Постановление ЕСПЧ от 05.11.2015 <Дело Бузуртанова и Зархматова (Buzurtanova and Zarkhmatova) против России> (жалоба N 78633/12) [англ.]. Часть 2

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  1. Exhaustion of domestic remedies
  1. The parties’ submissions


  1. The Government submitted that the investigation into the disappearance of Mr Akhmed Buzurtanov had not yet been completed. They further argued, in relation to the complaint under Article 13 of the Convention, that it had been open to the applicants to challenge the alleged acts or omissions on the part of the investigating authorities before the domestic courts or to claim civil damages.
  2. The applicants contested the Government’s submission. They stated that the only effective remedy — the criminal investigation — had proved to be ineffective.


  1. The Court’s assessment


  1. The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant case-law (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73 — 74, 12 October 2006).
  2. 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.
  3. As regards a civil action to obtain redress for damage sustained as a result of illegal acts or unlawful conduct on the part 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 (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119 — 21, 24 February 2005). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed.
  4. As regards criminal-law remedies provided for under the Russian legal system, the Court observes that the applicants complained to the law-enforcement authorities after the abduction of Mr Akhmed Buzurtanov, and that an investigation has been ongoing since 7 December 2012. The applicants and the Government dispute the effectiveness of that investigation.
  5. The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below.


  1. The Court’s assessment of the evidence and the establishment of the facts


  1. The parties’ arguments


  1. The applicants maintained that it was beyond reasonable doubt that the men who, in their view, had abducted Mr Akhmed Buzurtanov had been State agents. In support of their complaint, they referred to the following facts. Witnesses had seen two vehicles following Mr Akhmed Buzurtanov’s car (see paragraphs 26 and 67 above) and the evidence collected subsequently (see paragraphs 15 and 16 above) demonstrated that the abduction had been well-planned and well-organised and that the perpetrators had taken into account Mr Akhmed Buzurtanov’s physical abilities. The manner in which the alleged abduction had been carried out demonstrated that law-enforcement officers or other State agents had been involved in it.
  2. The Government submitted that there was no evidence of the involvement of representatives of law-enforcement agencies in the disappearance of Mr Akhmed Buzurtanov and that the applicants had failed to present a prima facie case of abduction by State agents.


  1. The Court’s evaluation of the facts


  1. The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of matters in dispute, in particular when faced with allegations of violations of fundamental rights (for the most recent summary of these, see El Masri v. «the former Yugoslav Republic of Macedonia» [GC], no. 39630/09, §§ 151 — 53, 13 December 2012).
  2. More specifically, the Court has adjudicated a series of cases concerning allegations of disappearances in the Russian North Caucasus. Applying the above-mentioned principles, it has concluded that it would be sufficient for the applicants to make a prima facie case of abduction of the missing persons by State agents, thus falling within the control of the authorities, and it would then be for the Government to discharge their burden of proof, either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, for example, concerning abductions in Dagestan, Alpatu Israilova v. Russia, no. 15438/05, 14 March 2013, and Umarovy v. Russia, no. 2546/08, 12 June 2012). If the Government failed to rebut this presumption, that would entail a violation of Article 2 in its substantive part. Conversely, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012).
  3. Turning to the circumstances of the present case, the Court notes that no assessment of evidence was carried out by the domestic courts. Therefore, it is for the Court to assess the facts of the case as presented by the parties.
  4. It should be noted at the outset that the documents submitted contain no witness statements of persons who could describe in detail the circumstances of the alleged abduction other than the very general descriptions of the vehicles and persons following Mr Akhmed Buzurtanov’s car on the night in question (see paragraphs 59, 65, 67, 68, 72 and 76 above). The Court also notes that the investigation obtained various theories concerning the reasons for his disappearance: kidnapping for ransom (see paragraph 20 above), abduction relating to hostile relationship (see paragraphs 24 and 77 above) and, lastly, abduction by law-enforcement agents (see paragraph 31 above). In such circumstances, in the absence of unequivocal prima facie evidence of the latter, the Court is unable to conclude that State agents or persons acting with their consent could be the sole possible perpetrators of the alleged abduction.
  5. Therefore, it has not been established to the required standard of proof — «beyond reasonable doubt» — that State agents were implicated in Mr Akhmed Buzurtanov’s disappearance; 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


  1. The applicants complained under Article 2 of the Convention that their relative had disappeared after having been abducted by State agents and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads as follows:

«1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

  1. 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.»


