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case of Bopkhoyeva v/s Russia

    Application No. 25414 of 14

    Decided On, 20 February 2018

    At, European Court of Human Rights

    By, THE HONOURABLE MR. PRESIDENT BRANKO LUBARDA
    By, THE HONOURABLE MR. JUSTICE PERE PASTOR VILANOVA & THE HONOURABLE MR. JUSTICE GEORGIOS A. SERGHIDES

    For the Appearing Parties: -----------------



Judgment Text

PROCEDURE

1. The case originated in an application (no. 25414/14) 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 Zaira Isayevna Bopkhoyeva ("the applicant"), on 24 March 2014.

2. The applicant, who is disabled and has been in a coma since 2010, was represented by her mother, Ms Khava Dzhamaldinovna Bopkhoyeva. Ms Kh. Bopkhoyeva was represented by Stichting Russian Justice Initiative and Astreya Legal Assistance Organisation, NGO's based in Utrecht and Moscow respectively. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, former 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 23 January 2015 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1990 and lives in Galashki, Ingushetia Republic.

A. The applicant's marriage and deterioration of health

5. On 11 December 2009 the applicant was abducted by S. with intent to marry her. The applicant's mother opposed the marriage and on the same day S.'s relatives took the applicant back to her mother's house.

6. On 12 December 2009 the relatives of the applicant's deceased father made the applicant go back to S.'s, because of the presumed consummation of the marriage. They also threatened to kill S., should the applicant decide to leave him.

7. The applicant had to live with S.'s family as his wife. The marriage w

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as not officially registered. She was kept locked in a room without being able to communicate with people outside S.'s family. S. moved to a different town. On rare occasions S.'s sister let the applicant use her mobile phone so that she could call her mother. She complained that S.'s family, especially her mother-in-law, treated her poorly. She did not feel well and complained about dizziness, numbing of the lower jaw and difficulty to breathe. According to the applicant's mother, the applicant told her once that her mother-in-law did not let her see S. and claimed that the applicant would not last living with them longer than two months. On several occasions the applicant lost consciousness and foamed at the mouth.

8. On 28 December 2009 the applicant was taken to a municipal hospital. The doctor diagnosed her with renal colic.

9. On 29 December 2009 during another visit to hospital the applicant was diagnosed with poisoning by unknown substance.

10. On 1 February 2010 the applicant foamed at the mouth again and was taken to hospital. She was released on the same day.

11. On 2 February 2010 the applicant lost consciousness and was taken to hospital. A general practitioner and a neuropathologist examined her. She was diagnosed with stress and overdose of sedatives and placed in an intensive care unit. Subsequently she was diagnosed with post-hypoxic encephalopathy and vegetative state. She has not regained consciousness since then.

12. In April 2010 the applicant was released to her mother's care.

B. Investigation into allegations of a crime

13. On 23 September 2010 the applicant's mother complained to the local police department and prosecutor's office that the applicant had been forcefully held by S.'s family in inhuman conditions which led to deterioration of her health and coma.

14. On 10 October 2010 the investigator refused to institute criminal proceedings against S.'s family on the charges of incitement of suicide and causing damage to health.

15. On 24 October 2011 the applicant's mother lodged another complaint with the local police department alleging that the applicant had been poisoned while staying at S.'s house. She also stated that the applicant had been repeatedly beaten up and deprived of her liberty.

16. According to the forensic medical report completed on 8 November 2011, a vegetative state, similar to the applicant's, could be caused primarily by intoxication. The expert, however, was unable to determine the cause of the applicant's condition.

17. On 24 November 2011 the investigator refused to institute criminal proceedings against S.'s family. The applicant appealed.

18. On 29 July 2012 the supervising prosecutor quashed the decision of 24 November 2011 and ordered further inquiry into the matter.

19. On 3 August 2012 the investigator refused to institute criminal proceedings on the charges of attempted murder.

20. On 1 October 2012 the investigator refused to institute criminal proceedings on the charges of causing serious damage to health. The applicant appealed.

21. On 26 July 2013 the Sunzhenskiy District Court of the Ingushetiya Republic quashed the decision of 1 October 2012. The court noted that the inquiry had been incomplete. The investigator had failed (1) to question a number of important witnesses and (2) to determine the cause of the applicant's condition.

22. On 26 September 2013 the investigator refused to institute criminal proceedings reiterating verbatim his reasoning set out in the decision of 1 October 2013.

23. On 15 January, 14 March and 21 May 2014 the deputy head of the district police department ordered a new inquiry noting that the previous inquiry had been incomplete.

24. On 18 January and 18 March 2014 the investigator refused to open a criminal investigation reproducing verbatim the earlier decisions of 1 October 2012 and 26 September 2013.

25. On 21 May 2014 the investigator again refused to open a criminal investigation. In addition to his earlier findings, he studied the applicant's medical case-file and concluded that it did not contain information accounting for the cause of her medical condition.

26. On 28 February 2015 the district deputy prosecutor quashed the decision of 21 May 2014 and ordered a further inquiry.

27. The case-file materials submitted by the Government contain two decisions dated 6 March 2015. The first decision was taken by the investigator who refused to institute a criminal investigation in the applicant's case. The second decision was taken by the district deputy prosecutor who ordered a new inquiry. The Government did not inform of the outcome of the proceedings.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

28. The applicant complained under Articles 2, 3 and 8 of the Convention that the inquiry into the circumstances leading to the serious deterioration of her health was not effective. Regard being had to the seriousness of the applicant's condition and the damage to her health, the Court will examine her grievances from the standpoint of Article 2 of the Convention (see, Krivova v. Ukraine, no. 25732/05, 45, 9 November 2010), which, is so far as relevant, reads as follows:

"1. Everyone's right to life shall be protected by law."

