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FIRST
SECTION
CASE OF
MOVSAYEVY v. RUSSIA
(Application
no. 20303/07)
JUDGMENT
STRASBOURG
14
June 2011
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 Movsayevy v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Peer
Lorenzen,
Elisabeth
Steiner,
Khanlar
Hajiyev,
George
Nicolaou,
Julia
Laffranque,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3678/06) 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 two Russian nationals, Ms Kisa Movsayeva and
Mr Khozh-Magomed Movsayev (“the applicants”), on 23
April 2007.
- The
applicants were represented by lawyers from the Stichting Russian
Justice Initiative (“SRJI”), an NGO based in the
Netherlands with a representative office in Russia. The Russian
Government (“the Government”) were represented by Mr G.
Matyushkin, Representative of the Russian Federation at the European
Court of Human Rights.
- The
applicants alleged that their relative, Mr Salambek Movsayev,
had been abducted and killed by State servicemen in Chechnya
in February March 2006. They complained, in particular,
under Articles 2 and 13 of the Convention.
- On 27 August 2009 the Court
decided to apply Rule 41 of the Rules of Court and to grant
priority treatment to the application and to give notice of the
application to the Government. Under the provisions of former
Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1965 and 1946 respectively.
They live in Chechen-Aul in the Grozny district, Chechnya. The
first applicant is the wife of Salambek (also known as Aslambek)
Movsayev, who was born in 1966; the second applicant is his brother.
A. Abduction of Salambek Movsayev and subsequent events
1. Information submitted by the applicants
(a) Background information
- At
some point in the 1990s the first applicant, her husband Salambek
Movsayev and their son moved from Chechen-Aul in Chechnya to
Ingushetia. At the material time they lived in Achaluki, Ingushetia,
and occasionally visited their relatives in Chechnya. The second
applicant lived in Chechen-Aul, which had been under the full control
of the Russian federal forces since 2000; checkpoints manned by
military servicemen were on the roads leading to and from the
settlement.
- The
applicants’ and Salambek Movsayev’s relative, Mr T.M.,
was suspected of active membership in illegal armed groups and had
been on the authorities’ wanted list since 2000. Officers of
local law-enforcement agencies, including a district police officer,
Mr S., had visited the second applicant’s house on a number of
occasions looking for Mr T.M.
(b) Abduction of Salambek Movsayev
- On
24 February 2006 the first applicant, Salambek Movsayev and their
twelve-year-old son visited the second applicant in Chechen-Aul.
After the visit, at about 2 p.m. on the same day, they got into their
VAZ-2104 car and drove to a repair shop in Chechen-Aul. Salambek
Movsayev stopped at the shop to inquire whether a tape recorder
belonging to him had been fixed. After spending just a few minutes
there, he got back in the car and the family continued driving in the
direction of Grozny.
- The
family was driving down Ordzhonikidze Street, about three houses away
from the repair shop, when their car was stopped by two men in
uniform, who had gotten out of a white VAZ-2107 car and a
light coloured VAZ-21010 car parked on the right side of the
road.
- One
of the men, who was holding a gun, approached the driver’s
window. The other one was standing on the other side of the car. The
man with the gun asked Salambek Movsayev’s name; the latter
told him that his name was Aslambek. Then the man grabbed him by the
collar and dragged him out of the car. Without providing any
explanations or asking for documents he dragged Salambek over to the
two cars parked nearby and pushed him into one of them. Meanwhile,
another seven or eight armed men got out of the two cars. Two or
three of them were in spotted camouflage uniforms; the rest were in
black ones. None of them were wearing masks; some of them were of
Slavic appearance.
- When
the first applicant saw her husband being forced into one of the
cars, she and her son got out of their vehicle and ran after him. One
of the armed men pointed his gun at her and told her in Chechen to
get out of the way. After that the abductors drove away with Salambek
Movsayev in the direction of Grozny. According to the applicants, a
number of local residents witnessed the abduction of Salambek
Movsayev. However, they did not provide the Court with any witness
statements concerning the events.
(c) Events following the abduction
- Immediately
after her husband’s abduction, the first applicant and her son
drove back to the second applicant’s house. They informed him
about the abduction. The applicants called the district police
officer Mr S., who had visited the second applicant’s house
looking for Mr T.M., and asked him about the whereabouts of Salambek
Movsayev. The officer promised to help them find Salambek, but the
applicants never heard from him again.
- On
the following morning, 25 February 2006 (in the submitted documents
the date was also referred to as 24 February 2006), the applicants
complained about the abduction of Salambek Movsayev to the Grozny
district prosecutor’s office and the Grozny district department
of the interior (“the Grozny ROVD”).
- From
25 February to 13 March 2006 the applicants complained about the
abduction to various law-enforcement agencies in Chechnya and
requested to be provided with information about the whereabouts of
their relative; however, the State authorities denied their
involvement in the abduction of Salambek Movsayev and promised to
assist the applicants in their search.
