Last Updated on April 29, 2019 by LawEuro
THIRD SECTION
CASE OF TAZIYEVA AND OTHERS v. RUSSIA
(Application no. 32394/11)
JUDGMENT
STRASBOURG
9 April 2019
This judgment is final but it may be subject to editorial revision.
In the case of Taziyeva and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 19 March 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 32394/11) 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 eight Russian nationals on 20 May 2011 (see appendix).
2. The applicants, who had been granted legal aid, were represented by Ms K.A. Moskalenko and Ms O.V. Druzhkova, lawyers from the Centre of Assistance to International Protection, Strasbourg, France. 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. The applicants alleged, in particular, that on 3 March 2011 their house had been unlawfully searched and their property and the house destroyed as a result of an explosion set up by State servicemen, in breach of Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.
4. On 27 September 2011 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants are eight Russian nationals whose particulars are listed in the appendix.
A. Background information
6. The applicants were living together at 35, Yuzhnaya Street, Nasyr‑Kort, Nazran, Ingushetia, Russia. They are related (three adult siblings: two brothers and a sister; and the wife and three minor children of one brother).
1. Connection with Mr Ali T.
7. The three applicants-siblings have another brother, Mr Ali T., known as “Magas”. Since the 1990s Mr Ali T. has been suspected of participating in, and then leading, illegal armed groups operating in Ingushetia and masterminding a number of crimes and terrorist attacks. In July 2001 he was pronounced dead by the Nazran District Court; however, that information was later refuted and attributed to his use of false identity documents. On 26 November 2004 the Nazran District Court revoked the pronouncement in view of new information.
8. Mr Ali T. was arrested in Ingushetia in June 2010. The criminal investigation into his activities continued until December 2012. In February 2014 the Russian Supreme Court, in a final judgment, found him guilty of a number of terrorism-related crimes, entailing dozens of victims among civilians and security personnel. He was sentenced to life imprisonment.
9. The applicants submitted that they had had no direct contact with Mr Ali T. since 1998. The Government explained, in additional observations of 18 April 2012, that there were a number of pieces of evidence indicating that between 2004 and June 2010 Mr Ali T. had been in regular contact with his relatives in Nasyr-Kort. That evidence included witness statements collected by the criminal investigation between the end of 2010 and early 2011, including those of Mr Ali T. himself, his wife and other persons. According to the evidence, his wife had resided at the said address since 2004, a fact which the relatives must have been aware of. No copies of the documents in question have been provided by the Government.
10. The Government provided a copy of a certificate issued by the Nasyr-Kort administration on 6 July 2010 to the effect that Mr Ali T. had at the material time been registered as resident at 35, Yuzhnaya Street, Nasyr‑Kort, together with the applicants and other members of the extended family. The document did not list the third applicant among the residents at that address. The Government explained that in March 2011 the third applicant’s place of residence was recorded as 4, Zapadnaya Street, Nasyr-Kort.
2. The Court’s judgment in case no. 50757/06
11. On 18 July 2013 the Court rendered a judgment in case no. 50757/06, Taziyeva and Others v. Russia. It was lodged by nine applicants, including two of the applicants in the present case, Mr Askhab Taziyev (the fourth applicant in the present case) and Ms Zareta Taziyeva (the third applicant). The Court found a violation of Article 8 of the Convention on account of the fact that a search had been carried out without a warrant at the applicants’ house in Nasyr-Kort. The search had been carried out in December 2005 as part of a counter-terrorist operation aimed at apprehending Mr Ali T., and the authorities had relied on the Suppression of Terrorism Act as the only legal basis. In respect of the complaint under Article 1 of Protocol No. 1, the Court found that the applicants had failed to substantiate their complaint in this respect and dismissed it as manifestly ill-founded.
B. Events of 3 March 2011
1. Authorisation of the search at the applicants’ house
12. On 21 February 2011 a senior investigator requested authorisation to search the house at 35, Yuzhnaya Street, Nasyr‑Kort. He substantiated his request by reference to the ongoing investigation in case no. 171822 against the leaders and members of “Imarat Kavkaz” (declared a terrorist organisation by the Supreme Court in February 2008), and the possibility that documents and items relevant for the investigation, including weapons, ammunition and explosives, might be stored there.
