Постановление ЕСПЧ от 08.12.2015 <Дело Дудаева (Dudayeva) против России> (жалоба N 67437/09) [англ.] Часть 2

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

 

  1. The Government did not contest the essential facts underlying the application, but claimed that the applicant’s submission was unsubstantiated and that there was no evidence proving «beyond reasonable doubt» that State agents had been involved in the killing of the applicant’s son and the disappearance of her husband. In particular, they stated that the applicant herself had not witnessed the incident and that her application had been based «only on the suppositions of her relatives and neighbours» as none of the alleged witnesses had been able to say for sure that the man taken away in the APC by the abductors had been Mr Ali Dudayev.
  2. The applicant submitted that it had been established «beyond reasonable doubt» that State agents had been involved in the attack on her house, which had resulted in the abduction of her husband and the killing of her son. In support of that assertion she referred to the ample evidence contained in her submissions and those of the Government, as well as the contents of the criminal investigation file. In particular, she pointed out that the perpetrators had arrived as a large group in APCs, which could only have been used by the federal forces, and that they had been able to move around freely during the curfew. The local military commander’s office had not reacted to the intense gunfire in the middle of the town during the curfew and the attack had taken place close to the local police station and lasted for more than an hour. She submitted that she had made a prima facie case that State agents had killed her son and abducted her husband and that the Government had failed to provide a plausible explanation for the events. In view of the absence of any news of her husband for a long time and the life-threatening nature of unacknowledged detention in the region at the relevant time, she asked the Court to consider him dead.

 

  1. The Court’s assessment

 

  1. The Court will examine the application at hand in the light of the general principles applicable in cases where the factual circumstances are in dispute between the parties (see El-Masri v. «the former Yugoslav Republic of Macedonia» [GC], no. 39630/09, §§ 151 — 53, ECHR 2012).
  2. The Court has addressed a whole series of cases concerning allegations of disappearances and deaths of applicants’ relatives in Chechnya. Applying the above-mentioned principles, it has concluded that if applicants make a prima facie case of abduction or killing by servicemen, this is sufficient for them to show that their relatives fell within the control of the authorities, and it is then 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, among many examples, Aslakhanova and Others, cited above, § 99, and Inderbiyeva v. Russia, no. 56765/08, § 96, 27 March 2012). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012, and Udayeva and Yusupova v. Russia, no. 36542/05, § 78, 21 December 2010).
  3. The Court has also found in many cases concerning disappearances that a missing person may be presumed dead. Having regard to the numerous cases of disappearances in Chechnya which have come before it, the Court has found that in the particular context of the conflict in the region, when a person has been detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as life-threatening (see, among many others, Yandiyev and Others v. Russia, nos. 34541/06, 43811/06 and 1578/07, 10 October 2013, and Dovletukayev and Others v. Russia, nos. 7821/07, 10937/10, 14046/10 and 32782/10, 24 October 2013).
  4. The Court has made findings of presumptions of deaths in the absence of any reliable news about disappeared persons for periods ranging from four years (see Askhabova v. Russia, no. 54765/09, § 137, 18 April 2013) to more than ten years.
  5. Turning to the circumstances of the present case, the Court notes that the documents from the investigation file provided by the Government (see, for example, paragraphs 17, 21, 24 and 31 above) demonstrate that the applicant’s son Mr Aslan Dudayev was shot dead on the night of 8 to 9 July 2002 by a group of armed servicemen who drove around in APCs and opened fire on the applicant’s house during curfew hours. As a result of the two-hour attack, which took place in proximity of the military commander’s office and the police station, the applicant’s husband, Mr Ali Dudayev, was taken away by the same group of servicemen and has been missing since. In their submissions to the authorities, the applicant, her relatives and neighbours, pointed out that the killing of Mr Aslan Dudayev and the abduction of Mr Ali Dudayev had been carried out by the same group of perpetrators, who belonged to the federal forces (see paragraphs 27, 28 and 41 above). The investigators considered this version of events and took steps to verify this assertion (see paragraphs 33 and 36 above). In view of all the evidence in its possession, the Court finds that the applicant has presented a prima facie case that State agents killed her son and abducted her husband, who subsequently disappeared.
  6. The Government neither contested the essential facts underlying the application nor provided a satisfactory and convincing explanation for the events in question. Bearing in mind the general principles set out above, the Court finds that Mr Aslan Dudayev was killed on the night of 8 to 9 July 2002 in the applicant’s house by a group of State agents and that her husband Mr Ali Dudayev was taken into custody on the same night by the same group of State agents. In view of the absence of any reliable news of the applicant’s husband since that date and the life-threatening nature of such detention (see paragraph 79 above), the Court also finds that Mr Ali Dudayev may be presumed dead following his unacknowledged detention.

