FIRST SECTION

CASE OF MEZHIDOV v. RUSSIA

(Application no. 67326/01)

JUDGMENT

STRASBOURG

25 September 2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Mezhidov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:

,
Having deliberated in private on 4 September 2008,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1.  The case originated in an application (no. 67326/01) 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 a Russian national, Mr Ruslan Olegovich Mezhidov (“the applicant”), on 15 November 2000.
2.  The applicant was represented by lawyers from the Human Rights Centre Memorial (Moscow) and the European Human Rights Advocacy Centre (London). The Russian Government (“the Government”) were represented first by Mr P. Laptev and then by Mrs V. Milinchuk, both former Representatives of the Russian Federation at the European Court of Human Rights.
3.  The applicant alleged, in particular, a violation of Article 2 of the Convention on account of the killing of his relatives in an attack by federal troops and the failure of the domestic authorities to carry out an effective investigation into their deaths. He also complained about the absence of effective remedies in respect of those violations.
4.  On 13 October 2004 the President of the First Section decided to grant priority to the application under Rule 41 of the Rules of Court.
5.  By a decision of 21 September 2006, the Court declared the application partly admissible.
6.  The applicant and the Government each filed further written observations (Rule 59 § 1).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
7.  The applicant was born in 1967 and lives in the village of Nadterechnoye, Chechnya.
8.  The facts of the case as submitted by the parties are summarised in section A below (paragraphs 9-40). A description of the documents submitted by the Government is contained in section B below (paragraphs 41-42).
A.  The facts
9.  At the material time the applicant and his family lived in the village of Znamenskoye, in the Nadterechny District of Chechnya. They had an apartment in a block of flats at 19 Shosseynaya Street. The applicant’s family consisted of his father, Oleg Semenovich Mezhidov, born in 1938, his mother, Movlmat Lemayevna Mezhidova, born in 1940, his brother, Bislan Olegovich Mezhidov, born in 1969, and his two sisters, Aminat Olegovna Mezhidova, born in 1973, and Svetlana Olegovna Mezhidova, born in 1985.
1. Killing of the applicant’s relatives
10.  In early October 1999 the Russian Government launched a counter‑terrorist operation in the Chechen Republic.
11.  On 5 October 1999, between 7 and 9 p.m., the village of Znamenskoye came under fire. It appears that the applicant was absent from home at the time. His parents, brother and sisters tried to escape but were killed by a shell which burst in the courtyard of the building at 19 Shosseynaya Street.
12.  According to the applicant, the village was shelled by artillery positioned on the Terskiy mountain range, where Russian troops were stationed. In his submission, a total of five to six shells had been fired during the attack. He submitted a sketch map of the scene of the incident indicating the shell craters. According to him, the position of the craters clearly indicated that the shells could only have been fired from the Terskiy mountain range. The applicant also submitted statements by two witnesses who had testified that the village had been shelled from the Terskiy mountain range and that they had seen the Russian forces stationed there.
13.  According to the Government, the applicant’s family members died in an attack on the village of Znamenskoye carried out with unidentified firearms by unidentified men. They also suggested with reference to the information provided by the Prosecutor General’s Office of Russia and the Chechen Department of the Federal Security Service that “the Mezhidovs [had been] killed by members of illegal armed formations”.
14.  On 24 November 1999 the Civil Registration Office of the Nadterechny District certified the deaths of the applicant’s relatives. The certificates stated that each of them had died of “multiple shrapnel wounds”. The date and the place of death were recorded as 5 October 1999, Znamenskoye.
2. Official investigation
15.  According to the applicant, the courts and administrative institutions in the Chechen Republic ceased functioning when the hostilities began.
16.  On 3 February 2000, when the local law-enforcement bodies became operational, the applicant asked the Nadterechny prosecutor’s office (прокуратура Надтеречного района) to investigate the deaths of his family members. The applicant submitted a copy of his application, which bears no stamp to show that it had been received by the authorities. In the applicant’s submission, no investigative measures were taken in connection with his application. Some time later he was informed by law-enforcement officials that on 5 October 1999 Znamenskoye had allegedly been shelled by Chechen fighters with 120 mm-calibre mortars.
17.  On 22 June 2000 the applicant applied to the Special Envoy of the Russian President in Chechnya for Rights and Freedoms (Специальный представитель Президента Российской Федерации по соблюдению прав и свобод человека в Чеченской Республике), complaining about the killing of his relatives and the lack of an effective investigation. The Envoy assured the applicant that he would take up his case and advised him to lodge another application with the Nadterechny prosecutor’s office.
18.  On 30 June 2000 the applicant again applied to the Nadterechny prosecutor’s office in writing. He restated the circumstances of his family members’ deaths and requested that an investigation be carried out. The applicant submitted a copy of his application, which bears no stamp to show that it had been received by the authorities. According to the Government, the applicant did not inform the law-enforcement authorities of the incident of 5 October 1999 until 3 July 2000.
19.  According to the applicant, at some point he himself searched for and found fragments of shells at the scene of the incident in Znamenskoye and delivered them to the Nadterechny prosecutor’s office. It appears that an official of the Nadterechny prosecutor’s office sent the fragments for an expert examination.
