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ZUBAYRAYEV v. RUSSIA - 67797/01 [2008] ECHR 29 (10 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/29.html
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[2008] ECHR 29
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FIRST
SECTION
CASE OF
ZUBAYRAYEV v. RUSSIA
(Application
no. 67797/01)
JUDGMENT
STRASBOURG
10 January
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 Zubayrayev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Loukis Loucaides,
Françoise
Tulkens,
Nina Vajić,
Anatoli Kovler,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 6 December 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 67797/01) 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 Adam Zubayrayev (“the
applicant”), on 9 March 2001.
The
Russian Government (“the Government”) were represented by
their former Agent, Mr P. Laptev, Representative of the
Russian Federation at the European Court of Human Rights.
The
applicant alleged, in particular, that his father had been killed by
Russian servicemen in Chechnya in September 2000, and that no
effective investigation had taken place. He referred to Articles 2
and 13 of the Convention.
By
a decision of 28 September 2006, the Court declared the application
partly admissible.
The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other’s observations.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1967 and lives in Nice,
France. Before 1999 the applicant was a resident of the village of
Starye Atagi in Chechnya. He also submitted the complaint on behalf
of his close relatives: his mother, Malika Zubayrayeva, brother
Khasan (also spelled Khasin) and sisters Aset and Petimat
Zubayrayeva, who are not applicants in the present case.
The
facts of the case were partly disputed by the parties. Accordingly,
the Court requested the Government to submit copies of the criminal
investigation file. The submissions of the parties are summarised
below in Part A. A summary of the documents submitted by the
Government is set out in Part B below.
A. Submissions of the parties
1. Killing of the applicant’s father
In
October 1999 the applicant applied for asylum in Belgium. He said
that he had served in the national security service of the
self-proclaimed “Chechen Republic of Ichkeria”.
The
applicant’s parents, brothers and sisters remained in Chechnya.
His family lived in their house at 103 Nagornaya Street in the
village of Starye Atagi.
The
applicant’s mother, Malika Zubayrayeva, testified that in the
early hours of 17 September 2000 the family had been woken by loud
screams. A large group of men in camouflage uniforms and, in some
instances, masks, whom she identified as belonging to the Russian
special services (“spetsnaz”), entered the house
and forced all the inhabitants outside. They were not allowed to get
dressed and no reasons were given for their intervention. According
to her, the intruders wore insignia of the Russian army and spoke
Russian without an accent.
According
to the applicant, the inhabitants of the house were lined up in the
courtyard facing the wall and their passports were collected. The
servicemen read out the names in the passports one by one. One of the
applicant’s brothers, Magomed, was not at home that night and
the men asked about his whereabouts. The applicant’s father
Salaudi (also spelled Salavdi) Zubayrayev replied that he was not at
home. The intruders hit the applicant’s other brother, Khasan
Zubayrayev (born in 1977), with a rifle butt on the head and led the
applicant’s father away. They then forced the women into one of
the rooms. In the meantime others opened all the rooms in the house
and searched them. They collected valuables and family photographs.
Once
the armed men had left, the women went outside and found Khasan in
the courtyard. The body of the applicant’s father was found
about 100- 200 metres from the house. He had been shot in the back of
the head with an automatic rifle.
On
the same night and in similar circumstances four other persons were
killed in Starye Atagi: Musa Abubakarov (aged about 70), Zaur
Demilkhanov (who was born in 1982), Vakha Elmurzayev (aged about 70)
and Isa Elmurzayev (aged about 30).
The
applicant submitted that on 18 September 2000 the Russian television
news had announced that several persons, including the applicant’s
father, had been killed the previous night in Starye Atagi by
religious extremists – the “wahhabists”.
The
Government submitted that in the early hours of 17 September 2000 a
group of unidentified persons armed with automatic weapons had
entered the village of Starye Atagi and murdered five men, all of
whom had been shot with automatic weapons. The Government stressed
that all the persons killed had been loyal to the federal
authorities, and openly expressed their negative opinion of
“wahhabists.” The Government also stressed that one of
the persons killed was the son of a police officer from the Ministry
of the Interior. They submitted that there was no reason to suspect
that the killings had been committed by State agents.
2. Prosecutor’s visit of 17 September 2000
The
applicant submitted that on 17 September 2000 the family had been
preparing for Salaudi Zubayrayev’s funeral when they learnt
that there were investigators present at the crime scene. The
applicant’s younger brother Khasan had gone to see them. He had
taken along cartridges he had found near his father’s body –
nine from a Kalashnikov 5,45 millimetre automatic rifle and three
from a 9 mm Makarov pistol.
At
the place where his father’s body had been found the
applicant’s brother saw a group of servicemen surrounded by
villagers. He inquired who was the most senior and gave him the
cartridges. The officers stated that they had come from the Grozny
District Prosecutor’s Office. The applicant’s brother had
tried to explain that he was the son of the person killed and a
witness of the crime, and that other members of the family were at
home preparing the body for burial. As the officers did not seem to
be interested in his statements, he had tried to obtain their names
and ranks. In response one of the officers had rudely asked if he
also wanted to know his home address in Russia. The officers had
shouted at him and the other villagers, and had ordered them to
disperse and made threats. They had not visited their house. None of
the family members were questioned that day or later about the
circumstances of the murders, nor had anyone come to their house to
take pictures of the body or to collect other relevant evidence.
The
applicant said that his father had been buried on 17 September
2000 at the village cemetery. The family members had not contacted a
doctor or taken pictures of the body before the burial. Nor had they
contacted any representatives of the military or investigative
bodies, as they considered this to be a waste of time in view of the
prosecutors’ attitude. They were never contacted by the
authorities in relation to the murder.
The
Government submitted that on 17 September 2000, immediately following
the receipt of news of the murders in Starye Atagi, a group of
investigators had arrived in the village and taken immediate action.
They had submitted copies of documents that had been drawn up by the
investigators on 17 September 2000, including descriptions of the
scenes of the murders and of the bodies, including that of Salaudi
Zubayrayev. The team had also collected cartridges and bullets (see
paragraphs 44 and 45 below). The Government denied that the
investigators had ever mistreated the relatives of the victims and
noted that the case file contained no complaints from the victims or
anyone else of reprehensible conduct on the part of the officers of
the law-enforcement bodies.
3. The official investigation
On
17 September 2000 the Grozny District Prosecutor’s Office
opened a criminal investigation into the murders of five men in
Starye Atagi under Article 105 § 2 of the Criminal Code (the
provision applicable to multiple murders). The investigation was
assigned case file no. 18040.
On
the same day the acting Grozny District prosecutor informed the
prosecutor of Chechnya about the events and the action that had been
taken by his office in the aftermath of the murders. His note
referred to the information collected in Starye Atagi, including the
examination of the scenes of the crime and of the bodies and to the
cartridges and bullets that had been collected. It concluded by
saying, on the basis of the statements of the local residents, that
the crime had probably been committed by illegal armed groups .