  1. The parties’ submissions


  1. The Government contended that the domestic investigation had obtained no evidence that any State agents had been involved in the disappearance of Mr Akhmed Buzurtanov. The Government claimed that the investigation into the abduction met the Convention requirement of effectiveness, as all measures available in national law were being taken to identify the perpetrators.
  2. The applicants alleged that Mr Akhmed Buzurtanov had been detained by State agents and had been missing ever since. 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.


  1. The Court’s assessment


  1. Admissibility


  1. 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. Furthermore, the Court has already found that the issue concerning the exhaustion of criminal domestic remedies should be joined to the merits of the complaint (see paragraph 89 above). The complaint under Article 2 of the Convention must therefore be declared admissible.


  1. Merits


(a) Alleged violation of the right to life of Mr Akhmed Buzurtanov

  1. 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 — 47, Series A no. 324, and v. Turkey, no. 25657/94, § 391, ECHR 2001-VII (extracts).
  2. As noted above, the domestic investigation failed to produce any tangible results as to the possible identities of the persons who might be responsible for the alleged abduction of Mr Akhmed Buzurtanov. 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 established above that, in the absence of relevant information, it is unable to find that the security forces were implicated in the disappearance of the applicants’ relative (see paragraph 96 above).
  3. In such circumstances the Court is unable to find a violation of the substantive limb of Article 2 of the Convention.

(b) Alleged inadequacy of the investigation into the abduction

(i) General principles

  1. The obligation to protect the right to life under Article 2 of the Convention requires that there should be some form of effective official investigation (see McCann and Others, cited above, § 161). It is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, v. Turkey, 27 July 1998, §§ 81 — 82, Reports of Judgments and Decisions 1998-IV, and v. Turkey [GC], no. 21954/93, §§ 91 — 92, ECHR 1999-III).
  2. The authorities must act on their own initiative once the matter has come to their attention; they cannot leave it to the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see, for example, mutatis mutandis, v. Turkey [GC] no. 22277/93, § 63, ECHR 2000-VII).
  3. In this context, there must also be an implicit requirement of promptness and reasonable expedition (see v. Turkey, 2 September 1998, §§ 102 — 04, Reports of Judgments and Decisions 1998-VI, and v. Turkey [GC], no. 23657/94, §§ 86, 87 and 106, ECHR 1999-IV). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation of a particular situation. However, a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.
  4. The investigation must also be effective in the sense that it must be capable of leading to the identification and punishment of those responsible (see , cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the measures available to them to secure the evidence concerning the incident (see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII, and Tanrikulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV). Any deficiency in the investigation which undermines its ability to establish the identity of the person responsible will risk falling below this standard.
  5. In addition, there must be a sufficient element of public scrutiny of the investigation or its results to ensure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see McKerr v. the United Kingdom, no. 28883/95, § 115, ECHR 2001-III).