13. On 22 February 2011 the Lefortovskiy District Court of Moscow granted the request, pursuant to Articles 165 and 182 of the Code of Criminal Procedure (“CCrP”). The reasoning and operative part of the decision read as follows:
“It follows from the documents submitted [number and dates] that … [T.] Ali M., who stands accused of committing crimes under Articles 208 § 1, 279, and 222 § 3 of the Criminal Code [leadership of an armed gang, organisation of an armed revolt and unlawful handling of arms and ammunition], is one of the leaders of illegal armed group “Imarat Kavkaz” … At his address of registration there may be objects and documents relevant for the ongoing investigation (including firearms, ammunition, explosives and explosive devices), as well as other objects and substances which are banned from free circulation …
The investigation of this criminal case is particularly complex. It is an exceptional case because it involves criminal activity of a large number of accused who have not yet been arrested, it continues to be carried out in conditions of strict secrecy on the territory of several regions of the Russian Federation and foreign states, and it relates to involvement in criminal activity organised by Umarov D.H. It involves a large number of people. Therefore, there are sufficient grounds to believe that at the address where A.M.[T.] is registered there may be objects and documents relevant for the ongoing investigation. …
The court, having examined the submitted documents and heard the opinions of the senior prosecutor and the senior investigator, authorises the search of the registered address of A.M.[T.], being satisfied that for the purposes of the investigation there is enough information to believe that there may be objects and documents relevant to the ongoing investigation (including firearms, ammunition, explosives and explosive devices), as well as other objects and substances which are banned from free circulation on the territory of the Russian Federation.
…
DECIDES:
To grant the request of the senior special-case investigator [name] to carry out the search on the premises in relation to case no. 171872 and to allow the search at the place of registration of [T.] Ali M at [the address].
The decision may be appealed against to the Moscow City Court within ten days.”
2. Search and explosion at the applicants’ house
14. On 3 March 2011 servicemen arrived at Nasyr-Kort and surrounded the area around the applicants’ home. They used an armoured personnel carrier, several minibuses and a car. They entered the courtyard and searched the house and surrounding premises.
15. At 2 p.m. on 3 March 2011 the third applicant signed the search warrant.
16. The second and third applicants were ordered into a minibus, where they were questioned about their brother, Mr Ali T. Other applicants, their neighbours and vehicles were moved a safe distance from the house. Soon afterwards, there was an explosion.
17. The applicants’ home consisted of two dwellings: a newly finished house with a basement and garage, which was destroyed by the explosion, along with two cars parked in the courtyard; and a second house, which was damaged and rendered unfit for habitation. There were also two “technical” buildings – a garage and an old house used for storage; the latter remained intact but the applicants alleged that all valuables had gone.
18. At 3.35 p.m. a senior investigator from the Federal Security Service of Russia (“the FSB”) drew up a search report. It stated that during the search, in the basement of the dwelling situated to the right of the entrance, an improvised explosive device (“IED”) had been discovered consisting of a 125 mm artillery shell and a detonator wrapped in black cellophane tape, connected with wires. For security reasons, all persons present at the site and neighbours had been taken a safe distance from the house. The explosives experts had attempted to deactivate the device using a hydro detonator (water cannon). The deactivation had failed and the IED had exploded, causing destruction of the dwelling. Several identity documents and photographs had been collected among the debris. The report was signed by two attesting witnesses, and each page contained an indication that the third applicant had refused to sign it.
19. Later on 3 March 2011, the site and the debris were inspected by an investigator from the Nazran Interior Department and a report was drawn up. The report ran to six pages and was complete with a plan of the premises; photographs were also taken. The report stated that both dwellings located in the courtyard had been damaged: the window panes and doors were broken, the roofs and the walls were damaged. The third building, a technical shed, had been completely destroyed. Two cars located in the courtyard had also been destroyed and covered with broken bricks. The investigators had collected swabs from the site. The report was co-signed by the investigator, an explosives expert and two attesting witnesses.
20. The following day the local police reported the explosion at the applicants’ house to the media. The press release stated that FSB servicemen had located two IEDs in the basement and had called in experts. The experts had been unable to deactivate the devices and had had to destroy them with controlled blasts; as a result, the dwellings had been damaged but there were no casualties.
3. The applicants’ version of the events
21. The applicants submitted that the search of 3 March 2011 had been conducted without any authorising documents or attesting witnesses, and that they had been subjected to threats and intimidation by the servicemen.
22. After the search, the superior officer had said on the radio that no explosives had been found in the yard. The second and third applicants had been ordered to proceed to one of the minibuses parked about 300 metres from the house and interrogated. They had been intimidated and forced to admit that they had been in contact with their brother and had received money from him. They had also been forced to sign several documents.
