CASE OF ZUBAYRAYEV v. RUSSIA
(Application no. 67797/01)
10 January 2008
In the case of Zubayrayev v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 6 December 2007,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in an application (no. 67797/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Adam Zubayrayev (“the applicant”), on 9 March 2001.
2. The Russian Government (“the Government”) were represented by their former Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that his father had been killed by Russian servicemen in Chechnya in September 2000, and that no effective investigation had taken place. He referred to Articles 2 and 13 of the Convention.
4. By a decision of 28 September 2006, the Court declared the application partly admissible.
5. The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations.
THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1967 and lives in Nice, France. Before 1999 the applicant was a resident of the village of Starye Atagi in Chechnya. He also submitted the complaint on behalf of his close relatives: his mother, Malika Zubayrayeva, brother Khasan (also spelled Khasin) and sisters Aset and Petimat Zubayrayeva, who are not applicants in the present case.
7. The facts of the case were partly disputed by the parties. Accordingly, the Court requested the Government to submit copies of the criminal investigation file. The submissions of the parties are summarised below in Part A. A summary of the documents submitted by the Government is set out in Part B below.
A. Submissions of the parties
1. Killing of the applicant’s father
8. In October 1999 the applicant applied for asylum in Belgium. He said that he had served in the national security service of the self-proclaimed “Chechen Republic of Ichkeria”.
9. The applicant’s parents, brothers and sisters remained in Chechnya. His family lived in their house at 103 Nagornaya Street in the village of Starye Atagi.
10. The applicant’s mother, Malika Zubayrayeva, testified that in the early hours of 17 September 2000 the family had been woken by loud screams. A large group of men in camouflage uniforms and, in some instances, masks, whom she identified as belonging to the Russian special services (“spetsnaz”), entered the house and forced all the inhabitants outside. They were not allowed to get dressed and no reasons were given for their intervention. According to her, the intruders wore insignia of the Russian army and spoke Russian without an accent.
11. According to the applicant, the inhabitants of the house were lined up in the courtyard facing the wall and their passports were collected. The servicemen read out the names in the passports one by one. One of the applicant’s brothers, Magomed, was not at home that night and the men asked about his whereabouts. The applicant’s father Salaudi (also spelled Salavdi) Zubayrayev replied that he was not at home. The intruders hit the applicant’s other brother, Khasan Zubayrayev (born in 1977), with a rifle butt on the head and led the applicant’s father away. They then forced the women into one of the rooms. In the meantime others opened all the rooms in the house and searched them. They collected valuables and family photographs.
12. Once the armed men had left, the women went outside and found Khasan in the courtyard. The body of the applicant’s father was found about 100- 200 metres from the house. He had been shot in the back of the head with an automatic rifle.
13. On the same night and in similar circumstances four other persons were killed in Starye Atagi: Musa Abubakarov (aged about 70), Zaur Demilkhanov (who was born in 1982), Vakha Elmurzayev (aged about 70) and Isa Elmurzayev (aged about 30).
14. The applicant submitted that on 18 September 2000 the Russian television news had announced that several persons, including the applicant’s father, had been killed the previous night in Starye Atagi by religious extremists – the “wahhabists”.
15. The Government submitted that in the early hours of 17 September 2000 a group of unidentified persons armed with automatic weapons had entered the village of Starye Atagi and murdered five men, all of whom had been shot with automatic weapons. The Government stressed that all the persons killed had been loyal to the federal authorities, and openly expressed their negative opinion of “wahhabists.” The Government also stressed that one of the persons killed was the son of a police officer from the Ministry of the Interior. They submitted that there was no reason to suspect that the killings had been committed by State agents.
2. Prosecutor’s visit of 17 September 2000
16. The applicant submitted that on 17 September 2000 the family had been preparing for Salaudi Zubayrayev’s funeral when they learnt that there were investigators present at the crime scene. The applicant’s younger brother Khasan had gone to see them. He had taken along cartridges he had found near his father’s body – nine from a Kalashnikov 5,45 millimetre automatic rifle and three from a 9 mm Makarov pistol.
17. At the place where his father’s body had been found the applicant’s brother saw a group of servicemen surrounded by villagers. He inquired who was the most senior and gave him the cartridges. The officers stated that they had come from the Grozny District Prosecutor’s Office. The applicant’s brother had tried to explain that he was the son of the person killed and a witness of the crime, and that other members of the family were at home preparing the body for burial. As the officers did not seem to be interested in his statements, he had tried to obtain their names and ranks. In response one of the officers had rudely asked if he also wanted to know his home address in Russia. The officers had shouted at him and the other villagers, and had ordered them to disperse and made threats. They had not visited their house. None of the family members were questioned that day or later about the circumstances of the murders, nor had anyone come to their house to take pictures of the body or to collect other relevant evidence.
18. The applicant said that his father had been buried on 17 September 2000 at the village cemetery. The family members had not contacted a doctor or taken pictures of the body before the burial. Nor had they contacted any representatives of the military or investigative bodies, as they considered this to be a waste of time in view of the prosecutors’ attitude. They were never contacted by the authorities in relation to the murder.
19. The Government submitted that on 17 September 2000, immediately following the receipt of news of the murders in Starye Atagi, a group of investigators had arrived in the village and taken immediate action. They had submitted copies of documents that had been drawn up by the investigators on 17 September 2000, including descriptions of the scenes of the murders and of the bodies, including that of Salaudi Zubayrayev. The team had also collected cartridges and bullets (see paragraphs 44 and 45 below). The Government denied that the investigators had ever mistreated the relatives of the victims and noted that the case file contained no complaints from the victims or anyone else of reprehensible conduct on the part of the officers of the law-enforcement bodies.
3. The official investigation
20. On 17 September 2000 the Grozny District Prosecutor’s Office opened a criminal investigation into the murders of five men in Starye Atagi under Article 105 § 2 of the Criminal Code (the provision applicable to multiple murders). The investigation was assigned case file no. 18040.
21. On the same day the acting Grozny District prosecutor informed the prosecutor of Chechnya about the events and the action that had been taken by his office in the aftermath of the murders. His note referred to the information collected in Starye Atagi, including the examination of the scenes of the crime and of the bodies and to the cartridges and bullets that had been collected. It concluded by saying, on the basis of the statements of the local residents, that the crime had probably been committed by illegal armed groups .