20.  On 9 August 2000 an expert examined thirty fragments collected at the scene of the incident in Znamenskoye and reported that they were pieces of large-calibre (122 mm and 152 mm) artillery shells. The applicant submitted a copy of this report. The Government made no comments as regards the results of the examination.
21.  On 17 November 2000 criminal proceedings in connection with the death of the applicants’ relatives were instituted under Article 105 § 2 of the Russian Criminal Code (murder of two or more persons committed by a generally dangerous method). The case file was assigned the number 28026.
22.  On 17 January 2001 the investigation was suspended, on the ground that it was not possible to establish who was responsible. This decision was set aside on 22 March 2001 and the proceedings were resumed.
23.  According to the Government, the applicant was granted the status of victim of a crime on 12 April 2001. They did not submit a copy of that decision.
24.  On 22 April 2001 the investigation was again adjourned.
25.  In a letter of 28 May 2001 the Nadterechny prosecutor’s office notified the applicant that the criminal proceedings in case no. 28026 had been suspended, as it was impossible to identify those responsible. The letter further stated that the search for culprits was being continued.
26.  It does not appear that any investigative activity took place between April 2001 and January 2005.
27.  On 13 October 2004 the present application was communicated to the Russian Government.
28.  On 19 January 2005 the criminal proceedings in case no. 28026 were re-opened, and then suspended on 19 February 2005 in the absence of those responsible.
29.  On 10 November 2005 the Nadterechny prosecutor’s office resumed the investigation, stating that the decision of 19 February 2005 by which the investigation had been adjourned had been premature, as a number of necessary investigative actions had not been taken. The applicant was informed in writing of the resumption of the investigation on the same date.
30.  On 10 December 2005 the investigation was suspended on the ground that it was not possible to establish the identity of the alleged perpetrators. The applicant was informed of this decision on the same date.
31.  On 11 September 2006 the Nadterechny prosecutor’s office resumed the proceedings in case no. 28026, referring to the investigating authorities’ failure to take a number of necessary investigative actions. The applicant was informed of this decision in a letter of 11 September 2006.
32.  In the period between 27 September and 3 October a number of decisions were taken granting the status of victim in case no. 28026 to several persons injured during the incident of 5 October 1999. When describing the circumstances of the incident, the decisions stated that “on 5 October 1999 approximately between 7 and 9 p.m. blocks of flats situated in Shosseynaya Street in the village of Znamenskoye [had come under fire] supposedly from federal artillery”.
33.  On 11 October 2006 the investigation was suspended, and the applicant was informed of that decision in writing on the same date.
34.  On 17 November 2006 the investigation was again re-opened.
35.  Referring to the information provided by the Prosecutor General’s Office, the Government submitted that a criminal investigation into the deaths of the applicant’s relatives as a result of an attack “with unidentified weapon by unidentified persons” had been opened on 17 November 2000 and then repeatedly suspended and resumed. In their memorandum of 27 December 2006 they submitted that it was pending and was being supervised by the Prosecutor General’s Office. According to the Government, although a considerable number of investigative measures had been taken, the investigating authorities were unable to identify the culprits.
36.  They further submitted that on 12 April 2001 the applicant had been granted the status of victim of a crime and questioned on the same date and subsequently on 2 January 2005 and 9 October 2006. The investigating authorities also questioned eighteen witnesses, including the applicant’s neighbours. According to the Government, some of the applicant’s neighbours testified that rebel fighters in possession of automatic firearms and grenade launchers had lived in the same block of flats as the Mezhidov family and that, before leaving on 5 October 1999, they had threatened the residents on account of their cooperation with the federal authorities. Shortly after the rebels’ departure there had been an explosion in the courtyard of the block of flats. The Government did not specify on what date witness statements had been obtained. According to the Government, it was impossible to find other witnesses in the case, but the search for them was currently under way.
37.  In the Government’s submission, at some point an expert examination of the fragments of shells found by the applicant at the scene of the incident was conducted. According to the results of that examination, it was impossible to establish the exact origin of the fragments in question. The Government did not specify the date of that examination or produce a copy of a document indicating its results. They also referred to witness statements of a certain “specialist” who “[had not] confirmed [the applicant’s] allegations that the fragments found by him had come from artillery shells”.
38.  According to the Government, on 5 February 2005 the investigating authorities ordered another expert examination so as to identify the fragments found during the inspection of the crime scene which had allegedly been carried out in the applicant’s presence and compare them with those delivered by him earlier. The Government did not specify the date on which the inspection had been carried out or submit a copy of the document indicating its results. On 26 April 2005, the date on which the Government submitted their second memorandum prior to the decision on the admissibility of the present application, the expert examination allegedly ordered on 5 February 2005 was still under way. The Government did not provide any information regarding the outcome of that examination in their memorandum of 27 December 2006 submitted after the decision on admissibility had been taken.
39.  The Government also stated that the applicant had refused to allow the investigating authorities to exhume the bodies of his relatives so that forensic experts could examine them, although that was crucial for establishing the circumstances of their deaths.
