Last Updated on January 30, 2024 by LawEuro
European Court of Human Rights (34358/16 and 58535/16)
The respondent Government chose not to participate in the proceedings and not to submit any documents or arguments in their defence. Accordingly, the Court will need to examine the application on the basis of the applicants’ submissions, which will be presumed to be accurate where supported by evidence as long as other evidence available in the case file does not lead to a different conclusion. The Court may draw such inferences as it deems appropriate from a party’s failure or refusal to participate effectively in the proceedings.
The European Court of Human Rights observes at the outset that the official investigation into Mr Akhmednabiyev’s murder was opened on 9 July 2013 and, according to the material in the Court’s possession, was still pending before the investigating authorities on 23 June 2022, that is, on the date of the submission of the first applicant’s observations. The investigation has therefore already lasted more than nine years. The Court reiterates that the excessive length of proceedings is a strong indication that the proceedings are defective to the point of constituting a violation of the respondent State’s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify the length of the proceedings. The Court observes that no such reasons have been provided by the respondent Government in the present case.
The Court notes that between 9 April 2014 and 27 November 2015 the investigation was suspended five times, some suspensions being decided even before the authorities had obtained the results of the measures requested in the investigation. Several such measures were not taken promptly because of a lack of cooperation between the investigating authorities and the local police department, which failed to take the investigative steps identified by the investigator. The Court notes in particular that the expert ballistics report was obtained only on 12 December 2014, that is, approximately six months after Mr Akhmednabiyev’s murder.
As to the thoroughness of the investigation, the Court finds it striking that after several indications that Mr I.M. could be implicated in the commissioning of Mr Akhmedanbiyev’s murder, the investigating authorities nevertheless suspended the investigation without taking any steps to verify that information.
The Court lastly notes that the first applicant was not regularly informed of the progress of the investigation, despite his attempts to obtain such information.
The Court therefore concludes that the investigation into Mr Akhmednabiyev’s murder was not effective.
The investigation into Mr Kamalov’s murder was opened on 16 December 2011 and appears to have been completed in September 2020, when four individuals were charged and were subsequently committed to stand trial in the South Circuit Military Court. The investigation thus lasted almost nine years. As mentioned in paragraph 89 above, such length is in itself indicative that the proceedings did not comply with the “reasonable expedition” requirement. The Court reiterates that the Government did not provide any justification for the considerable length of the investigation.
The Court further notes that the second applicant had no access to the investigation file because at the time Article 42 § 8 of the CCrP limited the procedural status of victim in a murder investigation to close relatives of the deceased person only. Although that provision was amended in 2013 to broaden the list of persons who could be recognised as victims, it appears that members of the new categories of relatives were granted victim status only if close relatives did not exist or were unable to participate in the criminal proceedings. Mr Kamalov’s brother had already been granted victim status in the investigation so the second applicant, being Mr Kamalov’s uncle and thus not a “close relative”, continued to be denied any access to the investigation file. This was confirmed by letters of 9 December 2014 and 13 July 2016.
The Court has difficulty in assessing the thoroughness of the investigation since, on the one hand, the Government have not submitted either observations or copies of the investigation file and, on the other hand, the second applicant had no official access to that material either. It follows from the limited material in the Court’s possession that the investigating authorities had already obtained information about Mr Sh. I.’s implication in Mr Kamalov’s murder by January 2013, when Mr Mu.Sh. confessed to it. However, the investigation was discontinued several months later because it was impossible to establish the whereabouts of the other suspects, even though five days before the discontinuation the search had still been ongoing.
The Court notes that there is also no information about the measures taken by the investigating authorities between June 2014, when Mr M.Kh. was arrested, and September 2020, when the investigation was completed. The Government have not provided any convincing and plausible reasons to justify this delay, which amounted to more than six years. The Court therefore considers that the length of the investigation was such that it did not meet the requirements of promptness and reasonable expedition inherent in the procedural obligation under Article 2 of the Convention.
In the light of the material in its possession, and in particular taking into account the lack of any opportunity for the second applicant to participate in the investigation, which was unjustifiably protracted, and despite the ultimate conviction of four persons for Mr Kamalov’s murder, the Court concludes that the investigation into Mr Kamalov’s murder was not in compliance with the Article 2 requirements.
There has accordingly been a violation of Article 2 of the Convention in its procedural limb in respect of the first and second applicants.
The Court refers to the general principles established in its case-law and set out in Osman v. the United Kingdom, and Kurt v. Austria. It reiterates the following in particular:
“[F]or this positive obligation to arise, it must be established that the authorities knew or ought to have known at the relevant time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk … [I]n this context, the assessment of the nature and level of risk constitutes an integral part of the duty to take preventive operational measures where the presence of a risk so requires. Thus, an examination of the State’s compliance with this duty under Article 2 must comprise an analysis of both the adequacy of the assessment of risk conducted by the domestic authorities and, where a relevant risk triggering the duty to act was or ought to have been identified, the adequacy of the preventive measures taken.”