On
17 October 2000 the Grozny District Civil Registration Office issued
a death certificate for Salavdi Dzhamilovich Zubayrayev, who had been
born in 1935. Death was recorded as having occurred on 17 September
2000 in Starye Atagi.
At
the end of September 2000 the applicant wrote to the Council of
Europe Commissioner for Human Rights, complaining of the murder of
his father and other persons in Starye Atagi and of the absence of an
investigation. In a reply dated 5 December 2000 the Commissioner for
Human Rights expressed his sympathy and promised to raise the issue
with the Special Envoy of the Russian President
in Chechnya for Rights and Freedoms, Mr Kalamanov, at a
meeting which was due to take place the same day.
On
17 November 2000 the investigation was adjourned because the killers
could not be identified. It does not appear that anyone was granted
victim status in the proceedings at that time or that information
about the adjournment was communicated to the victims’
relatives.
On
5 April 2001 the investigation was resumed. The Chechnya Prosecutor’s
Office ordered a number of steps to be taken, in particular
eye-witnesses and other witnesses were to be questioned, victim
status was to be granted to the relatives of those killed,
information concerning the personalities of the deceased was to be
collected and forensic and ballistic tests were to be carried out.
On
19 May 2001 the investigation was adjourned. It does not appear that
any investigative activity took place between November 2001 and
October 2004.
In
September 2004 the present application was communicated to the
Russian Government.
On
16 October 2004 the investigation was resumed pursuant to an order of
the Grozny District Prosecutor. The order contained criticism of the
investigation that had been carried out up to that point and referred
to a number of basic investigative steps that needed to be taken (see
paragraph 49 below).
In
October 2004 the relatives of the five men who had been killed in
Starye Atagi on 17 September 2000 were questioned and granted victim
status. According to the Government, they stated that their relatives
had been killed in the early hours of 17 September 2000 by unknown
armed men wearing masks. They did not have any suspicions as to the
identity of the killers. The Government referred to their statements,
but did not submit any copies. They also referred to undated
statements of other residents of Starye Atagi, who likewise did not
possess any information about the identity of the killers.
The
Government further submitted that in November 2004 a certain Rustam
Z. had been charged with participating in an illegal armed group and
involvement in the murder of Mr Demilkhanov on the night of
17 September 2000. Later Rustam Z. retracted his statements in
this regard, alleging that they had been made under duress. In March
2005 the charges relating in part to his involvement in the murders
on 17 September 2000 were dropped. The investigation of the charges
against Rustam Z. was at some point joined with the investigation of
the five murders, but after the charges against him were dropped, the
cases were separated (see paragraphs 51-54 below).
The
Government added that the investigation into the murders committed in
Starye Atagi on 17 September 2000 had been adjourned and
reopened on four occasions.
In
their observations, the Government also stated that the relatives of
Salaudi Zubayrayev had not been interviewed or been granted victim
status in the proceedings in view of their departure from Russia. In
October 2004 the investigation questioned and granted victim status
to Mrs. E., Salaudin Zubayrayev’s daughter-in-law. She stated
that she had been in Grozny at the relevant time but had no
additional information about the circumstances of the crime.
The
Government added that the investigation had failed to establish the
identity of the culprits and no one had been charged with the crime.
However, the implication of servicemen or representatives of other
State authorities had not been established. The investigation had
focused on the main theory that the murders had been committed by
members of illegal armed groups in order to intimidate the civilian
population and to destabilise the district, especially as one of the
persons killed was the son of a police officer from the Ministry of
the Interior.
Following
the Court’s decision on admissibility in September 2006 and a
request to produce documents from the investigation file, the
Government submitted about 50 pages of documents from the case file,
which contained over 300 pages. The documents are summarised below in
Part B, and, in addition to the initial documents drawn up on
17 September 2000, contained the prosecutor’s decisions to
adjourn and reopen the investigation and papers relating to the
charges against Rustam Z. Relying on the information obtained from
the Prosecutor General’s Office, the Government observed that
the investigation was in progress and that disclosure of the
documents would violate Article 161 of the Code of Criminal
Procedure, since the file contained information of a military nature
and personal data concerning the witnesses. However, they agreed to
produce several documents whose “disclosure did not contravene
the requirements of Article 161”.
4. Subsequent events
The
applicant’s relatives stated that on 10 December 2000 three
armoured personnel carriers (APCs) and one Ural truck with soldiers
had arrived at their family home. The applicant’s two brothers,
Magomed and Khasan, had run away through the backyard when they heard
the vehicles approaching. The applicant’s mother had remained
in the house with her daughters and daughters-in-law.
According
to the applicant’s mother, servicemen wearing masks had entered
the house, asked the women about the whereabouts of the men, and then
asked if anyone had complained “to Europe”. They had also
asked them about electronic equipment found in the house and whether
they had any weapons or money. The applicant also alleged that the
military had taken a number of valuables from the house. The
neighbours had later told the Zubayrayev family that the hull and
registration numbers of the APCs and the Ural truck were covered with
mud and that they had not been allowed to get sufficiently close to
note them down.
The
raid on the Zubayrayevs’ house on 10 December 2000 had been
reported by NGO Memorial in their monthly monitor of human-rights
violations in Chechnya. In February 2001 the applicant had again
written to the Council of Europe Human Rights Commissioner, to inform
him that pressure was being exerted on his family.
Early
in the morning of 14 January 2001 the applicant’s family’s
house had again been searched by servicemen. After that the
applicant’s remaining family had left the house, as they feared
for their lives and security and did not trust the Russian
authorities any more.
The
applicant presented his mother’s written account of these
events, countersigned by her and her other children who had been
living with her at that time.
In
February 2001 Obyedinennaya Gazeta published an open letter
from the residents of Starye Atagi to Mr Aslakhanov, a member of the
State Duma. The letter, which was signed by the head of the village
council and 150 villagers, complained of several “mopping-up”
operations in the village in 2000 – 2001, including on 14
January 2000, when the Zubayrayev family home was raided. The letter
further listed 57 inhabitants of the village who had lost their lives
since October 1999, among them the applicant’s father and four
other men, who had been killed on the night of 17 September 2000 by
unknown persons wearing camouflage uniforms and masks and speaking
Russian.
In
March 2001 the applicants’ remaining family left Russia and
sought asylum abroad.
The
Government denied that there was any information to suggest that the
members of the applicant’s family had been ill-treated or that
their homes had been searched or their possessions confiscated.
B. Documents submitted by the Government
In
December 2006 the Government informed the Court of the progress of
the investigation and produced several documents from the case file.
Altogether, they produced 34 documents running to 52 pages from the
file, which, as can be ascertained from the page numbering, comprised
over 300 pages. Below is a summary of the documents concerned.
1. Information about the killings and the progress of the
investigation
On
17 September 2000 the investigative group of the Grozny District
Prosecutor’s Office compiled a report on the scene of the
crime. The five-page handwritten document contained a description of
each individual site where the killings had been carried out, a brief
description of the bodies of the victims and a list of the cartridges
and bullets that had been collected at the sites, some of which bore
production numbers. In relation to the applicant’s father the
report read: “the body of Salaudi Zubayrayev was examined in
his house. The body bears two gunshot wounds to the dorsum and two to
the head: one to the back of the head and one to the right temple
area.”