40.  They further submitted that the investigating authorities had sent a number of queries to various State bodies on 17 November and 17 December 2000, 22 and 28 March and 27 April 2001, 19 and 20 January and 2 February 2005 and taken other investigative measures, but did not specify what those measures had been. Also, on 20 January 2005 an investigative group was set up in connection with the case. An investigator from a military prosecutor’s office had been included in that group so as to verify whether federal military personnel had been involved in the alleged offence. On 14 November 2005 the investigating authorities requested the military prosecutor’s office of military unit 20102 (военная прокуратура – войсковая часть 20102) to establish which units of the Russian Ministry of Defence and of the Russian Ministry of the Interior had been stationed in the vicinity of the Terskiy mountain range on 5 October 1999. The reply which they received stated that it was impossible to provide the requested information. On 15 November 2005 the investigating authorities sent the same request to the command of the United Group Alignment (объединенная группа войск). The latter replied that they had no such information.
B.  Documents submitted by the Government
41.  In October 2004, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in criminal case no. 28026 opened in connection with the incident of 5 October 1999 in the village of Znamenskoye. Relying on information obtained from the Prosecutor General’s Office, the Government replied that the investigation was in progress and that the disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure since the file contained information of a military nature and personal data concerning the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data concerning the witnesses], and without the right to make copies of the case file and to transmit it to others”. In March 2005 the Court reiterated its request and suggested that Rule 33 § 3 of the Rules of Court be applied. In reply, the Government again refused to produce the investigation file for the aforementioned reasons.
42.  On 21 September 2006 the application was declared partly admissible. At that stage the Court once again invited the Government to submit the investigation file and to provide information concerning the progress of the investigation. In December 2006 the Government informed the Court of the latest dates on which the investigation had been suspended and reopened and produced several documents pertaining to the period after November 2005. Overall, the Government produced 44 documents running to a total of 52 pages from the case file, which, as could be ascertained from the page numbering, comprised at least 314 pages. The documents included:
(a)  several procedural decisions taken after November 2005 suspending and reopening the investigation in case no. 28026;
(b)  a number of investigators’ decisions taking up case no. 28026;
(c)  a number of decisions on transfer of case no. 28026 from one investigator to another;
(d)  decisions granting the status of victims in case no. 28026 to several persons who were injured during the incident of 5 October 1999 in Znamenskoye, but not to the applicant;
(e)  letters for the period between November 2005 and October 2006 informing the applicant and the other victims of the suspension and reopening of the criminal proceedings in case no. 28026.
The Government did not submit any other documents.
II.  RELEVANT DOMESTIC LAW
43.  Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation.
44.  Article 125 of the new Code provides that the decision of an investigator or prosecutor to dispense with criminal proceedings or to terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice may be appealed against to a district court, which is empowered to check the lawfulness and grounds of the impugned decisions.
45.  Article 161 of the new Code enshrines the rule that data from the preliminary investigation may not be disclosed. Paragraph 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in the criminal proceedings without their permission.
THE LAW
I.  THE GOVERNMENT’S PRELIMINARY OBJECTION
A.  Submissions by the parties
46.  The Government argued that the applicant’s complaints should be declared inadmissible for non-exhaustion of domestic remedies. They stated that the investigation into the killing of the applicant’s relatives had not yet been completed. The Government further contended that the applicant had never lodged any court complaints under Article 125 of the Russian Code of Criminal Procedure against the actions or omissions of the investigating authorities or filed any motions, made any requests or challenged the investigators’ decisions during the criminal proceedings in connection with the deaths of his relatives. The Government further argued that the applicant could also have filed a claim for compensation for the deaths of his relatives in civil proceedings, but had never availed himself of that remedy.
47.  The applicant disputed the Government’s arguments. He claimed that the fact that the investigation into the killing of his family members was still pending called into question its effectiveness rather than indicating that his complaints were premature. The applicant also contended that the Government had not demonstrated that the remedies to which they had referred were effective and, in particular, were capable of leading to the identification and punishment of those responsible, as required by the Court’s settled case-law in relation to complaints under Article 2 of the Convention.
B.  The Court’s assessment
48.  The Court notes that, in its decision of 21 September 2006, it considered that the question of exhaustion of domestic remedies was closely linked to the substance of the present application and that it should be joined to the merits. It will now proceed to assess the parties’ arguments in the light of the Convention provisions and its relevant practice.
49.  The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI, pp. 2275-76, §§ 51-52; Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports1996‑IV, p. 1210, § 65-67; and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June 2006).
50.  In the present case, in so far as the Government argued that the applicant had failed to seek compensation for his relatives’ deaths in civil proceedings, the Court points out that, as it has already found in a number of similar cases, a civil action by itself cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is not capable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings as to the identity of the perpetrators of fatal assaults, still less of attributing responsibility. Furthermore, a Contracting State’s obligation under Articles 2 and 13 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assaults might be rendered illusory if, in respect of complaints under those Articles, an applicant were to be required to pursue an action leading only to an award of damages (see Yaşa v. Turkey, judgment of 2 September 1998, Reports1998‑VI, p. 2431, § 74, and Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005). In the light of the above, the Court finds that the applicant was not obliged to pursue a civil remedy and that this limb of the Government’s preliminary objection should therefore be dismissed.
51.  In so far as the Government argued that the applicant had not lodged any court complaints against the actions and omissions of the investigating authorities, or filed any motions, or made any requests during the investigation, the Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others, cited above, p. 1211, § 69; Aksoy, cited above, p. 2276, §§ 53-54; and  [GC], no. 23763/94, § 82, ECHR 1999‑IV).