(d) Discovery of Salambek Movsayev’s
body
- On
13 March 2006 the body of Salambek Movsayev was found in the
Oktyabrskiy district of Grozny. The body was found by local boys in
the vicinity of the fire station, in busy streets, not far from the
Oktyabrskiy district department of the interior (“the
Oktyabrskiy ROVD”) and the checkpoint of the Russian military
forces.
- Police
officers arrived at the site and found Salambek Movsayev’s
passport on the body. They informed a female relative of the
applicants who lived in the Oktyabrskiy district of Grozny about the
discovery and she informed the applicants about it.
- Salambek
Movsayev’s documents for the car, his watch, a ring and money
were missing. The clothing on the corpse was torn, but it was dry and
relatively clean. Taking into account that eighteen days had passed
since the abduction and that it had rained in the meantime, the state
of Salambek Movsayev’s clothing suggested to the applicants
that he had been kept alive in a room and had been murdered shortly
prior to the discovery of his body.
- Some
time later, after the police had handed over the body to the
applicants, the second applicant inspected it. According to him, it
was covered with bruises, the teeth were knocked out, and there were
two gunshot wounds to the head, one of them in the left temporal
area. The second applicant concluded that prior to his death Salambek
Movsayev must have been tortured. The applicants neither took
photographs of the body nor submitted it for a forensic examination.
- On
29 March 2006 the Chechen-Aul village hospital issued certificate
no. 110 confirming the death of Salambek Movsayev. The document
stated that the cause of his death had been a gunshot wound to the
head.
- On
30 March 2006 the Grozny district department of registration of civil
acts (‘ЗАГС’) issued
official death certificate no. 570259 confirming the death of
Salambek Movsayev on 13 March 2006.
- In
support of their submissions the applicants submitted the following
documents: a statement by the first applicant dated 16 February 2007;
two statements by the second applicant dated 7 April 2006 and
16 February 2007; a copy of medical certificate no. 110
dated 29 March 2006 and a copy of Salambek Movsayev’s death
certificate.
2. Information submitted by the Government
- The
Government did not dispute the circumstances of Salambek Movsayev’s
abduction and the subsequent discovery of his corpse. However, in
their observations on the admissibility and merits of the application
of 20 January 2010 they pointed out that in her statements to the
investigative authorities the first applicant had mentioned that the
abductors had been a group of seven or eight men, whereas in her
submission to the Court she had stated that the group had comprised
nine or ten persons. The Government also stressed that only in her
submission to the Court had the first applicant stated that some of
the abductors had been of Slavic appearance, whereas she had never
mentioned this to the domestic investigating authorities.
B. The investigation of the abduction and the killing
1. Information submitted by the applicants
- On
24 or 25 February 2006 the applicants complained about the abduction
of Salambek Movsayev to the Grozny district prosecutor’s office
and the Grozny ROVD. The applicants did not retain a copy of their
written complaints to the authorities.
- On
13 March 2006 the Grozny district prosecutor’s office
instituted an investigation into the abduction of Salambek Movsayev
under Article 126 § 2 of the Criminal Code
(aggravated kidnapping). The case file was given the number 54020.
- On
the same date, that is, 13 March 2006, in connection with the
discovery of the body of Salambek Movsayev, the Oktyabrskiy district
prosecutor’s office instituted an investigation into his
murder. The criminal case file was given the number 52059.
- At
some point after 13 March 2006 the investigators visited the
applicants in Chechen-Aul. They questioned the first applicant and
her son. The second applicant took them to the crime scene; they
examined the site and questioned an employee of the repair shop.
- On
27 March 2006 the Oktyabrskiy district prosecutor’s office
granted the first applicant victim status in criminal case no. 52029.
- On
13 June 2006 the Oktyabrskiy district prosecutor’s office
informed the first applicant that the investigation into the murder
of her husband had been suspended for failure to establish the
identities of the perpetrators.
- On
16 February 2007 the first applicant complained about the
ineffectiveness of the investigation into her husband’s
abduction and murder to the Grozny district prosecutor’s
office. She stated that for almost a year the investigation had
failed to produce any results and no explanations for its
ineffectiveness had been provided. She requested that the
investigation be resumed and that she be provided with access to the
criminal case file. No reply was given to this complaint.
- According
to the applicants, the authorities failed to provide them with
information on the progress of the investigation into Salambek
Movsayev’s abduction and murder.
2. Information submitted by the Government
- On
2 March 2006 the first applicant complained about Salambek Movsayev’s
abduction to the Grozny ROVD.
- On
2 March 2006 the investigators from the Grozny district prosecutor’s
office conducted a crime scene examination at the site of Salambek
Movsayev’s abduction. Nothing was collected from the scene.
- On
4 March 2006 the Grozny district prosecutor’s office received
the case file with information concerning Salambek Movsayev’s
abduction from the Grozny ROVD.