The Court notes that on 3 September 2009 Mr Akhmednabiyev, among other independent journalists, human rights defenders and lawyers, was publicly targeted by death threats in printed leaflets distributed in Makhachkala. When questioned as a victim in the framework of the investigation into those threats, he stated that he was afraid for his life. The domestic authorities were therefore informed about the threats to Mr Akhmednabiyev’s life.
The question arises as to whether the domestic authorities conducted an assessment of those threats with a view to establishing whether they constituted a “real and immediate” risk to Mr Akhmednabiyev’s life. In the absence of information about the steps taken in the framework of criminal case no. 96892, which was opened on 23 October 2009, the Court is unable to establish that any such assessment took place.
In any event, the Court considers that after the attack on Mr Akhmednabiyev on 12 January 2013, there could be no doubt as to the existence of a “real and immediate” risk to his life even if there was nothing to show that the attack was carried out by the same persons who had been behind the threats of 3 September 2009. Despite the obviously life‑threatening character of the attack, the investigating authorities did not proceed with a risk assessment and, moreover, obstinately refused to investigate the attack as life-threatening, notwithstanding the court decisions and the prosecutor’s express instructions to that effect. It is worth noting that during his questioning as a victim after the failed attack of 12 January 2013, Mr Akhmednabiyev pointed to Mr I.M. as a possible source of the threat. However, the investigating authorities failed to effectively question Mr I.M. in this regard. These drawbacks undermined any deterrent effect that the official investigation might have had on the possible perpetrators.
In view of the above, the Court considers that from 12 January 2013 at the latest the domestic authorities were under an obligation to take preventive operational measures to protect Mr Akhmednabiyev’s life. The Court notes that the Federal Law no. 119-FZ of 20 August 2004 provides for various measures that can be implemented to protect a victim in a criminal case. Those measures can be taken not only at the request of the person concerned but also on the initiative of the relevant authorities with the written consent of that person.
Although Mr Akhmednabiyev was recognised as a victim in criminal case no. 96892, the investigating authorities did not consider the possibility of putting measures in place to protect him and, consequently, no such measures were taken.
Such a situation creates an impression of tolerance by the law‑enforcement authorities of serious unlawful acts and therefore undermines public confidence in the principle of lawfulness and the State’s maintenance of the rule of law. In this connection, the Court considers that Mr Akhmednabiyev’s status as a journalist created an additional obligation on the domestic authorities to take all measures necessary to guarantee his protection, in line with the standards and recommendations on the safety of journalists developed by the Council of Europe and the United Nations.
While the Court cannot conclude with certainty that matters would have turned out differently or that the killing would not have occurred if the authorities had acted otherwise, it reiterates that a failure to take reasonable measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State. The Court notes that, as indicated in the decision of 25 February 2014, there were reasons to believe that the attack of 12 January 2013 and the murder of 9 July 2013 were carried out by the same persons. Thus, should protective measures and an effective and prompt investigation have been taken after 12 January 2013, there would have been a real prospect that the risk to Mr Akhmednabiyev’s life could have been averted.
In the light of the above considerations, the Court concludes that the State has failed to comply with its positive obligation to take appropriate steps to safeguard the life of the first applicant’s father.
The Court notes that Mr Kamalov was also targeted with death threats in the leaflets distributed on 3 September 2009. There is no information as to whether the investigating authorities tried to question him in the framework of criminal case no. 96892. There is no evidence that the domestic authorities made any assessment of the threats with a view to establishing whether they constituted a “real and immediate” risk to Mr Kamalov’s life.
While some risk to Mr Kamalov’s life could have been said to exist in 2009, the Court does not have sufficient information to conclude that it was “real and immediate” shortly after the leaflets were distributed. There is nothing in the case file indicating that that risk persisted throughout the two years and three months that passed between the distribution of the leaflets on 3 September 2009 and Mr Kamalov’s murder on 15 December 2011. There is no evidence either that before Mr Kamalov’s murder any new risk arose which was clearly “real and immediate”, as in Mr Akhmednabiyev’s case.
The Court therefore considers that, in the circumstances of the case, there has been no violation of the State’s positive obligation under Article 2 of the Convention in respect of the second applicant’s nephew.
There has accordingly been a violation of Article 2 of the Convention in its substantive limb in respect of Mr Akhmednabiyev and no such violation in respect of Mr Kamalov.
CASE OF MUKHTARKULYYEV AND OTHERS v. UKRAINE (European Court of Human Rights) 34358/16 and 58535/16. Full text of the document.
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