22. On 17 October 2000 the Grozny District Civil Registration Office issued a death certificate for Salavdi Dzhamilovich Zubayrayev, who had been born in 1935. Death was recorded as having occurred on 17 September 2000 in Starye Atagi.
23. At the end of September 2000 the applicant wrote to the Council of Europe Commissioner for Human Rights, complaining of the murder of his father and other persons in Starye Atagi and of the absence of an investigation. In a reply dated 5 December 2000 the Commissioner for Human Rights expressed his sympathy and promised to raise the issue with the Special Envoy of the Russian President in Chechnya for Rights and Freedoms, Mr Kalamanov, at a meeting which was due to take place the same day.
24. On 17 November 2000 the investigation was adjourned because the killers could not be identified. It does not appear that anyone was granted victim status in the proceedings at that time or that information about the adjournment was communicated to the victims’ relatives.
25. On 5 April 2001 the investigation was resumed. The Chechnya Prosecutor’s Office ordered a number of steps to be taken, in particular eye-witnesses and other witnesses were to be questioned, victim status was to be granted to the relatives of those killed, information concerning the personalities of the deceased was to be collected and forensic and ballistic tests were to be carried out.
26. On 19 May 2001 the investigation was adjourned. It does not appear that any investigative activity took place between November 2001 and October 2004.
27. In September 2004 the present application was communicated to the Russian Government.
28. On 16 October 2004 the investigation was resumed pursuant to an order of the Grozny District Prosecutor. The order contained criticism of the investigation that had been carried out up to that point and referred to a number of basic investigative steps that needed to be taken (see paragraph 49 below).
29. In October 2004 the relatives of the five men who had been killed in Starye Atagi on 17 September 2000 were questioned and granted victim status. According to the Government, they stated that their relatives had been killed in the early hours of 17 September 2000 by unknown armed men wearing masks. They did not have any suspicions as to the identity of the killers. The Government referred to their statements, but did not submit any copies. They also referred to undated statements of other residents of Starye Atagi, who likewise did not possess any information about the identity of the killers.
30. The Government further submitted that in November 2004 a certain Rustam Z. had been charged with participating in an illegal armed group and involvement in the murder of Mr Demilkhanov on the night of 17 September 2000. Later Rustam Z. retracted his statements in this regard, alleging that they had been made under duress. In March 2005 the charges relating in part to his involvement in the murders on 17 September 2000 were dropped. The investigation of the charges against Rustam Z. was at some point joined with the investigation of the five murders, but after the charges against him were dropped, the cases were separated (see paragraphs 51-54 below).
31. The Government added that the investigation into the murders committed in Starye Atagi on 17 September 2000 had been adjourned and reopened on four occasions.
32. In their observations, the Government also stated that the relatives of Salaudi Zubayrayev had not been interviewed or been granted victim status in the proceedings in view of their departure from Russia. In October 2004 the investigation questioned and granted victim status to Mrs. E., Salaudin Zubayrayev’s daughter-in-law. She stated that she had been in Grozny at the relevant time but had no additional information about the circumstances of the crime.
33. The Government added that the investigation had failed to establish the identity of the culprits and no one had been charged with the crime. However, the implication of servicemen or representatives of other State authorities had not been established. The investigation had focused on the main theory that the murders had been committed by members of illegal armed groups in order to intimidate the civilian population and to destabilise the district, especially as one of the persons killed was the son of a police officer from the Ministry of the Interior.
34. Following the Court’s decision on admissibility in September 2006 and a request to produce documents from the investigation file, the Government submitted about 50 pages of documents from the case file, which contained over 300 pages. The documents are summarised below in Part B, and, in addition to the initial documents drawn up on 17 September 2000, contained the prosecutor’s decisions to adjourn and reopen the investigation and papers relating to the charges against Rustam Z. Relying on the information obtained from the Prosecutor General’s Office, the Government observed that the investigation was in progress and that disclosure of the documents would violate Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses. However, they agreed to produce several documents whose “disclosure did not contravene the requirements of Article 161”.
4. Subsequent events
35. The applicant’s relatives stated that on 10 December 2000 three armoured personnel carriers (APCs) and one Ural truck with soldiers had arrived at their family home. The applicant’s two brothers, Magomed and Khasan, had run away through the backyard when they heard the vehicles approaching. The applicant’s mother had remained in the house with her daughters and daughters-in-law.
36. According to the applicant’s mother, servicemen wearing masks had entered the house, asked the women about the whereabouts of the men, and then asked if anyone had complained “to Europe”. They had also asked them about electronic equipment found in the house and whether they had any weapons or money. The applicant also alleged that the military had taken a number of valuables from the house. The neighbours had later told the Zubayrayev family that the hull and registration numbers of the APCs and the Ural truck were covered with mud and that they had not been allowed to get sufficiently close to note them down.
37. The raid on the Zubayrayevs’ house on 10 December 2000 had been reported by NGO Memorial in their monthly monitor of human-rights violations in Chechnya. In February 2001 the applicant had again written to the Council of Europe Human Rights Commissioner, to inform him that pressure was being exerted on his family.
38. Early in the morning of 14 January 2001 the applicant’s family’s house had again been searched by servicemen. After that the applicant’s remaining family had left the house, as they feared for their lives and security and did not trust the Russian authorities any more.
39. The applicant presented his mother’s written account of these events, countersigned by her and her other children who had been living with her at that time.
40. In February 2001 Obyedinennaya Gazeta published an open letter from the residents of Starye Atagi to Mr Aslakhanov, a member of the State Duma. The letter, which was signed by the head of the village council and 150 villagers, complained of several “mopping-up” operations in the village in 2000 – 2001, including on 14 January 2000, when the Zubayrayev family home was raided. The letter further listed 57 inhabitants of the village who had lost their lives since October 1999, among them the applicant’s father and four other men, who had been killed on the night of 17 September 2000 by unknown persons wearing camouflage uniforms and masks and speaking Russian.
