CASE OF KRIVOLUTSKAYA v. RUSSIA
(Application no. 28008/14)
17 October 2017
This judgment is final but it may be subject to editorial revision.
In the case of Krivolutskaya v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 26 September 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 28008/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Yelena Vladimirovna Krivolutskaya (“the applicant”), on 7 April 2014.
2. The applicant was represented by Mr I. Trunov and Ms L. Ayvar, lawyers practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. On 16 December 2014 the application was communicated to the Government.
4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1963 and lives in Moscow.
6. On 24 January 2011 a bomb attack at the Domodedovo airport killed 37 people and injured more than 160. It was later established that the explosion was caused by a suicide bomber and organised by a militant group operating in the North Caucasus. The applicant, who was present at the airport at the time of explosion, sustained multiple injuries to her body (wounds, contusions and fractures) which provoked further complications (cerebral oedema, coma, respiratory and cardiac insufficiency and a traumatic shock). The applicant’s injuries were life-threatening and caused serious harm to her health.
A. Criminal investigation
1. Organisation of the act of terror
7. Within the framework of the criminal investigation into the bombing, the investigative authorities arrested four persons. On 11 November 2013 the Moscow Regional Court found them guilty of multiple charges, including commission of an act of terror, organisation of a criminal gang and illegal possession of firearms and ammunition. Three defendants received life sentence and the fourth one was sentenced to ten years’ imprisonment.
8. On 25 November 2014 the Supreme Court of the Russian Federation upheld the judgment of 11 November 2013 in substance on appeal.
2. Allegedly lax security at the airport
10. On 25 January 2011 the Russian authorities opened criminal investigation on the charges of negligence against the airport managers and employees and the policemen deployed at the airport. On 22 March 2011 the applicant was granted a victim status in the proceedings. On 5 March 2012 the investigator decided to recall it. On 26 March 2012 the investigator discontinued the proceedings.
11. On 22 May 2012 the Deputy President of the Investigative Committee of the Russian Federation quashed the decision of 26 March 2012 and re-opened the case. The proceedings are pending to date.
12. On 3 June 2013 the Basmannyy District Court of Moscow dismissed the applicant’s complaint against the decision of 5 March 2012.
B. Civil action for damages
13. On an unspecified date the applicant brought a civil claim against the airport seeking damages resulting from the failure of the airport security to prevent the bombing.
14. On 27 August 2013 the Presnenskiy District Court of Moscow dismissed the applicant’s claims for damages. On 16 December 2013 the Moscow City Court upheld the judgment of 27 August 2013 on appeal. The City Court dismissed, inter alia, as unsubstantiated the applicant’s allegation that the suicide bomber had been able to enter the airport owing to the lack of a metal detector at one of the airport entrances noting that such fact should have been established in the course of the relevant criminal investigation.
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
15. The applicant complained that the Russian authorities had failed to comply with the positive obligation imposed on them by Article 2 of the Convention. In particular, she alleged that the explosion resulting in her injuries had been possible due to the lax security at the Domodedovo airport. Relying on Article 6 of the Convention, she complained that the authorities had failed to carry out an effective investigation into the actions of the airport security personnel and the police deployed at the airport. Lastly, she alleged that she had been unable to participate in the investigation. The Court will examine the applicant’s grievances from the standpoint of Article 2 of the Convention, which reads, in so far as relevant, as follows:
“1. Everyone’s right to life shall be protected by law.”
