European Court of Human Rights

 

THIRD SECTION

CASE OF TSOROYEV v. RUSSIA

(Application no. 13363/11)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

24 March 2020

 

This judgment is final but it may be subject to editorial revision.

In the case of Tsoroyev v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Alena Poláčková, President,
          Dmitry Dedov,
          Gilberto Felici, judges,
and Olga Chernishova, Deputy Section Registrar,

Having deliberated in private on 3 March 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 13363/11) 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, Mr Khasan Tsoroyev (“the applicant”), on 22 January 2011.

2.  The applicant was represented by lawyers from EHRAC/Memorial Human Rights Centre, a non-governmental organisation with offices in Russia and the United Kingdom. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, 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 6 March 2013 notice of the application was given to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A.     The applicant’s account

1.    The killing of Mr Beslan Tsoroyev

4.  The applicant was born in 1959 and lives in Ordzhenikidzevskaya, Ingushetia. He is the father of Mr Beslan Tsoroyev, who was born in 1985. At the material time Beslan Tsoroyev worked at the local furniture factory.

5.  At about 7.15 a.m. on 7 December 2009 the applicant’s house was surrounded by agents of the Federal Security Service (FSB) (Федеральная служба безопасности). The applicant was at home with his wife Ms A. and his son Beslan Tsoroyev. They were ordered to go outside. In the street, they saw around 200 armed FSB servicemen in balaclavas and camouflage uniforms, three armoured personnel carriers (“APCs”), three minivans, and one off-road vehicle. The street was cordoned off.

6.  The FSB agents announced through a loudspeaker that they had arrived for an identity check, and requested that all residents come out onto the street with their identity documents. The applicant went outside with the passports of his wife and son, and saw that they had been put next to the courtyard wall with their hands up and searched. Nothing was found on them.  The FSB officers then ordered the applicant to get his own passport from the house; the applicant went inside, then returned with his documents and joined his wife and son at the wall. The FSB officers then took Beslan Tsoroyev back inside the house, saying that they wanted him to show them additional documents.

7.  Meanwhile, the applicant and his wife were taken to one of the minivans, where they were questioned by two FSB agents about their and their family members’ personal details and occupation.  About twenty minutes later another FSB agent took from the boot of the minivan two large boxes covered in camouflage fabric, a package, and two stretchers. After about one hour, the boxes were returned to the boot and the applicant and his wife were ordered to move to the back seat of the minivan. From the back seat, the applicant could see that the FSB agents were going into and coming out of the courtyard of his house.

8.  The applicant was allowed to make phone calls. He used this opportunity to contact several persons, including his older brother, who soon arrived at the scene with Mr D. (the head of the local police department) and his deputy. They were not allowed to enter the cordoned‑off area. For the duration of the operation, none of the residents in the neighbourhood were allowed to leave their houses.

9.  At around 9 a.m. the FSB agents exited the applicant’s house and left the scene. The applicant went inside and saw the body of his son in a bedroom. An AK-47 machine gun was next to it.

10.  One of the local police officers told the applicant and the head of the local police station Mr D. that according to the FSB agents, the applicant’s son had been asked to lift a sofa cushion in the context of an inspection, but he had pulled the machine gun out from under the sofa and fired a number of shots at the agents. Those agents had immediately shot back and killed him with three defensive shots to the head.

11.  The body of the applicant’s son was taken to the morgue for examination. It was released to his relatives later on that day; in the evening the relatives buried Beslan Tsoroyev.

2.    Investigation into the killing of Mr Beslan Tsoroyev

(a)    Investigators’ refusal to open a criminal case

12.  On 7 December 2009, shortly after the incident, the applicant complained to the police that his son had been unlawfully killed. Subsequently, the complaint was transferred to the Ingushetia prosecutor’s office, in accordance with the rules on jurisdiction.

13.  On 7 December 2009 the police took a statement from the applicant in relation to the incident. According to him, the search of his house had not been authorised, as no one had shown him a search warrant and the FSB agents had come on the pretext of carrying out an identity check. He and his wife had been asked to give statements in a van parked nearby, where they had remained for about two hours. After that, he had found out that his son had been killed during the house search. He had never seen a firearm in his son’s possession.