- On
7 March 2006 the investigators of the Grozny district prosecutor’s
office requested the supervising prosecutor to grant them ten days,
that is, until 14 March 2006, to conduct a preliminary inquiry into
the information provided by the Grozny ROVD in order to decide
whether to initiate a criminal investigation into the abduction.
- From
the transcript of the witness interview furnished by the Government
it follows that between 9.16 a.m. and 9.50 a.m. on 13 March 2006 the
investigators from the Oktyabrskiy district prosecutor’s office
questioned the second applicant, who stated that he had learnt about
the circumstances of Salambek’s abduction from the first
applicant. The witness further stated that prior to the discovery of
Salambek Movsayev’s corpse on 13 March 2006 he and his
relatives had searched for Salambek in various law-enforcement
agencies, including the town and district departments of the interior
(the OVD), but to no avail. The applicant also stated that Salambek’s
murder “could have somehow been related” to the illegal
armed activities of their relative Mr T.M.
- From
the documents submitted by the Government it follows that at 12.10
p.m. on 13 March 2006 Salambek Movsayev’s body was found in the
Oktyabrskiy district of Grozny.
- Between
12.50 p.m. and 2.50 p.m. on 13 March 2006 the investigators from the
Oktyabrskiy district prosecutor’s office conducted a crime
scene examination at the site of the discovery of Salambek Movsayev’s
body. Salambek Movsayev’s passport was collected from the
scene.
- At
2.50 p.m. on 13 March 2006 the Oktyabrskiy district prosecutor’s
office opened criminal case no. 52029 under Article 105 § 1
of the Criminal Code (murder) in connection with the discovery of
Salambek Movsayev’s body with penetrating gunshot wounds to the
torso and the head.
- On
the same date, 13 March 2006, the investigators from the Oktyabrskiy
district prosecutor’s office ordered a forensic expert
examination of Salambek Movsayev’s body.
- At
3 p.m. on 13 March 2006 the Grozny district prosecutor’s office
opened criminal case no. 54020 in connection with the abduction
on 24 February 2006 of Salambek Movsayev under Article 126 § 2
of the Criminal Code (aggravated kidnapping).
- On
the same date, 13 March 2006, the Grozny district prosecutor’s
office forwarded requests for assistance in establishing the
whereabouts of Salambek Movsayev to the Grozny ROVD, the Grozny
Search Bureau-2 of the Ministry of the Interior (“ОРБ-2”)
and the Grozny district department of the Federal Security Service
(the Grozny FSB).
- On
15 March 2006 the investigators from the Oktyabrskiy district
prosecutor’s office questioned the brother of Salambek
Movsayev, Mr A.M., who provided them with a description of the
circumstances surrounding the abduction of Salambek Movsayev based on
what the first applicant had told him.
- On
17 March 2006 the investigations in criminal cases no. 54020 and
no. 52029 were joined under the number 52029. It was decided that the
joined investigation should be carried out by the Oktyabrskiy
district prosecutor’s office.
- On
27 March 2006 the first applicant was granted victim status in the
criminal case and questioned. The applicant described the
circumstances of the abduction. In particular, she stated that her
husband Salambek Movsayev had been taken away by a group of seven or
eight armed men in camouflage uniforms who had driven a white
VAZ-2107 car and a VAZ 21012 car. The abductors who had dragged
Salambek out of his car had been in black military uniforms and armed
with “Stechkin” pistols, whereas the other abductors had
been wearing green camouflage uniforms and armed with machineguns.
The applicant also stated that her husband had not participated in
illegal armed groups, whereas his nephew Mr T.M. had been sought by
the authorities for the active participation in illegal armed
activities and that the local military had often visited her house
looking for him.
- On
27 March, 23 and 25 April and 7 June 2006 the investigators requested
that the Grozny ROVD, the Oktyabrskiy ROVD, Grozny Search Bureau-2
and the Chechnya FSB take a number of steps to identify eyewitnesses
to Salambek Movsayev’s abduction and murder, and check whether
Salambek Movsayev had applied for medical help and whether he had
participated in illegal armed groups.
- On
11 April 2006 the investigators questioned Mr S.M., who stated that
at about 11 a.m. on 13 March 2006 he had seen a crowd gathered around
a corpse with gunshot wounds. In the crowd he had spoken to a
shepherd who had tended the cattle next to Novopromyslovskaya Street
in the Oktyabrskiy district of Grozny, and the latter had told him
that he had found the corpse.
- On
13 April 2006 the investigators decided to terminate the criminal
investigation of the abduction and continue the investigation of
Salambek Movsayev’s murder.
- On
23 April 2006 the investigator in charge of the criminal case
requested information from the Chechnya Ministry of the Interior
(“the Chechnya MVD”). The text of the letter included the
following:
“... the preliminary investigation of the criminal
case established that at about 2.30 p.m. on 24 February 2006
Salambek Movsayev had been detained at the corner of the
Pervomayskaya and Ordzhonikidze Streets in Chechen-Aul by
representatives of one of the Chechen power structures and taken to
an unknown destination.
