminal investigation be opened into the circumstances of Khamzat Uzhakhov ’ s killing and the search of the second applicant ’ s house. According to the applicants, the authorities refused to register his complaints as Khamzat Uzhakhov had been eliminated as a member of an illegal armed group during a special operation.

On 1 December 2009 and then on 13 January 2010, with the assistance of local human-rights organisations, the first applicant complained to the Prosecutor General of the Russian Federation and the Ingushetia prosecutor of his brother ’ s killing and requested that a criminal case be opened into the incident and the search of Khamzat Uzhakhov ’ s house. The applicant stated, in particular, that his brother had worked as a taxi driver and that he had not been involved in any criminal activity; he had been killed during the special operation only because he had just happened to have taken Mr T., who had been wanted by the authorities, as a passenger. The applicant provided a detailed description of the search conducted on 25 November 2009 of Khamzat Uzhakhov ’ s house and listed the items stolen or damaged by the servicemen.

On 27 January 2010 the Sunzhenskiy district prosecutor ’ s office forwarded the applicants ’ complaint to the investigations department of military unit no. 68799 (“the military investigators”) for examination.

On 23 March 2010 the military investigators examined the crime scene at the second applicant ’ s house and established that part of the courtyard gates as well two items of furniture in the house had been damaged.

1. First refusal to initiate a criminal investigation

On 26 May 2010 the military investigators refused to initiate a criminal investigation into Khamzat Uzhakhov ’ s killing and the search of his house for lack of corpus delicti . The decision stated that according to an information statement from the Ingushetia department of the FSB no special operations, including searches, had been conducted by them on 25 November 2009 in the second applicant ’ s house. The decision further referred to statements of an FSB officer, Mr P.Ch., and two police officers from the Counter Terrorism Centre of the Ingushetia Ministry of the Interior (“the CTC”), Mr V.S. and Mr Kh.A., all of whom stated that no searches of the second applicant ’ s house had been conducted and that Khamzat Uzhakhov had been killed during an exchange of fire. In particular, both CTC officers stated that on 25 November 2009 they had tried to stop a silver VAZ-2109 model car with no registration numbers when shots had been fired from the vehicle. As a result of the return fire, Mr T., who had been wanted as an active member of an illegal armed group, had been killed, as well as Khamzat Uzhakhov, who had been actively aiding illegal armed groups.

The applicant appealed against the refusal to the Nalchik Military Garrison Court, requesting that it be set aside. He stated, in particular, the following:

“... as it has been established, on 25 November 2009, in Dzhabagiyeva Street in Karabulak, during the daytime the FSB officers, without having taken any steps to stop the passengers of the vehicle, opened fire at the VAZ-2109 driven by Khamzat Uzhakhov. As a result, the driver Uzhakhov and the passenger Mr T. were killed.

After that on the same day, at about 4 p.m. the same FSB officers arrived at the family house of the deceased Khamzat Uzhakhov in various types of military vehicles, including APCs without registration numbers, and undertook criminal actions against [his] wife and minor children and the family property. As a result, some of the property was destroyed, including by a grenade explosion, and some of it was stolen.

The fact that those crimes against Khamzat Uzhakhov, his family and property had been committed by the same FSB unit was established by the inquiry carried by the Sunzhenskiy investigative department of the Sunzhenskiy prosecutor ’ s office. The involvement of the FSB officers in the intentional killing of the taxi driver Khamzat Uzhakhov has been also confirmed by the inquiry conducted by the investigators of military unit no. 68799.

The claims of the FSB officers that Khamzat Uzhakhov allegedly actively resisted and opened fire and that he was a member of an illegal armed group are unsubstantiated and untruthful and were invoked to justify the extrajudicial executions carried out by them. Their actions in the family house of Khamzat Uzhakhov were aimed at finding evidence against him and providing justification for the killing of my brother.

In spite of the clear evidence confirming the crimes against Khamzat Uzhakhov ’ s life and his family ’ s property were committed by FSB officers, the military investigator not only failed to open a criminal case to investigate that evidence but also failed to take the compulsory steps to establish the circumstances of those crimes and identify the perpetrators. He limited himself to questioning only the persons directly involved [in the incident] and did not find it necessary to question the eyewitnesses – the wife of Khamzat Uzhakhov, the other family members and the other witnesses to the events ...

Under the law, investigators are obliged to thoroughly examine the circumstances of an incident and the correlations between the nature of a crime and the degree of public danger posed by the criminal ...”

In September 2010 the first applicant ’ s complaint was sent for examination to the Pyatigorsk Military Garrison Court.

On 1 November 2010 the Pyatigorsk Military Garrison Court upheld the refusal to initiate a criminal investigation as the impugned decision had already been overruled on 30 October 2010 by the head of the investigations department of military unit no. 68799.

2. Second refusal to initiate a criminal investigation

On 9 November 2010 the military investigators again refused to initiate a criminal investigation against the FSB officers in connection with the killing of Khamzat Uzhakhov on the same grounds, that is to say lack of corpus delicti . The decision was very similar to that of 26 May 2010 and was based on the statements of the same law-enforcement officers. The applicants were not informed of that decision.