52.  The Court considers that this limb of the Government’s preliminary objection raises issues which are closely linked to the question of the effectiveness of the investigation, and it would therefore be appropriate to address the matter in the examination of the substance of the applicant’s complaints under Article 2 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
53.  The applicant complained of the killing of his relatives and of the domestic authorities’ failure to carry out an effective investigation into their deaths. He relied on Article 2 of the Convention, which provides as follows:
“1.  Everyone’s 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.
2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a)  in defence of any person from unlawful violence;
(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”
A.  Alleged failure to protect the right to life
1.  Submissions by the parties
54.  The applicant stated, firstly, that on 5 October 1999 the village of Znamenskoye had been attacked from the Terskiy mountain range, where Russian troops were stationed. He submitted statements by two witnesses who had indicated that the village had been shelled from the Terskiy mountain range and that they had seen the Russian forces stationed there. Secondly, the applicant referred to the expert report of 9 August 2000, which had confirmed that the fragments submitted for examination had been pieces of large-calibre (122 mm or 152 mm) artillery shells. The applicant stated that such shells could only be fired from heavy artillery pieces, which presumably were in the exclusive possession of the Russian armed forces. He therefore argued that, in such circumstances, there was no doubt that the death of his five family members was attributable to the State. The applicant also pointed to the Government’s refusal to disclose the file on the criminal case instituted in connection with the killing of his relatives. He further submitted that the Government had not advanced any arguments to show that the use of lethal force had been justified under Article 2 § 2 of the Convention.
55.  The Government admitted that the applicant’s family members had died, but claimed that the investigation had found no evidence of the involvement of representatives of the federal forces in the alleged offence. They did not comment on witness statements submitted by the applicant or the expert report of 9 August 2000, but argued that another expert examination of the fragments found by the applicant at the scene of the incident had stated that it was impossible to establish their exact origin. The Government did not furnish the Court with a copy of the results of the expert examination to which they referred. They relied on the information provided by the Prosecutor General’s Office and the Chechen Department of the Federal Security Service to the effect that the killing of the applicant’s relatives had most likely been committed by members of illegal armed formations, who had been armed with machine-guns and mortars and had threatened the residents of Znamenskoye on account of their cooperation with the federal authorities. The Government therefore argued that there were no grounds to claim that the right to life of the applicant’s relatives had been infringed by the State.
2.  The Court’s assessment
56.  The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances where deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Article 15. The situations where deprivation of life may be justified are exhaustive and must be narrowly interpreted. The use of force which may result in the deprivation of life must be no more than “absolutely necessary” for the achievement of one of the purposes set out in Article 2 § 2 (a), (b) and (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of State agents who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, §§ 146‑50; Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, Reports of Judgments and Decisions 1997‑VI, pp. 2097‑98, § 171; and Oğur v. Turkey[GC], no. 21594/93, § 78, ECHR 1999‑III).
57.  In the present case, the Government acknowledged the fact that the applicant’s five family members had died as a result of the shelling of the village of Znamenskoye on 5 October 1999, but denied the State’s involvement in the attack and its responsibility for the deaths of the applicant’s relatives. It must therefore first be determined whether it was the federal armed forces that attacked Znamenskoye on 5 October 1999.
58.  The Court notes in this connection that the applicant had insisted that on the above date Znamenskoye had come under artillery fire from the federal troops stationed in the vicinity of the Terskiy mountain range. In support of his allegations he submitted a sketch map of the scene of the incident indicating the shell craters, arguing that it was clear from the postition of the craters that the shells could only have been fired from the Terskiy mountain range. The applicant also adduced two witness statements to the effect that the village had been shelled from the Terskiy mountain range and that the Russian troops had been stationed there at the material time. Moreover, the applicant submitted an expert report of 9 August 2000 which clearly stated that the splinters found at the scene of the incident in Znamenskoye had been pieces of large-calibre artillery shells (see paragraph 20 above).
59.  The Government, for their part, apart from blankly denying the State’s responsibility for the events under examination, made no meaningful attempts to contest any of the applicant’s arguments, or comment on the evidence adduced by him. In particular, they do not appear to have denied that Russian troops had, indeed, been stationed in the Terskiy mountain range at the material time, but merely suggested with reference to the replies from Russian military authorities that it had been impossible to establish which particular military units had been there on 5 October 1999 (see paragraph 40 above). They also referred to the results of an expert examination (see paragraph 37 above) which had allegedly established that it had been impossible to determine the exact origin of the fragments, and to a witness statement by an unnamed “specialist” who “had not confirmed the allegations that the splinters had been pieces of artillery shells” (see paragraph 37 above). However, unlike the applicant, the Government did not submit a copy of the report of the expert examination on which they relied, or a transcript of the interview with the witness whose evidence they relied on. They suggested that it was illegal fighters who had attacked the village of Znamenskoye on 5 October 1999, but did not corroborate this version of events with any documentary evidence, and even failed to give more detailed explanations in this respect.