On
17 September 2000 the Grozny District acting prosecutor drew up the
following account of the events for the Chechnya Prosecutor:
“At 9.30 a.m. on 17 September 2000 the Grozny
District Prosecutor’s Office was informed by the Grozny
Temporary District Department of the Interior (VOVD) of the murder of
five inhabitants of Starye Atagi. Following this message, at 10 a.m.
a group of [investigators of the district prosecutor’s office
and the VOVD] set out to the scene of the crime. There, a number of
operative and immediate investigative steps were taken, as a result
of which it was possible to establish the following.
On the night of 16 to 17 September 2000, at about 2
a.m., a group of persons using a number of vehicles (probably
including a grey Volga car without number plates) had burst into the
village. The group was composed of about 14-18 persons wearing new
camouflage uniforms of a green-yellow colour and armed with automatic
weapons, hand-pistols and knives. Between 2 a.m. and 3 a.m. the group
murdered five inhabitants of the village; one person was wounded and
a Volga car was damaged by gunfire.
Abubakarov Musa, who was born in 1928 in Starye Atagi
and was of Chechen ethnic origin and disabled, was taken out of his
house at 15 Pochtovaya Street and shot dead in the street, about 200
metres from his home. The body bears gunshot wounds to the head (4)
and back (1) and a knife wound to the chest.
Demilkhanov Zaur Gikhaniyevich, who was born on
28.04.1981 in Grozny and was of Chechen ethnic origin and unemployed,
was killed in his house at 155 Nagornaya Street, in the presence of
his parents. The body bears gunshot wounds to the head (2), back and
legs (2).
Elmurzayev Vakha Elmurzayevich, who was born on
21.03.1934 in the village of Zony and was of Chechen ethnic origin
and unemployed, was taken out of his house at 150 Nagornaya Street by
the assailants and killed in the courtyard of the house at 156
Nagornaya Street. The body bears injuries from blunt instruments to
the head, gunshot wounds to the chest and abdomen (6).
Elmurzayev Isa Vakhovich (son of Vakha Elmurzayev), who
was born on 15.03.1967 in Starye Atagi and was of Chechen ethnic
origin and disabled, was killed in his house at 150 Nagornaya Street.
The body bears gunshot wounds to the neck (1) and chest (4).
Zubayrayev Salavdi Khamilyevich, who was born in 1935 in
Starye Atagi and was of Chechen ethnic origin, lived in his house at
105 Nagornaya Street. He was taken out of his house by the assailants
and killed in Podgornaya Street, about 100 metres away. The body
bears gunshot wounds to the back (3) and head (2).
The same armed persons also attacked Moldy [M.], who was
at his home at 50 Sheripova Street. He received gunshot wounds to
both legs and the abdomen. However, he managed to escape from his
assailants and his neighbours immediately took him to hospital in a
Volga car, where he received first aid. While [M.] was being driven
to the hospital, the vehicle [he was travelling in] was shot at and
damaged.
After the assault the criminals left Starye Atagi in an
unknown direction.
As the statements of the witnesses show, the criminals
used automatic weapons (AK, AKM), hand pistols (PM) and knives. The
firearms were equipped with silencers. Attempts from fellow villagers
to intervene were cut off by threats and shots fired in the air.
Between themselves the criminals spoke Russian, some with a Chechen
accent. They did not make any demands of the victims or take any
property. They acted in a coordinated way, according to a plan, with
remarkable audacity and cynicism. The murders were committed in the
presence of relatives and fellow villagers.
The victims had no family, personal or business
connections with or dependencies on each other. They did not
participate in political or public life. There is no information
concerning their possible involvement with illegal armed groups.
During the on-site inspection each of the places where
the victims were killed was examined, as were the sites where [Mr M.]
was attacked and the Volga car shot at. The investigators took a
large number of photographs of the relevant spots and traces of blood
and collected a number of cartridges and bullets (5,45 millimetre,
7,62 millimetre – that is to say AKS-74U and AKM accordingly, 9
millimetre – PM).
On 17 September 2000 the Grozny District Prosecutor’s
Office opened criminal investigation file no. 18040 under
Article 105 part 2 (a) of the Criminal Code. ...
The main theory of the investigators is that the crime
was committed by members of illegal armed groups in order to scare
the local population and to destabilize the situation in Grozny
District, in order to provoke a conflict between the population and
the acting federal authorities. The investigators are also looking at
other possible explanations.
It should further be noted that the crime has been
widely reported and prompted an outcry by a large section of the
public. It has given rise to antagonism on the part of the population
of Starye Atagi towards the law-enforcement authorities and allowed
them to disparage the work of the law-enforcement bodies and the
federal authorities in general. The villagers are certain that the
crimes were committed by members of illegal armed groups. The
investigative team who came to Starye Atagi on 17 September 2000 were
criticised by the local residents who said that the federal
authorities and law-enforcement bodies were unable to protect them
against criminal attacks by illegal armed groups; as an example of
this they referred to the events of 17 September 2000.”
On
17 November 2000 the investigation was adjourned because the identity
of the killers could not be established.
On
5 April 2001 the investigation was resumed. The Chechnya Prosecutor’s
Office ordered a number of steps to be taken, in particular that
eye-witnesses and other witnesses be questioned, victim status be
granted to the victims’ relatives, information concerning the
personalities of the deceased be collected, and forensic and
ballistic expert reports carried out.
On
19 May 2001 the investigation was adjourned. It does not appear that
this information was conveyed to anyone outside the Grozny District
Prosecutor’s Office.
On
16 October 2004 the investigation was resumed pursuant to an order of
the Grozny District Prosecutor. The order noted that one Moldy M.,
who had been wounded on 17 September 2000, had not been questioned.
The district prosecutor stated that he should be questioned and
granted victim status in the proceedings and that a medical expert
report should be ordered. Furthermore, the investigating authorities
were to collect statements from relatives of the five men who had
been killed and to accord them victim status. They were also to
question neighbours, police officers and local public officials about
the personalities of the victims and the circumstances of the crime.
They were instructed to make an official inventory of the real
evidence pertaining to the case, notably the bullets and cartridges,
and to obtain the results of a ballistic expert’s report, which
had apparently been commissioned in October 2000.
In
November 2004 the Grozny District Prosecutor extended the term of the
investigation for one month. He noted that a number of procedural
steps had been carried out in the meantime, in particular, Mr M. had
been questioned and, he and the relatives of the five persons killed
had been granted victim status in the proceedings. Witness statements
had been collected from villagers, police officers and local
officials in Starye Atagi. A number of expert reports had been
commissioned and in some cases the results had already been obtained.
However, a number of other investigative actions were still pending
and therefore the term of the investigation was extended.
2. Charges brought against Rustam Z.
On
2 November 2004 a certain Rustam Z. was arrested and charged with
participation in an illegal armed group (Article 209 part 2 of the
Criminal Code) and murder committed by a group (Article 105 part 2
(j)).
