THIRD SECTION
\nCASE OF ANOSHINA v. RUSSIA
\n(Application no. 45013\/05)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n26 March 2019<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Anoshina v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Alena Pol\u00e1\u010dkov\u00e1, President, Having deliberated in private on 5 March 2019,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no.\u00a045013\/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Ms Yelena Alekseyevna Anoshina (\u201cthe applicant\u201d), on 8 December 2005.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms O.\u00a0Sadovskaya, a lawyer practising in Nizhniy Novgorod. The Russian Government (\u201cthe Government\u201d) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.<\/p>\n 3.\u00a0\u00a0On 2 March 2009 notice of the application was given to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1956 and lives in Nizhniy Novgorod.<\/p>\n A.\u00a0\u00a0Murder of applicant\u2019s brother in alcohol recovery centre<\/strong><\/p>\n 5.\u00a0\u00a0On 25\u00a0July 2002 the applicant\u2019s 51-year-old brother AleksandrAlekseyvichAnoshin was murdered by a policeman in the alcohol recovery centre of the Sovietsky District Police Department of Nizhniy Novgorod (\u043c\u0435\u0434\u0438\u0446\u0438\u043d\u0441\u043a\u0438\u0439\u0432\u044b\u0442\u0440\u0435\u0437\u0432\u0438\u0442\u0435\u043b\u044c\u043f\u0440\u0438\u0421\u043e\u0432\u0435\u0442\u0441\u043a\u043e\u043c \u0420\u0423\u0412\u0414 \u0433. \u041d\u0438\u0436\u043d\u0435\u0433\u043e\u041d\u043e\u0432\u0433\u043e\u0440\u043e\u0434\u0430).<\/p>\n 6.\u00a0\u00a0Earlier that day, at about 7\u00a0p.m., he was stopped in the street by a police patrol as he was staggering home after having drinks with workmates. He was driven to the centre and left alone on a bed in a recovery room, as centre staff sat down to a game of cards nearby. One hour later Mr\u00a0Anoshin started banging on the door and asking to be let out. Officer\u00a0M., who together with his partner K. had just returned from patrol duty, got annoyed at the disruption, pushed Mr Anoshin away from the door and demanded that he calm down. Mr Anoshin fell on the bed and his head slammed against the wall. He then got to his feet and stepped towards the officer. Officer M. punched the applicant\u2019s brother in the head and chest five times, and strangled him until he was unconscious using a squared piece of a broken wooden chair. M. laid Mr Anoshin down on the bed, and walked out. Officer An. watched this scene from the doorway.<\/p>\n 7.\u00a0\u00a0At 10\u00a0p.m. the applicant\u2019s brother died of asphyxia.<\/p>\n B.\u00a0\u00a0Investigation<\/strong><\/p>\n 8.\u00a0\u00a0On 3 August 2002 the Prosecutor\u2019s Office of the Sovietsky District opened a criminal investigation into the death. The investigation lasted four years and was handled in turn by at least six different investigators. They inspected the scene, conducted witness interviews, commissioned forensic reports, and staged reconstructions.<\/p>\n 9.\u00a0\u00a0The centre staff initially testified that they had found the applicant\u2019s brother unwell in his bed, but then changed their story, saying that they had seen him hang himself using a bed sheet tied to the bars of his cell window. The forensic reports (on the cause of death, the nature of the injuries, the origin of blood on the wall and the presence of metallic traces on the sheet) refuted the hanging hypothesis, pointed to a violent death and incriminated the centre staff. However, the investigation was put on hold thirteen times because no credible suspect had been identified.<\/p>\n 10.\u00a0\u00a0In March\u00a02006 M. was interviewed for the first time.<\/p>\n 11.\u00a0\u00a0By August\u00a02006 the case against him had gone to trial.<\/p>\n C.\u00a0\u00a0Conviction of the perpetrator<\/strong><\/p>\n 12.