14.  On the same day, 7 December 2009, the police interviewed the applicant’s brother, Mr A.Ts., who stated that he had learnt from the applicant that his family’s house had been searched by FSB agents who had made the applicant and his wife leave the house and had then taken Beslan Tsoroyev to one of the rooms and shot him there.

15.  On 7 December 2009 the investigators examined the body of Beslan Tsoroyev at the crime scene in the presence of two attesting witnesses, Mr T. and Mr B., and a forensic expert, Mr M. According to their report of the same date, there were bullet holes in Beslan Tsoroyev’s head: one in the back of the head measuring 1 by 0.7 cm, one on the left cheek measuring 1.5 by 1 cm, one on the lower right jaw measuring 3 by 1 cm, and one in the right temple. No traces of gunshot wounds were found on the other parts of the body. No swabs for gunshot residue were taken from the hands.

16.  The documents submitted indicate that a crime-scene inspection was carried out on 7 December 2009, which established that the machine gun had been found on the left side of Beslan Tsoroyev’s body. The chamber of the machine gun contained four 5.45 mm calibre bullets. On the floor of the room a specific number of casings were found - some of them were 5.45 mm calibre, some were 7.62 mm calibre (those in the body of the sofa), and some were 9 mm calibre. No damage to the walls, furniture or other items in the room as a result of the exchange of gunfire was noted. The documents submitted indicate that no expert examination of the casings collected was commissioned, nor were fingerprints taken from the machine gun.

17.  On 7 January 2010 the Sunzhenskiy district prosecutor’s office (“the investigators”) refused to initiate a criminal investigation into the applicant’s complaint of the unlawful killing of his son, as it had been concluded that Beslan Tsoroyev had died as a result of the FSB officers returning fire during his attempt to kill them. No copy of that decision was provided to either the applicant or the Court.

18.  On 3 February 2010 the above decision was overruled by the investigators’ superiors and a further inquiry was ordered. The applicant was informed of that on 1 March 2010.

19.  The documents submitted indicate that the inquiry ordered on 3 February 2010 did not lead to the opening of a criminal case concerning the killing of the applicant’s son. It is unclear whether any procedural decision was issued in that regard. The applicant was not informed of the outcome of that inquiry.

20.  On 9 September 2013, along with his comments on the Government’s observations on the admissibility and merits of the application, the applicant submitted a statement by Mr J.B., who had been the applicant’s neighbour at the material time and had witnessed the incident. According to Mr J.B., on the morning of 9 December 2009 he had been leaving his house when he had been stopped at the gate by officers who had pointed their guns at him and ordered him to go back inside. He had obeyed and gone inside. From the window of his house, which was about fifteen to seventeen metres from the applicant’s house, he had seen the applicant and his wife being taken to a van by officers, and Beslan Tsoroyev standing near the wall holding a passport in his hand. He had been surrounded by many armed officers who had been talking to him about something. A few minutes later, the officers had put black handcuffs on Beslan Tsoroyev and, pushing him from behind, had taken him into the courtyard and out of Mr J.B.’s sight. After that, about five minutes later, Mr J.B. had heard gunfire from a machine gun. Then, after a while, he had seen the officers carry boxes and a stretcher into the applicant’s courtyard.

(b)    Military investigators’ refusal to open a criminal case

21.  On 8 December 2009 the applicant complained to the Military Investigations Department of Military Division No. 68799 (“the military investigators”) that his son had been unlawfully killed, as in accordance with the rules on jurisdiction, crimes involving FSB agents were investigated by the military prosecutor’s office.

22.  On 8 December 2009 the anti-banditry unit of the Ingushetia FSB (ЗКС и БТ УФСБ РФ по Республике Ингушетия) informed the military investigators that according to their operational information, Beslan Tsoroyev had been:

“the leader of an organised gang, under whose leadership the bombing of a car on 27 November 2009 and the bombing of shop in Ordzhenikidzevskaya on 2 December 2009 had been organised. [In connection with that,] on 7 December 2009 an identity check had been carried out during which B. Tsoroyev had offered resistance and sustained fatal injuries.”

23.  The documents submitted indicate that on an unspecified date in December 2009 the military investigators commissioned an expert examination of the AK-47 machine gun with which Beslan Tsoroyev had allegedly opened fire on the FSB officers. According to the conclusions of that examination, the machine gun had the serial number 2726801985 and was in working condition. It appears that no analysis of the fingerprints left on the machine gun was either ordered or carried out.