On
18 November 2004 the acting deputy to the Chechnya Prosecutor ordered
the joinder of the proceedings in criminal investigation file
no. 51979 against Rustam Z. and criminal investigation file
no. 18040 concerning the murder of five persons in Starye Atagi
on 17 September 2000. The decision referred to a statement of 1
November 2004 in which Mr Z. had admitted his involvement in the
murders. He stated that since 2002 he had been a member of an illegal
armed group, at that time headed by “Emir Mussa Salayev”.
In 2000, before becoming a full member of the gang, he had been asked
by one of its members to assist in “settling the scores”
with the Starye Atagi local police inspector [Mr Demilkhanov]. It was
thus established that the investigation concerned the same set of
events and the proceedings were joined to case no. 51979.
Rustam
Z. was questioned again on 11 November 2004 and stated that in the
evening of 16 September 2000 he had been asked to keep watch outside
the house of the police officer. He had heard shots fired inside the
house. After about 30 minutes he saw that other members of the gang
had brought an older man to the house and heard further shots being
fired. The gang members later told him that they had not found the
police inspector at home and had killed his son [Zaur Demilkahnov] in
his bed because they had mistaken him for his father. He had later
learnt that the gang members had killed several other persons in the
village that night.
On
a later date Mr Z. stated that he had made his statement under duress
from the police officers who had arrested him and that he had not
taken part in the killing of Zaur Demilkhanov. His relatives
testified that Rustam R. had been in Ingushetia from 1999 to 2002,
together with the rest of the family. He had not been in Chechnya
even for short periods prior to 2002. On 15 March 2005 the murder
charges were withdrawn. As a result, on 23 April 2005 the two
criminal cases were again severed and the five murders of 17
September 2000 were reassigned to case file no. 18040. In April
2005 Mr Z. was charged with participation in an illegal armed group,
armed robbery, the illegal handling of arms and explosives and
stealing identity documents.
On
1 May 2005 investigation no. 18040 was adjourned. The victims
were informed of that decision and of the possibility of an appeal.
On
14 November 2006 the investigation was resumed, before being further
adjourned on 14 December 2006 and reopened on 20 December 2006.
The victims were informed.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION OF FAILURE
TO EXHAUST DOMESTIC REMEDIES
A. Arguments of the parties
The
Government requested the Court to declare the case inadmissible on
the ground that the applicant had failed to exhaust domestic
remedies. They noted that the applicant and his family members had
not lodged in the Chechnyan or Northern Caucasus courts any
complaints about the actions of the authorities or any civil claims,
and had therefore failed to use the domestic remedies available.
The
applicant contested the Government’s objection. He insisted
that special circumstances in his case had absolved him of the
obligation to exhaust domestic remedies. In any event, he pointed to
the fact that on the day of his father’s murder his brother had
approached the prosecutors, but they had shown no interest in
interviewing him or other family members as witnesses or as victims,
or in collecting other evidence. They had declined to come to the
house to examine and take pictures of his father’s body, to
record the injuries or to conduct an autopsy.
The
applicant stressed that the Government’s assertion that his
relatives could not be interviewed in view of their departure abroad
was unfounded because they had left in March 2001 and no one had
attempted to interview them beforehand. They had received no official
papers relating to the investigation or to the investigators’
visit of 17 September 2000.
The
applicant referred to the violence and reprisals to which his family
had been subjected and which had eventually led to their leaving
Russia. He also referred to the special circumstances which had
existed in Chechnya until the end of 2000 and had been marked by the
absence of any effective remedy against the actions of the military
or security personnel. He asked the Court to dismiss the Government’s
preliminary objection.
B. The Court’s assessment
In
the present case the Court took no decision about the exhaustion of
domestic remedies at the admissibility stage, having found that this
question was too closely linked to the merits. It will now proceed to
examine the arguments of the parties in the light of the provisions
of the Convention and its relevant practice. The Court observes that
the Russian legal system provides, in principle, two avenues of
recourse for the victims of illegal and criminal acts attributable to
the State or its agents, namely civil remedies and criminal remedies.
As
regards a civil action to obtain redress for damage sustained through
allegedly illegal acts or unlawful conduct on the part of State
agents, the Court notes that the Government suggested that the
applicant could have lodged a complaint with a district сourt
in Chechnya or in one of the nearby regions. The Government did not
refer to any examples of cases in which such courts were able, in the
absence of any results from the criminal investigation, such as the
identity of the potential defendant, to consider the merits of a
claim relating to alleged serious criminal actions.
The
Court further observes that even assuming that the applicant had
brought such proceedings and succeeded in recovering civil damages
from a State body, it would still not have resolved the issue of
effective remedies in the context of claims brought under Article 2
of the Convention. The civil courts are unable to conduct an
independent investigation and are incapable, without the benefit of
the conclusions of a criminal investigation, of making any meaningful
findings regarding the identity of the perpetrators of fatal
assaults, still less to establish their responsibility (see Khashiyev
and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 119-121,
24 February 2005). 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 might be rendered illusory if, in
respect of complaints under those Articles, an applicant was required
to exhaust an action leading only to an award of damages (see Yaşa
v. Turkey, judgment of 2 September 1998, Reports
1998 VI, p. 2431, § 74).
In
the light of the above, the Court finds that in respect of his
complaint under Article 2 the applicant was not obliged to pursue the
civil remedies suggested by the Government in order to exhaust
domestic remedies, and the preliminary objection is in this respect
unfounded.
As
regards criminal-law remedies, it is undisputed that the authorities
were immediately aware of the killings and had commenced an
investigation the same day. The Court observes that under Russian law
parties to proceedings may challenge the progress of the criminal
investigation before a supervising prosecutor or a judge. However,
the applicant and members of his family were excluded from the
proceedings. Contrary to the usual practice under national law, the
deceased’s family members were not granted the official status
of victims in the criminal proceedings, a procedural role which would
have entitled them to intervene during the course of the
investigation. The Government’s reference to their departure
abroad does not suffice to explain this omission in view of the
family’s presence in Chechnya for a number of months after the
event, including on 17 September 2000 when a team of investigators
arrived in Starye Atagi. Thus, it is unclear how they could have made
use of this provision. Even assuming that they could have done so,
the decisions to adjourn the investigation were anyway repeatedly
quashed by the supervising prosecutors. The Court is thus not
persuaded that an appeal from the applicant or his family members
would have made any difference. The applicant must therefore be
regarded as having complied with the requirement to exhaust the
relevant criminal-law remedies. In view of this conclusion, the Court
is not required to decide whether there existed special circumstances
which would have absolved the applicant from the obligation to
exhaust domestic remedies.
Accordingly,
the Court dismisses the Government’s preliminary objection in
respect of the complaints under Article 2.
II. THE COURT’S ASSESEMENT OF THE EVIDENCE AND THE
ESTABLISHMENT OF THE FACTS
A. Arguments of the parties
The
applicant alleged that his father had been unlawfully killed by
agents of the State and that the authorities had failed to carry out
an effective and adequate investigation into the circumstances of his
death.