23. During the interrogation of the second and third applicants, the armed men had ordered the inhabitants of the neighbouring houses to move as far away as possible because the servicemen had been planning to blow up the house. The military vehicles had also been moved to a safe distance. Later, the applicants had witnessed an explosion. When they had returned to the house, they had seen only debris and realised that all their belongings had been destroyed (washing machine, gold items, tea sets and so on). In addition, two cars that had been parked in the courtyard had been damaged and their radios had been missing. The applicants submitted a video clip showing the state of their house and the courtyard after the explosion.
4. The Government’s version of the events
24. According to the Government, prior to the search, the third applicant had been presented with a warrant, as attested by her signature. The search had been conducted in the presence of an investigator, two attesting witnesses and the second and third applicants. The security forces had discovered improvised explosive devices in the basement of the applicants’ house and had therefore moved the applicants, as well as their neighbours, to a safe distance. A bomb-disposal expert had used a water cannon, but had failed to deactivate the device and it had exploded, causing the detonation of other explosives, which had not been found during the search. Those explosions had destroyed the dwellings. The second IED had not been recorded in the search record because the security forces had found only one explosive device; they had presumed that the first explosion had detonated the second device.
C. Official investigation
1. The criminal investigation
(a) The third applicant’s initial applications
25. On 3 March 2011 the third applicant was questioned by an investigator from Nazran police station, and a report was drawn up. She stated that earlier that day armed people had come to their house in several cars and an armed personnel carrier (“APC”). She and her relatives had been escorted to a vehicle, where she had been questioned. Later she had been shown a site inspection report and had been asked to sign it. She had noted something about an explosion. She had been stressed and under pressure to sign the papers. After the armed persons had left, the applicant and her family had discovered that their residence had been destroyed, the buildings having been blown up. She categorically denied that any IEDs had been stored in the house and suggested that the explosions had been set up by the servicemen.
26. The second applicant and three neighbours were also questioned by the Nazran police on 3 March 2011. The second applicant stated that the persons who had carried out the search had asked him to show them around. Together with him, they had first entered the house to the left of the entrance to the courtyard, then the two technical buildings, and finally the dwelling that was located to the right. Once the examination of the dwellings had been completed, the second and third applicants and Mr K., a neighbour who had been at their place, had been escorted to a minibus parked nearby. One of the officers had reported to someone over the radio that “everything was ok”. Inside the vehicle, the two applicants had been questioned about their brother, Ali T., who at the time had been under arrest. Then the second applicant had heard over the radio that an explosive device had been found in the basement and an explosives expert had been called in. In the afternoon he had seen that everyone had left the premises and an explosion had followed; about ten minutes later another explosion had occurred. Both dwellings had been destroyed. After the military had left, the applicants had returned to their home and found the two dwellings destroyed, while the “technical” building had been looted – many of their belongings had gone. The applicant suggested that the explosions had been set up by the military.
27. The applicants’ neighbours confirmed that the armed men who had carried out the search at the applicants’ house had asked them to leave their houses sometime after 2 p.m. The men had explained that a bomb had been found and there was a risk of explosion. The neighbours had complied; two explosions had occurred within about ten minutes. Later in the day the servicemen had left and the neighbours had been allowed to return to their houses.
28. On 4 March 2011 the third applicant lodged several complaints with different authorities, including the State prosecutor’s office and the head of the Nazran Interior Department. She complained of the unlawful search, of intimidation during the interrogation, and the theft and destruction of their property. Throughout the following month, she sent several letters to the authorities.
29. On 12 March 2012 Mr K., the applicants’ neighbour, issued an affidavit. He explained that on 3 March 2011 he had been at the applicants’ home. At about 11 a.m. a large group of armed people and an APC had arrived at the place and a search had been conducted. The witness had not seen any documents or attesting witnesses. He had been taken to a minibus parked nearby, but when the officers had found out that he was not a member of the family, he had been asked to leave. Several hours later all the neighbours had been evacuated from their houses and then two explosions had followed, within a space of ten minutes.
30. All the complaints were forwarded to and dealt with by the military investigation division, military unit no. 68799, located in the Republic of Ingushetia.
31. On 8 April 2011 a military investigator refused to open a criminal investigation. The third applicant was informed of that decision by letters of 8 and 18 April, and 5 May 2011, indicating a possibility to appeal.
32. The decision of 8 April 2011 was revoked by a military investigator’s decision on 27 October 2011. The third applicant was informed by a letter dated 27 October 2011 that the investigation had resumed. On 14 November 2011 the third applicant was informed that the investigation had been stayed on 2 November, indicating a possibility to appeal.
