2. Merits

Постановление ЕСПЧ от 02.10.2008 "Дело "Расаев и Чанкаева (Rasayev and Chankayeva) против Российской Федерации" (жалоба N 38003/03) [рус., англ.]

2. Merits

(a) The alleged violation of the right to life of Ramzan Rasayev

i. General principles

57. The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey, No. 25656/94, § 326, 18 June 2002, and the authorities cited therein). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], No. 21986/93, § 100, ECHR 2000-VII, and v. Turkey [GC], No. 23657/94, § 85, ECHR 1999-IV).

ii. Establishment of the facts

58. The applicants alleged that on 25 December 2001 their family member, Ramzan Rasayev, had been apprehended by Russian servicemen and then disappeared. They invited the Court to draw inferences as to the well-foundedness of their allegations from the Government's failure to provide the documents requested from them. The applicants supported their allegations with statements by seven witnesses, including Ramzan Rasayev's wife, their three neighbours who had witnessed the apprehension and three other residents of Chechen-Aul, who had been held at the filtration point with Ramzan Rasayev. The witnesses provided a coherent account of the special operation conducted in the village on 25 December 2001 and stated that Ramzan Rasayev had been apprehended by the servicemen involved in the operation and then detained at the filtration point on the outskirts of the village.

59. The Government confirmed that a special operation had been carried out in Chechen-Aul between 24 and 26 December 2001 aimed at locating members of illegal armed groups and checking identity papers. Furthermore, they did not deny that Ramzan Rasayev had been abducted by unknown armed men on the same date. However, the Government referred to the absence of conclusions from the pending investigation and denied that the State was responsible for the disappearance of the applicants' family member.

60. The Court notes that despite its repeated requests for a copy of the investigation file into the abduction of Ramzan Rasayev, apart from fifteen pages of copies of procedural decisions, the Government have produced no documents from the case file at all, relying on Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, No. 7615/02, § 123, ECHR 2006-... (extracts)).

61. 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. It considers that the applicants have presented a coherent and convincing picture of their family member's detention on 25 December 2001. They themselves were eyewitnesses to the events and collected statements from seven other witnesses referring to the involvement of the military or security forces in the abduction.

62. The Court observes that the Government did not deny that Ramzan Rasayev had been abducted by armed men and, at the same time, confirmed that a special operation had been conducted in the village on the date of his abduction. The fact that a large group of armed men in uniform, equipped with military vehicles, during a special operation conducted in the village by the State's forces, proceeded in broad daylight to apprehend the applicant at his home and placed him at a "filtration point" with several persons apprehended earlier, strongly supports the applicants' allegation that these were State servicemen. It further notes that after six years the domestic investigation has produced no tangible results.

63. The Court reiterates that 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 applicant, 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 v. Turkey, No. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, No. 21894/93, § 211, ECHR 2005-II).

64. Taking into account the above elements, the Court is satisfied that the applicants have made out a prima facie case that their family member was detained by State servicemen. The Government's statement that the investigation did not find any evidence to support the involvement of the special forces in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government's failure to submit the documents which were in their exclusive possession or to provide a plausible explanation of the events in question, the Court finds it established that Ramzan Rasayev was apprehended on 25 December 2001 at his house in Chechen-Aul by State servicemen during a security operation.

65. The Court further notes that there has been no reliable news of the applicant's son since 25 December 2001. His name has not been found in any official detention facilities' records. Finally, the Government did not submit any explanation as to what had happened to him after his apprehension.

66. Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, for example, Imakayeva, cited above, and Luluyev and Others v. Russia, No. 69480/01, ECHR 2006-... (extracts)), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgement of the detention, this can be regarded as life-threatening. The absence of Ramzan Rasayev or any news of him for over seven years corroborates this assumption. Furthermore, the Government have failed to provide any explanation of Ramzan Rasayev's disappearance and the official investigation into his abduction, which has gone on for over six years, has produced no tangible results.

67. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that on 25 December 2001 Ramzan Rasayev was apprehended by State servicemen and that he must be presumed dead following his unacknowledged detention.

iii. The State's compliance with Article 2

68. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A No. 324, pp. 45 - 46, §§ 146 - 147, and , cited above, § 391).

69. The Court has already found it established that the applicants' family member must be presumed dead following unacknowledged apprehension by State servicemen. Noting that the authorities do not rely on any ground of justification in respect of the use of lethal force by their agents, it follows that liability for his presumed death is attributable to the respondent Government.

70. Accordingly, the Court finds that there has been a violation of Article 2 in respect of Ramzan Rasayev.

(b) The alleged inadequacy of the investigation into the abduction

71. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within [its] jurisdiction the rights and freedoms defined in [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 (see, mutatis mutandis, McCann and Others, cited above, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim's family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, No. 24746/94, §§ 105 - 109, 4 May 2001, and Douglas-Williams v. the United Kingdom (dec.), No. 56413/00, 8 January 2002).

72. Turning to the facts of the present case, the Court notes that the applicants enclosed a copy of the first applicant's request of 28 December 2001 to the military prosecutor of military unit No. 20102 enquiring about the grounds for and the place of his brother's detention. Accordingly, the authorities were aware of Ramzan Rasayev's disappearance at least three days after his apprehension. However, the investigation was not opened until 26 January 2002, that is almost one month later. Therefore, the investigation was instituted with a delay, for which there has been no explanation, in a situation where prompt action was vital.

73. The Court further notes that on 28 January 2002 the first applicant was questioned. It appears that after that a number of crucial steps were delayed and were eventually taken only after the communication of the complaint to the respondent Government, or not at all. In particular, apart from the first applicant, who was questioned again on 8 January 2006, the investigating authorities only questioned one more witness, I.B., the applicant's neighbour, and that was done almost four years after the institution of the investigation. The investigating authorities never questioned other witnesses, including the second applicant, Ramzan Rasayev's wife and their other neighbours who had eyewitnessed the apprehension, the persons held together with Ramzan Rasayev at the filtration point and named by the applicants and servicemen in charge of the special operation in Chechen-Aul. The Court finds it particularly appalling that the investigating authorities failed to question the witnesses even after the domestic courts ordered them to do so in the final decision of the Supreme Court of the Chechen Republic of 5 February 2006.

74. The Court also notes that the first applicant was granted victim status only on 25 December 2002, that is, almost a year after the institution of the investigation. He was not informed of any significant developments in the investigation, apart from decisions suspending and resuming it. 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.

75. Lastly, the Court notes that the investigation was suspended and resumed several times and that the domestic courts criticised deficiencies in the proceedings and ordered remedial measures. However, the investigating authorities failed to comply with the ruling of the Supreme Court of the Chechen Republic of 5 February 2006 and, moreover, two days later they suspended the investigation again. It was resumed again only after the application had been communicated to the respondent Government.

76. The Court observes that in the present case the investigating authorities not only did not comply with the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, No. 46477/99, § 86, ECHR 2002-II), but failed to take the most elementary investigative measures.

77. Having regard to the limb of the Government's preliminary objection that was joined to the merits of the complaint, inasmuch as it concerns the fact that the domestic investigation is still pending, the Court notes that the authorities' failure to take necessary and urgent investigative measures undermined the effectiveness of the investigation in its early stages. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their preliminary objection.

78. 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 disappearance of Ramzan Rasayev, in breach of Article 2 in its procedural aspect. Accordingly, there has been a violation of Article 2 in this respect also.