Постановление ЕСПЧ от 27.03.2012 «Дело «Индербиева (Inderbiyeva) против Российской Федерации» (жалоба N 56765/08) [рус., англ.] Часть 4

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THE LAW

  1. The issue of exhaustion of domestic remedies
  1. The parties’ submissions

 

  1. The Government submitted that the investigation into the murder of the applicant’s sisters 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 applicant to lodge court complaints about any acts or omissions of the investigating authorities. She could also have applied for civil damages.
  2. The applicant contested the Government’s submission. She stated that the only available 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 practice (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 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 (see Khashiyev and Akayeva v. Russia, cited above, §§ 119 — 21, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed.
  4. As regards criminal-law remedies, the Court observes that the investigation into the murders has been pending since 3 May 2000. The applicant and the Government dispute the effectiveness of the 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 applicant’s 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. Alleged violation of Article 2 of the Convention

 

  1. The applicant alleged that her sisters had been unlawfully killed by agents of the State and that no effective investigation had been carried out into the matter. She relied on Article 2 of the Convention, which 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.

  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. 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. Further, the Court has already found that the Government’s objection concerning the issue of exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 86 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

 

  1. The alleged violation of the right to life of Shema and Shamani Inderbiyeva

 

  1. The parties’ submissions

 

  1. The applicant alleged that her sisters had been unlawfully killed by agents of the State and referred to the Court’s conclusion in the cases of Khashiyev and Akayeva, Goygova, Makhauri, Goncharuk, and Tangiyeva (all cited above), noting that, at the relevant time, the area was under the full control of the Russian federal forces. She argued that the Government had not suggested any other version of the events.
  2. The Government denied any involvement of State agents in the killing of the applicant’s sisters and stated that they had been murdered by unidentified criminals.

 

  1. The Court’s assessment

 

  1. It was not disputed by the parties that the applicant’s sisters had been killed. The Government did not suggest that the exceptions provided for in the second paragraph of Article 2 could be applicable in the present case. The question remains whether the respondent State may be held responsible for their death.
  2. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of a violation of Article 2 (for a summary of these, see Estamirov and Others, cited above, §§ 98 — 101). In the light of these principles, the Court will decide whether the death of the applicant’s sisters can be attributed to the State and whether there has been a violation of Article 2 in this respect.
  3. The Court finds that the factual circumstances as presented by the applicant were not disputed by the Government and were not contradicted by the documents in the investigation file. As it appears, the only version of the events pursued by the investigation was that suggested by the applicant. The Government did not present any alternative account of the attack and, moreover, the investigation obtained information proving the applicant’s allegations of the State agents’ responsibility for her sisters’ death (see paragraph 51 above).
  4. In addition, the Court has long held that where the events in issue lie wholly, or to a large extent, within the exclusive knowledge of the authorities — as in the case of persons in custody under those authorities’ control — strong presumptions of fact will arise in respect of injuries and deaths occurring during such detention. Thus, it has found that where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which an issue will arise under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108 — 11, Series A No. 241-A; Ribitsch v. Austria, 4 December 1995, § 34, Series A No. 336; and Selmouni v. France [GC], No. 25803/94, § 87, ECHR 1999-V). Indeed, in such situations the burden of proof may be regarded as resting on the authorities (see, inter alia, Salman v. Turkey [GC], No. 21986/93, § 100, ECHR 2000-VII).
  5. The Court has also considered it legitimate to draw a parallel between the situation of detainees, for whose well-being the State is held responsible, and the situation of persons found injured or dead in an area within the exclusive control of the State authorities. Such a parallel is based on the salient fact that in both situations the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities (see Akkum and Others v. Turkey, No. 21894/93, § 211, ECHR 2005-II (extracts)).
  6. The Court will assess the effectiveness of the investigation into the death of the applicant’s sisters below (see paragraphs 100 — 107), but it is clear that it failed to establish the military units presumably involved in the incident or to indict the individuals responsible. Taking this into account and the Court’s finding in the judgments referred to by the applicant, the Court finds that she has made a prima facie case that her sisters were killed by servicemen during a security operation on or around 10 January 2000 in the Staropromyslovskiy District of Grozny, and that the Government have failed to provide any other satisfactory and convincing explanation of the events. Their reference to the absence of conclusions from the criminal investigation is not enough to absolve them from their burden of proof under Article 2 of the Convention.
  7. On the basis of the above, the Court finds that the death of Shema and Shamani Inderbiyeva 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 under its substantive limb.