(b) The decision of 22 November 2011
33. On 22 November 2011 the military investigator refused to open an investigation into crimes committed under Articles 286 (exceeding official powers) and 158 (theft) of the Criminal Code. A five-page summary of the decision, forwarded to the third applicant on the same day, indicated that the following procedural measures had been taken: on 14 November 2011 a military investigator had questioned the bomb-disposal expert and the FSB investigator who had conducted the search of the premises. On 16 and 18 November 2011 he had questioned four other FSB officers who had taken part in the search, and on 17 November 2011 he had questioned two attesting witnesses. The third applicant had also been questioned.
34. The investigator noted that the third applicant had been presented with the search warrant prior to the search, and had counter-signed it. No pressure had been put on her or any other members of her family. At the beginning of the search, in the cellar of one of the buildings, the officers had discovered an IED made out of a 125 mm artillery shell. The third applicant had denied having any information about the IED. All those present had been taken to a safe distance and the bomb-disposal expert had tried to dismantle it; he had been unsuccessful and the device had exploded. It had caused the detonation of a second device, of which the officers had been unaware. Only one IED had been found and recorded in the site inspection report.
35. The bomb-disposal expert stated that he had taken part in the search and found an IED made out of a 125 mm artillery shell and a detonating device, wrapped up in black cellophane and connected to the IED with wire. The persons present had been evacuated, following which the IED had been detonated with the help of a hydro detonator. That had resulted in an explosion, the destruction of the building and a fire. About two minutes later another undiscovered IED had detonated, probably because of the fire.
36. The FSB officers confirmed their presence at the site on the day in question, the fact they had been informed about the discovery of the IED and the need to evacuate everyone to a safe distance.
37. Finally, the investigator referred to the search report and the site inspection report drawn up on the day in question.
38. The decision concluded as follows:
“Drawing on the above, the [third applicant’s] allegations about the unlawful search, use of violence, explosions, damage, destruction and theft of property have not been confirmed by the results of the inquiry.
It has been established that the search at the third applicant’s house was carried out by investigator F. on the basis of the decision of 22 February 2011 issued by the Lefortovskiy District Court of Moscow … on lawful grounds, with attesting witnesses, and without any breaches of the law. During the search the investigator and the explosives expert did not issue any threats, use violence, force [people] to give statements, or otherwise cause any harm to the third applicant.
Contrary to the applicant’s assertions, the circumstances did not reveal any fault in the actions of the investigator and the explosives expert. They acted lawfully, with the aim of eliminating danger to the life and health of all those present during the search and the residents of the nearby houses. … Noting well-established facts pointing at the commission by Mr Ali [T.] (“Magas”) of a number of terrorist acts with the use of explosive devices, the investigator took a well-grounded decision to carry out the search with the participation of an explosives expert, who had been instructed to examine the dwellings in order to find potential explosive devices and deactivate them, in order to ensure the safety of all those present.
The search report of 3 March 2011 indicated that the explosives expert had found an IED in the cellar of one of the dwellings. Having carefully examined the situation, and taking into account that the IED could have detonated at any moment, the investigator took a grounded decision to evacuate everyone to a safe distance. Under such circumstances, there was no time or possibility to take personal belongings out of the house. Once the evacuation was completed, the explosives expert attempted to deactivate the IED by special means. The attempt led to the IED’s detonation; the ensuing explosions destroyed the dwellings. No one was hurt, due to the security measures taken. …
Under such circumstances, the consequences of the detonation of the explosive device that had occurred while it was being deactivated, and the destruction of the dwellings and other possible damage to property, do not attest to unlawful actions on the part of the law-enforcement personnel, contrary to the applicant’s assertion. The applicant’s allegations have not been confirmed. …the applicant’s request to open a criminal investigation for abuse of official functions by the investigator and the explosives experts should be dismissed.”
39. The decision of 22 November 2011 was communicated to the third applicant on the same day. The applicants never appealed against it.
40. On 12 March 2012 the third applicant asked military investigation unit no. 68799 to send her copies of the decisions of the military investigator of 8 April, 27 October, 2 November and 11 November 2011. On 21 March 2012 the military investigator again forwarded the copies of the requested decisions to the third applicant. It does not appear that the applicants maintained any further contact with the investigation.
2. Appeal to the court
41. In the meantime, on 20 June 2011 the third applicant lodged a court action under Article 125 of the CCrP with the Magas District Court. She complained of a lack of investigation into her complaints of 4 March 2011 and that no decision had yet been made on that matter. She requested the court to assess the authorities’ failure to investigate the incident.