\u00a0\u00a0On 1 August 2008 the Sovietsky District Court of Nizhniy Novgorod convicted M. of murder and violent abuse of official power and sentenced him to fourteen years\u2019 imprisonment and a three-year ban from police service. Neglect-of-duty charges brought against his two co\u2011defendants (Officers An. and Ag.) were dropped as time-barred.<\/p>\n 13.\u00a0\u00a0At the trial, M. was directly incriminated by An., Ag., and K. Officers An. and Ag. confessed that the suicide story had been a cover-up condoned by commanders of Sovietsky Police Department.<\/p>\n 14.\u00a0\u00a0On 14 November 2008 the Nizhniy Novgorod Regional Court upheld the sentence.<\/p>\n D.\u00a0\u00a0Tort damages against the State<\/strong><\/p>\n 15.\u00a0\u00a0The applicant and three of her brother\u2019s four children each claimed from the State 3,000,000\u00a0Russian roubles (RUB \u2013 approximately 69,000\u00a0euros (EUR)) for emotional distress caused by the crime. On 25 May 2009 the Sovietsky District Court awarded RUB\u00a0150,000 (approximately EUR\u00a03,400) to each claimant.<\/p>\n 16.\u00a0\u00a0On 14 August 2009 the Nizhniy Novgorod Regional Court upheld that decision.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION ON ACCOUNT OF THE MURDER<\/p>\n 17.\u00a0\u00a0The applicant complained under Article\u00a02 about her brother\u2019s murder by an agent of the State. In so far as relevant, this Article reads:<\/p>\n \u201cEveryone\u2019s 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.\u201d<\/p>\n A.\u00a0\u00a0The parties<\/strong><\/p>\n 18.\u00a0\u00a0The Government admitted that the applicant\u2019s brother\u2019s right to life had been breached. They contended, however, that this complaint should be struck out of the Court\u2019s list of cases because, by convicting the perpetrator and awarding damages to the victim\u2019s relatives, the authorities had \u201cresolved the matter\u201d within the meaning of Article\u00a037 \u00a7\u00a01\u00a0(b) of the Convention.<\/p>\n 19.\u00a0\u00a0The applicant objected. She submitted that, \u201cleaving aside the amount of compensation\u201d, two of the three culprits (An. and Ag.) had escaped punishment because the authorities had delayed the investigation until the case against them had lapsed under the statute of limitations.<\/p>\n B.\u00a0\u00a0The Court<\/strong><\/p>\n 1.\u00a0\u00a0Striking out<\/em><\/p>\n 20.\u00a0\u00a0The Court reiterates that a matter is considered \u201cresolved\u201d if the circumstances complained about no longer obtain and if the effects of a possible violation have been redressed (see Pisano v.\u00a0Italy (striking out) [GC], no.\u00a036732\/97, \u00a7\u00a042, 24 October 2002).<\/p>\n 21.\u00a0\u00a0The ill effects of the premature death of the applicant\u2019s brother still obtain because he is no longer alive.<\/p>\n 22.\u00a0\u00a0Redress for death inflicted by State agents must include the prosecution of the perpetrator and compensation (see Nikolova and Velichkova v.\u00a0Bulgaria, no.\u00a07888\/03, \u00a7\u00a056, 20 December 2007).<\/p>\n 23.\u00a0\u00a0As to the question of prosecution, the Court is satisfied with the fourteen-year term of imprisonment handed down to the murderer. This is only one year short of the statutory ceiling. Though An. and Ag. did indeed escape punishment for the charge of neglect of duty under the statute of limitations, they were not the main culprits.<\/p>\n 24.\u00a0\u00a0As to the compensation for emotional distress awarded by the domestic court, it should not be \u201csubstantially lower\u201d than that usually awarded by the Court (see Kopylov v.\u00a0Russia, no.\u00a03933\/04, \u00a7\u00a0144, 29 July 2010). The domestic court awarded the applicant EUR\u00a03,400 whereas this Court would have awarded her at least EUR\u00a032,500. This shortfall is substantial.<\/p>\n 25.\u00a0\u00a0The Court therefore rejects the Government\u2019s request for the complaint to be struck out of its list of cases under Article\u00a037 \u00a7\u00a01\u00a0(b) of the Convention.<\/p>\n 2.\u00a0\u00a0Admissibility<\/em><\/p>\n 26.