60.  In such circumstances, the Court rejects the Government’s arguments as unreliable and unsupported by the facts. It further cannot but accept the applicant’s argument that the large-calibre shells mentioned in the expert report of 9 August 2000 could only be fired from heavy artillery pieces, and that such guns were presumably in the exclusive possession of the Russian armed forces. In this connection, it notes also the domestic investigative authorities’ assumption that on 5 October 1999 Znamenskoye came under artillery fire from federal troops (see paragraph 32 above). The Court therefore finds it established that the applicant’s family members died as a result of the shelling of the village of Znamenskoye by federal artillery.
61.  The Court must next ascertain whether the use of lethal force by the federal forces which resulted in the deaths of the applicant’s five relatives could be said to have been absolutely necessary and therefore strictly proportionate to the achievement of one of the aims set out in paragraph 2 of Article 2. It notes in this respect the lack of any explanations on the part of the Government as to whether the use of lethal force was justified under paragraph 2 of Article 2 of the Convention.
62.  Accordingly, there has been a violation of Article 2 of the Convention in this regard.
B.  Alleged ineffectiveness of the investigation
1.  Submissions by the parties
63.  The applicant contended that the authorities had failed to discharge their obligation to carry out an effective investigation into the circumstances of the deaths of his next of kin, as required by Article 2. He disputed the Government’s assertion that he had not applied to the law-enforcement bodies until 3 July 2000. The applicant referred to the documents submitted by him to the Court, and in particular to his letter of 3 February 2000 addressed to the Nadterechny prosecutor’s office, shortly after it had resumed functioning, and his letter of 22 June 2000 to the Special Envoy of the Russian President in Chechnya for Rights and Freedoms. The applicant further contested the Government’s argument that he had not given his consent to the exhumation of the bodies. He claimed that the authorities had never sought his permission to have the corpses exhumed, and that in any event under domestic law such a refusal was not binding on investigators, who could have obtained a court order for the exhumation but had never attempted to do so. The applicant thus argued that he had in no way obstructed the investigation.
64.  The applicant submitted that despite all his efforts, the criminal investigation had not been commenced until 17 November 2000, more than a year after the killing of his relatives. Since then it had been going on without producing any tangible result. The applicant stated that the steps taken during the investigation had clearly been deficient. He pointed out that even though the death certificates issued in respect of his relatives on 24 November 1999 indicated the cause of death of each of them as “multiple shrapnel wounds”, no autopsy had been performed, an assertion which was not disputed by the Government. The inspection of the scene of the incident had been superficial; the investigators had not taken photographs or collected fragments of shells. Moreover, despite the conclusion of the expert examination of 9 August 2000 that the fragments found by the applicant were those of large-calibre artillery shells, there was no evidence that the authorities had adequately investigated the possible involvement of military personnel into the killing of the applicant’s family members. It does not appear that there were any servicemen among the eighteen witnesses questioned by the investigators. Relying on the above considerations, the applicant argued that the authorities had failed in their obligation to carry out an effective investigation into the circumstances of his relatives’ deaths.
65.  The Government claimed that the investigation into the deaths of the applicant’s relatives met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the alleged perpetrators. In particular, the investigating authorities had declared the applicant to be a victim in criminal case no. 28026 and had questioned him on several occasions. Apart from the applicant, eighteen witnesses had been questioned and numerous queries had been sent to various State bodies. Also, on 20 January 2005 an investigative group had been set up in connection with the case and an investigator from a military prosecutor’s office had been included in that group so as to verify whether federal military personnel had been involved in the alleged offence. Furthermore, an expert examination of the fragments of shells found by the applicant at the scene of the incident had been carried out but had been unable to determine the exact origin of the fragments. The Government did not submit a copy of the report of that expert examination. According to them, another expert examination had been ordered on 5 February 2005. They did not apprise the Court of the results of that examination.
66.  The Government also alleged that the applicant had not applied to the law-enforcement bodies until 3 July 2000, even though he had had the opportunity to do so, and that he had not given his consent to the exhumation of his relatives’ remains to enable forensic experts to examine them and extract fragments of shells for further study. The Government submitted that this latter fact had obstructed the investigation, as it was impossible to establish the circumstances of the killing of the applicant’s family members without such an examination.
2.  The Court’s assessment
67.  The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force, in particular by agents of the State. The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur, above, § 88). In particular, there must be an implicit requirement of promptness and reasonable expedition (see Yaşa, d above, § 102-04, and Mahmut Kaya v. Turkey, no. 22535/93, ECHR 2000-III, §§ 106-07). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in maintaining public confidence in maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Shanaghan v. the United Kingdom, no. 37715/97, §§ 91-92, 4 May 2001).
68.  In the instant case, the Court observes that some degree of investigation was carried out into the incident of 5 October 1999 and the deaths of the applicant’s relatives. It must assess whether that investigation met the requirements of Article 2 of the Convention. The Court notes in this connection that its knowledge of the criminal proceedings at issue is limited to the materials selected by the respondent Government from the investigation file (see paragraphs 41-42 above). Drawing inferences from the respondent Government’s behaviour when evidence is being obtained (see Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp.64-65, § 161), the Court will assess the merits of this complaint on the basis of the available information in the light of these inferences.