42. On 27 June 2011 the Magas District Court held a hearing. A representative of the State prosecutor’s office informed the court and the third applicant that her complaints had been forwarded to the military investigation division and that an investigation was still ongoing. The District Court dismissed the action in view of the ongoing investigation. The applicants did not appeal against that decision.
3. Information from the Government
43. In their additional observations of 18 April 2012 the Government explained, without providing copies of the relevant documents, that the criminal investigation against Mr Ali T. and other leaders of the terrorist organisation (file no. 171822) included the incident concerning storage of IEDs at the applicants’ address. At the time of submission of the observations, the criminal investigation was still ongoing, and the documents and witness statements collected within it could not be disclosed, in the interests of justice.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Searches in criminal proceedings
44. The relevant provisions of domestic law governing searches in criminal proceedings are set out in the case of Misan v. Russia (no. 4261/04, §§ 17-23, 2 October 2014).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
45. The applicants complained that the search carried out at their residence on 3 March 2011 had been unlawful and arbitrary, and in violation of their right to respect for private and family life and home. They relied on Article 8 of the Convention, which reads:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
46. The Government invited the Court to declare this part of the application manifestly ill-founded. They maintained that the search had been lawful. It had been ordered by a decision of the Moscow Lefortovskiy District Court of 22 February 2011, and had pursued the legitimate aim of searching for and seizing items relevant to the investigation. The third applicant had been duly informed of the search and its legal grounds, as confirmed by her signature.
47. The applicants insisted that the search had not been in line with the legal requirements and had been arbitrary.
48. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established.
B. Merits
49. It is not disputed by the parties that the search at the applicants’ home amounted to an interference with their rights under Article 8 of the Convention. It was authorised by the Moscow Lefortovskiy District Court on 22 February 2011 pursuant to the relevant provisions of domestic law. Its stated purpose was to discover and remove documents and items relevant to the investigation against Mr Ali T. and other leaders of “Imarat Kavkaz”, including weapons, ammunition and explosives, and other items banned from circulation (see paragraph 13 above). The Court agrees that the search pursued the legitimate aim of the prevention of disorder or crime (see, mutatis mutandis, Misan v. Russia, cited above, § 54, and Avanesyan v. Russia, no. 41152/06, § 41, 18 September 2014).
50. The Court reiterates that, as regards the question of whether the interference was “necessary in a democratic society”, the criteria it has taken into consideration in determining whether the proportionality requirement was met include, but are not limited to, the severity of the offence in connection with which the search was effected, the manner and circumstances in which the order was issued, in particular whether the warrant was based on a reasonable suspicion and whether its scope was reasonably limited. The Court must also review the manner in which the search was executed, having particular regard to the nature of the premises searched and the safeguards taken in order to confine the impact of the measure to reasonable bounds (see Avanesyan, cited above, § 42; Aleksanyan v. Russia, no. 46468/06, § 214, 22 December 2008; Iliya Stefanov v. Bulgaria, no. 65755/01, § 38, 22 May 2008; and Buck v. Germany, no. 41604/98, §§ 44‑45, ECHR 2005-IV).
51. The Court first remarks that due to the absence of additional information about the criminal case at the origin of the search, it is limited in its review. It can, nevertheless, examine whether the scope of the warrant had been properly delineated and whether the applicants’ interests had been sufficiently safeguarded. In that regard, the mere fact that an application for a warrant has been subject to initial judicial scrutiny will not in itself necessarily constitute a sufficient safeguard against abuse. The Court must rather examine the particular circumstances and evaluate whether the legal framework and the limits on the powers exercised provided adequate protection against arbitrary interference by the authorities (see Avanesyan, cited above, § 42; Gerashchenko v. Ukraine, no. 20602/05, § 130, 7 November 2013; and Iliya Stefanov, cited above, § 39). In this regard, the failure to delineate the scope of the search and the absence of safeguards that would confine the impact of the measure within reasonable bounds is a recurrent issue in the case-law against Russia and the decisive element for the finding of a violation of Article 8 (see Misan, cited above, § 61; Avanesyan, cited above, § 44; and Kolesnichenko v. Russia, no. 19856/04, § 33, 9 April 2009).