 

III. Alleged violation of Article 2 of the Convention

 

  1. The applicant complained under Article 2 of the Convention that her son had been killed and her husband abducted by State agents and that the domestic authorities had failed to carry out effective investigations 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 complaint should be rejected as unsubstantiated, as the investigation into the disappearance had not obtained any evidence that State agents had killed Mr Aslan Dudayev, that Mr Ali Dudayev had been abducted by them or that he was dead. They further noted that all the necessary steps were being taken to comply with the obligation to conduct an effective investigation into the killing and the abduction.
  2. The applicant maintained her complaint.

 

  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. 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 Aslan Dudayev and Mr Ali Dudayev

  1. The Court reiterates that Article 2 of the Convention, 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 of the Convention, 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. The Court has already concluded that the applicant’s son was killed by State servicemen on the night of 8 to 9 July 2002. Without any plausible explanation for the death by the Government, the Court finds that there has been a violation of Article 2 of the Convention in its substantive aspect in respect of Mr Aslan Dudayev.
  3. The Court has already found that the applicant’s husband must be presumed dead following his detention by State servicemen on the night of 8 to 9 July 2002 and that his death can be attributed to the State. In the absence of any justification put forward by the Government, the Court finds that there has been a violation of Article 2 of the Convention in its substantive aspect in respect of Mr Ali Dudayev.

(b) Alleged inadequacy of the investigation into the killing of Mr Aslan Dudayev and abduction of Mr Ali Dudayev

  1. Considering that the killing and the abduction were the result of the same incident and were perpetrated by the same group, the Court does not find it necessary to examine the issue of compliance with the procedural aspect of Article 2 of the Convention separately and will examine the investigation into the events as a whole.
  2. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances which occurred, in Chechnya and Ingushetia in particular, between 1999 and 2006, and that such a situation constitutes a systemic problem under the Convention (see Aslakhanova and Others, cited above, § 217). In the case at hand, as in many similar cases reviewed by the Court, the investigation into the events of the night of 8 to 9 July 2002 has been pending for a number of years without leading to any significant progress in uncovering the identities of the perpetrators of Mr Aslan Dudayev’s killing or determining the fate of the missing Mr Ali Dudayev. While the obligation to investigate effectively concerns the means to be employed and not the results to be achieved, the Court notes that the criminal proceedings have been plagued by a combination of defects similar to those enumerated in Aslakhanova and Others (cited above, §§ 123 — 25). The investigation contained a long period of inactivity, which further diminished the prospects of solving the crime.
  3. From the documents submitted it appears that the investigation failed to take any meaningful steps to have the crime resolved. For instance, the authorities failed to identify and question the servicemen who could have witnessed or participated in the shooting at the applicant’s house on the night of 8 to 9 July 2002, or to identify the military APCs and the firearms used by the abductors, in spite of the examination of the large number of cartridges collected from the crime scene. The investigation failed to collect and examine the bullets from Mr Aslan Dudayev’s body and to question the heads of the military commander’s office and the police station concerning their lack of response to more than an hour of intense gunfire in the middle of town during a curfew.
  4. It is obvious that these measures, if they were to produce any meaningful result, should have been taken immediately after the initiation of either of the criminal cases. The Court reiterates that it is crucial in cases of death or disappearance for the investigation to be prompt. The inexplicable delays in taking vital steps and the failure to take even the most basic measures to uncover the facts of the incident which resulted in the death of the applicant’s son and the disappearance of her husband 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.
  5. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances of the death of Mr Aslan Dudayev and the disappearance of Mr Ali Dudayev. Accordingly, there has been a violation of Article 2 of the Convention in its procedural aspect.

 

  1. Alleged violation of Articles 3 and 5 of the Convention

 

  1. The applicant complained of a violation of Articles 3 and 5 of the Convention, as a result of the mental suffering caused to her by the disappearance of her husband Mr Ali Dudayev and the unlawfulness of his detention. Articles 3 and 5 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.»

 

  1. The parties’ submissions

 

  1. The Government noted that the abduction of the applicant’s husband must have caused the applicant emotional shock. However, as State agents had not been involved in the alleged violation, the national authorities could not therefore be held liable for the applicant’s mental suffering. In addition, the applicant had not witnessed the attack on the night of 8 to 9 July 2002 and had only learnt of the events the following morning.
  2. The Government further submitted that according to the investigation file, the applicant’s husband had neither been arrested by State agents nor held in any detention facilities.
  3. The applicant stated that she was the wife of the missing Mr Ali Dudayev and that she had actively sought the authorities’ assistance in establishing his whereabouts and prosecuting the people who had abducted him. The applicant had not received any proper explanation or information as to what had happened to her missing husband after his detention by State agents. The way in which the authorities had responded to her requests constituted a violation of Article 3 of the Convention.
  4. The applicant further maintained that Mr Ali Dudayev had been unlawfully deprived of his liberty.