41. In March 2001 the applicants’ remaining family left Russia and sought asylum abroad.
42. The Government denied that there was any information to suggest that the members of the applicant’s family had been ill-treated or that their homes had been searched or their possessions confiscated.
B. Documents submitted by the Government
43. In December 2006 the Government informed the Court of the progress of the investigation and produced several documents from the case file. Altogether, they produced 34 documents running to 52 pages from the file, which, as can be ascertained from the page numbering, comprised over 300 pages. Below is a summary of the documents concerned.
1. Information about the killings and the progress of the investigation
44. On 17 September 2000 the investigative group of the Grozny District Prosecutor’s Office compiled a report on the scene of the crime. The five-page handwritten document contained a description of each individual site where the killings had been carried out, a brief description of the bodies of the victims and a list of the cartridges and bullets that had been collected at the sites, some of which bore production numbers. In relation to the applicant’s father the report read: “the body of Salaudi Zubayrayev was examined in his house. The body bears two gunshot wounds to the dorsum and two to the head: one to the back of the head and one to the right temple area.”
45. On 17 September 2000 the Grozny District acting prosecutor drew up the following account of the events for the Chechnya Prosecutor:
“At 9.30 a.m. on 17 September 2000 the Grozny District Prosecutor’s Office was informed by the Grozny Temporary District Department of the Interior (VOVD) of the murder of five inhabitants of Starye Atagi. Following this message, at 10 a.m. a group of [investigators of the district prosecutor’s office and the VOVD] set out to the scene of the crime. There, a number of operative and immediate investigative steps were taken, as a result of which it was possible to establish the following.
On the night of 16 to 17 September 2000, at about 2 a.m., a group of persons using a number of vehicles (probably including a grey Volga car without number plates) had burst into the village. The group was composed of about 14-18 persons wearing new camouflage uniforms of a green-yellow colour and armed with automatic weapons, hand-pistols and knives. Between 2 a.m. and 3 a.m. the group murdered five inhabitants of the village; one person was wounded and a Volga car was damaged by gunfire.
Abubakarov Musa, who was born in 1928 in Starye Atagi and was of Chechen ethnic origin and disabled, was taken out of his house at 15 Pochtovaya Street and shot dead in the street, about 200 metres from his home. The body bears gunshot wounds to the head (4) and back (1) and a knife wound to the chest.
Demilkhanov Zaur Gikhaniyevich, who was born on 28.04.1981 in Grozny and was of Chechen ethnic origin and unemployed, was killed in his house at 155 Nagornaya Street, in the presence of his parents. The body bears gunshot wounds to the head (2), back and legs (2).
Elmurzayev Vakha Elmurzayevich, who was born on 21.03.1934 in the village of Zony and was of Chechen ethnic origin and unemployed, was taken out of his house at 150 Nagornaya Street by the assailants and killed in the courtyard of the house at 156 Nagornaya Street. The body bears injuries from blunt instruments to the head, gunshot wounds to the chest and abdomen (6).
Elmurzayev Isa Vakhovich (son of Vakha Elmurzayev), who was born on 15.03.1967 in Starye Atagi and was of Chechen ethnic origin and disabled, was killed in his house at 150 Nagornaya Street. The body bears gunshot wounds to the neck (1) and chest (4).
Zubayrayev Salavdi Khamilyevich, who was born in 1935 in Starye Atagi and was of Chechen ethnic origin, lived in his house at 105 Nagornaya Street. He was taken out of his house by the assailants and killed in Podgornaya Street, about 100 metres away. The body bears gunshot wounds to the back (3) and head (2).
The same armed persons also attacked Moldy [M.], who was at his home at 50 Sheripova Street. He received gunshot wounds to both legs and the abdomen. However, he managed to escape from his assailants and his neighbours immediately took him to hospital in a Volga car, where he received first aid. While [M.] was being driven to the hospital, the vehicle [he was travelling in] was shot at and damaged.
After the assault the criminals left Starye Atagi in an unknown direction.
As the statements of the witnesses show, the criminals used automatic weapons (AK, AKM), hand pistols (PM) and knives. The firearms were equipped with silencers. Attempts from fellow villagers to intervene were cut off by threats and shots fired in the air. Between themselves the criminals spoke Russian, some with a Chechen accent. They did not make any demands of the victims or take any property. They acted in a coordinated way, according to a plan, with remarkable audacity and cynicism. The murders were committed in the presence of relatives and fellow villagers.
The victims had no family, personal or business connections with or dependencies on each other. They did not participate in political or public life. There is no information concerning their possible involvement with illegal armed groups.
During the on-site inspection each of the places where the victims were killed was examined, as were the sites where [Mr M.] was attacked and the Volga car shot at. The investigators took a large number of photographs of the relevant spots and traces of blood and collected a number of cartridges and bullets (5,45 millimetre, 7,62 millimetre – that is to say AKS-74U and AKM accordingly, 9 millimetre – PM).
On 17 September 2000 the Grozny District Prosecutor’s Office opened criminal investigation file no. 18040 under Article 105 part 2 (a) of the Criminal Code. ...
The main theory of the investigators is that the crime was committed by members of illegal armed groups in order to scare the local population and to destabilize the situation in Grozny District, in order to provoke a conflict between the population and the acting federal authorities. The investigators are also looking at other possible explanations.
It should further be noted that the crime has been widely reported and prompted an outcry by a large section of the public. It has given rise to antagonism on the part of the population of Starye Atagi towards the law-enforcement authorities and allowed them to disparage the work of the law-enforcement bodies and the federal authorities in general. The villagers are certain that the crimes were committed by members of illegal armed groups. The investigative team who came to Starye Atagi on 17 September 2000 were criticised by the local residents who said that the federal authorities and law-enforcement bodies were unable to protect them against criminal attacks by illegal armed groups; as an example of this they referred to the events of 17 September 2000.”
46. On 17 November 2000 the investigation was adjourned because the identity of the killers could not be established.
47. On 5 April 2001 the investigation was resumed. The Chechnya Prosecutor’s Office ordered a number of steps to be taken, in particular that eye-witnesses and other witnesses be questioned, victim status be granted to the victims’ relatives, information concerning the personalities of the deceased be collected, and forensic and ballistic expert reports carried out.