52. Turning to the present case, the Court observes that the search at the applicants’ home was carried out in connection with the criminal investigation involving the brother of three of the applicants, Mr Ali T. The judicial authorisation referred to the then ongoing criminal investigation in case no. 171822 and serious criminal offences of which the applicants’ relative was suspected, including leading an illegal armed group and handling of arms and ammunition. The applicants themselves were not suspected of any criminal offence, but the decision traced a link between Mr Ali T. and the applicants’ premises, in that he was registered as living at the address. That connection was sufficiently specific and based on reasonable grounds (see paragraph 10 above).
53. The Lefortovskiy District Court noted that the criminal case was complex since some of the suspects were at large and were continuing their criminal activities clandestinely. The Court is acutely conscious of the difficulties faced by modern States in the fight against terrorism and the dangers of hindsight analysis. The Russian authorities, in particular, have been confronted in the past decades with separatist movements in the North Caucasus – a major threat to national security and public safety (see Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, §§ 212-13, ECHR 2011 (extracts), and Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, § 481, ECHR 2017 (extracts)).
54. With this in mind, the Court notes that the prior judicial authorisation in question indicated that the purpose of the search was to find “objects and documents relevant to the ongoing investigation (including firearms, ammunition, explosives and explosive devices), as well as other objects and substances which are banned from free circulation on the territory of the Russian Federation” (see paragraph 13 above). The Court finds that in the context of the existence of a reasonable suspicion in terrorist offences against a person habitually residing at a given address, the relevant part of the court’s order was couched in terms that gave the investigators a clear indication of the objects and documents that would be directly relevant for the criminal investigation. In that respect, the scope of the warrant had been properly delineated. The Court reiterates that the specificity of the list of items susceptible to seizure in a search conducted by law-enforcement officers will vary from case to case, depending on the nature of the allegations in question. In terrorism-related offences, in particular, “to impose under Article 8 the requirement that a search warrant identify in detail the precise nature of the items sought and to be seized could seriously jeopardise the effectiveness of an investigation where numerous lives might be at stake. In cases of this nature, the police must be permitted some flexibility to assess, on the basis of what is encountered during the search, which items might be linked to terrorist activities and to seize them for further examination” (see Sher and Others v. the United Kingdom, no. 5201/11, § 174, ECHR 2015 (extracts)).
55. As to the safeguards against abuse, the Court observes that the applicants were not parties to the proceedings at the Moscow Lefortovskiy District Court on 22 February 2011. Nevertheless, it is not disputed by the parties that the third applicant had been presented with, and countersigned the search warrant on 3 March 2011. The applicants did not attempt to challenge the decision of 22 February 2011 after the search had taken place, nor did they point to any particular items that had been unjustifiably seized during the search (contrast with Misan, cited above, § 62).
56. The Court will address below the applicants’ allegations of alleged interference with their rights to property and home in the context of the conduct of the search. As regards their complaint about the alleged unlawful nature of the search, for the reasons outlined above, the Court concludes that there has been no violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
57. The applicants complained that their house and property had been plundered and intentionally destroyed during the search and that the second and third applicants had been intimidated during interrogation. They relied on Articles 3 and 8 and Article 1 of Protocol No. 1. These Articles read, in so far as relevant:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
…”
A. The parties’ arguments
58. The Government argued that the applicants had failed to exhaust the effective remedies available to them at domestic level. In particular, none of the procedural decisions taken by the military investigator had been challenged and the third applicant had not challenged the decision of the Magas District Court which dealt with her submission pursuant to Article 125 of the CCP.
59. The Government further contested the allegation that the house had been deliberately destroyed and put forward the argument of accidental explosion. They denied the allegations that the applicants’ property had been plundered. In relation to alleged ill-treatment during the interrogation, the Government submitted that the third applicant had never complained of any pressure, use of force or abuse by the FSB officials conducting the interrogation. Her complaints about deliberate destruction of property were not supported by any other evidence. They stressed that the statements collected from other participants in the events, including the second applicant and neighbours, gave no indication of either deliberate property destruction or use of coercion or pressure on any of the applicants. The inquiry carried out by the military prosecutor was complete and concluded that the allegations were unfounded. The applicants had failed to appeal against the findings of the investigation, and only the third applicant had pursued some remedies. The Government concluded that the applicants’ complaints were therefore manifestly ill‑founded.
60. The applicants submitted that they had exhausted domestic remedies. Despite their complaints, no meaningful investigation had been carried out. They also argued that the third applicant had been notified only of the military investigator’s decision of 22 November 2011, but not of other relevant decisions. She had not appealed against it because she had not been served with the preceding decisions and had therefore been unable to prepare an appropriate appeal. She also stated that she had not appealed against the decision of the Magas District Court of 27 June 2011 as she had been informed by the prosecutor’s office that the case was still ongoing before the military investigation unit. Under those circumstances she considered an appeal to be pointless.
