Last Updated on March 22, 2022 by LawEuro
On 9 July 2001 at around 4.30 a.m. officer N. attempted to arrest the applicant’s son and his friend, both young people apparently had been involved in a street fight earlier that morning. They tried to escape. N. drew his service gun and, after making a warning shot, fired at the pair, severely wounding both of them. On 18 July 2001 the applicant’s son died in a hospital as a result of the wounds. Although it was established that N. had acted in excess of the measures needed for an arrest, criminal proceedings against him were eventually terminated as time barred. In total, they lasted approximately seven years.
THIRD SECTION
CASE OF SHUMILINA v. RUSSIA
(Application no. 32128/08)
JUDGMENT
STRASBOURG
22 March 2022
This judgment is final but it may be subject to editorial revision.
In the case of Shumilina v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Peeter Roosma,
Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 32128/08) 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”) a Russian national, Ms Natalya Ivanovna Shumilina, as indicated in the Appendix;
the decision to give notice of the complaints concerning the authorities’ failure to comply with their positive obligations under Article 2 of the Convention, the excessive length of criminal proceedings against the perpetrator and the quashing of a final judgment in the applicant’s favour to the Russian Government (“the Government”), represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights and then by his successor in that position, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 1 March 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. On 9 July 2001 at around 4.30 a.m. officer N. attempted to arrest the applicant’s son and his friend, both young people apparently had been involved in a street fight earlier that morning. They tried to escape. N. drew his service gun and, after making a warning shot, fired at the pair, severely wounding both of them. On 18 July 2001 the applicant’s son died in a hospital as a result of the wounds.
2. Although it was established that N. had acted in excess of the measures needed for an arrest, criminal proceedings against him were eventually terminated as time barred. In total, they lasted approximately seven years (for more details see the Appendix).
THE COURT’S ASSESSMENT
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
3. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
4. It is clear from the findings of the domestic courts, and was not disputed by the Government in their observations, that the force used by N. for effecting the arrest was not “absolutely necessary” within the meaning of the Court’s case-law, and thus in breach of Article 2 of the Convention (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, §§ 68‑69, 20 December 2007).
5. The Court further reiterates that the requirements of Article 2 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. While there is no absolute obligation 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. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §§ 238-39, 30 March 2016).
6. In the present case, it cannot be said that the proceedings against N., viewed as a gauge of the authorities’ determination to prosecute those responsible for the death of the applicant’s son, satisfied the requirement of promptness. The Court cannot but agree with the Government’s admission that the investigation and subsequent trial were excessively long. It took over three years for this relatively straightforward case to reach the trial stage and then, due to procedural shortcomings, another two years to reach the trial stage again. These delays were entirely attributable to the authorities and have resulted in the decision to discontinue the proceedings as time‑barred. Such attitude on behalf of the authorities cannot be seen as compatible with their positive obligation under Article 2 of the Convention. Despite the substantial deference which the Court normally grants to the national courts in the choice of appropriate sanctions for ill‑treatment and homicide by State agents, it cannot overlook the fact that the problems in the criminal proceedings were to a large extent attributable to the prosecution’s mistakes in characterising N.’s conduct under the domestic criminal law. The resulting confusion, coupled with the above-mentioned delays, had a clear adverse effect on the authorities’ capacity to prosecute N. (see, mutatis mutandis, Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, § 144, 24 May 2011).
7. There has accordingly been a violation of both aspects of Article 2 of the Convention.
II. OTHER COMPLAINTS
8. The applicant also complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the proceedings against the perpetrator were excessively lengthy and the judgment in her favour had been quashed in breach of the principle of legal certainty. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present application. It thus considers that the applicant’s remaining complaints are admissible but that there is no need to give a separate ruling on them (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
9. The applicant claimed 200,000 euros (EUR) in respect of non‑pecuniary damage and 31,287.70 Russian roubles (RUB) (EUR 356) in respect of funerary expenses for her son as pecuniary damage. She also claimed RUB 121,226 (EUR 1,380) for the costs and expenses incurred before the domestic courts and before the Court
10. The Government considered these claims excessive.
11. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sums indicated in the appended table and it rejects any additional claims for just satisfaction raised by the applicant.
12. The Court further 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 the authorities’ failure to comply with their positive obligations under Article 2 of the Convention, the excessive length of criminal proceedings against the perpetrator and the quashing of a final judgment in the applicant’s favour admissible;
2. Holds that there has been a violation of both substantive and procedural aspects of Article 2 of the Convention;
3. Holds that there is no need to examine the remaining complaints;
4. Holds
(a) that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable on the above amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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 22 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Darian Pavli
Deputy Registrar President
__________
APPENDIX
| Application no. Case name Introduction date |
Applicant’s name Year of birth Place of residence NationalityRepresentative’s name Location |
Procedure | First round of criminal proceedings | Second round of criminal proceedings | Amount awarded for all heads of damage Amount awarded for costs and expenses |
| 32128/08 Shumilina v. Russia 16/06/2008 |
Natalya Ivanovna SHUMILINA 1953 St Petersbourg RussianAnna MARALYAN Strasbourg |
Partial decision | Moskovskiy District Court of St Petersburg 22/10/2004 found officer N. guilty of abuse of authority and homicide committed in excess of the measures needed for an arrest and ordered to pay the applicant non‑pecuniary damages St Petersburg City Court 15/03/2005 quashed the conviction on appeal on account of the unlawful composition of the first-instance court and sent the case for examination anew |
Moskovskiy District Court of St Petersburg 04/10/2007 found officer N. guilty of abuse of authority (homicide charges dropped in‑between as time-barred by the investigation), sentenced him to 4-years’ imprisonment and ordered to pay the applicant damages St Petersburg City Court 05/02/2008 upheld the conviction Presidium of the St Petersburg City Court 15/10/2008 quashed the previous judgments on account of misapplication of material law and terminated the proceedings as time‑barred |
EUR 60,000 EUR 1,380 |
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