48. On 19 May 2001 the investigation was adjourned. It does not appear that this information was conveyed to anyone outside the Grozny District Prosecutor’s Office.
49. On 16 October 2004 the investigation was resumed pursuant to an order of the Grozny District Prosecutor. The order noted that one Moldy M., who had been wounded on 17 September 2000, had not been questioned. The district prosecutor stated that he should be questioned and granted victim status in the proceedings and that a medical expert report should be ordered. Furthermore, the investigating authorities were to collect statements from relatives of the five men who had been killed and to accord them victim status. They were also to question neighbours, police officers and local public officials about the personalities of the victims and the circumstances of the crime. They were instructed to make an official inventory of the real evidence pertaining to the case, notably the bullets and cartridges, and to obtain the results of a ballistic expert’s report, which had apparently been commissioned in October 2000.
50. In November 2004 the Grozny District Prosecutor extended the term of the investigation for one month. He noted that a number of procedural steps had been carried out in the meantime, in particular, Mr M. had been questioned and, he and the relatives of the five persons killed had been granted victim status in the proceedings. Witness statements had been collected from villagers, police officers and local officials in Starye Atagi. A number of expert reports had been commissioned and in some cases the results had already been obtained. However, a number of other investigative actions were still pending and therefore the term of the investigation was extended.
2. Charges brought against Rustam Z.
51. On 2 November 2004 a certain Rustam Z. was arrested and charged with participation in an illegal armed group (Article 209 part 2 of the Criminal Code) and murder committed by a group (Article 105 part 2 (j)).
52. On 18 November 2004 the acting deputy to the Chechnya Prosecutor ordered the joinder of the proceedings in criminal investigation file no. 51979 against Rustam Z. and criminal investigation file no. 18040 concerning the murder of five persons in Starye Atagi on 17 September 2000. The decision referred to a statement of 1 November 2004 in which Mr Z. had admitted his involvement in the murders. He stated that since 2002 he had been a member of an illegal armed group, at that time headed by “Emir Mussa Salayev”. In 2000, before becoming a full member of the gang, he had been asked by one of its members to assist in “settling the scores” with the Starye Atagi local police inspector [Mr Demilkhanov]. It was thus established that the investigation concerned the same set of events and the proceedings were joined to case no. 51979.
53. Rustam Z. was questioned again on 11 November 2004 and stated that in the evening of 16 September 2000 he had been asked to keep watch outside the house of the police officer. He had heard shots fired inside the house. After about 30 minutes he saw that other members of the gang had brought an older man to the house and heard further shots being fired. The gang members later told him that they had not found the police inspector at home and had killed his son [Zaur Demilkahnov] in his bed because they had mistaken him for his father. He had later learnt that the gang members had killed several other persons in the village that night.
54. On a later date Mr Z. stated that he had made his statement under duress from the police officers who had arrested him and that he had not taken part in the killing of Zaur Demilkhanov. His relatives testified that Rustam R. had been in Ingushetia from 1999 to 2002, together with the rest of the family. He had not been in Chechnya even for short periods prior to 2002. On 15 March 2005 the murder charges were withdrawn. As a result, on 23 April 2005 the two criminal cases were again severed and the five murders of 17 September 2000 were reassigned to case file no. 18040. In April 2005 Mr Z. was charged with participation in an illegal armed group, armed robbery, the illegal handling of arms and explosives and stealing identity documents.
55. On 1 May 2005 investigation no. 18040 was adjourned. The victims were informed of that decision and of the possibility of an appeal.
56. On 14 November 2006 the investigation was resumed, before being further adjourned on 14 December 2006 and reopened on 20 December 2006. The victims were informed.
I. THE GOVERNMENT’S PRELIMINARY OBJECTION OF FAILURE TO EXHAUST DOMESTIC REMEDIES
A. Arguments of the parties
57. The Government requested the Court to declare the case inadmissible on the ground that the applicant had failed to exhaust domestic remedies. They noted that the applicant and his family members had not lodged in the Chechnyan or Northern Caucasus courts any complaints about the actions of the authorities or any civil claims, and had therefore failed to use the domestic remedies available.
58. The applicant contested the Government’s objection. He insisted that special circumstances in his case had absolved him of the obligation to exhaust domestic remedies. In any event, he pointed to the fact that on the day of his father’s murder his brother had approached the prosecutors, but they had shown no interest in interviewing him or other family members as witnesses or as victims, or in collecting other evidence. They had declined to come to the house to examine and take pictures of his father’s body, to record the injuries or to conduct an autopsy.
59. The applicant stressed that the Government’s assertion that his relatives could not be interviewed in view of their departure abroad was unfounded because they had left in March 2001 and no one had attempted to interview them beforehand. They had received no official papers relating to the investigation or to the investigators’ visit of 17 September 2000.
60. The applicant referred to the violence and reprisals to which his family had been subjected and which had eventually led to their leaving Russia. He also referred to the special circumstances which had existed in Chechnya until the end of 2000 and had been marked by the absence of any effective remedy against the actions of the military or security personnel. He asked the Court to dismiss the Government’s preliminary objection.
B. The Court’s assessment
61. In the present case the Court took no decision about the exhaustion of domestic remedies at the admissibility stage, having found that this question was too closely linked to the merits. It will now proceed to examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice. The Court observes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil remedies and criminal remedies.
62. As regards a civil action to obtain redress for damage sustained through allegedly illegal acts or unlawful conduct on the part of State agents, the Court notes that the Government suggested that the applicant could have lodged a complaint with a district сourt in Chechnya or in one of the nearby regions. The Government did not refer to any examples of cases in which such courts were able, in the absence of any results from the criminal investigation, such as the identity of the potential defendant, to consider the merits of a claim relating to alleged serious criminal actions.
63. The Court further observes that even assuming that the applicant had brought such proceedings and succeeded in recovering civil damages from a State body, it would still not have resolved the issue of effective remedies in the context of claims brought under Article 2 of the Convention. The civil courts are unable to conduct an independent investigation and are incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults, still less to establish their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 119-121, 24 February 2005). Furthermore, a Contracting State’s obligation under Articles 2 and 13 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible might be rendered illusory if, in respect of complaints under those Articles, an applicant was required to exhaust an action leading only to an award of damages (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, p. 2431, § 74).