The
Government referred to the absence of conclusions from the
investigation, which was still pending, and denied any responsibility
on the part of the State for the killing of Salaudi Zubayrayev. They
argued that there was information to believe that the crime had been
committed by religious extremists.
B. General principles
Before
proceeding to assess the evidence, 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
v. Turkey [GC], no. 23763/94, § 70, ECHR 1999–IV).
In cases in which there are conflicting accounts of the events, the
Court is inevitably confronted when establishing the facts with the
same difficulties as those faced by any first-instance court. It is
inherent in proceedings relating to cases of this nature, where an
individual applicant accuses State agents of violating his rights
under the Convention, that in certain instances solely the respondent
Government have access to information capable of corroborating or
refuting these allegations. A 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 Timurtaş v. Turkey,
no. 23531/94, §§ 66 and 70, ECHR 2000-VI; and Taniş
and Others v. Turkey, no. 65899/01, § 160,
ECHR 2005-VIII).
The
Court is sensitive to the subsidiary nature of its role and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Nonetheless, where allegations are made under Articles 2
and 3 of the Convention the Court must apply a particularly thorough
scrutiny (see, mutatis mutandis, the Ribitsch v. Austria
judgment of 4 December 1995, Series A no. 336, § 32; and Avsar
v. Turkey cited above, § 283) even if certain domestic
proceedings and investigations have already taken place.
As to the facts that are in dispute, the Court refers
to its case-law confirming the standard of proof as “beyond
reasonable doubt” in its assessment of evidence (see Avşar
v. Turkey, no. 25657/94, § 282, ECHR 2001 VII
(extracts)). Such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. In this context, the conduct of the
parties when evidence is being obtained has to be taken into account
(Ireland v. the United Kingdom judgment of 18 January 1978,
Series A no. 25, p. 65, § 161).
The Court has long held that where the events in issue
lie wholly, or to a large extent, within the exclusive knowledge of
the authorities – as in the case of persons in custody under
those authorities’ control – strong presumptions of fact
will arise in respect of injuries and deaths occurring during such
detention. Thus, it has found that where an individual is taken into
custody in good health but is found to be injured at the time of
release, it is incumbent on the State to provide a plausible
explanation of how those injuries were caused, failing which an issue
will arise under Article 3 of the Convention (see Tomasi v.
France, judgment of 27 August 1992, Series A no. 241-A, pp.
40-41, §§ 108-111; Ribitsch v. Austria,
judgment of 4 December 1995, Series A no. 336, pp. 25-26, §
34; and Selmouni v. France [GC], no. 25803/94, § 87,
ECHR 1999-V). Indeed, in such situations the burden of proof may be
regarded as resting on the authorities (see,
inter alia,
Salman v. Turkey [GC], no. 21986/93,
§ 100, ECHR 2000-VII).
The
Court has also considered it legitimate to draw a parallel between
the situation of detainees, for whose well-being the State is held
responsible, and the situation of persons found injured or dead in an
area within the exclusive control of the authorities of the State.
Such a parallel is based on the salient fact that in both situations
the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities (see Akkum and Others v.
Turkey, no. 21894/93, § 211, ECHR 2005 II
(extracts)).
C. Article 38 § 1(a) and consequent inferences
drawn by the Court
The
applicant alleged that his father had been killed by servicemen. In
view of this allegation, the Court asked the Government to produce
documents from the criminal investigation file opened in relation to
the murder. The evidence contained in that file was regarded by the
Court as crucial to the establishment of the facts in the present
case.
In
their submissions, the Government confirmed that on the night of
16-17 September 2000 Salaudi Zubayerayev and four other persons had
been killed by masked gunmen in Starye Atagi. However, they argued
that the exact reasons and circumstances of their deaths had not been
elucidated. They refused to disclose most of the documents of
substance from the criminal investigation file, invoking Article 161
of the Code of Criminal Procedure, which, according to them,
precluded the disclosure of these documents.
The
Court notes 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 documents
deposited with the Court for legitimate purposes, such as the
protection of national security and the private life of the parties,
as well as the interests of justice. The Court further notes that it
has already found on a number of occasions that the provisions of
Article 161 of the Code of Criminal Procedure do not preclude
disclosure of the documents from a pending investigation file, but
rather set out a procedure for and limits to such disclosure (see
Mikheyev v. Russia, no. 77617/01, § 104,
26 January 2006; and Imakayeva v. Russia, no. 7615/02,
§ 123, ECHR 2006 ... (extracts)). For these reasons
the Court considers the Government’s explanations concerning
the disclosure of the case file insufficient to justify the
withholding of the key information requested by the Court.
In
view of this and bearing in mind the principles cited above, the
Court finds that it can draw inferences from the Government’s
conduct in this respect. Furthermore, and referring to the importance
of a respondent government’s cooperation in Convention
proceedings, the Court notes that there has been a breach of the
obligations laid down in Article 38 § 1 (a) of
the Convention to furnish all necessary facilities to the Court in
its task of establishing the facts.
D. The Court’s evaluation of the facts
The
Court notes that it is not disputed that Salaudi Zubayrayev was shot
on 17 September 2000 along with four other inhabitants of the
village. The applicant alleged that the murders had been committed by
State agents, while the Government submitted that they were committed
by members of illegal armed groups.
The
Court notes that the applicant’s allegation that servicemen
were responsible for the killings is based on his mother’s
statement that they had spoken Russian and wore camouflage uniforms.
The applicant himself was not an eye-witness to the events. No other
witness statements were submitted and no additional information is
available about the events of 17 September 2000. The Government
pointed out that while the identities of the killers had not been
established, there were reasons to believe that the crimes had been
committed by illegal insurgents in order to instil fear in the
residents and turn them against the authorities. They referred to
information that had been collected by the investigators in the
immediate aftermath of the crimes and to the statements of Rizvan Z.
implicating an illegal armed group in the murder of the local police
inspector’s son on the same date.
The
Court reiterates that the evidentiary standard of proof required for
the purposes of the Convention is proof “beyond reasonable
doubt”, and that such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. The Court has also noted the
difficulties for applicants to obtain the necessary evidence in
support of allegations in cases where the respondent Government are
in possession of the relevant documentation and fail to submit it.
Where the applicant makes out a prima facie case and the Court
is prevented from reaching factual conclusions owing to the lack of
such documents, it is for the Government to argue conclusively why
the documents in question cannot serve to corroborate the allegations
made by the applicants, or to provide a satisfactory and convincing
explanation of how the events in question occurred. The burden of
proof is thus shifted to the Government and if they fail in their
arguments, issues will arise under Article 2 and/or Article 3 (see
Toğcu v. Turkey, no. 27601/95, § 95, 31 May
2005, and Akkum and Others v. Turkey, no. 21894/93, § 211,
ECHR 2005 II).