In connection with this, I request you to inform me
whether your employees detained Salambek Movsayev on the above date
...”
- On
2 May 2006 the investigators questioned Mr D.S., who stated that at
about 10 a.m. on 13 March 2006 he had found a male corpse next to
Novopromyslovskaya Street in the Oktyabrskiy district of Grozny. The
hands and legs had been bound with adhesive tape.
- On
4 May 2006 the Oktyabrskiy ROVD informed the investigators that
Salambek Movsayev
“... [had] assisted members of illegal armed
groups with transportation of firearms and ammunition, supplied them
with food and transported in his personal vehicle his nephew Mr T.M.
and the members of the latter’s illegal armed group ...”
- On
an unspecified date in May 2006 the investigators received the report
of the forensic expert evaluation of Salambek Movsayev’s body.
According to the report, numerous gunshot wounds were found on it,
including two gunshot wounds to the head, which must have been the
cause of death.
- On
10 May 2006 the investigators requested that the Chechnya bureau of
forensic expert examinations carry out an examination of three
bullets extracted from Salambek Movsayev’s body. On 25 May 2006
the bureau carried out the tests and informed the investigators that
the three bullets could have been fired either from a “Makarov”
or a “Stechkin” pistol.
- On
11 May 2006 the Chechnya MVD informed the investigators that on 24
February 2006 they had not conducted any special operations in
respect of Salambek Movsayev.
- On
12 June 2006 the investigators questioned Mr B.Sh., who stated that
in February 2006 Salambek Movsayev had asked him to repair a radio
and that a few days later he had arrived to pick it up. On the
following day Mr B.Sh. had learnt from the first applicant about
Salambek’s abduction by unidentified armed men in camouflage
uniforms.
- On
20 December 2006 the Chechnya bureau of forensic expert examinations
forwarded the three bullets for further tests and tracing of the
firearm to the federal bullet and cartridge centre
(“пулегильзотека”).
The letter also stated that the pistol from which the three bullets
had been fired was not registered as having been used for the
commission of other crimes.
- On
13 June 2006 the Oktyabrskiy district prosecutor requested the head
of the Oktyabrskiy ROVD to take disciplinary measures in respect of
the police officers for their failure to execute the orders given by
the investigators of Salambek Movsayev’s murder.
- On
13 June 2006 the investigators suspended the investigation in the
criminal case for failure to identify the perpetrators and informed
the applicants about this decision.
- On
14 October 2009 the supervising prosecutor ordered the investigators
of the criminal case to resume the proceedings and take a number of
steps. The document stated, inter alia, the following:
“... it is necessary to take the following steps
...
2. Question the son of Salambek Movsayev, who
had eyewitnessed the abduction, as well as the brother of the
abducted man, his nephew and niece ... about the circumstances of the
criminal case.
3. Identify and question the district police
officer Mr S. who, according to the applicants, had visited them on
several occasions with representatives of law enforcement
agencies seeking to arrest Mr T.M.
4. Identify and question Salambek Movsayev’s
female cousin who, according to the applicants, found his corpse.
5. Question [the first applicant] K.
Movsayeva again in order to clarify the information concerning the
number of the abductors and the vehicles used by them ...”
- At
the request of the Court the Government disclosed “the full
contents” of criminal case file no. 52029 running up to
157 pages of copies of documents.
II. RELEVANT DOMESTIC LAW
- For
a summary of relevant domestic law see Akhmadova and Sadulayeva v.
Russia (no. 40464/02, §§ 67-69, 10 May 2007).
THE LAW
I. THE GOVERNMENT’S OBJECTION AS TO THE EXHAUSTION
OF DOMESTIC REMEDIES
A. Arguments of the parties
- The
Government contended that the application should be declared
inadmissible for non-exhaustion of domestic remedies. They submitted
that the investigation into the abduction and subsequent murder of
Salambek Movsayev had not yet been completed. The Government further
argued that it had been open to the applicants to challenge in court
any actions or omissions of the investigating authorities and that it
was open to them to pursue civil remedies, but they had failed to do
so.
- The
applicants contested that objection. With reference to the Court’s
practice, they argued that they had not been obliged to lodge civil
claims in order to exhaust domestic remedies. They stated that the
only effective remedy in their case – the criminal
investigation – had proved to be ineffective.
B. The Court’s assessment
- The
Court notes 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 and criminal
remedies.
- As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, the
Court has already found in a number of similar cases that this
procedure alone 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
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 or disappearances,
still less of establishing their responsibility (see Khashiyev and
Akayeva v. Russia, nos. 57942/00 and 57945/00,
§§ 119-121, 24 February 2005, and Estamirov and
Others, 60272/00, § 77, 12 January 2007). In the light
of the above, the Court confirms that the applicants were not obliged
to pursue civil remedies. The preliminary objection in this regard is
thus dismissed.
- As
regards criminal law remedies, the Court observes that the applicants
complained to the law enforcement authorities after the abduction of
Salambek Movsayev and that an investigation has been pending since
13 March 2006. The applicants and the Government dispute the
effectiveness of this investigation.