On 9 November 2010 the military investigators transferred the pre-investigation inquiry into the allegations of the unlawful search and the destruction and theft of property by “unidentified law-enforcement agents” to the Sunzhenskiy investigations department as it “[had been] established that the FSB officers [had] not [been] involved in the unlawful search” (also see decision of 21 June 2011 below). The applicants were not informed of that decision.

On 31 November 2010 the applicants requested information on the progress of the investigation into their complaint of their relative ’ s killing and the unlawful search.

On 25 December 2010 the applicants were informed of both procedural decisions of 9 November 2010.

On 21 February 2011 (in the documents submitted the date was also referred to as 14 March 2011) the first applicant appealed to the Nalchik Military Garrison Court against the refusal of 9 November 2010 to initiate a criminal investigation against the FSB officers in connection with his brother ’ s killing. He stated, in particular, that the military investigators had neither questioned any eyewitnesses to the incident, except for the officers who had been directly involved in it, nor established the circumstances of the use of lethal force by them against Khamzat Uzhakhov.

On 23 March 2011 the Nalchik Military Garrison Court upheld the refusal of 9 November 2010 as on 15 March 2011 the impugned decision had already been overruled by the head of the investigations department of military unit no. 68799. The applicant was not informed thereof.

On 29 March 2011 the applicant appealed against the above decision to the North Caucasus Military Circuit Court. He stated, in particular, that he had neither been informed of the decision of 15 March 2011 nor provided with a copy and that it had been taken by the military prosecutors just to prevent the examination of his appeals on the merits by the court.

On 28 April 2011 (in the documents submitted the date was also referred to as 29 April 2011) the Nalchik Military Garrison Court issued a decision stating that the applicant ’ s appeal to the North Caucasus Military Circuit Court had been lodged outside of the prescribed time-limit and, therefore, should be left without examination. The court stated that even though the appeal was dated 29 March 2011, its envelope was postmarked 5 April 2011 (in the documents submitted the date was also referred to as 5 May 2011).

On 12 May 2011 the first applicant appealed against this decision by way of supervisory review to the Presidium of the North Caucasus Military Circuit Court, stating that the Nalchik Military Garrison Court, when calculating the ten-day time-limit, had failed to take into account weekends.

On 6 July 2011 the appeal was rejected by the Presidium of the North Caucasus Military Circuit Court. The court stated that the first applicant had been informed of the court decision of 23 March 2011 on 26 March 2011, but had lodged his appeal on 6 April 2011, whereas it should have been lodged within ten days of 23 March 2011, that is to say by 4 April 2011.

3. Third refusal to initiate a criminal investigation

On 21 June 2011 the military investigators decided again (see above their decision of 9 November 2010) to transfer the pre-investigation inquiry into the allegations of unlawful search to the Sunzhenskiy investigations department.

On the same date, 21 June 2011, the military investigators again refused to initiate a criminal investigation against the FSB officers in connection with the killing of Khamzat Uzhakhov on the same grounds, that is to say lack of corpus delicti . The refusal was verbatim to the one issued on 9 November 2010.

It is unclear whether the applicants appealed against the refusal of 21 June 2011.

C. Relevant domestic law

For a summary of relevant domestic law see Dalakov v. Russia (no. 35152/09 , §§ 51-53, 16 February 2016).

COMPLAINTS

The applicants complain under Article 2 of the Convention that State agents killed their relative Mr Khamzat Uzhakhov and that no effective investigation was carried out into the matter.

Under Article 3 of the Convention the second applicant complains that she was subjected to inhuman and degrading treatment during the house search conducted on 25 November 2009 and that the authorities failed to investigate the matter.

Under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complain of the unlawful search, and of the destruction and theft of the second applicant ’ s family property during that unlawful search carried out on 25 November 2009.

Under Article 13 of the Convention the applicants complain that they did not have effective domestic remedies in respect of the aforementioned violations.

QUESTIONS

1. Has Mr Khamzat Uzhakhov ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did his death result from a use of force which was absolutely necessary?

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. Was the second applicant subjected to inhuman or degrading treatment during the search of her house on 25 November 2009, in breach of Article 3 of the Convention? Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation into her allegations of ill-treatment in compliance with the requirements of Article 3 of the Convention?

4. Has there been an interference with the second applicant ’ s right to respect for her home on account of the search carried out on 25 November 2009, within the meaning of Article 8 § 1 of the Convention?

5. Has there been an interference with the second applicant ’ s right to respect for her property and the peaceful enjoyment of her possessions under Article 1 of Protocol No. 1 to the Convention as a result of the search carried out in her home on 25 November 2009?

6. Did the applicants have at their disposal effective domestic remedies for the above complaints as required by Article 13 of the Convention?

7. The Government are invited to provide a copy of the entire contents of the case files of the pre-investigation inquiry( -ies) carried out into the circumstances of Mr Khamzat Uzhakhov ’ s killing as well as of the criminal case file(s) opened in connection with his death and/or of all of the refusals to initiate a criminal investigation into the circumstances of his death as well as of all of the domestic courts ’ decisions taken on the appeals lodged against those decisions.