24.  On 11 December 2009 the military investigators refused to initiate a criminal investigation into the killing of Beslan Tsoroyev, for lack of corpus delicti in the actions of the FSB officers who had shot him - Mr P. and Mr A. It appears that the decision was based on statements given by the FSB officers and material taken from the preliminary inquiry carried out by the Sunzhenskiy district prosecutor’s office (see paragraphs 13-18 above).

25.  The decision not to initiate a criminal investigation (“the refusal”) referred in detail to the almost verbatim statements of the FSB officers who were implicated: Mr P., Mr A. and their colleague Mr S., who had been present in the room when Beslan Tsoroyev had allegedly opened fire. According to the officers, they had been armed with pistols and automatic 9 mm calibre pistols. During the search of the room, Beslan Tsoroyev had lifted one side of the sofa and “with one hand, [had] managed to pull out an AK machine gun and, having aimed at the FSB officers, [had] fired at least ten shots in a burst of gunfire”. According to the officers, “one of the bullets” had hit the protective armoured shield of one of the officers, and the officer had hid behind it while the two others had opened fire on Beslan Tsoroyev and killed him. The officers did not specify how many shots each of them had fired, or whose bullets had hit Beslan Tsoroyev and killed him. The officers stated that they had neither planted the AK machine gun next to his body nor staged the shooting to cover up his alleged execution. According to them, the lethal force had been used to protect themselves against his unlawful actions.

26.  Without specifying what their statements said, the refusal also briefly mentioned that the following individuals had given statements in the context of the inquiry: the chief of the FSB group, Colonel K.; the head of the support group, Officer Pe.; and a medical professional, Mr V. The refusal also mentioned that the protective armoured shield referred to by the officers had been inspected, and it had been concluded that the shield had indeed been hit by a bullet. Lastly, the refusal also mentioned, in general terms, the statements of the applicant and his brother given on 7 December 2009 (see paragraphs 13-14 above).The applicant was informed of the refusal on 3 February 2010.

27.  On 27 February 2010 the applicant appealed against the refusal to the Nalchik Garrison Military Court (“the Military Court”), and requested that the shortcomings of the inquiry be remedied by the opening of a fully‑fledged criminal investigation into his son’s killing. He stated, in particular, that his son had not had any criminal record, had been a law‑abiding citizen, and had never been sought or wanted by the authorities. There had been no explanation for the FSB’s unlawful search of the applicant’s house, a search during which Beslan Tsoroyev had been executed by FSB agents who had shot him in the head three times. He stressed that the preliminary inquiry carried out by the military investigators had limited itself to questioning the officers implicated in the incident, and that the officers had come to their house on the pretext of carrying out an identity check, whereas they had planned an unlawful search and his son’s execution. For some reason, the investigators had failed to explain why Beslan Tsoroyev had come out of the house with his hands up and only after he had gone back inside for additional documents had he allegedly decided to open fire on the officers. The applicant stressed that the unlawful refusal to initiate a fully-fledged criminal investigation had deprived him of his victim status, which he would have had if a criminal case had been opened. The lack of such status precluded him from having access to the investigation, and therefore from properly appealing to a court against actions or decisions of the investigators.

28.  On 12 April 2010, the Military Court dismissed the applicant’s complaint as unsubstantiated and upheld the refusal by stating, in particular, as follows:

“... the conclusion of the investigator Ib. concerning the lack of corpus delicti in the actions of the FSB officers P. and A. is based on the material of the preliminary inquiry and explanations given by the eyewitnesses to the death of Beslan Tsoroyev, and therefore cannot be deemed to be unsubstantiated.

There were no procedural violations, therefore in that regard the lawfulness of the refusal cannot be questioned.

Therefore, the court concludes that there are no grounds for granting the appeal of [the applicant] Mr Kh. Tsoroyev and declaring the impugned refusal unlawful and unsubstantiated.”

29.  The applicant appealed against the above decision to the North Caucasus Military Circuit Court (“the Military Circuit Court”), stating, amongst other things, that the decision had failed to examine his allegations that the refusal had been based on the statements of the implicated FSB officers and that the military investigators had failed to take steps to examine the evidence objectively. Furthermore, the investigators had failed to establish the reasons for the unlawful search of his house and the grounds for the allegations about his son’s alleged illegal activities.