- The
Court considers that this limb of the Government’s objection
raises issues concerning the effectiveness of the criminal
investigation which are closely linked to the merits of the
applicants’ complaints. Thus, it considers that these matters
should be joined to the merits and fall to be examined below under
the substantive provisions of the Convention.
II. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE
ESTABLISHMENT OF THE FACTS
A. The parties’ arguments
- The
applicants maintained that it was beyond reasonable doubt that the
men who had abducted and subsequently killed Salambek Movsayev had
been State agents. In support of their complaint they stressed the
following: at the material time Chechen-Aul had been under the full
control of the authorities; the local law-enforcement agencies had
had motives for the detention of Salambek Movsayev as the head of the
Oktyabrskiy ROVD had stated in his letter that Salambek had been
suspected of aiding his nephew Mr T.M. in illegal armed activities
(see paragraph 51 above); the documents from the criminal case file
demonstrated that the investigation had established that Salambek
Movsayev had been detained by law enforcement agencies (see
paragraph 49 above) and finally, Salambek Movsayev’s body was
found in the vicinity of the Oktyabrskiy ROVD.
- The
Government denied the involvement of State agents in the abduction
and killing of Salambek Movsayev. In particular, they contended that
the applicants had never mentioned to the investigators at the
domestic level that they had suspected the involvement of
law-enforcement agencies in the events and that they had raised this
issue only in their application to the Court. The Government further
submitted that the applicants had not provided any evidence to prove
their allegations of the alleged involvement of State agents in the
abduction and killing and pointed out that there were discrepancies
between the statements the first applicant made in the context of the
domestic investigation and those she provided to the Court (see
paragraph 23 above). Finally, they stated in general terms that the
abduction and killing of Salambek Movsayev could have been
perpetrated by members of illegal armed groups.
B. The Court’s evaluation of the facts
- The
Court points out that a number of principles have been developed in
its case-law as regards cases where it is faced with the task of
establishing facts on which the parties disagree. As to the facts
that are in dispute, the Court reiterates that it has adopted the
standard of proof “beyond reasonable doubt” in its
assessment of evidence (see Avÿar 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 (see 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, Ribitsch v. Austria, 4
December 1995, § 32, Series A no. 336; and Avÿar,
cited above, § 283) even if certain domestic proceedings and
investigations have already taken place.
- The
Court reiterates that it has noted the difficulties applicants have
in obtaining the necessary evidence in support of allegations in
cases where only the respondent Government are in possession of the
relevant documentation. Where the applicant makes out a prima facie
case and the Court is prevented from reaching factual conclusions
owing to the lack of such documentation, 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 Toÿcu v. Turkey, no. 27601/95,
§ 95, 31 May 2005, and Akkum and Others v. Turkey,
no. 21894/93, § 211, ECHR 2005 II).
- The
Court notes that upon its requests for a copy of the investigation
file into the abduction and killing of Salambek Movsayev, the
Government produced “the full contents” of the criminal
case file, running up to 157 pages.
- The
applicants alleged that in February 2006 Chechen-Aul had been under
the full control of the federal forces and that therefore the
abduction of Salambek Movsayev could have been perpetrated only by
State agents. In a number of cases concerning enforced disappearances
in Chechnya the Court has found the Russian State authorities
responsible for extra-judicial executions or disappearances of
civilians in the Chechen Republic, even in the absence of final
conclusions from the domestic investigation (see Khashiyev and
Akayeva, cited above; Luluyev and Others v. Russia,
no. 69480/01, ECHR 2006-XIII (extracts); Estamirov and
Others, cited above; and Baysayeva v. Russia, no.
74237/01, 5 April 2007). It has done so primarily on the basis of
documents attesting to the circumstances of each particular case: it
has relied on references to military vehicles and equipment, on
witness accounts, on other information on security operations and on
the undisputed effective control of the areas in question by the
Russian military. 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
conducted there and the presence of servicemen (see, mutatis
mutandis, Akkum v. Turkey, cited above, § 211,
and Zubayrayev v. Russia, no. 67797/01, § 82,
10 January 2008).
- However,
in the present case the Court has little evidence on which to draw
such conclusions as the account of the events submitted by the
applicants is based only on the first applicant’s statement. In
addition, from the submitted materials it follows that the applicants
had not raised the issue of the possible involvement of State agents
in their relative’s abduction and killing with the domestic
investigative authorities and they had done that only in their
application to the Court. Further, the mere fact that the abductors
were armed and were wearing two different types of
camouflage uniforms (see paragraph 11 above) does not necessarily
mean that they were State servicemen. The first applicant’s
statement to the Court did not contain any indication to the effect
that the uniforms worn by the abductors bore any insignia of the type
that should normally appear on the uniforms of State agents, or that
during the abduction the perpetrators had acted as an organised group
with a chain of command. It appears that camouflage uniforms with no
insignia could have been obtained by persons not belonging to the
military via various, possibly illegal, channels. Besides, it should
be also noted that the abductors were armed with pistols, which
made it easier for them to conceal their weapons, which would not
have been the case with machine guns often used by military
servicemen during special operations.