16. The Government contested that argument. In their opinion, the Russian authorities had complied with their obligations set out in Article 2 of the Convention. The applicant had sustained injuries as a result of a terrorist attack at the Domodedovo airport. Her allegations of the State responsibility in her case had been unsubstantiated. The security system at the airport had been in full compliance with international and domestic standards. In any event, the fully operational security system could only minimise the terrorist threat. It could not eliminate it completely. The Government further submitted that the circumstances of the bombing of the airport had been fully established within the framework of the criminal case against the alleged perpetrators. The investigating and judicial authorities had identified the persons responsible for the organisation of the act of terror and brought them to justice. The applicant had been granted a victim status in the relevant criminal proceedings. It had been open to her to bring civil claims for damages against the defendants either within the criminal proceedings instituted or in a separate set of civil proceedings. However, the applicant had chosen to do neither. In the Government’s view, the applicant’s failure to resort to that remedy raised an issue of her compliance with the admissibility requirements set out in Article 35 § 1 of the Convention. As regards the investigation into the alleged negligence on the part of the airport security personnel and the police deployed at the airport, the Government submitted that the proceedings were still pending. The case was a complex one. The authorities had so far commissioned 283 forensic expert examinations, questioned over 900 witnesses and performed numerous investigative activities (searches, seizures, etc.). Lastly, the Government pointed out that the Russian authorities had not distanced themselves from the victims of the explosion. All of them, including the applicant, had received financial support from the State. In particular, the applicant had received a financial aid in the amount of 1,900,000 Russian roubles (RUB).
17. The applicant maintained her complaint. She considered that the suicide bomber had been able to enter the Domodedovo airport as a result of the lax security at the airport. Had the security personnel and the police forces carried out a strict control of everyone entering the airport, they would have been able to detect the explosive device and stopped the terrorist at the entrance.
1. Whether Article 2 of the Convention applies
18. The Court reiterates that Article 2 of the Convention may be applicable when there has been no loss of life, however, the circumstances of the case and the nature of inflicted injuries indicate that the applicant’s life was in serious danger (see Makaratzis v. Greece [GC], no. 50385/99, § 49, ECHR 2004-XI).
19. In the present case, the applicant was a victim in a terrorist attack on the Domodedovo airport. As a result, she suffered serious injuries which were considered to be life threatening by domestic medical practitioners. The Court has no reason to hold otherwise. It finds that Article 2 of the Convention is applicable to the present case.
2. Exhaustion of domestic remedies
20. In so far as the Government may be understood to argue that the applicant failed to exhaust effective domestic remedies in respect of her grievances, the Court observes that the Government’s objection is connected to the proceedings instituted by the authorities in order to identify the terrorists responsible for the bombing at the airport and to bring them to justice. The Government suggest that the applicant could have obtained a redress by bringing a civil action for damages against the convicted terrorists. However, the applicant’s grievances do not relate to those proceedings. Before the Court she challenges the adequacy of the security at the airport and the effectiveness of the ensuing investigation. Accordingly, the Court considers that the Government’s objection is irrelevant and dismisses it.
21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. Positive obligation to prevent the threat to life
22. As to the State’s positive obligation to protect life as set out in Article 2 of the Convention (see Osman v. the United Kingdom, 28 October 1998, §§ 115-16, Reports of Judgments and Decisions 1998-VIII), the Court observes that the applicant does not suggest that the State has not complied with its general duty to secure the right to life by putting in place criminal-law provisions to deter the commission of terrorist acts, backed up by law-enforcement machinery. Nor does she argue that the authorities knew or ought to have known about the bombing being prepared. Lastly, the Court observes that it discerns no evidence in support of the applicant’s allegation that the bombing of the Domodevo airport became possible because of the lax security measures in place at the airport at the relevant time.
23. Regard being had to the above, the Court finds that there has been no violation of Article 2 of the Convention in respect of the State’s positive obligation to prevent the threat to life.
2. Procedural obligation
24. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be an effective official investigation when individuals have died in suspicious circumstances. This obligation is not confined to cases where it has been established that the killing was caused by an agent of the State. The mere fact that the authorities have been informed of the death will give rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances in which it occurred (see Sabuktekin v. Turkey, no. 27243/95, § 98, ECHR 2002-II (extracts); Kavak v. Turkey, no. 53489/99, § 45, 6 July 2006; and Al Fayed v. France (dec.), no. 38501/02, 27 September 2007). The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment (see, Keller v. Russia, no. 26824/04, § 93, 17 October 2013).