A. Admissibility

29. The Government submitted that the complaint should be dismissed for the applicant's failure to comply with the six months' rule. The events complained of by the applicant had occurred in 2009. It had taken the applicant more than four years to introduce her application before the Court. In any event, in the Government's opinion, the latest judicial decision dismissing the applicant's complaint had been taken on 26 July 2013 while the applicant had brought her grievances to the attention of the Court only on 24 March 2014.

30. The applicant submitted that she had complied with the admissibility requirements set out in the Convention by lodging the application on 24 March 2014. The District Court's decision of 26 July 2013 had not been the final decision in her case. On 26 July 2013 the District Court had quashed the investigating authorities' refusal to open a criminal investigation into the applicant's allegations of ill-treatment and had ordered a new inquiry. Only after the investigator had dismissed the applicant's complaint yet again on 26 September 2013, had it become apparent that the inquiry at the national level made little progress and would not lead to bringing to justice those responsible. The application had been introduced within six months after that date.

31. Having examined the materials submitted by the parties, the Court does not discern any delay on the applicant's part as regards the bringing of her grievances to the attention of the domestic authorities or the Court. The complaints to the domestic authorities were lodged within one year following the events in question. Furthermore the Court notes that the latest decision on the matter was taken by the investigator on 6 March 2015. In the absence of the objection on the Government's part as regards the exhaustion of domestic remedies, the Court considers that, by introducing the application on 24 March 2014, the applicant has complied with the six-month rule, and the complaint cannot be rejected pursuant to Article 35 4 of the Convention. The Court further notes that the 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.

B. Merits

32. The Government acknowledged that there had been a violation of Article 2 of the Convention in the applicant's case. The inquiry in response to the complaint about the alleged ill-treatment of the applicant by the S. family had not been comprehensive. The investigating authorities had repeatedly dismissed the complaint without remedying deficiencies in the inquiry.

33. The applicant maintained her complaint.

34. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of force by agents of the State but also lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction. This positive obligation entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (see, for example, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, 54, ECHR 2004-�XII). While there is no absolute obligation under Article 2 of the Convention for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished (see, among other authorities, neryıldız v. Turkey [GC], no. 48939/99, 96, ECHR 2004-XII). The main purposes of imposing criminal sanctions are retribution as a form of justice for victims and general deterrence aimed at prevention of new violations and upholding the rule of law. However, neither of these aims can be obtained without alleged perpetrators being brought to justice. Failure by the authorities to pursue the prosecution of the most probable direct perpetrators undermines the effectiveness of the criminal-law mechanism aimed at prevention, suppression and punishment of unlawful killings. Compliance with the State's procedural obligations under Article 2 requires the domestic legal system to demonstrate its capacity and willingness to enforce criminal law against those who have unlawfully taken the life of another (see Jelić v. Croatia, no. 57856/11, 90, 12 June 2014).

35. Turning to the circumstances of the present case, the Court observes, that the inquiry into the applicant's allegations of ill-treatment by the S. family, which has been pending since September 2010, did not result in the opening of a criminal case.

36. The Court further notes that the Government have acknowledged that the authorities' failure to conduct an effective investigation into the applicant's allegations of ill-treatment amounted to a violation of Article 2 of the Convention.

37. Having regard to its established case-law on the issue and the circumstances of the present case, the Court does not see any reason to hold otherwise. It concludes that the national authorities' failed to discharge their duty to carry out an effective investigation in response to the applicant's complaint as required by Article 2 of the Convention. There has been accordingly a violation of that provision under its procedural limb.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

38. The applicant complained that she had not had an effective remedy in respect of her complaint under Article 2 of the Convention. 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."

39. The Government contested that argument. They submitted that it had been open to the applicant to bring her grievances to the attention of the national courts.

40. The applicant maintained her complaint.

41. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

42. Having regard to the finding relating to Article 2 (see paragraph 37 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 13 (see, among other authorities, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, 123, ECHR 2005-�VII).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

43. 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."

A. Damage

44. The applicant claimed compensation in respect of pecuniary and non-pecuniary damage, leaving the amount of the award to the Court's discretion.

45. The Government left the issue to the Court's discretion.

46. 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 20,000 euros (EUR) in respect of non-pecuniary damage.

B. Costs and expenses

47. The applicant claimed the following costs and expenses: (1) EUR 5,150 for 33 hours of work performed by several lawyers; (2) EUR 360 for office expenses; and (3) 5,135.83 Russian roubles (RUB) for postal expenses. She asked that the award should be paid directly to Stichting Russian Justice Initiative's bank account.

48. The Government left the issue to the Court's discretion.

49. 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. 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, to be paid into Stichting Russian Justice Initiative's bank account as indicated by the representative organisation.

C. Default interest

50. 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 a violation of Article 2 of the Convention under its procedural limb;

3. Holds that there is no need to examine the complaint under Article 13 of the Convention;

4. Holds

(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 20,000 (twenty 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, to be paid into Stichting Russian Justice Initiative's bank account;

(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 20 February 2018, pursuant to Rule 77 2 and 3 of the Rules of Court.

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