THIRD SECTION
\nCASE OF BOPKHOYEVA v. RUSSIA
\n(Application no. 25414\/14)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n20 February 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Bopkhoyeva v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Branko Lubarda, President, Having deliberated in private on 30 January 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 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 (\u201cthe Convention\u201d) by a Russian national, Ms Zaira Isayevna Bopkhoyeva (\u201cthe applicant\u201d), on 24 March 2014.<\/p>\n 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\u2019s based in Utrecht and Moscow respectively. The Russian Government (\u201cthe Government\u201d) were represented initially by Mr G.\u00a0Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr\u00a0M. Galperin.<\/p>\n 3. On 23 January 2015 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n THE CIRCUMSTANCES OF THE CASE<\/p>\n 4. The applicant was born in 1990 and lives in Galashki, Ingushetia Republic.<\/p>\n A. The applicant\u2019s marriage and deterioration of health<\/strong><\/p>\n 5. On 11\u00a0December 2009 the applicant was abducted by S. with intent to marry her. The applicant\u2019s mother opposed the marriage and on the same day S.\u2019s relatives took the applicant back to her mother\u2019s house.<\/p>\n 6. On 12\u00a0December 2009 the relatives of the applicant\u2019s deceased father made the applicant go back to S.\u2019s, because of the presumed consummation of the marriage. They also threatened to kill S., should the applicant decide to leave him.<\/p>\n 7. The applicant had to live with S.\u2019s family as his wife. The marriage was not officially registered. She was kept locked in a room without being able to communicate with people outside S.\u2019s family. S. moved to a different town. On rare occasions S.\u2019s sister let the applicant use her mobile phone so that she could call her mother. She complained that S.\u2019s 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\u2019s 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.<\/p>\n 8. On 28\u00a0December 2009 the applicant was taken to a municipal hospital. The doctor diagnosed her with renal colic.<\/p>\n 9. On 29\u00a0December 2009 during another visit to hospital the applicant was diagnosed with poisoning by unknown substance.<\/p>\n 10. On 1\u00a0February 2010 the applicant foamed at the mouth again and was taken to hospital. She was released on the same day.<\/p>\n 11. On 2\u00a0February 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.<\/p>\n 12. In April 2010 the applicant was released to her mother\u2019s care.<\/p>\n B. Investigation into allegations of a crime<\/strong><\/p>\n 13. On 23\u00a0September 2010 the applicant\u2019s mother complained to the local police department and prosecutor\u2019s office that the applicant had been forcefully held by S.\u2019s family in inhuman conditions which led to deterioration of her health and coma.<\/p>\n 14. On 10\u00a0October 2010 the investigator refused to institute criminal proceedings against S.\u2019s family on the charges of incitement of suicide and causing damage to health.<\/p>\n 15. On 24\u00a0October 2011 the applicant\u2019s mother lodged another complaint with the local police department alleging that the applicant had been poisoned while staying at S.\u2019s house. She also stated that the applicant had been repeatedly beaten up and deprived of her liberty.<\/p>\n 16. According to the forensic medical report completed on 8\u00a0November 2011, a vegetative state, similar to the applicant\u2019s, could be caused primarily by intoxication. The expert, however, was unable to determine the cause of the applicant\u2019s condition.<\/p>\n 17. On 24\u00a0November 2011 the investigator refused to institute criminal proceedings against S.\u2019s family. The applicant appealed.<\/p>\n 18. On 29\u00a0July 2012 the supervising prosecutor quashed the decision of 24\u00a0November 2011 and ordered further inquiry into the matter.<\/p>\n 19. On 3\u00a0August 2012 the investigator refused to institute criminal proceedings on the charges of attempted murder.<\/p>\n 20. On 1\u00a0October 2012 the investigator refused to institute criminal proceedings on the charges of causing serious damage to health. The applicant appealed.<\/p>\n 21. On 26\u00a0July 2013 the Sunzhenskiy District Court of the Ingushetiya Republic quashed the decision of 1\u00a0October 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\u2019s condition.<\/p>\n 22. On 26\u00a0September 2013 the investigator refused to institute criminal proceedings reiterating verbatim his reasoning set out in the decision of 1\u00a0October 2013.<\/p>\n 23. On 15\u00a0January, 14\u00a0March and 21\u00a0May 2014 the deputy head of the district police department ordered a new inquiry noting that the previous inquiry had been incomplete.<\/p>\n 24. On 18\u00a0January and 18\u00a0March 2014 the investigator refused to open a criminal investigation reproducing verbatim the earlier decisions of 1\u00a0October 2012 and 26\u00a0September 2013.<\/p>\n 25. On 21\u00a0May 2014 the investigator again refused to open a criminal investigation. In addition to his earlier findings, he studied the applicant\u2019s medical case-file and concluded that it did not contain information accounting for the cause of her medical condition.<\/p>\n 26. On 28\u00a0February 2015 the district deputy prosecutor quashed the decision of 21\u00a0May 2014 and ordered a further inquiry.<\/p>\n 27. The case-file materials submitted by the Government contain two decisions dated 6\u00a0March 2015. The first decision was taken by the investigator who refused to institute a criminal investigation in the applicant\u2019s 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.<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION<\/p>\n 28. The applicant complained under Articles\u00a02, 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\u2019s 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, \u00a7\u00a045, 9 November 2010), which, is so far as relevant, reads as follows:<\/p>\n \u201c1. Everyone\u2019s right to life shall be protected by law.