B. The Court’s assessment
61. The third applicant essentially alleged that a criminal offence had been committed by the servicemen carrying out the search – notably, that they had intentionally destroyed the family dwelling and property. The Court has already found, in previous cases involving allegations by residents of Chechnya concerning the destruction of their property within the context of military and security operations, that an adequate criminal investigation would constitute a potentially effective domestic remedy (see Khamzayev and Others v. Russia, no. 1503/02, § 154, 3 May 2011; Salamov v. Russia, no. 5063/05, § 38, 12January 2016; and, for a similar approach in the Turkish context, Ayder and Others v. Turkey, no. 23656/94, § 98, 8 January 2004). In the present case, the third applicant’s complaints resulted in an investigative inquiry and the dismissal of the allegations as unfounded.
62. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The Court has previously found that in the Russian legal system a judicial appeal against a decision not to institute criminal proceedings may offer a substantial safeguard against the arbitrary exercise of power by the investigating authority, given courts’ power to annul such decisions and indicate the defects to be addressed (see Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003; Belevitskiy v. Russia, no. 72967/01, §§ 54‑67, 1 March 2007; and Chumakov v. Russia, no. 41794/04, § 91, 24 April 2012). Therefore, in the ordinary course of events such an appeal might be regarded as an effective remedy where the prosecution decided not to investigate a claim. Failure to bring such proceedings in due time would normally result in dismissal of the complaint for non-exhaustion (see Nasipova and Khamzatova v. Russia (dec.), no. 32382/05, 2 September 2010, and Dzhamaldayev v. Russia (dec.), no. 39768/06, § 28 22 January 2013).
63. Turning to the present case, the Court notes, first, that the decision of 27 June 2011 of the Magas District Court to dismiss the complaint has not been challenged. Secondly, the third applicant failed to appeal against the decisions not to open a criminal investigation, in particular that of 22 November 2011 (see paragraphs 39 and 42 above). That latest decision contained a detailed description of evidence collected by that time, was communicated to the third applicant in due time and indicated avenues for appeal (see paragraphs 33 – 38 above). In March 2012 the third applicant again sought and obtained copies of the decisions taken previously (see paragraph 40 above), with the aim of lodging such an appeal. However, she then claimed that further appeals would have been futile. It does not appear that the applicants maintained any contact with the investigation afterwards.
64. The Court has previously absolved applicants from the obligation to appeal to a court against a decision not to open criminal proceedings, where it found such appeal to be devoid of purpose. In reaching such conclusions, the Court had regard to the overall length of the domestic proceedings by the time the applicants had lodged their complaints to the Court, the number of times the decisions not to open a criminal investigation had been quashed, the absence of progress in the inquiry and repetitive findings by the supervising prosecutors of the inquiry’s deficiencies that were not corrected and that made the same findings by the courts redundant (see, in the context of complaints of ill-treatment, Nechto v. Russia, no. 24893/05, §§ 80-82, 24 January 2012, in which the proceedings lasted for seven years and there were thirteen decisions not to open a criminal investigation; Mikhail Nikolayev v. Russia, no. 40192/06, § 76, 6 December 2016, in which there were five decisions to set aside the decision not to open a criminal investigation over a period of ten years; and Devyatkin v. Russia, no. 40384/06, § 30, 24 October 2017, in which the decisions refusing to institute criminal proceedings were annulled seven times in two years). The Court is not convinced that the circumstances of the present case allow it to draw the conclusion that an appeal would be devoid of purpose. Although the investigator’s decision of 22 November 2011 followed an earlier decision of 8 April 2011, it contained sufficiently precise and detailed factual elements to allow the applicants to challenge any perceived arbitrariness or any other elements of the ruling with which they disagreed, had they wanted to do so. The Court finds that the applicants have not shown convincingly that a judicial review of such decision was bound to be ineffective; nor can it accept the argument that the applicants had insufficient access to the decisions in question, in view of their correspondence with the military investigation office and the timely notifications of the decisions taken, as attested by corresponding letters (see paragraphs 32 and 39-40 above).