(ii) Application of the above principles to the present case

  1. In the present case, the disappearance of Mr Akhmed Buzurtanov was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.
  2. From the outset the Court observes that unlike in a large number of similar cases concerning alleged abductions perpetrated in the region where the authorities failed to comply with the requirements of an effective investigation by failing to take even basic steps from the very beginning of the proceedings (see, for example, Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, 18 December 2012, Yandiyev and Others v. Russia, nos. 34541/06, 43811/06 and 1578/07, 10 October 2013; and Shokkarov and Others v. Russia, no. 41009/04, 3 May 2011) in the present case the investigating authorities carried out a substantial amount of work to elucidate the circumstances of Mr Akhmed Buzurtanov’s disappearance. It is noteworthy that within the initial stage of the proceedings the authorities reacted to the incident with promptness and diligence and took a significant number of steps, such as examination of the crime scene (see paragraphs 16 and 17 above) and initiation of a criminal investigation of the incident (see paragraph 15 above). Within the first days the investigators questioned a large number of witnesses (see paragraphs 56 — 80 above), the applicants were granted victim status in the criminal case (see paragraphs 18 and 29 above) and a number of pieces of evidence was collected and examined (see, for example, paragraphs 17, 19, 23, 25, 37, 41 and 45 above).
  3. The documents submitted demonstrate that the domestic authorities responded quickly to the applicants’ complaint and took numerous steps at the beginning of the investigation. However, in spite of the thorough attitude demonstrated in the first days of the proceedings, the authorities did not demonstrate the same diligence and prompt reaction to the information concerning the alleged involvement of State agents in the incident (see paragraph 31 above). The Court notes that the applicants’ lawyers expressly put this information before the investigators and specified the steps which could have been taken to verify that theory. For instance, they requested that the investigators took concrete steps, such as questioning of the high-ranking officials who had demonstrated awareness for the reasons for Mr Akhmed Buzurtanov’s alleged abduction, or questioning of the sportsmen who had participated in the meeting with those high-ranking officials (see paragraphs 10, 43 and 44 above). The Court notes that the failure of the investigating authorities to take those steps demonstrated their lack of resolve to take all necessary measures to establish the facts of the incident. Given the circumstances, the Court is persuaded that questioning of the high-ranking officials would have demonstrated the investigators’ objective and independent approach to solving such a serious crime and would have shown their openness to public scrutiny, which is one of the most essential features of an effective investigation in a democratic society.
  4. The Court further observes that according to the documents submitted although the investigators granted that request and indicated that they would take the steps to verify the theory advanced by the applicants (see paragraphs 46 above), they did not take the requested measures. In connection with that the Court reiterates that the authorities should not wait for the initiative of the next of kin to take steps in order to elucidated circumstances of the incident (see , cited above, § 63); they must show their commitment to taking all necessary measures on their own initiative and demonstrate that they have taken the measures available to them to secure the evidence (see, for example, Salman, cited above, § 106, and Tanrikulu, cited above, § 109). The Court would like to reiterate that a prompt response by the authorities in such a situation would have played an essential role in maintaining public confidence and in preventing any appearance of tolerance of unlawful acts. It would have shown the authorities’ determination to have the crime resolved, irrespective of the rank of the persons from whom critical evidence could have been obtained. However, for unknown reasons the requested steps were never taken. Therefore, in spite of the remarkable volume of work undertaken in the first days of the investigation into Mr Akhmed Buzurtanov’s disappearance, the Court cannot but find that the authorities, nonetheless, failed to take the important steps to secure possible evidence.
  5. Further to the requirement of public scrutiny, the Court notes that the applicants were granted victim status and questioned, and that they were represented in the criminal case (see paragraphs 30, 48 and 51 above). It remains to be decided whether they were able effectively to pursue their legitimate interests in the proceedings.
  6. The Government argued that the applicants had been granted victim status in the criminal case and should, therefore, have sought judicial review of the investigators’ decisions as part of the exhaustion of domestic remedies. The Court accepts that, in principle, that remedy may offer a substantial safeguard against the arbitrary exercise of power by an investigating authority, given a court’s power to annul a refusal to institute criminal proceedings and indicate defects to be addressed.
  7. The Court, however, has strong doubts as to whether that remedy would have been effective in the circumstances of the present case for the following reasons. In investigating such a serious crime it would be reasonable to presume that the authorities took all possible measures on their own initiative to identify the culprits. The applicants’ first request for information from the investigation file was granted only in part, their subsequent request to be legally represented in the proceedings was initially rejected but then granted almost a month later and their request for certain investigative steps was not de facto complied with (see paragraphs 21 — 22, 30, 46 and 48). In such circumstances, the Court notes that when the authorities investigate such serious matter, as a possible murder or enforced disappearance, it is not expected that within the ongoing proceedings the applicant would be obliged to constantly lodge appeals with domestic courts to spur the investigation or direct the authorities’ attention to certain evidence or the ways of obtaining it. The Court reiterates again that the authorities cannot leave it to the initiative of the next-of-kin to request particular lines of inquiry or investigative procedures (see, mutatis mutandis, , cited above, § 63). Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances of the present case and dismisses their objection as regards the applicants’ failure to exhaust domestic remedies within the context of the pending criminal investigation.
  8. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Mr Akhmed Buzurtanov, in breach of Article 2 in its procedural aspect.


  1. Alleged violations of Articles 3, 5 and 13 of the Convention


  1. The applicants complained of violations of Articles 3 and 5 of the Convention as a result of the mental suffering caused by the disappearance of their close relative, who they claimed had been unlawfully detained. They also argued that, contrary to Article 13 of the Convention, they had no available domestic remedies against the violations claimed under Articles 2 and 3. Articles 3, 5 and 13 of the Convention read, in so far as relevant:

Article 3

«No one shall be subjected to torture or to inhuman or degrading treatment or punishment.»