The
Court has already noted above that it has been unable to benefit from
the results of the domestic investigation owing to the Government’s
failure to disclose certain documents from the file. Nevertheless, it
is clear that the investigation did not identify the perpetrators of
the killings and did not establish the circumstances of the death of
the applicant’s father. The investigators considered from the
outset, on the basis of information obtained at the scene of the
crime, notably the statements of local residents, that the crime had
been committed by illegal insurgents (see paragraph 46 above). At
some point in 2004 a man charged with the membership of an organised
illegal armed group confessed to his involvement in the crime, but
later retracted his statements, claiming that they had been made
under duress. He was cleared of the murder charges (see paragraphs
52-55 above). The investigators thus found no conclusive evidence to
support any of their hypotheses concerning the murders.
The
Court has found the Russian State authorities responsible for
extra-judicial executions or disappearances of civilians in Chechnya
in a number of cases, even in the absence of final conclusions from
the domestic investigation (see Khashiyev and Akayeva v. Russia,
nos. 57942/00 and 57945/00, 24 February 2005; Luluyev and
Others v. Russia, no. 69480/01, ECHR 2006 ...
(extracts); Estamirov and Others v. Russia, no. 60272/00,
12 October 2006; Imakayeva v. Russia, no. 7615/02,
ECHR 2006 ... (extracts); and Baysayeva v. Russia, no.
74237/01, 5 April 2007). It has done so primarily on the basis of
witness statements and other documents attesting to the presence of
military or security personnel in the area concerned at the relevant
time. It has relied on references to military vehicles and equipment,
on witness accounts, on other information about the execution of
security operations and on the undisputed effective control of the
areas in question by the Russian military, for example, through the
existence of check-points on the roads used by the perpetrators of
the attacks and their ability to travel unhindered during curfew
hours. On that basis, it has concluded that the areas in question
were “within the exclusive control of the authorities of the
State” in view of military or security operations being held
there and the presence of servicemen (see, mutatis mutandis,
Akkum v. Turkey, cited above, § 211).
However,
in the present case the Court has little evidence on which to draw
such conclusions. The only witness statement indicates that the
killers were armed, spoke Russian and wore camouflage uniforms. This
does not suffice to establish that the killers belonged to the
security forces or that a security operation had been carried out in
the village. On the other hand, the Court takes into account the
Government’s submission that the crimes could have been
committed by illegal insurgents, for example their reference to the
attack on the house of the local police inspector, where his son and
another man were killed. The Court accepts that the situation in
Chechnya in 2000 was marked by a breakdown of law and order and that
the activities of illegal armed groups continued to pose a serious
threat to public security even after the federal authorities had
established formal control over the territory of the republic. In
such circumstances, the Court cannot attribute responsibility for the
unlawful acts in the present case to the respondent State without
additional evidence to that effect.
The
Court further notes that unlike the position in all the
aforementioned cases, the applicant and his family members have never
communicated to the authorities their version of the events, as the
statement of the applicant’s mother was produced only in
connection with her application to Strasbourg. Nor is the Court aware
of any similar allegations by other families of the victims. There
exists no independent confirmation in the press or NGO reports of the
applicant’s contention. On the contrary, the killings were
reported in the press as being the work of religious extremists (see
paragraph 14 above).
To
sum up, it has not been established to the required standard of
“beyond reasonable doubt” that the security forces had
been implicated in the death of Salaudi
Zubayrayev; nor does the Court consider that the burden of
proof can be entirely shifted to the Government.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicant alleged that his father, Salaudi Zubayrayev, had been
killed by agents of the State and that the domestic authorities had
failed to carry out an effective investigation into the death. He
relied on Article 2 of the Convention, which provides:
“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
The
applicant maintained that Russian servicemen had deprived Salaudi
Zubayrayev of his life.
The
Government submitted that no evidence had been collected to support
the allegations that the authorities were responsible. The identity
of the persons who committed the murders on 17 September 2000
remained unknown.
The
Court reiterates that Article 2, which safeguards the right to life
and sets out the circumstances in which deprivation of life may be
justified, ranks as one of the most fundamental provisions in the
Convention, from which no derogation is permitted. Together with
Article 3, it also enshrines one of the basic values of the
democratic societies making up the Council of Europe. The
circumstances in which deprivation of life may be justified must
therefore be strictly construed. The object and purpose of the
Convention as an instrument for the protection of individual human
beings also requires that Article 2 be interpreted and applied so as
to make its safeguards practical and effective (see McCann and
Others, cited above, §§ 146-47).
In
the light of the importance of the protection afforded by Article 2,
the Court must subject deprivation of life to the most careful
scrutiny, taking into consideration not only the actions of State
agents but also all the surrounding circumstances (see, among other
authorities, Avşar, cited above, § 391).
As
noted above, the domestic investigation failed to produce any
tangible results as to the identities of the persons who committed
the murder. The applicant was unable to submit persuasive evidence to
support his allegations of State agents being the perpetrators of the
murder. The Court has already found above that, in the absence of
relevant information, it is unable to find that security forces had
been implicated in the death of the applicant’s father (see
paragraphs 78-85 above). It was unable to establish “beyond
reasonable doubt” that Salaudi Zubayrayev
was deprived of his life by State agents.
In such circumstances the Court finds no State
responsibility, and thus no violation of the substantive limb of
Article 2 of the Convention.
B. Alleged inadequacy of the investigation
1. Submissions by the parties
The
applicant argued that the authorities had failed to conduct an
effective investigation into the circumstances of his father’s
death. He contended that the authorities had been informed of the
killings immediately and that the officers of the law-enforcement
bodies had been present at the scene from the very beginning on 17
September 2000, which had given rise to an ipso facto
obligation to carry out an effective investigation (the applicant
referred to Salman v. Turkey, cited above, § 104).
Despite that, they had failed to question the witnesses and victims
of the crimes, to collect and secure important evidence or to carry
out an autopsy or a forensic report on the bodies. The authorities
had failed to inform the victim’s family members of the
proceedings. The fact that the investigation had been going on for
such a long time without producing any known results and that it had
been reopened just a few weeks after the communication of the present
complaint to the Russian authorities served, in the applicant’s
view, as further proof of its ineffectiveness.
The
Government contended that the investigation was being carried out in
accordance with the domestic legislation. They noted that the
investigation team had attended the scene of the crime the day it was
committed and had taken a number of immediate procedural steps, such
as on-site inspections and examination of the bodies, as attested by
the documentary evidence,. The applicant and his family members had
left Russia, and were therefore unable to participate effectively in
the proceedings. The Government argued that the authorities were
continuing to take steps to solve the crime.
2. The Court’s assessment
The
Court has on many occasions stated that the obligation to protect the
right to life under Article 2 of the Convention also 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. It has developed a number of guiding principles to be
followed for an investigation to comply with the Convention’s
requirements (for a summary of these principles, see Bazorkina v.
Russia, no. 69481/01, §§ 117-119, 27 July
2006).
In
the present case, an investigation was carried out into the killings.
The Court must assess whether that investigation met the requirements
of Article 2 of the Convention.
The
Court notes that the authorities were aware of the crime on the day
it was committed (17 September 2000) and that a criminal
investigation into the killings in Starye Atagi was opened by the
Grozny District Prosecutor’s Office the same day. During the
investigation the law-enforcement officers carried out an on-site
inspection, briefly examined the bodies of the victims and collected
a number of important items of evidence, such as cartridges and
bullets. However, it does not appear that any other steps were taken
at that time to solve the murders.