 

  1. The Court’s assessment
  1. Admissibility

 

  1. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

 

  1. Merits

 

  1. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention in respect of the close relatives of the victim. The essence of such a violation does not lie mainly in the fact of the «disappearance» of the family member, but rather concerns the authorities’ reaction and attitude to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva v. Russia, no. 7615/02, § 164, ECHR 2006-XIII (extracts)). When there is a long time between the missing person’s disappearance and the news of his or her death, there is a distinct period during which the applicants suffer the uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances (see Aslakhanova and Others, cited above, § 133).
  2. The Court reiterates its findings regarding the State’s responsibility for the abduction of Mr Ali Dudayev and the failure to carry out a meaningful investigation into his fate. It finds that the applicant, who is the wife of the disappeared person, must be considered a victim of a violation of Article 3 of the Convention on account of the distress and anguish which she suffered, and continues to suffer, as a result of her inability to ascertain the fate of her husband and of the manner in which her complaints have been dealt with.
  3. Further, the Court has established that Mr Ali Dudayev was detained by State servicemen and then deprived of his life. His detention was not acknowledged, was not logged in any custody records and no official trace of his subsequent whereabouts or fate exists. The Court has found on many occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 of the Convention and discloses a particularly grave violation of its provisions (see v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others v. Russia, no. 69480/01, § 122, ECHR 2006-XIII (extracts)).
  4. Consequently, the Court finds that Mr Ali Dudayev was held in unacknowledged detention without any of the safeguards contained in Article 5 of the Convention. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

 

  1. Alleged violation of Article 13 of the Convention

 

  1. The applicant complained that there had been no effective remedies at her disposal in respect of the aforementioned violations, contrary to Article 13 of the Convention, which reads as follows:

«Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.»

 

  1. The parties’ submissions

 

  1. The Government contended that the applicant had had effective remedies at her disposal and that the authorities had not prevented her from using them. The applicant could have appealed to a court regarding the steps taken during the investigation and she could have also claimed civil damages.
  2. The applicant maintained her complaint.

 

  1. The Court’s assessment
  1. Admissibility

 

  1. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits

 

  1. The Court reiterates that in circumstances where, as here, the criminal investigation into a violent death and disappearance 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 (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 183, 24 February 2005).
  2. The Court reiterates its findings concerning the general ineffectiveness of criminal investigations in cases such as those under examination. In the absence of any results from the criminal investigations into the killing of Mr Aslan Dudayev and the abduction and death of Mr Ali Dudayev, any other possible remedy becomes inaccessible in practice.
  3. Consequently, there has been a violation of Article 13 in conjunction with Articles 2 and 3 of the Convention in respect of the applicant.
  4. As regards the applicant’s reference to Article 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention (see Alikhadzhiyeva v. Russia, no. 68007/01, § 96, 5 July 2007).

 

  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 applicant made no claim in respect of pecuniary damage. As for non-pecuniary damage, she left the amount to be determined by the Court.
  2. The Government submitted that the award should be determined on an equitable basis.
  3. The Court notes that it has found violations of Articles 2, 3, 5 and 13 of the Convention in the present case. The Court thus accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It considers it appropriate to award the applicant 120,000 euros (EUR) under this heading, plus any tax that may be chargeable to her.

 

  1. Costs and expenses

 

  1. The applicant was represented by Mr Dokka Itslayev, who claimed EUR 3,061 for legal representation. The amount claimed comprised legal research and preparation amounting to EUR 2,568, administrative expenses amounting to EUR 125 and translation expenses of EUR 368.
  2. The Government stated that the applicant had failed to substantiate the costs and expenses to the extent claimed; that the legal research and preparation of her application was not complex; and that the translation and administrative costs were speculative. They invited the Court to reject the claim.
  3. The Court has to establish first whether the costs and expenses were actually incurred and, second, whether they were necessary and reasonable (see McCann and Others, cited above, § 220, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV).
  4. In view of its conclusions, the principles enumerated above and the parties’ submissions, the Court awards the applicant EUR 3,000, plus any tax that may be chargeable to her. The award in respect of costs and expenses is to be paid into the representative’s bank account, as identified by the applicant.

 

  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.

 

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

 

  1. Declares the application admissible;
  2. Holds that there has been a substantive violation of Article 2 of the Convention in respect of Mr Aslan Dudayev and Mr Ali Dudayev;
  3. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate the killing of Mr Aslan Dudayev and the disappearance of Mr Ali Dudayev;
  4. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant on account of her mental suffering;
  5. Holds that there has been a violation of Article 5 of the Convention in respect of Mr Ali Dudayev on account of his unlawful detention;
  6. Holds there has been a violation of Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention;
  7. Holds that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention;
  8. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable on the date of settlement:

(i) EUR 120,000 (one hundred twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, the net award to be paid into her representative’s bank account, as identified by the applicant;

(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 applicant’s claim for just satisfaction.

 

Done in English, and notified in writing on 8 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GUERRA President

Stephen PHILLIPS Registrar

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