- The
Court also notes that the abductors’ vehicles were typical
civilian cars used by many residents of Russia (see paragraph 10
above). The applicants have never alleged, either before the domestic
investigation or before the Court, that anyone saw any military
vehicles in the vicinity of the crime scene with his or her own eyes.
Given that the perpetrators used regular civilian vehicles, the Court
considers that they could have moved around the town unbeknown to the
authorities with greater ease than, for example, a group of armed men
riding in a military vehicle. Further, the perpetrators who spoke
Chechen abducted Salambek Movsayev from the street and during the day
(see for a similar situation, Tovsultanova v. Russia, no.
26974/06, §§ 77-80, 17 June 2010, where no State
responsibility for the abduction was found), unlike abductors in many
other disappearance cases, in which the victims were taken from home
or military checkpoints and primarily at night during curfew hours.
Nor could it be unequivocally said that the abductors’ actions
had been typical of security operations conducted by State agents,
where the soldiers would, for example cordon off the area in
question, check the residents’ documents, search the
premises and so on. It does not appear either that they operated
as a group within a clear chain of command, receiving orders or
reporting about their actions to superior officers.
- Accordingly,
the information in the Court’s possession does not suffice to
establish that the perpetrators belonged to the security forces or
that a security operation had been carried out in respect of Salambek
Movsayev.
- To
sum up, it has not been established to the required standard of proof
– “beyond reasonable doubt” – that State
agents were implicated in the abduction and subsequent killing of
Salambek Movsayev; 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
applicants complained under Article 2 of the Convention that Salambek
Movsayev had been abducted and subsequently killed by State agents
and that the domestic authorities had failed to carry out an
effective investigation into the matter. Article 2 reads:
“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. The parties’ submissions
- The
Government contended that the domestic investigation had not obtained
any evidence that the perpetrators of Salambek Movsayev’s
abduction and killing had been State agents. The Government claimed
that the investigation of the events met the Convention requirement
of effectiveness, as all measures available in national law were
being taken to identify the perpetrators.
- The
applicants argued that Salambek Movsayev had been abducted and killed
by State agents. They also argued that the investigation had not met
the requirements of effectiveness and adequacy, as required by the
Court’s case-law on Article 2.
B. The Court’s assessment
1. Admissibility
- The
Court considers, in the light of the parties’ submissions, that
the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. Further, the Court has already found that the Government’s
objection concerning the alleged non-exhaustion of criminal domestic
remedies should be joined to the merits of the complaint (see
paragraph 67 above). The complaint under Article 2 of the
Convention must therefore be declared admissible.
2. Merits
(a) The alleged violation of the right to
life of Salambek Movsayev
- The
Court reiterates that Article 2, which safeguards the right to life
and sets out the circumstances when deprivation of life may be
justified, ranks as one of the most fundamental provisions in the
Convention, from which no derogation is permitted. 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, McCann
and Others v. the United Kingdom, 27 September 1995, §§
146-147, Series A no. 324, and Avşar, cited
above, § 391).
- As
noted above, the domestic investigation failed to produce any
tangible results as to the identities of the persons responsible for
the alleged kidnapping and subsequent killing of Salambek Movsayev.
The applicants have not submitted persuasive evidence to support
their allegations that State agents were the perpetrators of such a
crime. The Court has already found above that, in the absence of
relevant information, it is unable to find “beyond reasonable
doubt” that State agents were implicated in the abduction and
subsequent killing of Salambek Movsayev (see paragraph 78 above)
- In
such circumstances the Court finds no State responsibility, and thus
no violation of the substantive limb of Article 2 of the Convention.
(b) The alleged inadequacy of the
investigation into the abduction and subsequent killing
- The
applicants argued that the investigation had not been effective and
adequate, as required by the Court’s case law on Article
2. They noted that it had been suspended and reopened a number of
times and thus the taking of the most basic steps had been
protracted, and that they had not been properly informed about the
most important investigative steps. The applicants argued that the
fact that the investigation had been pending for more than four years
without producing any known results was further proof of its
ineffectiveness.
- The
Government claimed that the investigation into the abduction and
killing of Salambek Movsayev met the Convention requirement of
effectiveness, as all measures envisaged in national law were being
taken to identify the perpetrators.
- 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,
cited above, §§ 117-119).
- In
the present case, an investigation into the abduction and the killing
was carried out. The Court must assess whether that investigation met
the requirements of Article 2 of the Convention.
- The
Court notes at the outset that the documents from the investigation
file were disclosed by the Government.