Article 5

«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;

  1. 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.
  2. 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.
  3. 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.
  4. 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.»

Article 13

«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.»

  1. The Government contested those arguments.
  2. The Court has not found that the State bears responsibility for the disappearance of Mr Akhmed Buzurtanov. Accordingly, in such circumstances, it finds that the situation does not disclose a violation of Articles 3 or 5, as alleged by the applicants (see Shafiyeva, cited above, §§ 104 and 110; Saidova v. Russia, no. 51432/09, § 84, 1 August 2013; and Dobriyeva and Others v. Russia, no. 18407/10, § 88, 19 December 2013). These complaints must, therefore, be rejected as inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
  3. As to the applicants’ complaint under Article 13, the Court reiterates its above-mentioned findings in respect of Article 3 of the Convention. In respect of this complaint, the applicants have no arguable claim. Thus, the complaint under Article 13 is likewise manifestly ill-founded and must be rejected as inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
  4. As regards the reference to Article 13 taken in conjunction with Article 2 of the Convention, the Court observes that the relevant complaint has already been examined in the context of Article 2. Having regard to the finding of a violation of Article 2 in its procedural aspect, the Court considers that although this complaint is admissible, there is no need for a separate examination of it on its merits (see Saidova, cited above, § 85, and Dobriyeva and Others, cited above, § 89).


  1. Application of Article 41 of the Convention


  1. 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.»


  1. Damage


  1. The applicants asked the Court to award them monetary compensation in respect of pecuniary and non-pecuniary damage suffered by them as a result of the violations alleged. They left it to the Court to determine the amount of any such awards on the basis of its case-law on the subject.
  2. The Government stressed that there were no grounds for making any awards in the present case.
  3. Regard being had to its findings in the present case, the Court awards the applicants 20,000 euros (EUR) jointly in respect of non-pecuniary damage.


  1. Costs and expenses


  1. The applicants also claimed EUR 5,850 for the costs and expenses incurred before the domestic courts and the Court for representation by their lawyer, Ms O. Preobrazhenskaya, and 338,090 Russian roubles (RUB) (about EUR 5,000) for the costs and expenses incurred in connection with their representation before the domestic authorities by their lawyer, Mr M. Pliyev. They submitted a breakdown of the costs and expenses incurred, including legal fees at the hourly rate of EUR 150 for Ms Preobrazhenskaya and RUB 320,000 for the legal services of Mr Pliyev. The applicants submitted copies of the legal contracts, the breakdown of the expenses, including transportation, administrative and translation costs, as certified by invoices.
  2. The Government questioned the necessity and reasonableness of the costs incurred. In particular, they pointed out that Ms Preobrazhenskaya was representing applicants in many other similar cases and, therefore, the applicants’ case was not complex. Moreover, it involved little documentary evidence. The extent of Mr Pliyev’s involvement in the case was not clear and the transportation expenses claimed had no connection with the applicants’ case.
  3. In accordance with the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, as well as to the fact that most of the applicants’ complaints have been rejected by the Court, it considers it reasonable to award the sum of EUR 4,000, covering costs under all heads, minus EUR 850 received by way of legal aid from the Council of Europe. The award is to be paid, as requested, into the representatives’ bank accounts as indicated by the applicants.


  1. Default interest


  1. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.




  1. Decides to join to the merits the Government’s objection as to non-exhaustion of criminal domestic remedies and rejects it;
  2. Declares the complaints concerning Articles 2 and 13 of the Convention (taken in conjunction with Article 2) admissible and the remainder of the application inadmissible;
  3. Holds that there has been no substantive violation of Article 2 of the Convention in respect of Mr Akhmed Buzurtanov;
  4. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to investigate effectively the disappearance of Mr Akhmed Buzurtanov;
  5. Holds that no separate issue arises under Article 13 of the Convention taken in conjunction with Article 2 of the Convention;
  6. Holds

(a) that the respondent State is to pay the applicants, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 20,000 (twenty thousand euros), to the applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the Respondent State at the rate applicable at the date of settlement;

(ii) EUR 3,150 (three thousand one hundred and fifty euros) in respect of costs and expenses plus any tax that may be chargeable to the applicants, to be paid into the representatives’ bank account as indicated by the applicants;

(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;

  1. Dismisses the remainder of the applicants’ claim for just satisfaction.


Done in English, and notified in writing on 5 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.



Deputy Registrar

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