The
Court notes that even the most basic procedural steps in the
investigation were not taken until October 2004, after the case was
communicated to the respondent Government and more than four years
after the events in question. These measures included such crucial
steps as questioning eye-witnesses, local police officers and
officials, obtaining an expert ballistic report and drawing up an
official inventory of the real evidence. It is obvious that these
measures, if they were to produce any meaningful results, should have
been taken immediately after the crime was reported to the
authorities, and as soon as the investigation commenced. The Court
reiterates that it is crucial in cases of deaths in contentious
situations for the investigation to be prompt. The passage of time
will inevitably erode the amount and quality of the evidence
available and the appearance of a lack of diligence will cast doubt
on the good faith of the investigative efforts, as well as drag out
the ordeal for the members of the family (see Paul and Audrey
Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR
2002-II). These delays, for which there has been no explanation in
the instant case, not only demonstrate the authorities’ failure
to act of their own motion but also constitute a breach of the
obligation to exercise exemplary diligence and promptness in dealing
with such a serious crime.
A
number of indispensable steps were never taken. For example, no
autopsies or forensic analysis were carried out, or even ordered, in
the course of the investigation. The investigation was thus deprived
of information about the precise nature of the injuries sustained and
the exact cause of death.
The
Court also notes that the relatives of the deceased were granted
victim status only in October 2004. Family members, including
Salaudin Zubayrayev’s widow and children, were not invited to
participate in the proceedings, even though they did not leave
Chechnya until March 2001. In connection with the murder of the
applicant’s father, victim status in the proceedings was
eventually granted to a distant relative, namely his daughter-in-law.
Even then, the persons who had been granted victim status were only
informed of the adjournment and reopening of the proceedings, and not
of any other significant developments. Accordingly, the investigators
failed to ensure that the investigation received the required level
of public scrutiny; or to safeguard the interests of the next-of-kin
in the proceedings.
Finally,
the Court notes that the investigation was adjourned and resumed a
number of times and that on several occasions the supervising
prosecutors criticised the deficiencies in the proceedings and
ordered remedial measures, but these instructions were not complied
with.
In
the light of the foregoing, the Court finds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the Salaudi
Zubayrayev’s death, and therefore there was a violation
of Article 2 in its procedural aspect.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant submitted that he had had no effective remedies in respect
of the above violations, in breach of Article 13 of the Convention,
which provides:
“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.”
The
Government disagreed and referred to the ongoing criminal
investigation into the murder.
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. 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 and infliction of treatment contrary to
Article 3, including effective access for the complainant to the
investigation procedure leading to the identification and punishment
of those responsible (see Anguelova v. Bulgaria, no. 38361/97,
§§ 161-162, ECHR 2002-IV, and Süheyla Aydın
v. Turkey, 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 Khashiyev and Akayeva,
cited above, § 183).
It
follows that in circumstances where, as here, the criminal
investigation into the violent death was ineffective and the
effectiveness of any other remedy that may have existed, including
civil remedies, was consequently undermined, the State has failed in
its obligation under Article 13 of the Convention.
Consequently,
there has been a violation of Article 13 in conjunction with Article
2 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
1. Pecuniary damage
The
applicant claimed 5,924,083 euros (EUR) under this head in respect of
seven pieces of real estate allegedly belonging to his family in
Chechnya and other lost property.
The
Government found these claims to be irrelevant, because the
applicant’s claim under Article 1 of Protocol No. 1 had been
declared inadmissible by the Court.
The
Court notes that the applicant’s claims related to the alleged
loss of movable property were declared inadmissible in September 2006
for failure to exhaust domestic remedies. As to the applicant’s
claims concerning immovable property, they have never been a part of
the applicant’s complaint in these proceedings. The Court
therefore dismisses the applicant’s pecuniary claims in their
entirety.
2. Non-pecuniary damage
The
applicant claimed, on behalf of himself and the members of his
family, a total of EUR 1,700,000 under this head. He alleged
that the murder of his father, the failure to investigate it properly
and other actions by the authorities had caused him and his family
deep emotional suffering and distress, which required compensation in
the above amount.
The
Government regarded these claims as excessive. They also noted that
the applicant’s family members were not formal applicants in
the case.
The
Court notes that it found a violation of the procedural aspect of
Article 2 and of Article 13 on account of the ineffectiveness of the
investigation into the applicant’s father’s death. The
applicant must have suffered anguish and distress as a result of
these circumstances, which cannot be compensated for by a mere
finding of a violation. Having regard to these considerations, the
Court awards the applicant, on an equitable basis, EUR 8,000 for
non-pecuniary damage, plus any tax that may be chargeable on this
amount.
B. Costs and expenses
The
applicant made no claims under this heading.
C. Default interest
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
Dismisses unanimously the Government’s
preliminary objection;
Holds unanimously that there has been a failure
to comply with Article 38 § 1 (a) of the
Convention;
Holds by 5 votes to 2 that there has been no
violation of Article 2 of the Convention in respect of the
killing of Salaudi Zubayrayev;
Holds unanimously that there has been a
violation of Article 2 of the Convention in respect of the
failure to conduct an effective investigation into the circumstances
of the death of Salaudi Zubayrayev;
Holds unanimously that there has been a
violation of Article 13 of the Convention in conjunction with
Article 2 of the Convention;
Holds unanimously
(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, EUR 8,000 (eight thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable on the
above amount;
(b) that 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;
Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos
Rozakis
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the partly dissenting opinion of Mr
Loucaides joined by Mr Spielmann is annexed to this judgment.
C.L.R.
A.M.W.
PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES, JOINED BY
JUDGE SPIELMANN
I
agree with the Court’s finding in this case, except as regards
the conclusion that there has been no violation of Article 2 of the
Convention in its substantive aspect with regard to the killing of
Salaudi Zubayrayev.
Evidence
for the killing in question was submitted by the applicant’s
mother, who testified that:
“in the early hours of 17 September 2000 the
family had been woken by loud screams. A large group of men in
camouflage uniforms and, in some instances, masks, whom she
identified as belonging to the Russian special services (“spetsnaz”),
entered the house and forced all the inhabitants outside. They were
not allowed to get dressed and no reasons were given for their
intervention. According to her, the intruders wore insignia of the
Russian army and spoke Russian without an accent.
According to the applicant, the inhabitants of the house
were lined up in the courtyard facing the wall and their passports
were collected. The servicemen read out the names in the passports
one by one. One of the applicant’s brothers, Magomed, was not
at home that night and the men asked about his whereabouts. The
applicant’s father Salaudi (also spelled Salavdi) Zubayrayev
replied that he was not at home. The intruders hit the applicant’s
other brother, Khasan Zubayrayev, with a rifle butt on the head and
led the applicant’s father away. They then forced the women
into one of the rooms. In the meantime others opened all the rooms in
the house and searched them. They collected valuables and family
photographs.