69.  The Court notes at the outset that it is in dispute between the parties when the authorities were made aware of the deaths of the applicant’s family members. In particular, the applicant alleged that he had applied to the Nadterechny prosecutor’s office on 3 February 2000, whereas the Government argued that it had not been until 3 July 2000 that the applicant informed the authorities of the deaths of his relatives. The Court does not find it necessary to establish the date on which the applicant brought the matter to the attention of the authorities, as even assuming that it was only on 3 July 2000, the official investigation was not commenced until 17 November 2000, which is more than four months later. The Court sees no reasonable explanation for such a long delay where prompt action was vital.
70.  The Court further notes that once the investigation was opened it was plagued with inexplicable shortcomings in taking the most essential steps. In particular, it does not appear that any forensic examination or autopsy of the bodies was ever carried out with the result that the investigating authorities were deprived of information about the state of the bodies or the type of injuries sustained, which could have enabled them to establish the cause of the deaths of the applicants’ relatives. Even assuming that, as alleged by the Government, the applicant had obstructed the investigating authorities in this respect by refusing to give his consent to the exhumation of his relatives’ remains, the Court does not consider that the applicant’s alleged refusal could have absolved the authorities from their obligations to obtain detailed information about the cause of deaths of five persons in suspicious circumstances. Indeed, it does not appear and it was not convincingly demonstrated by the Government that the investigating authorities had ever attempted to obtain a court order for exhumation, as suggested by the applicant, or tried otherwise to pursue the matter (see, mutatis mutandis, Tangiyeva v. Russia, no. 57935/00, § 92, 29 November 2007).
71.  Moreover, it does not appear, and the Government did not submit any relevant information in this regard, that the scene of the incident was ever inspected, or that any expert examinations were ever carried out in the context of the criminal proceedings opened on 17 November 2000. The Court is sceptical about the Government’s statement to the effect that a certain expert examination of the splinters found at the scene of the incident had been carried out, and that another one had been ordered on 5 February 2005, as the Government did not produce any reports on the results of those examinations or any other relevant documents on this subject. Furthermore, despite the conclusions of the report of 9 August 2000 to the effect that the fragments found by the applicant on the scene of the incident were those of large-calibre artillery shells, it does not appear that any meaningful efforts were made to investigate the possible involvement of federal military personnel in the attack of 5 October 1999.
72.  The Court further notes that it is not quite clear whether the applicant was ever recognised as a victim in the criminal proceedings in question. The Government alleged that the status of victim had been granted to the applicant on 12 April 2001, but did not submit any relevant decision or other document to substantiate this. Even assuming that this allegation is true, the Court notes the Government’s failure to explain a delay in taking one of the most essential steps in the investigation, which would have afforded minimum procedural guarantees to the applicant, given that the criminal proceedings were instituted on 17 November 2000. It also appears that before the applicant was allegedly declared a victim, information concerning progress in the investigation was not provided to him.
73.  Finally, the Court observes that the investigation remained pending from November 2000 to April 2001, when it was suspended for almost four years and not resumed until January 2005. Between December 2005 and September 2006 the investigation also remained suspended. The Government did not advance any plausible explanation for such considerable periods of inactivity. After it was resumed the investigation was pending at least until November 2006. Between November 2000 and November 2007 it was adjourned and reopened in view of the investigative authorities’ failure to take all necessary measures at least six times.
74.  The Court thus notes in respect of the Government’s argument concerning the applicant’s alleged failure to appeal in a court against the acts or omissions of the investigators under Article 125 of the Russian Code of Criminal Procedure that in a situation where the effectiveness of the investigation was undermined from a very early stage by the authorities’ failure to take necessary and urgent investigative measures, where the investigation was repeatedly stayed and reopened, and where he was only informed of the conduct of the investigation occasionally, it is highly doubtful that the remedy invoked by the Government would have had any prospects of success. Moreover, the Government have not demonstrated that this remedy would have been capable of providing redress in the applicant’s situation – in other words, that it would have rectified the shortcomings in the investigation and would have led to the identification and punishment of those responsible for the deaths of his family members. The Court thus considers that in the circumstances of the case it has not been established with sufficient certainty that the remedy advanced by the Government would have been effective within the meaning of the Convention. The Court finds that the applicant was not obliged to pursue that remedy, and that this limb of the Government’s preliminary objection should therefore be dismissed.
75.  In the light of the foregoing, and with regard to the inferences drawn from the respondent Government’s submission of evidence, the Court further concludes that the authorities failed to carry out a thorough and effective investigation into the circumstances surrounding the deaths of the applicant’s five relatives. It accordingly holds that there has been a violation of Article 2 of the Convention on that account.
III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
76.  The applicant complained that he had been deprived of effective remedies in respect of the violations alleged under Article 2, contrary to Article 13 of the Convention, which provides as follows:
“Everyone 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.”
77.  The applicant maintained his complaint under Article 13 of the Convention.
78.  The Government argued that the applicant had had effective remedies at his disposal as required by Article 13 of the Convention and that the authorities had not prevented him from using them. The applicant had been declared a victim in the criminal case opened in connection with the killing of his family members and had received reasoned replies to all his queries. Besides, he had had an opportunity to challenge the actions or omissions of the investigating authorities in court.
79.  The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by acts or omissions by the authorities of the respondent State (see Aksoy, cited above, § 95).