65. The Court further observes that the parties dispute the material facts underlying the complaint. The applicants’ version of the events is essentially based on the third applicant’s complaint, made on the day of the events, that the destruction of their houses and belongings by the security forces had been deliberate and premediated (see paragraph 24 above). She repeated that suggestion in later statements and denied that any explosives had been stored in the house. However, other witness statements collected on the same day or soon afterwards gave little evidence to support that version. The materials of the case indicated that the servicemen’s behaviour was consistent with the accidental finding of an IED: having conducted the search, they called in an explosives expert, warned the residents and took them to a safe distance, maintained security lines and lifted them after the explosion and examination of the debris. The second applicant testified to having heard a conversation over the radio between the servicemen that an explosive device had been found and a call for an explosives expert (see paragraph 25 above). Other applicants did not produce any statements to the domestic authorities or to the Court. The applicants’ neighbours confirmed that they had been asked by the servicemen to move a safe distance away because an explosive device had been found, and later heard the explosion (see paragraphs 26 and 28). None of those witnesses corroborated the third applicant’s allegations of threats or other forms of pressure put on her by the servicemen. The Government indicated that the finding of the IED at the applicants’ home had been part of the criminal case against Mr Ali T. (see paragraph 43 above).
66. Other relevant documents pointed to the finding of an explosive device and to failed attempts to deactivate it. The search report of 3 March 2011 described the location and the configuration of the IED and the steps taken to deactivate it. The report was presented to the third applicant, but she refused to sign it, of which a note was made. She did not take any formal steps to challenge the accuracy of the findings made in that report. The site inspection report compiled by the local police after the events detailed the effects of the explosions. Both documents were co-signed by the attesting witnesses. The second report was also co-signed by the explosives expert who had supervised the deactivation exercise (see paragraphs 16 and 17 above). The police press release of the following day referred to the finding of IEDs and the failure to deactivate them (see paragraph 19 above).
67. Lastly, the decision of 22 November 2011 not to open a criminal investigation summarised the statements of the explosives expert, the investigator, two attesting witnesses and other officers who had participated in the search. They described consistently and in detail the discovery of the explosive device, the attempts to deactivate it and the ensuing explosions. Their submissions were corroborated by the documents produced in the aftermath of the events – the search report and the site inspection report (see paragraphs 32-36 above). The third applicant was also questioned. The extended summary of that decision was forwarded to the third applicant on the same day. As noted above, there were no sufficient and relevant reasons that could have absolved the applicants from the requirement to challenge that ruling.
68. In such circumstances, the Court finds that the applicants failed to pursue the judicial avenue of challenging the investigator’s decisions, either by appealing against the Magas District Court’s decision of 27 June 2011, or by appealing against the investigator’s decision of 22 November 2011 (see, mutatis mutandis, Radzhab Magomedov v. Russia, no. 20933/08, § 66, 20 December 2016). In the circumstances of the present case, where the question of prima facie evidence of State involvement in the facts alleged remains open, that failure should be seen not only as a matter of non-exhaustion of domestic remedies, as the Government argued, but as having direct consequences on the applicants’ ability to corroborate their allegations of ill-treatment and destruction of property to the requisite standard of proof (see, for a similar approach, Öztoprak and Others v. Turkey, no. 33247/96, §§ 49-52, 2 February 2006).
69. Finally, as in the Taziyeva and Others v. Russia, cited above,§ 69, the applicants have failed to submit any additional information in the form of documents or explanations that would be relevant to the determination of the question of ownership of the house and movable property.
70. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application under Article 8 as to the lawfulness of the search at the applicants’ residence admissible, and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 8 of the Convention.
Done in English, and notified in writing on 9 April 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Alena Poláčková
Deputy Registrar President
Appendix
List of applicants
| No. | Applicant’s name, date of birth | Relations |
| 1. | Ms Zarema Bagaudinovna Taziyeva, born in 1974 | Wife of applicant 2, mother of applicants5-8 |
| 2. | Mr Adam Musayevich Taziyev, born in 1973 | Husband of applicant 1; brother of applicants 3 and 4; father of applicants 5-8 |
| 3. | Ms Zareta Musayevna Taziyeva, born in 1976 | Sister of applicants 2 and 4 |
| 4. | Mr Askhab Musayevich Taziyev, born in 1966 | Brother of applicants 2 and 3 |
| 5. | Ms Khadishat Adamovna Taziyeva, born in 1997 | Daughter of applicants 1 and 2 |
| 6. | Ms Ayna Adamovna Taziyeva, born in 1995 | Daughter of applicants 1 and 2 |
| 7. | Ms Tamara Adamovna Taziyeva, born in 1998; | Daughter of applicants 1 and 2 |
| 8. | Mr Khasan Adamovich Taziyev, born in 1999 | Son of applicants 1 and 2 |
Leave a Reply