Once the armed men had left, the women went outside and
found Khasan in the courtyard. The body of the applicant’s
father was found about 100-200 metres from the house. He had been
shot in the back of the head with an automatic rifle”
(paragraphs 10-12 of the judgment).
This
evidence shows that the murder was committed openly and fearlessly.
In my opinion, this argues in favour of a conclusion that the crime
resulted from organised military action by a group of persons who did
not expect that they would be arrested or prosecuted. In other words,
persons who were backed by the State authorities.
Furthermore,
there is evidence, accepted by the majority, that the authorities
“failed to carry out an effective criminal investigation into
the circumstances surrounding ... Zubayrayev[‘s]
death, and therefore there was a violation of Article 2 in its
procedural aspect” (paragraph 102). This is particularly strong
corroboration of the fact that the killing of Mr Zubayrayev
was carried out by members of the Russian army: a murder by a group
of persons who, according to the Government, were other than
Government agents would have provided strong grounds for an
immediate, quick and effective investigation. Thus, the lack of
interest in any proper and effective investigation evidently
strengthens the version that the killing was the work of Government
agents.
Moreover, the Court rightly found that “there has been a
failure to comply with Article 38 §§ 1 (a) of the
Convention because the Government ... refused to disclose most of the
documents of substance from the criminal investigation file...; ...
the Court consider[ed] the Government’s explanations concerning
the disclosure of the case file insufficient to justify the
withholding of the key information requested by the Court. ... the
Court [found] that it can draw inferences from the Government’s
conduct in this respect. ...and note[d] that there has been a breach
of the obligations laid down in Article 38 § 1 (a)
of the Convention to furnish all necessary facilities to the Court in
its task of establishing the facts” (paragraphs 76 and 77).
Again, this conduct on the part of the Government amounts to
sufficiently strong, clear and concordant inference supporting the
testimony of the applicant’s mother. The majority found that
the evidence in support of the version that Mr Zubayrayev
had been killed by Government agents was insufficient to prove
such a version beyond reasonable doubt. In this respect the majority
relied on the following aspects:
a. the domestic investigation failed to produce any tangible results
as to the identities of the persons who committed the murder
(paragraph 91);
b. [t]he applicant was unable to submit persuasive evidence to
support his allegations that State agents had been the perpetrators
of the murder (paragraph 91);
c. although - in view of the evidence of the applicant’s
mother, coupled with the fact that they did not disclose the
documents required by the Court - the burden of proof was on the
Government to disprove any responsibility on the part of its agents,
the Court had already noted that “it had been unable to benefit
from the results of the domestic investigation owing to the
Government’s failure to disclose certain documents from the
file. Nevertheless, it is clear that the investigation did not
identify the perpetrators of the killings and did not establish the
circumstances of the death of the applicant’s father”
(paragraphs 80-81);
d. “unlike the position in [other] cases, the applicant and his
family members have never communicated to the authorities their
version of [the] events, as the statement of the applicant’s
mother was produced only in connection with her application to
Strasbourg. Nor is the Court aware of any similar allegations by
other families of the victims. There exists no independent
confirmation in the press or NGO reports of the applicant’s
contention” (paragraph 84);
e. the majority was unable to establish ‘beyond reasonable
doubt’ that Salaudi Zubayrayev was deprived of his life by
State agents (paragraph 91).
I
feel that the above arguments are weak, and insufficient to destroy
the credibility of the version of the applicant’s mother as
corroborated by the above-mentioned conduct of the Government. I do
not think that it is reasonable to refer to the result of an
investigation which the Court has just found to be inadequate in
order to substantiate the statement that “Nevertheless, it is
clear that the investigation did not identify the perpetrators of the
killings and did not establish the circumstances of the death of the
applicant’s father” (paragraph 81). The applicant
produced testimony by his mother and corroboration in support of it,
and no reason has been produced as to why she could possibly have had
a motive to lie. Among the facts included in her statement is direct
evidence that the people who killed the applicant’s father
“wore insignia of the Russian army”. The majority does
not seem to have attached appropriate weight to this aspect. It is
not even repeated in the conclusions of the judgment. At the same
time, I do not understand what the majority means by saying that the
applicant did not “submit persuasive evidence”. I will
not repeat the evidence here but I consider it necessary to point out
that the evidence already referred to above is coherent, spontaneous
and corroborated. The fact that it comes from only one witness does
not detract from its credibility, nor is this a factor affecting the
strength of such evidence. Times have changed. Proof of the truth in
judicial proceedings no longer requires a minimum number of
witnesses, as was once the case in many ancient legal systems.
The
fact that “the applicant and his family members have never
communicated to the authorities their version of [the] events”
is of no consequence if one bears in mind the tragic and dangerous
conditions prevailing in the area of residence of the applicant and
his family and the nature of the crime in question. Surely persons
whose relative was murdered in the way described before the Court in
this case are not expected to seek remedy from the same authorities
to which the murderers belonged? That others pursued similar
complaints before the same authorities does not make the reluctance
of the complainants in this case any less justified, especially if
one bears in mind that, in general, those other complaints did not
result in any effective remedy or, in most cases, in any effective
investigation.
The
majority has not been convinced “beyond reasonable doubt”
that Salaudi Zubayrayev was deprived of his life by State agents.
The
“reasonable doubt” formula originates from the common-law
world. In the common law, especially in England, the phrase
“reasonable doubt” has given rise to confusion as a
result of courts’ many attempts to define or explain its
meaning. Furthermore, other expressions have been employed as an
alternative to that form of direction: for example, the jury should
be “satisfied” of guilt, or “satisfied so that they
can feel sure” or even “reasonably satisfied”. One
famous criminal lawyer, Professor Glanville Williams, suggested that
there is no objection to stating that a reasonable doubt “is
one for which a sensible reason can be supplied”
or that such doubt means “not a mere fanciful doubt, but one to
which a reasonable man would give weight.”
However,
it is interesting to quote here a much praised explanation of the
phrase in question by Lord Denning, who said:
“The degree of cogency need not reach certainty,
but it must carry a high degree of probability. Proof beyond
reasonable doubt does not mean beyond the shadow of a doubt. The law
would fail to protect the community if it admitted fanciful
possibilities to deflect the course of justice. If the evidence is so
strong against a man as to leave only a remote possibility in his
favour which can be dismissed with the sentence ‘Of course it
is possible, but not in the least probable’, the case is proved
beyond reasonable doubt, but nothing short of that will suffice.”
The
explanation has a certain similarity with what the European
Commission of Human Rights stated in the “Greek case”,
where it held:
“That a reasonable doubt means not a doubt based
on a merely theoretical possibility or raised in order to avoid a
disagreeable conclusion, but a doubt for which reasons can be drawn
from the facts presented”.
In
the case of Ireland v. the United Kingdom
the Court stated that it:
“adopts the standard of proof
beyond reasonable doubt but adds that such proof may follow from the
co-existence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact. In this context the
conduct of the parties when evidence is
being obtained has to be taken into account” (emphasis
added).
For
the above reasons I find that there has been also a violation of
Article 2 in its substantive aspect.