80.  Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see , no. 38361/97, §§ 161-162, ECHR 2002-IV; Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports1998‑VIII, § 117; and , no. 25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Orhan v. Turkey, no. 25656/94, § 384, 18 June 2002).
81.  In view of the Court’s findings above with regard to Article 2, the applicant’s complaint was clearly “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). The applicant should accordingly have been able to avail himself of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article 13.
82.  It follows that in circumstances where, as in the present case, the criminal investigation into the death was ineffective (see paragraph 75 above) and the effectiveness of any other remedy that may have existed, including the civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention (see, among other authorities, Musayeva and Others v. Russia, no. 74239/01, § 118, 26 July 2007, or Kukayev v. Russia, no. 29361/02, § 117, 15 November 2007).
83.  Consequently, there has been a violation of Article 13 of the Convention in connection with Article 2 of the Convention.
IV.  COMPLIANCE WITH ARTICLE 34 AND ARTICLE 38 § 1 (a) OF THE CONVENTION
84.  The applicant argued that the Government’s failure to submit the documents requested by the Court at the communication stage and after the decision on admissibility disclosed a failure to comply with their obligations under Articles 34 and 38 § 1 (a) of the Convention. The relevant parts of those Articles provide:
Article 34
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
Article 38
“1.  If the Court declares the application admissible, it shall
(a)  pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities;
...”
85.  The applicant invited the Court to conclude that the Government’s refusal to submit a copy of the entire investigation file in response to the Court’s requests was incompatible with their obligations under Articles 34 and 38 § 1 (a) of the Convention.
86.  The Government contended that there was no breach of the applicant’s rights under Article 34 of the Convention since his application had been accepted for examination by the Court. They further argued that they had complied with their obligations under Article 38 § 1 (a), as they had furnished the Court with copies of the main procedural documents and provided information on investigative measures taken in the case. The Government reiterated that the submission of the entire case file would be contrary to Article 161 of the Russian Code of Criminal Procedure.
87.  The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu, cited above, § 70). This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. Failure on a Government’s part to submit such information which is in their hands, without a satisfactory explanation, may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention (see  v. Turkey, no.  3531/94, § 66, ECHR 2000-VI). In a case where the application raises issues concerning the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of facts and their absence may prejudice the Court’s proper examination of the complaint both at the admissibility stage and at the merits stage (see Tanrıkulu, above, § 70).
88.  The Court observes that it has on several occasions requested the Government to submit a copy of the file on the investigation opened into the deaths of the applicant’s relatives. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case. In reply, the Government produced only copies of procedural decisions instituting, suspending and reopening criminal proceedings, copies of decisions transferring the case from one investigator to another, copies of investigators’ decisions taking up the criminal case and some letters informing the applicant of the suspension and reopening of the criminal proceedings in the case. Relying on Article 161 of the Russian Code of Criminal Procedure, they refused to submit any other documents, such as transcripts of witness interviews, reports on investigative actions, in particular, reports of expert examinations of the fragments of shells to which they referred, or even the decision granting the applicant the status of a victim.
89.  The Court notes in this connection that the Government did not request the application of Rule 33 § 2 of the Rules of Court, which permits a restriction on the principle of the public character of the documents deposited with the Court for legitimate purposes, such as the protection of national security and the private life of the parties, and the interests of justice. The Court further notes that the provisions of Article 161 of the Code of Criminal Procedure, to which the Government referred, do not preclude disclosure of the documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure. The Government failed to specify the nature of the documents and the grounds on which they could not be disclosed (see, for similar conclusions, Mikheyev v. Russia, no. 77617/01, § 104, 26 January 2006). The Court also notes that in a number of comparable cases that have been reviewed by or are pending before the Court, similar requests have been made to the Russian Government and the documents from the investigation files have been submitted without reference to Article 161 (see, for example, Khashiyev and Akayeva v. Russiacited above, § 46, and Magomadov and Magomadov v. Russia (dec.), no. 58752/00, 24 November 2005). For these reasons, the Court considers the Government’s explanations concerning the disclosure of the case file insufficient to justify withholding the key information requested by the Court.
90.  Having regardto the importance of cooperation by the respondent Government in Convention proceedings and the difficulties associated with the establishment of the facts in cases such as the present one, the Court finds that the Russian Government fell short of their obligations under Article 38 § 1 (a) of the Convention on account of their failure to submit copies of the documents requested in respect of the killing of the applicant’s five relatives.
91.  In view of the above finding, the Court that no separate issue arises under Article 34.
V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
92.  Article 41 of the Convention provides:
“If 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.”
A.  Damage
93.  The applicant claimed EUR 100,000 in respect of non-pecuniary damage for the grief, anguish and distress which he had suffered as a result of the loss of his close relatives, namely his parents, his brother and two sisters.
94.  The Government considered the applicant’s claims to be excessive and submitted that should the Court find a violation of the applicant’s rights, a token amount would suffice.
95.  The Court observes that it has found a violation of Articles 2 and 13 of the Convention on account of the deaths of the applicant’s five close relatives and the absence of effective remedies to secure domestic redress for the aforementioned violations. The Court has also found a violation of Article 38 § 1 (a) of the Convention on account of the Government’s failure to submit the materials requested by the Court. The applicant must have suffered anguish and distress as a result of all these circumstances, which cannot be compensated by the mere finding of a violation. Having regard to these considerations and the amount claimed by the applicant, the Court considers it appropriate to grant the applicant’s claims in full and awards him EUR 100,000 for non-pecuniary damage, plus any tax that may be chargeable on this amount.