30.  On 22 July 2010 the Military Circuit Court upheld the decision of 12 April 2010 and dismissed the applicant’s appeal.

B.     The Government’s submissions

31.  The Government did not dispute the circumstances of the case as submitted by the applicant.

32.  In reply to the Court’s request for a copy of the entire contents of the files relating to the pre-investigation inquiries opened into the death of Beslan Tsoroyev, the Government provided some of the documents - seventy-nine pages. As for the rest of the documents which had been requested, they stated that those documents could not be provided, as they were “documents which contain[ed] [the] personal data of the servicemen [who had] participated in the counterterrorism operations i.e. the data comprising the State secret”.

II. RELEVANT DOMESTIC LAW

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

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

34.  The applicant complained that the FSB officers had unlawfully deprived his son of his life, and that the authorities had failed to investigate the matter effectively, contrary to Article 2 of the Convention, which reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

35.  The Government submitted in general terms that the application was inadmissible because the applicant had failed to appeal to the domestic courts against the refusal and had failed to comply with the six-month requirement. They further stated that the use of lethal force against the applicant’s son had been justified: the FSB officers had had to shoot in order to protect themselves from his gunfire.

36.  The applicant submitted that he had appealed to the domestic courts against the refusal and had lodged his application with the Court within six months of the Military Circuit Court issuing its decision of 22 July 2010. He further stated that, given the following circumstances, the Government had failed to provide a plausible and convincing explanation for the use of lethal force against his son: Beslan Tsoroyev had had his passport at the time of the identity check and had showed it to the officers; he had then been handcuffed and taken inside the house, where he had been alone with the three implicated FSB officers and under their full control. There had been no traces of gunshot wounds on his body, all of the wounds he had received had been to his head, which disproved the officers’ version that there had been an exchange of gunfire. Assuming that Beslan Tsoroyev had opened fire on the officers as alleged, given that none of them had been injured, bullet casings would have been found in the room and there would have been damage to the walls or other objects in it. However, it had not been established that there had been any damage to any of the items in the room or the walls, and no bullets other than the ones which had killed the applicant’s son had been collected from the crime scene. Furthermore, the investigators had failed to take gunshot residue swabs from Beslan Tsoroyev’s hands, and the officers’ allegation that he had opened fire on them using the AK machine gun was implausible, as this would be physically impossible if a person was holding the gun in one hand. Owing to the lack of support, such a position would allow for just one shot. Therefore, the alleged exchange of gunfire had been staged and the machine gun had been placed next to Beslan Tsoroyev’s body after his execution.

A.     Admissibility

37.  The Court notes that, contrary to the Government’s submissions, the applicant appealed to the courts against the refusal to initiate a criminal investigation (see paragraphs 27 and 29 above) and lodged his complaint within six months of the final domestic decision being issued on 22 July 2010 (see Kocherov and Sergeyeva v. Russia, no. 16899/13, § 62, 29 March 2016). Therefore, the Government’s objections of non-exhaustion and failure to comply with the six-month time limit should be rejected.

38.  The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. In addition, it notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.     Merits

1.    The State’s procedural obligation under Article 2 of the Convention

39.  A summary of the relevant general principles concerning the procedural requirement in cases involving the use of lethal force by State agents can be found in Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §§ 229-39, 30 March 2016.

40.  As can be seen from the general principles set out above, the Court has established a number of requirements for an investigation into the use of lethal force by State agents to be “effective”. In summary, those responsible for carrying out the investigation must be independent from those implicated in the events; the investigation must be “adequate”; its conclusions must be based on thorough, objective and impartial analysis of all relevant elements; it must be sufficiently accessible to the victim’s family and open to public scrutiny; and it must be carried out promptly and with reasonable expedition.

41.  The documents submitted in the present case indicate that no criminal investigation other than a pre-investigation inquiry by the military investigations department was officially carried out in connection with the death of Mr Beslan Tsoroyev. As for the other pre-investigation inquiry, that of the Sunzhenskiy district prosecutor’s office, its outcome remains unknown. However, in any event, no criminal case was opened as a result of either inquiry. Thus, the Court is bound to assess the circumstances on the basis of the documents provided as part of the pre-investigation inquiry carried out by the military investigators which resulted in the refusal of 11 December 2009 to initiate a criminal investigation.