 

  1. Alleged inadequacy of the investigation
  1. The parties’ submissions

 

  1. The applicant alleged that the authorities had failed to conduct an effective investigation into the circumstances of her sisters’ death, in violation of their procedural obligation under Article 2. She argued that the investigation had fallen short of the standards established by the Convention and national legislation. In particular, the investigation had not been prompt because of the delay in opening it and in taking important steps. A number of investigative measures had never been taken, such as securing the relevant evidence and questioning servicemen who could have been involved. The investigation had been ongoing for more than ten years without producing any tangible results. The authorities had systematically failed to inform her of the progress of the proceedings and that she had been given no information about important procedural steps.
  2. The Government contended in reply that the investigation was being carried out in accordance with the relevant domestic legislation and Convention standards.

 

  1. The Court’s assessment

 

  1. 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 see, for example, Bazorkina v. Russia, No. 69481/01, §§ 117 — 19, 27 July 2006).
  2. In the present case, an investigation was carried out into the murder of the applicant’s sisters. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.
  3. The Court notes from the outset that it has previously found the investigation into the murders of the inhabitants of the Staropromyslovskiy District perpetrated in January and February 2000 to be ineffective and in breach of the requirements of Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, cited above, §§ 156 — 66; Goygova, cited above, §§ 76 — 85; Makhauri v. Russia, cited above, §§ 105 — 14; Goncharuk v. Russia, cited above, §§ 65 — 71; and Tangiyeva v. Russia, cited above §§ 88 — 95). It can be seen from the documents submitted that no different conclusion could be arrived at in the present case for the following reasons.
  4. The Court notes that the authorities were aware of the crime by at least May 2000, when a criminal investigation into the killings committed in the Staropromyslovskiy District was opened by the town prosecutor’s office. In June and July 2000, within the scope of this investigation, the applicant, her sister and her mother were questioned and confirmed information about the circumstances in which their relatives’ bodies had been found and their burial. However, it does not appear that any other steps were taken at that time in order to solve the murders. More than three years later, in June 2003, the documents relating to the murder of the applicant’s sisters were transferred to the district prosecutor’s office with an instruction to carry out a separate investigation but the authorities only initiated a separate set of proceedings to investigate the matter in July 2003.
  5. The Court further notes that even the most basic procedural steps in the investigation were taken after September 2003, that is, more than three and half years after the events in question. The measures taken after September 2003 included such crucial steps as the questioning of other witnesses, examination of the crime scene, attempts to identify the military units that could have been involved in the murders and the carrying out of a forensic medical examination. It is obvious that these measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and certainly as soon as the investigation had commenced. The Court reiterates that it is crucial in cases of deaths in contentious situations for the investigation to be prompt. The passage of time will inevitably erode the amount and quality of the evidence available and the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the members of the family (see Paul and Audrey Edwards v. the United Kingdom, No. 46477/99, § 86, ECHR 2002-II). These delays, unexplained in this case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime.
  6. The Court also notes that the applicant was granted victim status only in October 2003. Even after that she was only informed of the suspension and reopening of the proceedings, and not of any other significant developments. Accordingly, the investigators did not ensure sufficient public accountability to provide the investigation and its results with the required level of public scrutiny; nor did it safeguard the interests of the next of kin in the proceedings.
  7. Finally, the Court notes that the investigation was suspended and resumed a number of times and that on several occasions the supervising prosecutors pointed out the deficiencies in the proceedings and ordered measures to remedy them, but that these instructions were not complied with.
  8. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the death of Shema and Shamani Inderbiyeva. This rendered recourse to the criminal domestic remedies, referred to by the Government, ineffective in the circumstances. The Court accordingly dismisses the Government’s objection in this respect and holds that there has been a violation of Article 2 under its procedural limb as well.

 

III. Alleged violation of Article 3 of the Convention

 

  1. The applicant relied on Article 3 of the Convention, submitting that prior to their killing Shema and Shamani Inderbiyeva were subjected to ill-treatment and that as a result of her sisters’ death and the State’s reaction thereto, she had endured psychological suffering in breach of Article 3 of the Convention. Article 3 reads:

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

 

Admissibility

 