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 29. The Government submitted that the complaint should be dismissed for the applicant\u2019s failure to comply with the six months\u2019 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\u2019s opinion, the latest judicial decision dismissing the applicant\u2019s complaint had been taken on 26\u00a0July 2013 while the applicant had brought her grievances to the attention of the Court only on 24\u00a0March 2014.<\/p>\n 30. The applicant submitted that she had complied with the admissibility requirements set out in the Convention by lodging the application on 24\u00a0March 2014. The District Court\u2019s decision of 26\u00a0July 2013 had not been the final decision in her case. On 26\u00a0July 2013 the District Court had quashed the investigating authorities\u2019 refusal to open a criminal investigation into the applicant\u2019s allegations of ill-treatment and had ordered a new inquiry. Only after the investigator had dismissed the applicant\u2019s complaint yet again on 26\u00a0September 2013, hadit 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.<\/p>\n 31. Having examined the materials submitted by the parties, the Court does not discernany delay on the applicant\u2019s 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\u00a0March 2015. In the absence of the objection on the Government\u2019s part as regards the exhaustion of domestic remedies, the Court considers that, by introducing the application on 24\u00a0March 2014, the applicant has complied with the six-month rule, and the complaint cannot be rejected pursuant to Article 35 \u00a7 4 of the Convention. The Court further notes that the complaintis not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 32. The Government acknowledged that there had been a violation of Article\u00a02 of the Convention in the applicant\u2019s 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.<\/p>\n 33. The applicant maintained her complaint.<\/p>\n 34. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of force by agents of the State but alsolays 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.\u00a046477\/99, \u00a7 54, ECHR 2004\u2011XII). 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, \u00d6nery\u0131ld\u0131z v. Turkey [GC], no.\u00a048939\/99, \u00a7 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\u2019s 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 Jeli\u0107 v.\u00a0Croatia, no.\u00a057856\/11, \u00a7 90, 12 June 2014).<\/p>\n 35. Turning to the circumstances of the present case, the Court observes, that the inquiry into the applicant\u2019s 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.<\/p>\n 36. The Court further notes that the Government have acknowledged that the authorities\u2019 failure to conduct an effective investigation into the applicant\u2019s allegations of ill-treatment amounted to a violation of Article\u00a02 of the Convention.<\/p>\n 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\u2019 failed to discharge their duty to carry out an effective investigation in response to the applicant\u2019s complaint as required by Article\u00a02 of the Convention. There has been accordingly a violation of that provision under its procedural limb.<\/p>\n II.\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/p>\n 38. The applicant complained that she had not had an effective remedy in respect of her complaint under Article\u00a02 of the Convention. She relied on Article\u00a013 of the Convention which reads as follows:<\/p>\n \u201cEveryone 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.\u201d<\/p>\n 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.<\/p>\n 40. The applicant maintained her complaint.<\/p>\n 41. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.<\/p>\n 42. Having regard to the finding relating to Article 2 (see paragraph\u00a037above), 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.\u00a043577\/98 and 43579\/98, \u00a7 123, ECHR 2005\u2011VII).<\/p>\n III. APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 43. Article 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 A. Damage<\/strong><\/p>\n 44. The applicant claimed compensation in respect of pecuniary and non-pecuniary damage, leaving the amount of the award to the Court\u2019s discretion.<\/p>\n 45. The Government left the issue to the Court\u2019s discretion.<\/p>\n 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.<\/p>\n B. Costs and expenses<\/strong><\/p>\n 47. The applicant claimed the following costs and expenses: (1)\u00a0EUR\u00a05,150 for 33 hours of work performed by several lawyers; (2)\u00a0EUR\u00a0360 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\u2019s bank account.<\/p>\n 48. The Government left the issue to the Court\u2019s discretion.<\/p>\n 49. According to the Court\u2019s 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\u00a02,000 covering costs under all heads, to be paid into Stichting Russian Justice Initiative\u2019s bank account as indicated by the representative organisation.<\/p>\n C. Default interest<\/strong><\/p>\n 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declaresthe application admissible;<\/p>\n 2. Holdsthat there has been a violation of Article 2 of the Convention under its procedural limb;<\/p>\n 3. Holdsthat there is no need to examine the complaint under Article 13 of the Convention;<\/p>\n 4. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three monthsthe following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable,in respect of non-pecuniary damage;<\/p>\n (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\u2019s bank account;<\/p>\n (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;<\/p>\n 5. Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 20 February 2018, 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 Branko Lubarda
\nPere Pastor Vilanova,
\nGeorgios A. Serghides, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n