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7\u00a03 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 3.\u00a0\u00a0Merits<\/em><\/p>\n 27.\u00a0\u00a0The parties agreed that the State had intentionally and unjustifiably deprived the applicant\u2019s brother of his life. There has, accordingly, been a violation of Article\u00a02 on this account.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION ON ACCOUNT OF THE INEFFECTIVE INVESTIGATION<\/p>\n 28.\u00a0\u00a0The applicant complained under Articles 2 and 13 of the Convention that the investigation into her brother\u2019s death had been ineffective. The Court considers that this complaint falls to be examined under Article\u00a02 alone (see \u0160ilih v.\u00a0Slovenia [GC], no.\u00a071463\/01, \u00a7\u00a0154, 9 April 2009).<\/p>\n A.\u00a0\u00a0The parties<\/strong><\/p>\n 29.\u00a0\u00a0The Government argued that this complaint should be struck out of the Court\u2019s list of cases pursuant to Article 37 \u00a7\u00a01 (b) of the Convention because the eventual conviction of the murderer had proved the effectiveness of the legal proceedings (\u0441\u0443\u0434\u043e\u043f\u0440\u043e\u0438\u0437\u0432\u043e\u0434\u0441\u0442\u0432\u0430), and for the reasons cited in paragraph\u00a018 above.<\/p>\n 30.\u00a0\u00a0The applicant objected for the reasons cited in paragraph\u00a019 above. She added that the investigation had been slow and that the relatives of the victim had not been properly informed about its progress.<\/p>\n B.\u00a0\u00a0The Court<\/strong><\/p>\n 1.\u00a0\u00a0Striking out<\/em><\/p>\n 31.\u00a0\u00a0The Court again reiterates that a matter is considered \u201cresolved\u201d if the circumstances complained about no longer obtain and if the effects of a possible violation have been redressed (see Pisano, cited above, \u00a7\u00a042).<\/p>\n 32.\u00a0\u00a0The uncertainty caused by the outstanding investigation has ceased, because the truth about Mr Anoshin\u2019s death has been uncovered. However, the damages awarded to the applicant were in no way tied to any possible shortcomings in the investigation, and hence did not constitute redress.<\/p>\n 33.\u00a0\u00a0The Court therefore rejects the Government\u2019s request for the complaint to be struck out of its list of cases under Article 37 \u00a7\u00a01 (b) of the Convention.<\/p>\n 2.\u00a0\u00a0Admissibility<\/em><\/p>\n 34.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7\u00a03 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 3.\u00a0\u00a0Merits<\/em><\/p>\n 35.\u00a0\u00a0The State\u2019s procedural obligation to investigate deaths effectively is \u201cdetachable\u201d from its substantive obligation not to kill people (see \u0160ilih, cited above, \u00a7\u00a0159).<\/p>\n 36.\u00a0\u00a0An investigation is \u201ceffective\u201d when it is independent, adequate, thorough, objective, impartial, open, and prompt (see Armani Da Silvav.\u00a0the United Kingdom [GC], no.\u00a05878\/08, \u00a7\u00a0240, 30\u00a0March 2016).<\/p>\n 37.\u00a0\u00a0The investigation into Mr Anoshin\u2019s death cannot be so described. The crime happened in a secure government compound, and all the evidence was available to the authorities. The forensic findings undermined the shifting narrative proffered by the centre staff and implicated them. Despite the closed circle of suspects, it was not until March\u00a02006 that the chief perpetrator was interviewed for the first time. Until then, the investigation seems to have been inexplicably oblivious to his and his fellow patrolman\u2019s presence at the scene, although it must have been registered on the duty roster and in patrol logs. The investigation changed hands among six investigators and was stayed thirteen times. Though two key witnesses had admitted to false testimony condoned by the headquarters of Sovietsky Police Department, no charges were pressed in that regard.<\/p>\n 38.\u00a0\u00a0The Court concludes that the investigation was ineffective. There has, accordingly, been a violation of Article 2 on this account.