- Turning
to the facts of the case, the Court notes that the authorities were
made aware of the abduction through the applicants’ submissions
at the latest on 2 March 2006 (see paragraph 32 above). The
investigation was opened on 13 March 2006 that is seventeen days
after the abduction and eleven days after the applicants’
official complaint about it. Moreover, as it follows from the
submitted documents, the investigation was opened only after the
authorities received the information about the discovery of Salambek
Movsayev’s corpse (see paragraphs 38 and 41 above). Further,
the first applicant, being the key witness to the abduction, was only
questioned two weeks after the commencement of the investigation.
Such a delay in itself was liable to affect the investigation of a
crime as serious as abduction in life-threatening circumstances,
where crucial action has to be taken in the first hours or days after
the event or immediately after the crime is reported to the
authorities. In spite of the fact that within the first two weeks of
the investigation the crime scene was inspected and a few witnesses
were questioned, after that a number of crucial steps were not taken
at all, even in order to verify the information obtained as a result
of the questionings.
- In
particular, the Court notes that the investigators did not make any
attempts to question the district police officer Mr S. or to try to
identify the abductors’ vehicles and their owners; they did not
question the first applicant’s son, who had eyewitnessed the
abduction, and they failed to elucidate the discrepancies pointed out
by the supervising prosecutor (see paragraph 59 above). It does not
appear that the investigators took any steps to question the
employees of the Oktyabrskiy ROVD or the servicemen of the military
checkpoint in the vicinity of which the body of Salambek Movsayev was
found.
- It
is obvious that these measures, if they were to produce any
meaningful results, should have been taken immediately after the
crime had been reported to the authorities, and as soon as the
investigation had commenced. 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 matter (see Öneryıldız
v. Turkey [GC], no. 48939/99, § 94, ECHR 2004 XII).
- The
Court also notes that, even though the first applicant was granted
victim status, she was only informed about the suspension and
reopening of the proceedings, and not about 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 suspended and resumed a
number of times and that the supervising prosecutor overruled the
decision to suspend the proceedings and ordered basic investigative
steps to be taken. However, it appears that those instructions were
not complied with.
- The
Government raised the possibility for the applicants to apply for a
judicial review of the decisions of the investigating authorities in
the context of exhaustion of domestic remedies. The Court observes
that the applicants, having no access to the case file and not having
been properly informed about the progress of the investigation, could
not have effectively challenged the actions or omissions of the
investigating authorities before a court. Furthermore, the
investigation had been resumed by the prosecuting authorities
themselves a number of times owing to the need to take additional
investigative steps. However, they still failed to properly
investigate the applicants’ allegations. Moreover, owing to the
time that had elapsed since the events complained of took place,
certain investigative measures that ought to have been carried
out much earlier could no longer usefully be conducted. Accordingly,
the Court finds that the remedy relied on by the Government was
ineffective in the circumstances and dismisses their preliminary
objection as regards the applicants’ failure to exhaust
domestic remedies within the context of the criminal investigation.
- In
the light of the foregoing, the Court dismisses the Government’s
preliminary objection as regards the applicants’ failure to
exhaust domestic remedies within the context of the criminal
investigation, and holds that the authorities failed to carry out an
effective criminal investigation into the circumstances surrounding
the abduction and the death of Salambek Movsayev, in breach of
Article 2 in its procedural aspect.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants further stated that Salambek Movsayev had been detained in
violation of the guarantees of Article 5 of the Convention, which
reads, in so far as relevant:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law: ...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. The parties’ submissions
- The
Government asserted that no evidence had been obtained by the
investigators to confirm that Salambek Movsayev had been deprived of
his liberty by State agents in breach of the guarantees set out in
Article 5 of the Convention.
- The
applicant reiterated the complaint.
B. The Court’s assessment
- The
Court has previously noted the fundamental importance of the
guarantees contained in Article 5 to secure the right of individuals
in a democracy to be free from arbitrary detention. It has also
stated that unacknowledged detention is a complete negation of these
guarantees and discloses a very grave violation of Article 5 (see
Çiçek v. Turkey, no. 25704/94, § 164,
27 February 2001, and Luluyev and Others, cited above, § 122).
- Nevertheless,
the Court has not found it established “beyond reasonable
doubt” that Salambek Movsayev was detained and killed by State
agents (see paragraph 85 above). Nor is there any basis to
presume that he was ever placed in unacknowledged detention under the
control of State agents.
- The
Court therefore considers that this part of the application should be
dismissed as being manifestly ill-founded and must be declared
inadmissible in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants complained that they had been deprived of effective
remedies in respect of the aforementioned violations, contrary to
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.”
A. The parties’ submissions
- The
Government contended that the applicants had had effective remedies
at their disposal as required by Article 13 of the Convention and
that the authorities had not prevented them from using those
remedies. The applicants had had an opportunity to challenge any acts
or omissions on the part of the investigating authorities in court
and to bring civil claims for damages. In sum, the Government
submitted that there had been no violation of Article 13.
- The
applicants reiterated the complaint.