B.  The applicant’s request for an investigation
96.  The applicant also requested, referring to Article 41 of the Convention, that “an independent investigation which would comply with the Convention standards” be conducted into his relatives’ deaths. He relied in this connection on the cases of Assanidze v. Georgia ([GC], no. 71503/01, §§ 202-203, ECHR 2004‑II) and Tahsin Acar v. Turkey ((preliminary objection) [GC], . 26307/95, § 84, ECHR 2003‑VI).
97.  The Government argued that the investigation into the killing of the applicant’s family members was still in progress and that there was therefore no need for the Court to indicate any special measures in this regard.
98.  The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (restitutio in integrum). However, its judgments are essentially declaratory in nature and, in general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see, among other authorities, Scozzari and Giunta v. Italy[GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; Akdivar and Others v. Turkey (Article 50), judgment of 1 April 1998, Reports 1998-II, pp. 723-24, § 47; and Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 25, § 58). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1) (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no. 330-B, pp. 58-59, § 34).
99.  In the Court’s opinion, the present case is distinguishable from the ones referred to by the applicant. In particular, in the Assanidzejudgment the Court held that the respondent State was to secure the applicant’s release so as to put an end to the violations of Article 5 § 1 and Article 6 § 1, whereas in the Tahsin Acar the effective investigation was mentioned in the context of the Court’s examination of the respondent Government’s request for the application to be struck out on the basis of their unilateral declaration. The Court further notes its above finding that in the present case the effectiveness of the investigation had already been undermined in the early stages by the domestic authorities’ failure to take essential investigative measures (see paragraphs 70, 71 and 74 above). It is therefore very doubtful that the situation existing before the breach could be restored. In such circumstances, having regard to the established principles cited above and the Government’s argument that the investigation is currently under way, the Court finds it most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention (see Kukayev, cited above, § 134).
C.  Costs and expenses
100.  The applicant claimed EUR 1,150 and GBP 785.40 (approximately EUR 1,000) for the fees and costs he had incurred before the Court. These amounts included EUR 750 for the lawyers of the Memorial Human Rights Centre, EUR 400 for the work done by the field staff of the Memorial Human Rights Centre office in the Northern Caucasus, GBP 587.50 for the lawyers of the European Human Rights Advocacy Centre and GBP 197.90 for translation of the documents. The applicant requested that the amount sought be transferred directly into his representatives’ account.
101.  The Government did not dispute the details of the calculations submitted by the applicant, but contested the applicant’s claims in their entirety as excessive. The Government further insisted that the applicant’s claims were not supported by any relevant documents. They also objected to the request that the award for legal representation be transferred directly into the representatives’ account.
102.  The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000‑XI).
103.  The Court observes that in December 2004 the applicant gave authority to the lawyers of the Memorial Human Rights Centre and the European Human Rights Advocacy Centre to represent his interests in the proceedings before the European Court of Human Rights and that these lawyers acted as the applicant’s representative throughout the proceedings. The applicant also produced an invoice from the European Human Rights Advocacy Centre for the amount of GBP 587.50 and that from the translator for the total amount of GBP 197.90. The Court is therefore satisfied that the applicant’s claims in this part were substantiated.
104.  The Court further notes that this case was not particularly complex, but nevertheless required a certain amount of research work. Having regard to the amount of research and preparation claimed by the applicant’s representatives, the Court does not find these claims excessive.
105.  In these circumstances, the Court awards the applicant the overall amount of EUR 2,150, together with any tax that may be chargeable to the applicant. The amount awarded in respect of costs and expenses shall be payable to the representatives directly, given that it is the Court’s standard practice to rule that awards in relation to costs and expenses are to be paid directly into the applicant’s representatives’ accounts (see, for example, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 175, 2005‑VII, or Tangiyeva, cited above, § 119).
D.  Default interest
106.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Dismisses the Government’s preliminary objection;

2.  Holds that there has been a violation of Article 2 of the Convention as regards the deaths of the applicant’s five relatives;

3.  Holds that there has been a violation of Article 2 of the Convention on account of the authorities’ failure to carry out an adequate and effective investigation into the circumstances surrounding the deaths of the applicant’s five relatives;

4.  Holds that there has been a violation of Article 13 in respect of the alleged violations of Article 2;

5.  Holds that there has been a failure to comply with Article 38 § 1 (a) of the Convention in that the Government refused to submit the documents requested by the Court;

6.  Holds that separate issue arises under Article 34 of the Convention;

7.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i)  EUR 100,000 (one hundred thousand euros), to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage;
(ii)  EUR 2,150 (two thousand one hundred and fifty euros) in respect of costs and expenses, to be converted into United Kingdom pounds sterling at the rate applicable at the date of settlement and paid to the applicant’s representatives’ bank account in the United Kingdom;
(iii)  any tax, including value-added tax, that may be chargeable to the applicant on the above amounts;
(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.
Done in English, and notified in writing on 25 September 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Nielsen	Christos Rozakis
	Registrar	President