42.  Firstly, the Court reiterates that it has already found that, as regards allegations concerning such serious violations as deprivation of life by State agents, a pre‑investigation inquiry alone is not capable of leading to the punishment of those responsible (for a similar situation where an applicant’s relative was killed by FSB agents in Ingushetia, see Dalakov, cited above, §§ 69-72). In the present case, the Court considers that its findings in Dalakov are of particular relevance, and reiterates that a pre‑investigation inquiry (if it is not followed by a preliminary investigation) is unable to elucidate the circumstances of the use of lethal force, especially where there are conflicting versions of events, as in the present case.

43.  The Court observes that the refusal was based on the statements of the implicated FSB officers and the conclusions of the forensic report. The forensic report failed to examine whether the machine gun which had allegedly belonged to Beslan Tsoroyev and had allegedly been used to shoot at the officers had actually had his fingerprints on it. It appears that such an examination, along with an examination of Beslan Tsoroyev’s hands for gunshot residue (see paragraph 15 above), would have been crucial, with a view to verifying the officers’ denials that they had planted the machine gun next to his body (see paragraphs 23 and 25 above). Those basic expert examinations were not carried out or commissioned at a later stage, despite the fact that Beslan Tsoroyev’s body had been examined at the scene (see paragraph 15 above). Furthermore, the investigators failed to examine the casings which had been collected in order to determine: which bullets had caused Mr Tsoroyev’s death (see paragraphs 16 above) and from whose firearm they had come; which ones had come from the AK machine gun found next to him; and which one had hit the protective shield of one of the officers. They had also failed to establish whether it would have been at all possible for Beslan Tsoroyev to fire at least ten shots from the machine gun using only one hand, in front of the FSB officers, and only hit the protective shield and not the officers themselves or the furniture or walls (see paragraph 26 above). Lastly, it is noteworthy that the investigators did not question either the other participants involved in the special operation carried out at the applicant’s house on 7 December 2009 or the applicant’s neighbours, who could have provided relevant information (see paragraph 20 above).

44.  The documents submitted indicate that in making the decision to dismiss the applicant’s complaint as unsubstantiated, the military courts - without exercising their own independent scrutiny - were satisfied with the information provided by the military investigators, and disregarded the applicant’s arguments and the evidence referred to in his complaints (see paragraphs 27-30 above).

45.  The documents submitted indicate that despite the information collected by the investigators in the preliminary inquiries and the applicant’s credible and consistent complaints, the domestic authorities - including the military investigations department, the prosecutor’s office and the Military Court - failed to provide a proper response to the serious allegations of the inappropriate use of lethal force by agents of the State. In failing in its duty to carry out an effective investigation, the State fostered the State agents’ sense of impunity. The Court stresses that a prompt response by the authorities in investigating serious allegations of the use of lethal force by agents of the State in compliance with Article 2 standards is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion or tolerance of unlawful acts (see, among other authorities, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167, ECHR 2011).

46.  In view of the foregoing, the Court concludes that there has been a violation of Article 2 of the Convention under its procedural head.

2.    The State’s responsibility for the death of Mr Beslan Tsoroyev

47.  A summary of the relevant general principles concerning the assessment of the use of lethal force by State agents can be found in Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 93‑97, ECHR 2005‑VII.

48.  The Court notes that it is common ground between the parties that Beslan Tsoroyev was shot and killed on 7 December 2009 in Ordzhenikidzevskaya as a result of a special operation carried out by State agents. However, the parties disagreed on the key circumstances of the incident, such as whether his behaviour and actions had necessitated the use of lethal force against him.

49.  The Court has to determine whether the way in which the special operation was conducted showed that the FSB officers had taken appropriate care to ensure that any risk to the life of the applicant’s son was kept to a minimum. In carrying out its assessment of the planning and control phase of the operation from the standpoint of Article 2 of the Convention, the Court must have particular regard to the context in which the incident occurred, as well as the way in which the situation developed (see Andronicou and Constantinou v. Cyprus, 9 October 1997, § 182, Reports of Judgments and Decisions 1997‑VI).

50.  The Court notes that its ability to evaluate the operation has been seriously hampered by the lack of any meaningful investigation into the State agents’ conduct. Nevertheless, the Court will assess the organisation of the operation on the basis of the material available to it, in particular by relying on the relevant evidence submitted by the Government, which is not disputed by the applicant.