64. In the light of the above, the Court finds that in respect of his complaint under Article 2 the applicant was not obliged to pursue the civil remedies suggested by the Government in order to exhaust domestic remedies, and the preliminary objection is in this respect unfounded.
65. As regards criminal-law remedies, it is undisputed that the authorities were immediately aware of the killings and had commenced an investigation the same day. The Court observes that under Russian law parties to proceedings may challenge the progress of the criminal investigation before a supervising prosecutor or a judge. However, the applicant and members of his family were excluded from the proceedings. Contrary to the usual practice under national law, the deceased’s family members were not granted the official status of victims in the criminal proceedings, a procedural role which would have entitled them to intervene during the course of the investigation. The Government’s reference to their departure abroad does not suffice to explain this omission in view of the family’s presence in Chechnya for a number of months after the event, including on 17 September 2000 when a team of investigators arrived in Starye Atagi. Thus, it is unclear how they could have made use of this provision. Even assuming that they could have done so, the decisions to adjourn the investigation were anyway repeatedly quashed by the supervising prosecutors. The Court is thus not persuaded that an appeal from the applicant or his family members would have made any difference. The applicant must therefore be regarded as having complied with the requirement to exhaust the relevant criminal-law remedies. In view of this conclusion, the Court is not required to decide whether there existed special circumstances which would have absolved the applicant from the obligation to exhaust domestic remedies.
66. Accordingly, the Court dismisses the Government’s preliminary objection in respect of the complaints under Article 2.
II. THE COURT’S ASSESEMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS
A. Arguments of the parties
67. The applicant alleged that his father had been unlawfully killed by agents of the State and that the authorities had failed to carry out an effective and adequate investigation into the circumstances of his death.
68. The Government referred to the absence of conclusions from the investigation, which was still pending, and denied any responsibility on the part of the State for the killing of Salaudi Zubayrayev. They argued that there was information to believe that the crime had been committed by religious extremists.
B. General principles
69. Before proceeding to assess the evidence, the Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999–IV). In cases in which there are conflicting accounts of the events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. It is inherent in proceedings relating to cases of this nature, where an individual applicant accuses State agents of violating his rights under the Convention, that in certain instances solely the respondent Government have access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention (see Timurtaş v. Turkey, no. 23531/94, §§ 66 and 70, ECHR 2000-VI; and Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII).
70. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, § 32; and Avsar v. Turkey cited above, § 283) even if certain domestic proceedings and investigations have already taken place.
71. As to the facts that are in dispute, the Court refers to its case-law confirming the standard of proof as “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 161).
72. The Court has long held that where the events in issue lie wholly, or to a large extent, within the exclusive knowledge of the authorities – as in the case of persons in custody under those authorities’ control – strong presumptions of fact will arise in respect of injuries and deaths occurring during such detention. Thus, it has found that where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which an issue will arise under Article 3 of the Convention (see Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, §§ 108-111; Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, pp. 25-26, § 34; and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). Indeed, in such situations the burden of proof may be regarded as resting on the authorities (see, inter alia, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
73. The Court has also considered it legitimate to draw a parallel between the situation of detainees, for whose well-being the State is held responsible, and the situation of persons found injured or dead in an area within the exclusive control of the authorities of the State. Such a parallel is based on the salient fact that in both situations the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities (see Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II (extracts)).
C. Article 38 § 1(a) and consequent inferences drawn by the Court
74. The applicant alleged that his father had been killed by servicemen. In view of this allegation, the Court asked the Government to produce documents from the criminal investigation file opened in relation to the murder. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case.
75. In their submissions, the Government confirmed that on the night of 16-17 September 2000 Salaudi Zubayerayev and four other persons had been killed by masked gunmen in Starye Atagi. However, they argued that the exact reasons and circumstances of their deaths had not been elucidated. They refused to disclose most of the documents of substance from the criminal investigation file, invoking Article 161 of the Code of Criminal Procedure, which, according to them, precluded the disclosure of these documents.
76. The Court notes that the Government did not request the application of Rule 33 § 2 of the Rules of Court, which permits a restriction on the principle of the public character of documents deposited with the Court for legitimate purposes, such as the protection of national security and the private life of the parties, as well as the interests of justice. The Court further notes that it has already found on a number of occasions that the provisions of Article 161 of the Code of Criminal Procedure do not preclude disclosure of the documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure (see Mikheyev v. Russia, no. 77617/01, § 104, 26 January 2006; and Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-... (extracts)). For these reasons the Court considers the Government’s explanations concerning the disclosure of the case file insufficient to justify the withholding of the key information requested by the Court.
77. In view of this and bearing in mind the principles cited above, the Court finds that it can draw inferences from the Government’s conduct in this respect. Furthermore, and referring to the importance of a respondent government’s cooperation in Convention proceedings, the Court notes that there has been a breach of the obligations laid down in Article 38 § 1 (a) of the Convention to furnish all necessary facilities to the Court in its task of establishing the facts.
D. The Court’s evaluation of the facts
78. The Court notes that it is not disputed that Salaudi Zubayrayev was shot on 17 September 2000 along with four other inhabitants of the village. The applicant alleged that the murders had been committed by State agents, while the Government submitted that they were committed by members of illegal armed groups.
79. The Court notes that the applicant’s allegation that servicemen were responsible for the killings is based on his mother’s statement that they had spoken Russian and wore camouflage uniforms. The applicant himself was not an eye-witness to the events. No other witness statements were submitted and no additional information is available about the events of 17 September 2000. The Government pointed out that while the identities of the killers had not been established, there were reasons to believe that the crimes had been committed by illegal insurgents in order to instil fear in the residents and turn them against the authorities. They referred to information that had been collected by the investigators in the immediate aftermath of the crimes and to the statements of Rizvan Z. implicating an illegal armed group in the murder of the local police inspector’s son on the same date.
80. The Court reiterates that the evidentiary standard of proof required for the purposes of the Convention is proof “beyond reasonable doubt”, and that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. The Court has also noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. Where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II).