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT\u2019S OWN ANGUISH<\/p>\n 39.\u00a0\u00a0The applicant complained under Article\u00a03 that she had suffered personal anguish as a result of her years-long search for truth about her brother\u2019s death. This Article reads:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n A.\u00a0\u00a0The parties<\/strong><\/p>\n 40.\u00a0\u00a0The Government argued that the applicant had been awarded compensation and that, therefore, this complaint should be struck out of the Court\u2019s list of cases pursuant to Article 37 \u00a7\u00a01 (b) of the Convention and declared inadmissible owing to the loss of her status as a victim.<\/p>\n 41.\u00a0\u00a0The applicant objected, arguing that she had only been compensated for the death of her brother, and not for her own suffering as inflicted by the ineffective investigation.<\/p>\n B.\u00a0\u00a0The Court<\/p>\n 1.\u00a0\u00a0Striking out<\/em><\/p>\n 42.\u00a0\u00a0The Court rejects the Government\u2019s strike-out request for the same reasons as set out above.<\/p>\n 2.\u00a0\u00a0Admissibility<\/em><\/p>\n 43.\u00a0\u00a0The Court reiterates that it has always been sensitive in its case-law to the profound psychological impact of a serious human rights violation on the victim\u2019s family members who are applicants before the Court. However, in order for a separate violation of Article 3 of the Convention to be found in respect of the victim\u2019s relatives, there should be special factors in place giving their suffering a dimension and character distinct from the emotional distress inevitably stemming from the aforementioned violation itself. The relevant factors include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question and the involvement of the applicants in the attempts to obtain information about the fate of their relatives (see Janowiec and Others v.\u00a0Russia [GC], nos. 55508\/07 and 29520\/09, \u00a7\u00a0177, ECHR 2013). There are no such factors in the present case.<\/p>\n 44.\u00a0\u00a0Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article\u00a035 \u00a7\u00a7\u00a03\u00a0(a) and\u00a04 of the Convention.<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 45.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n 46.\u00a0\u00a0In respect of non-pecuniary damage the applicant claimed EUR\u00a040,000, less the compensation that had already been awarded by the domestic courts, provided that it was actually paid.<\/p>\n 47.\u00a0\u00a0The Government argued that the claim was excessive in the light of the Court\u2019s case-law and should be reduced by the amount awarded in Russia. They furnished evidence that the applicant had been issued with a writ of execution to enable her to enforce payment of that sum.<\/p>\n 48.\u00a0\u00a0The Court awards the applicant EUR\u00a036,600 in respect of non\u2011pecuniary damage.<\/p>\n Default interest<\/p>\n 49.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Dismissesthe Government\u2019s request to have the complaints under Article\u00a02 of the Convention struck out of the list;<\/p>\n 2.\u00a0\u00a0Declaresthe complaints under Article\u00a02 admissible and the remainder of the application inadmissible;<\/p>\n 3.\u00a0\u00a0Holdsthat there has been a violation of Article 2 of the Convention on account of the murder of the applicant\u2019s brother and its ineffective investigation;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months, EUR\u00a036,600 (thirty-six thousand six hundred euros) in respect of non\u2011pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.<\/p>\n Done in English, and notified in writing on 26 March 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Fato\u015f Arac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Alena Pol\u00e1\u010dkov\u00e1
\nDmitry Dedov,
\nJolien Schukking, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n
\nDeputyRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n