51.  First of all, the Court notes that the operation was not spontaneous, as the FSB officers arrived at the applicant’s address in Ordzhenikidzevskaya as part of a large group of about 200 officers, and they were well-equipped and cordoned off the area (see paragraphs 5-8 above). Moreover, the documents submitted indicate that the operation was planned (see paragraph 22 above). However, there is nothing in the documents reviewed by the Court to suggest that, at the planning stage of the operation, any serious consideration was given to the possibility that Beslan Tsoroyev might try to resist the search, escape or take other active steps against the officers, bearing in mind the information concerning his alleged involvement in bombings which had occurred shortly before the operation (see paragraph 22 above).

52.  Furthermore, the documents submitted indicate that at the time of his death the applicant’s son was alone with three State agents. According to them, he pulled the machine gun out from under the sofa and opened fire on them. In view of the lack of an appropriate investigation into the events, it is impossible to establish whether Beslan Tsoroyev did indeed open fire on the officers as alleged. However, in any event, for the following reasons, the officers’ version of the events (see paragraph 25 above) did not reflect the true circumstances of the incident. Even assuming that Mr Tsoroyev did indeed manage to pull the machine gun out from under the sofa and open fire, it is unconceivable that he would have been able to fire ten times with one hand without hitting anything around him other than the bulletproof shield (see paragraph 26 above). Therefore, even assuming that the events happened as the officers described, their version failed to provide an explanation as to where the other nine shots allegedly fired by Beslan Tsoroyev went, considering that nothing else in the room was damaged or grazed by gunshots (see paragraph 16 above).

53.  Based on the above, it follows that Beslan Tsoroyev was killed by shots to the head while he was alone with State agents (see paragraph 15 above), and that the implicated State agents failed to provide a plausible and corroborated explanation regarding the events in question.

54.  Taking the above into account, and bearing in mind its conclusions concerning the ineffectiveness of the investigation into the death of the applicant’s son (see paragraph 46 above), the Court finds it sufficient to conclude that the actions of the authorities in respect of the planning, control and execution of the operation were not sufficient to safeguard the life of Mr Beslan Tsoroyev.

55.  There has accordingly been a violation of the substantive aspect of Article 2 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

56.  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.”

57.  The applicant did not submit a claim in respect of pecuniary damage. As for a claim in respect of non-pecuniary damage, in his submissions of 9 September 2013 he left the determination of that amount to the Court.

58.  The Government submitted that the claim should be rejected as submitted out of time.

59.  The Court notes that, contrary to the Government’s submissions, the applicant’s claim in respect of non-pecuniary damage was submitted within the prescribed time-limit. The Court further notes that it has found violations of both substantive and procedural aspects of Article 2 of the Convention. The Court accepts that the applicant has suffered non‑pecuniary damage which cannot be compensated for solely by the findings of violations, and awards him 80,000 euros (EUR) under this head, plus any tax that may be chargeable to him on that amount.

A.     Costs and expenses

60.  The applicant was represented by lawyers from EHRAC/Memorial Human Rights Centre, an NGO with offices in the United Kingdom and Russia. He submitted a breakdown of the relevant costs incurred in London, which included 310 pounds sterling (GBP) for overall administrative expenses and GBP 1,892 for translation costs. The aggregate claim in respect of costs and expenses related to legal representation amounted to GBP 2,202. The applicant asked for any payment in respect of costs and expenses to be paid into the representative’s account in the United Kingdom.

61.  The Government submitted that the applicant’s claim should be rejected as unsubstantiated.

62.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads, together with any tax that may be chargeable to the applicant. The award is to be paid directly into the bank account of the applicant’s representative in the United Kingdom, as identified by the applicant.

B.     Default interest

63.  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 complaints concerning Article 2 of the Convention admissible;

2.      Holds that there has been a violation of Article 2 of the Convention under its procedural head;

3.      Holds there has been a violation of Article 2 of the Convention under its substantive head;

4.      Holds

(a)   that the respondent State is to pay, 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 80,000 (eighty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be paid to the applicant;

(ii)       EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid to the applicant’s representative;

(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;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 24 March 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                 Alena Poláčková
Deputy Registrar                                                                       President