81. The Court has already noted above that it has been unable to benefit from the results of the domestic investigation owing to the Government’s failure to disclose certain documents from the file. Nevertheless, it is clear that the investigation did not identify the perpetrators of the killings and did not establish the circumstances of the death of the applicant’s father. The investigators considered from the outset, on the basis of information obtained at the scene of the crime, notably the statements of local residents, that the crime had been committed by illegal insurgents (see paragraph 46 above). At some point in 2004 a man charged with the membership of an organised illegal armed group confessed to his involvement in the crime, but later retracted his statements, claiming that they had been made under duress. He was cleared of the murder charges (see paragraphs 52-55 above). The investigators thus found no conclusive evidence to support any of their hypotheses concerning the murders.
82. The Court has found the Russian State authorities responsible for extra-judicial executions or disappearances of civilians in Chechnya in a number of cases, even in the absence of final conclusions from the domestic investigation (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-... (extracts); Estamirov and Others v. Russia, no. 60272/00, 12 October 2006; Imakayeva v. Russia, no. 7615/02, ECHR 2006-... (extracts); and Baysayeva v. Russia, no. 74237/01, 5 April 2007). It has done so primarily on the basis of witness statements and other documents attesting to the presence of military or security personnel in the area concerned at the relevant time. It has relied on references to military vehicles and equipment, on witness accounts, on other information about the execution of security operations and on the undisputed effective control of the areas in question by the Russian military, for example, through the existence of check-points on the roads used by the perpetrators of the attacks and their ability to travel unhindered during curfew hours. On that basis, it has concluded that the areas in question were “within the exclusive control of the authorities of the State” in view of military or security operations being held there and the presence of servicemen (see, mutatis mutandis, Akkum v. Turkey, cited above, § 211).
83. However, in the present case the Court has little evidence on which to draw such conclusions. The only witness statement indicates that the killers were armed, spoke Russian and wore camouflage uniforms. This does not suffice to establish that the killers belonged to the security forces or that a security operation had been carried out in the village. On the other hand, the Court takes into account the Government’s submission that the crimes could have been committed by illegal insurgents, for example their reference to the attack on the house of the local police inspector, where his son and another man were killed. The Court accepts that the situation in Chechnya in 2000 was marked by a breakdown of law and order and that the activities of illegal armed groups continued to pose a serious threat to public security even after the federal authorities had established formal control over the territory of the republic. In such circumstances, the Court cannot attribute responsibility for the unlawful acts in the present case to the respondent State without additional evidence to that effect.
84. The Court further notes that unlike the position in all the aforementioned cases, the applicant and his family members have never communicated to the authorities their version of the events, as the statement of the applicant’s mother was produced only in connection with her application to Strasbourg. Nor is the Court aware of any similar allegations by other families of the victims. There exists no independent confirmation in the press or NGO reports of the applicant’s contention. On the contrary, the killings were reported in the press as being the work of religious extremists (see paragraph 14 above).
85. To sum up, it has not been established to the required standard of “beyond reasonable doubt” that the security forces had been implicated in the death of Salaudi Zubayrayev; nor does the Court consider that the burden of proof can be entirely shifted to the Government.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
86. The applicant alleged that his father, Salaudi Zubayrayev, had been killed by agents of the State and that the domestic authorities had failed to carry out an effective investigation into the death. He relied on Article 2 of the Convention, which provides:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. Alleged failure to protect the right to life
87. The applicant maintained that Russian servicemen had deprived Salaudi Zubayrayev of his life.
88. The Government submitted that no evidence had been collected to support the allegations that the authorities were responsible. The identity of the persons who committed the murders on 17 September 2000 remained unknown.
89. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances in which deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others, cited above, §§ 146-47).
90. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, Avşar, cited above, § 391).
91. As noted above, the domestic investigation failed to produce any tangible results as to the identities of the persons who committed the murder. The applicant was unable to submit persuasive evidence to support his allegations of State agents being the perpetrators of the murder. The Court has already found above that, in the absence of relevant information, it is unable to find that security forces had been implicated in the death of the applicant’s father (see paragraphs 78-85 above). It was unable to establish “beyond reasonable doubt” that Salaudi Zubayrayev was deprived of his life by State agents.
B. Alleged inadequacy of the investigation
1. Submissions by the parties
93. The applicant argued that the authorities had failed to conduct an effective investigation into the circumstances of his father’s death. He contended that the authorities had been informed of the killings immediately and that the officers of the law-enforcement bodies had been present at the scene from the very beginning on 17 September 2000, which had given rise to an ipso facto obligation to carry out an effective investigation (the applicant referred to Salman v. Turkey, cited above, § 104). Despite that, they had failed to question the witnesses and victims of the crimes, to collect and secure important evidence or to carry out an autopsy or a forensic report on the bodies. The authorities had failed to inform the victim’s family members of the proceedings. The fact that the investigation had been going on for such a long time without producing any known results and that it had been reopened just a few weeks after the communication of the present complaint to the Russian authorities served, in the applicant’s view, as further proof of its ineffectiveness.
94. The Government contended that the investigation was being carried out in accordance with the domestic legislation. They noted that the investigation team had attended the scene of the crime the day it was committed and had taken a number of immediate procedural steps, such as on-site inspections and examination of the bodies, as attested by the documentary evidence,. The applicant and his family members had left Russia, and were therefore unable to participate effectively in the proceedings. The Government argued that the authorities were continuing to take steps to solve the crime.
2. The Court’s assessment
95. The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention’s requirements (for a summary of these principles, see Bazorkina v. Russia, no. 69481/01, §§ 117-119, 27 July 2006).
96. In the present case, an investigation was carried out into the killings. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.
97. The Court notes that the authorities were aware of the crime on the day it was committed (17 September 2000) and that a criminal investigation into the killings in Starye Atagi was opened by the Grozny District Prosecutor’s Office the same day. During the investigation the law-enforcement officers carried out an on-site inspection, briefly examined the bodies of the victims and collected a number of important items of evidence, such as cartridges and bullets. However, it does not appear that any other steps were taken at that time to solve the murders.