25. The scope of the above-mentioned obligation is one of means, not of result. Thus, the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings. Any deficiency in the investigation which undermines its ability to establish the person or persons responsible will risk falling foul of this standard (see Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V, and Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007).
26. The Court has emphasized on a number of previous occasions that the involvement of the persons affected by the alleged crime in the investigation serves to ensure the public accountability of the authorities and public scrutiny of their actions in the conduct of the investigation. The right to participate in the proceedings requires that the procedures adopted ensure the requisite protection of the applicant’s interests (compare, Perevedentsevy v. Russia, no. 39583/05, § 118, 24 April 2014).
27. The Court considers that the above principles apply in the present case. It acknowledges the important work carried out by the investigation. The authorities carried out a number of investigations in order to reconstruct the events, seek out and bring to justice those responsible and ensure the victims’ access to justice. The proceedings against the persons involved in the organization of the act of terror were completed. The investigation into the alleged negligence of the security personnel of the airport and the policemen deployed there is still pending.
28. As regards the ongoing investigation, the Court notes that the investigative authorities deprived the applicant of the victim status (see 9 paragraph above). As a result, she was denied the possibility of intervening during the course of the investigation. She was never informed or consulted about any proposed evidence or witnesses. She had no access to the investigation file and was not kept informed of the progress of the investigation.
29. Lastly, the Court observes that the applicant brought a civil action for damages against the airport management alleging negligence on their part. Her claim for damages was dismissed precisely for the lack of ability to demonstrate that the terrorist had been able to enter the building of the airport with an explosive device due to the lax security measures in place at the airport. The courts at two level of jurisdiction indicated that those facts were to be proved in the course of the criminal investigation. Accordingly, without the benefit of an effective criminal investigation, the applicant was unable to prove the alleged civil liability of the respondent parties.
30. Regard being had to the above, the Court considers that the applicant’s interests were not fairly and adequately protected and that the investigation did not ensure sufficient public accountability to provide the investigation and its results with the required level of public scrutiny.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
32. The applicant complained that she had been deprived of a victim status in the course of the criminal investigation. She relied on Article 13 of the Convention which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
33. The Government contested that argument.
34. The applicant maintained her complaint.
35. The Court observes that the complaint made by the applicant under this Article has already been examined in the context of Article 2 of the Convention. Given that it has found a violation of the procedural aspect of Article 2 (see paragraphs 24-31 above), the Court considers that, whilst the complaint under Article 13 taken in conjunction with Article 2 is admissible, there is no need to make a separate examination of this complaint on its merits (see, mutatis mutandis, Makaratzis, cited above, §§ 84-86; and Anık and Others v. Turkey, no. 63758/00, § 86, 5 June 2007).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
37. The applicant claimed 56,349.29 Russian roubles (RUB) in respect of pecuniary damage and 1,000,000 euros (EUR) in respect of non-pecuniary damage.
38. The Government considered the applicant’s claims unsubstantiated and excessive. They pointed out that the applicant had received a financial support from the State.
39. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 5,000 in respect of non-pecuniary damage.
B. Costs and expenses
40. The applicant also claimed EUR 21,114 for the costs and expenses incurred before the domestic courts and before the Court. She employed three lawyers to represent her interests who had spent 46 hours working on her case at the hourly rate of EUR 459.
41. The Government considered the applicant’s claims unsubstantiated.
42. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads.
C. Default interest
43. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been no violation of Article 2 of the Convention in respect of the positive obligation to prevent the threat to life;
3. Holds that there has been a violation of Article 2 of the Convention in respect of the obligation to carry out an effective investigation;
4. Holds that there is no need to examine separately the complaint under Article 13 of the Convention;
(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Pere
Deputy Registrar President