B. The Court’s assessment
- The
Court observes that the complaint made by the applicants under this
Article has already been examined in the context of Article 2 of the
Convention. Having regard to the findings of a violation of Article 2
in its procedural aspect (see paragraph 97 above), the Court
considers that, whilst the complaint under Article 13 taken in
conjunction with Article 2 is admissible, there is no need for a
separate examination of this complaint on its merits (see, Khumaydov
and Khumaydov, cited above, § 141; Zakriyeva and Others,
cited above, § 108; and Shaipova and Others v. Russia,
no. 10796/04, § 124, 6 November 2008).
VI. 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. Pecuniary damage
- The first applicant claimed
damages in respect of the loss of her husband Salambek Movsayev’s
earnings. She claimed a total of 405,645 Russian roubles (RUB)
under this head (10,235 euros (EUR)). Her calculations were based on
the provisions of the Russian Civil Code and the actuarial tables for
use in personal injury and fatal accident cases published by the
United Kingdom Government Actuary’s Department in 2007 (“the
Ogden tables”).
- The Government regarded these
claims as unsubstantiated and based on supposition.
- The Court reiterates
that there must be a clear causal connection between the damage
claimed by the applicants and the violation of the Convention, and
that this may, in an appropriate case, include compensation in
respect of loss of earnings. Having regard to its above conclusions
that there has been no violation of Article 2 in its substantive
aspect, the Court finds that there is no direct causal link between
the alleged violation of Salambek Movsayev’s right to life and
the loss by the first applicant of the financial support which he
could have provided. Accordingly, it makes no award under this head.
B. Non-pecuniary
damage
- The
applicants claimed a total of EUR 100,000 in respect of
non pecuniary damage. The applicants submitted that they
had lost their close relative and endured stress, frustration and
helplessness in relation to Salambek Movsayev’s abduction and
subsequent killing, aggravated by the authorities’ inactivity
in the investigation of those events for several years.
- The
Government submitted that the applicants were not entitled to
claim compensation under this heading as the State was not
responsible for the abduction and the killing of Salambek Movsayev.
- The
Court has found a violation of Article 2 in its procedural aspect. It
thus accepts that the applicants have suffered non-pecuniary damage.
It finds it appropriate to award the first applicant EUR 15,000 and
the second applicant EUR 9,000 under this heading, plus any tax that
may be chargeable to the applicants on that amount.
C. Costs and expenses
- The
applicants were represented by SRJI. They submitted an itemised
schedule of costs and expenses that included research and interviews
in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the
drafting of legal documents submitted to the Court and the domestic
authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR
150 per hour for SRJI senior staff and experts. The aggregate claim
in respect of costs and expenses related to the applicants’
legal representation amounted to EUR 5, 572.
- The
Government disputed the reasonableness and the justification of the
amounts claimed under this head. They submitted that the documents
provided by the applicants could not serve as confirmation that the
legal services had indeed been provided and that those services had
been necessary and reasonable.
- The
Court has to establish whether the costs and expenses indicated by
the applicants’ representatives were actually incurred and
whether they were necessary (see McCann and Others, cited
above, § 220).
- Having
regard to the details of the information submitted, the Court is
satisfied that the rates are reasonable and reflect the expenses
actually incurred by the applicants’ representatives.
- As
to whether the costs and expenses were necessary, the Court notes
that this case was rather complex and required a certain amount of
research and preparation. It notes at the same time that, due to the
application of former Article 29 § 3 in the present case,
the applicants’ representatives submitted their observations on
admissibility and the merits in a single set of documents. The Court
thus doubts that the legal drafting was necessarily as time-consuming
as the representatives claimed. Furthermore, the Court notes that it
has rejected part of the application and found no violation in
respect of the substantive element of Article 2 of the Convention.
- Having
regard to this and the details of the claims submitted by the
applicants, the Court finds it appropriate to award the applicants’
representatives EUR 2,000, plus any tax that may be chargeable
to the applicants, the award to be paid into the representatives’
bank account in the Netherlands, as identified by the applicants.
D. 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 UNANIMOUSLY
- Decides to join to the merits the
Government’s objection regarding non exhaustion of
criminal domestic remedies and rejects it;
- Declares the complaints under Articles 2
and 13 admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 2 of the Convention in its substantive limb in respect
of Salambek Movsayev;
- Holds that there has been a violation of
Article 2 of the Convention in respect of the failure to conduct
an effective investigation into the abduction and subsequent killing
of Salambek Movsayev;
- Holds that no separate issue arises under
Article 13 in conjunction with Article 2 of the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the date of settlement, save
in the case of the payment in respect of costs and expenses:
(i) EUR 15,000
(fifteen thousand euros) plus any tax that may be chargeable, in
respect of non-pecuniary damage to the first applicant;
(ii) EUR 9,000
(nine thousand euros) plus any tax that may be chargeable, in respect
of non-pecuniary damage to the second applicant;
(iii) EUR 2,000
(two thousand euros), plus any tax that may be chargeable to the
applicants, in respect of costs and expenses, to be paid into the
representatives’ bank account;
(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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 14 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