98. The Court notes that even the most basic procedural steps in the investigation were not taken until October 2004, after the case was communicated to the respondent Government and more than four years after the events in question. These measures included such crucial steps as questioning eye-witnesses, local police officers and officials, obtaining an expert ballistic report and drawing up an official inventory of the real evidence. It is obvious that these measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. The Court reiterates that it is crucial in cases of deaths in contentious situations for the investigation to be prompt. The passage of time will inevitably erode the amount and quality of the evidence available and the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the members of the family (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II). These delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime.
99. A number of indispensable steps were never taken. For example, no autopsies or forensic analysis were carried out, or even ordered, in the course of the investigation. The investigation was thus deprived of information about the precise nature of the injuries sustained and the exact cause of death.
100. The Court also notes that the relatives of the deceased were granted victim status only in October 2004. Family members, including Salaudin Zubayrayev’s widow and children, were not invited to participate in the proceedings, even though they did not leave Chechnya until March 2001. In connection with the murder of the applicant’s father, victim status in the proceedings was eventually granted to a distant relative, namely his daughter-in-law. Even then, the persons who had been granted victim status were only informed of the adjournment and reopening of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny; or to safeguard the interests of the next-of-kin in the proceedings.
101. Finally, the Court notes that the investigation was adjourned and resumed a number of times and that on several occasions the supervising prosecutors criticised the deficiencies in the proceedings and ordered remedial measures, but these instructions were not complied with.
102. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the Salaudi Zubayrayev’s death, and therefore there was a violation of Article 2 in its procedural aspect.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
103. The applicant submitted that he had had no effective remedies in respect of the above violations, in breach of Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
104. The Government disagreed and referred to the ongoing criminal investigation into the murder.
105. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002-IV, and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Khashiyev and Akayeva, cited above, § 183).
106. It follows that in circumstances where, as here, the criminal investigation into the violent death was ineffective and the effectiveness of any other remedy that may have existed, including civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention.
107. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
108. 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. Pecuniary damage
109. The applicant claimed 5,924,083 euros (EUR) under this head in respect of seven pieces of real estate allegedly belonging to his family in Chechnya and other lost property.
110. The Government found these claims to be irrelevant, because the applicant’s claim under Article 1 of Protocol No. 1 had been declared inadmissible by the Court.
111. The Court notes that the applicant’s claims related to the alleged loss of movable property were declared inadmissible in September 2006 for failure to exhaust domestic remedies. As to the applicant’s claims concerning immovable property, they have never been a part of the applicant’s complaint in these proceedings. The Court therefore dismisses the applicant’s pecuniary claims in their entirety.
2. Non-pecuniary damage
112. The applicant claimed, on behalf of himself and the members of his family, a total of EUR 1,700,000 under this head. He alleged that the murder of his father, the failure to investigate it properly and other actions by the authorities had caused him and his family deep emotional suffering and distress, which required compensation in the above amount.
113. The Government regarded these claims as excessive. They also noted that the applicant’s family members were not formal applicants in the case.
114. The Court notes that it found a violation of the procedural aspect of Article 2 and of Article 13 on account of the ineffectiveness of the investigation into the applicant’s father’s death. The applicant must have suffered anguish and distress as a result of these circumstances, which cannot be compensated for by a mere finding of a violation. Having regard to these considerations, the Court awards the applicant, on an equitable basis, EUR 8,000 for non-pecuniary damage, plus any tax that may be chargeable on this amount.
B. Costs and expenses
115. The applicant made no claims under this heading.
C. Default interest
116. 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
1. Dismisses unanimously the Government’s preliminary objection;
2. Holds unanimously that there has been a failure to comply with Article 38 § 1 (a) of the Convention;
3. Holds by 5 votes to 2 that there has been no violation of Article 2 of the Convention in respect of the killing of Salaudi Zubayrayev;
4. Holds unanimously that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances of the death of Salaudi Zubayrayev;
5. Holds unanimously that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;
6. Holds unanimously
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on the above amount;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 January 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Wampach Christos Rozakis
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Mr Loucaides joined by Mr Spielmann is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES, JOINED BY JUDGE SPIELMANN
I agree with the Court’s finding in this case, except as regards the conclusion that there has been no violation of Article 2 of the Convention in its substantive aspect with regard to the killing of Salaudi Zubayrayev.
Evidence for the killing in question was submitted by the applicant’s mother, who testified that:
“in the early hours of 17 September 2000 the family had been woken by loud screams. A large group of men in camouflage uniforms and, in some instances, masks, whom she identified as belonging to the Russian special services (“spetsnaz”), entered the house and forced all the inhabitants outside. They were not allowed to get dressed and no reasons were given for their intervention. According to her, the intruders wore insignia of the Russian army and spoke Russian without an accent.
According to the applicant, the inhabitants of the house were lined up in the courtyard facing the wall and their passports were collected. The servicemen read out the names in the passports one by one. One of the applicant’s brothers, Magomed, was not at home that night and the men asked about his whereabouts. The applicant’s father Salaudi (also spelled Salavdi) Zubayrayev replied that he was not at home. The intruders hit the applicant’s other brother, Khasan Zubayrayev, with a rifle butt on the head and led the applicant’s father away. They then forced the women into one of the rooms. In the meantime others opened all the rooms in the house and searched them. They collected valuables and family photographs.
Once the armed men had left, the women went outside and found Khasan in the courtyard. The body of the applicant’s father was found about 100-200 metres from the house. He had been shot in the back of the head with an automatic rifle” (paragraphs 10-12 of the judgment).
This evidence shows that the murder was committed openly and fearlessly. In my opinion, this argues in favour of a conclusion that the crime resulted from organised military action by a group of persons who did not expect that they would be arrested or prosecuted. In other words, persons who were backed by the State authorities.
Furthermore, there is evidence, accepted by the majority, that the authorities “failed to carry out an effective criminal investigation into the circumstances surrounding ... Zubayrayev[‘s] death, and therefore there was a violation of Article 2 in its procedural aspect” (paragraph 102). This is particularly strong corroboration of the fact that the killing of Mr Zubayrayev was carried out by members of the Russian army: a murder by a group of persons who, according to the Government, were other than Government agents would have provided strong grounds for an immediate, quick and effective investigation. Thus, the lack of interest in any proper and effective investigation evidently strengthens the version that the killing was the work of Government agents.