  1. Turning to the first part of the applicant’s complaint, the Court notes that the applicant neither raised it with competent domestic authorities nor enclosed any documents with the application to substantiate her allegations.
  2. As for the second part of the complaint, the Court notes that the present case concerns the instantaneous death of the applicant’s sisters as a result of an explosion. In this regard, the Court refers to its practice by which the application of Article 3 is usually not extended to the relatives of persons who have been killed by the authorities in violation of Article 2 (see Yasin v. Turkey, No. 30949/96, § 135, 31 May 2005) or to cases of unjustified use of lethal force by State agents (see Isayeva and Others v. Russia, Nos. 57947/00, 57948/00 and 57949/00, § 229, 24 February 2005), as opposed to the relatives of the victims of enforced disappearances. The latter approach is exercised by the Court in view of the continuous nature of the psychological suffering of the applicants whose relatives disappeared and the applicants’ inability for a prolonged period of time to find out what happened to them (see, among many other authorities, Bazorkina, cited above, § 141; Imakayeva v. Russia, No. 7615/02, § 166, ECHR 2006-XIII (extracts); and Luluyev and Others v. Russia, No. 69480/01, § 115, ECHR 2006-XIII (extracts)). As for the present case, even though the Court does not doubt that the tragic death of her sisters caused the applicant profound suffering, it nonetheless, owing to the instantaneous nature of the incident, does not find that it amounts to a violation of Article 3 of the Convention (see, for a similar situation, Udayeva and Yusupova v. Russia, No. 36542/05, §§ 82 — 83, 21 December 2010).
  3. It therefore follows that the applicant’s complaint under Article 3 should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

 

  1. Alleged violation of Article 6 of the Convention

 

  1. The applicant complained that the proceedings brought by her against the investigators were unfair (see paragraph 22 above). She relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:

«1. In the determination of his civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…»

  1. The Court finds that Article 6 § 1 of the Convention is inapplicable to the proceedings in question, as they did not involve the determination of the applicant’s civil rights or obligations or a criminal charge against the applicant, within the meaning of the Convention (see, among many other authorities, Udayeva and Yusupova, cited above, § 86).
  2. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 thereof.

 

  1. Alleged violation of Article 13 of the Convention

 

  1. The applicant complained that she had been deprived of effective remedies in respect of the alleged violation of Article 2 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.»

 

  1. The parties’ submissions

 

  1. The Government contended that the applicant had effective remedies at her disposal as required by Article 13 of the Convention and that the authorities had not prevented her from using those remedies. The applicant had the opportunity to challenge the acts or omissions of the investigating authorities in court. They added that participants in criminal proceedings could also claim damages in civil proceedings. In sum, the Government submitted that there had been no violation of Article 13.
  2. The applicant maintained the 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 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 in the present case, a criminal investigation into a murder has been ineffective and the effectiveness of any other remedy that might have existed has consequently been undermined, the State has failed in its obligations under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183).
  2. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.

 

  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 did not submit any claims for pecuniary damage. As regards non-pecuniary damage, she stated that she had endured emotional suffering in relation to the loss of her sisters and the authorities’ failure to effectively investigate their death. She left the determination of the amount of compensation to the Court.
  2. The Government submitted that finding a violation of the Convention would be adequate just satisfaction in the applicant’s case.
  3. The Court has found a violation of both aspects of Article 2 and of Article 13 of the Convention on account of the death of the applicant’s sisters and the authorities’ failure to effectively investigate the matter. The Court thus accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicant 100,000 euros (EUR) plus any tax that may be chargeable thereon.

 

  1. Costs and expenses

 

  1. The applicant was represented by Mr D. Itslayev, a lawyer practising in Grozny. The applicant submitted a contract with her representative and an itemised schedule of costs and expenses that included legal research and drafting, as well as administrative and translation expenses. The overall claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR 4,306. The applicant submitted the following breakdown of costs:

(a) EUR 3,637 for 24.25 hours of interviews and drafting of legal documents submitted to the Court and the domestic authorities, at the rate of EUR 150 per hour;

(b) EUR 125 of administrative expenses;

(c) EUR 544 in translation fees based on the rate of EUR 80 per 1000 words.

  1. The Government regarded the claim as unsubstantiated, pointing out that the relevant documents were not sufficiently itemised or supported by documentary evidence.
  2. The Court has to establish first whether the costs and expenses indicated by the applicant were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A No. 324).
  3. Having regard to the details of the information submitted by the applicant, the Court is satisfied that these rates are reasonable and reflect the expenses incurred. The Court notes that this case was rather complex and required the amount of research and preparation claimed by the applicant.
  4. Having regard to the details of the claims submitted by the applicant, the Court awards her the amount of EUR 4,000 together with any tax that may be chargeable to the applicant, the net award 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. Decides to join to the merits the Government’s objection as to the issue of exhaustion of criminal domestic remedies and rejects it;
  2. Declares the complaints under Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible;
  3. Holds that there has been a substantive violation of Article 2 of the Convention in respect of Shema and Shamani Inderbiyeva;
  4. 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 circumstances in which Shema and Shamani Inderbiyeva died;
  5. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;
  6. 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:

(i) EUR 100,000 (one hundred thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant;

(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representative’s 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;

  1. Dismisses the remainder of the applicant’s claim for just satisfaction.

 

Done in English, and notified in writing on 27 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

President
Registrar

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