Moreover, the Court rightly found that “there has been a failure to comply with Article 38 §§ 1 (a) of the Convention because the Government ... refused to disclose most of the documents of substance from the criminal investigation file...; ... the Court consider[ed] the Government’s explanations concerning the disclosure of the case file insufficient to justify the withholding of the key information requested by the Court. ... the Court [found] that it can draw inferences from the Government’s conduct in this respect. ...and note[d] that there has been a breach of the obligations laid down in Article 38 § 1 (a) of the Convention to furnish all necessary facilities to the Court in its task of establishing the facts” (paragraphs 76 and 77). Again, this conduct on the part of the Government amounts to sufficiently strong, clear and concordant inference supporting the testimony of the applicant’s mother. The majority found that the evidence in support of the version that Mr Zubayrayev had been killed by Government agents was insufficient to prove such a version beyond reasonable doubt. In this respect the majority relied on the following aspects:
a. the domestic investigation failed to produce any tangible results as to the identities of the persons who committed the murder (paragraph 91);
b. [t]he applicant was unable to submit persuasive evidence to support his allegations that State agents had been the perpetrators of the murder (paragraph 91);
c. although - in view of the evidence of the applicant’s mother, coupled with the fact that they did not disclose the documents required by the Court - the burden of proof was on the Government to disprove any responsibility on the part of its agents, the Court had already noted that “it had been unable to benefit from the results of the domestic investigation owing to the Government’s failure to disclose certain documents from the file. Nevertheless, it is clear that the investigation did not identify the perpetrators of the killings and did not establish the circumstances of the death of the applicant’s father” (paragraphs 80-81);
d. “unlike the position in [other] cases, the applicant and his family members have never communicated to the authorities their version of [the] events, as the statement of the applicant’s mother was produced only in connection with her application to Strasbourg. Nor is the Court aware of any similar allegations by other families of the victims. There exists no independent confirmation in the press or NGO reports of the applicant’s contention” (paragraph 84);
e. the majority was unable to establish ‘beyond reasonable doubt’ that Salaudi Zubayrayev was deprived of his life by State agents (paragraph 91).
I feel that the above arguments are weak, and insufficient to destroy the credibility of the version of the applicant’s mother as corroborated by the above-mentioned conduct of the Government. I do not think that it is reasonable to refer to the result of an investigation which the Court has just found to be inadequate in order to substantiate the statement that “Nevertheless, it is clear that the investigation did not identify the perpetrators of the killings and did not establish the circumstances of the death of the applicant’s father” (paragraph 81). The applicant produced testimony by his mother and corroboration in support of it, and no reason has been produced as to why she could possibly have had a motive to lie. Among the facts included in her statement is direct evidence that the people who killed the applicant’s father “wore insignia of the Russian army”. The majority does not seem to have attached appropriate weight to this aspect. It is not even repeated in the conclusions of the judgment. At the same time, I do not understand what the majority means by saying that the applicant did not “submit persuasive evidence”. I will not repeat the evidence here but I consider it necessary to point out that the evidence already referred to above is coherent, spontaneous and corroborated. The fact that it comes from only one witness does not detract from its credibility, nor is this a factor affecting the strength of such evidence. Times have changed. Proof of the truth in judicial proceedings no longer requires a minimum number of witnesses, as was once the case in many ancient legal systems.
The fact that “the applicant and his family members have never communicated to the authorities their version of [the] events” is of no consequence if one bears in mind the tragic and dangerous conditions prevailing in the area of residence of the applicant and his family and the nature of the crime in question. Surely persons whose relative was murdered in the way described before the Court in this case are not expected to seek remedy from the same authorities to which the murderers belonged? That others pursued similar complaints before the same authorities does not make the reluctance of the complainants in this case any less justified, especially if one bears in mind that, in general, those other complaints did not result in any effective remedy or, in most cases, in any effective investigation.
The majority has not been convinced “beyond reasonable doubt” that Salaudi Zubayrayev was deprived of his life by State agents.
The “reasonable doubt” formula originates from the common-law world. In the common law, especially in England, the phrase “reasonable doubt” has given rise to confusion as a result of courts’ many attempts to define or explain its meaning. Furthermore, other expressions have been employed as an alternative to that form of direction: for example, the jury should be “satisfied” of guilt, or “satisfied so that they can feel sure” or even “reasonably satisfied”. One famous criminal lawyer, Professor Glanville Williams, suggested that there is no objection to stating that a reasonable doubt “is one for which a sensible reason can be supplied”1 or that such doubt means “not a mere fanciful doubt, but one to which a reasonable man would give weight.”
However, it is interesting to quote here a much praised explanation of the phrase in question by Lord Denning, who said:
“The degree of cogency need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘Of course it is possible, but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice2.”
The explanation has a certain similarity with what the European Commission of Human Rights stated in the “Greek case”3, where it held:
“That a reasonable doubt means not a doubt based on a merely theoretical possibility or raised in order to avoid a disagreeable conclusion, but a doubt for which reasons can be drawn from the facts presented”.
In the case of Ireland v. the United Kingdom4 the Court stated that it:
“adopts the standard of proof beyond reasonable doubt but adds that such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context the conduct of the parties when evidence is being obtained has to be taken into account” (emphasis added).
For the above reasons I find that there has been also a violation of Article 2 in its substantive aspect.
2 Miller v. Minister of Pensions  2 All E.R. 372. See also R. v. Bracewell (1978) 68 Cr. App. Rep. 44 at. 49, where it is pointed out that proof beyond reasonable doubt does not mean proof “to a scientific certainty”. There is no such thing as certainty in this life, absolute certainty. You ask yourselves the simple question upon the whole of the evidence - do I feel sure?”
ZUBAYRAYEV v. RUSSIA JUDGMENT
ZUBAYRAYEV v. RUSSIA JUDGMENT
ZUBAYRAYEV v. RUSSIA JUDGMENT - PARTLY DISSENTING OPINION OF JUDGE
LOUCAIDES, JOINED BY JUDGE SPIELMANN
ZUBAYRAYEV v. RUSSIA JUDGMENT - PARTLY DISSENTING OPINION OF JUDGE
LOUCAIDES, JOINED BY JUDGE SPIELMANN