Last Updated on September 2, 2020 by LawEuro
THIRD SECTION
CASE OF GAYEVA v. RUSSIA
(Application no. 688/11)
JUDGMENT
STRASBOURG
23 June 2020
This judgment is final but it may be subject to editorial revision.
In the case of Gayeva v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Olga Chernishova, Deputy Section Registrar,
Having deliberated in private on 2 June 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 688/11) 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, Ms Asli Gayeva (“the applicant”), on 24 December 2010.
2. The applicant was represented by lawyers of Memorial Human Rights Centre and Ms Larisa Dorogova, a lawyer practicing in Nalchik. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. On 17 December 2015 notice of the complaints concerning Articles 2, 3 (in respect of Mr Gayev’s alleged torture), 5 and 13 was given to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1958 and lives in the village of Gerpegezh (in the documents submitted also spelled as Gerpezh), Cherekskiy District, Republic of Kabardino-Balkaria. She is the mother of Mr Zeytun Gayev, who was born in 1977.
A. Arrest of the applicant’s son and his death in police custody
1. Arrest of Mr Zeytun Gayev, his death and surrounding circumstances
5. At about 7 p.m. on 15 November 2007 Zeytun Gayev and his fellow villager, Mr Zh., were on their way from Nalchik to Gerpegezh when the transport police stopped their car for a check. After searching the car, the police apprehended the two men and took them to the Nalchik Department for the Fight against Organised Crime at the Kabardino‑Balkaria Ministry of the Interior (hereinafter “the UBOP”). Mr Zh. was released on the following day and returned home. It can be seen from the documents submitted that Mr Gayev was subsequently taken to Nalchik Department of the Interior no. 1 (hereinafter “the police station”).
6. At about 9 p.m. on the same evening two brothers of Mr Gayev (Mr A.G. and Mr Z.G.) and a lawyer (Mr R.E.) arrived at the UBOP to visit him. They were told that Zeytun Gayev was not there; however, his car was parked in the courtyard of the UBOP premises. Sometime later, at about midnight, they went to the Nalchik town prosecutor’s office and complained to an officer on duty, Mr T., that Zeytun Gayev was being held in unacknowledged detention. Mr T. immediately called the UBOP and obtained informal confirmation that Mr Gayev was being detained on the UBOP premises.
7. At 2 p.m. on 16 November 2007 several UBOP officers arrived at the applicant’s home in Gerpegezh, searched the house and left. They arrived again at 8 p.m. on the same date. The applicant and her husband, Mr M.G. (Mr Gayev’s father), were at home. The officers were all wearing balaclavas, except for one of them (named Aslan), who was in charge of the group. At some point during the search Aslan phoned another UBOP officer, whose name was Arsen. From their conversation, the applicant understood that they were searching for a gun. Aslan passed the telephone to Mr M.G. so that he could talk to Mr Gayev and ask him where the gun was hidden. Mr M.G. spoke to his son, who told him where the gun was to be found. During the conversation, Mr M.G. noticed that his son’s voice was very weak and that he could barely speak. Having found no gun or anything else that was prohibited, the UBOP officers left.
8. At about 3.30 p.m. on 16 November 2007 the applicant’s relatives lodged a complaint with the UBOP stating that Zeytun Gayev had, most probably, been subjected to ill-treatment by police officers on the UBOP premises.
9. At about 8 p.m. on 16 November 2007 Mr A.G. went to the UBOP to take some food to Zeytun Gayev. He asked an officer on duty to pass the food on to his brother. The officer agreed and took delivery of the food. Then Mr A.G. asked the officer whether his brother looked as though he had been beaten. The officer replied that he looked “normal”.
10. At about 10 p.m. on the same date the police telephoned the applicant and informed her that Mr Gayev had committed suicide, having jumped out of the window located on the fourth floor of the police station.
11. Several days later, the applicant and Mr M.G. were summoned to the UBOP to be interviewed. They were interviewed by an officer who introduced himself as Arsen. The latter confirmed Mr Gayev’s detention at the UBOP by telling them that their late son had been questioned in the same office as the one in which they were being interviewed and that nobody had beaten him.
2. Autopsy on Mr Zeytun Gayev
12. Between 17 November 2007 and 14 December 2007 an expert from the Kabardino-Balkaria forensic assessments office carried out an autopsy of Mr Zeytun Gayev’s corpse. The expert’s findings read as follows:
“Blunt complex trauma to the head, body and extremities: [f]ocal subarachnoid hemorrhages, breastbone fracture, double-sided multiple rib fractures, contusion of the left kidney, multiple bruising of the head, body and extremities.
Complication: [p]ost-traumatic shock. Cephaloedema.”
The expert concluded, inter alia, that:
“… Z. Gayev’s death was caused by blunt complex trauma to the head, body and extremities, accompanied by: focal haemorrhages under the cerebral meninges, breastbone fracture, double-sided multiple rib fractures, left kidney contusion, and multiple bruising to the head, body and extremities.
… The injuries were caused by repeated impact with hard blunt items … which may have been fingers clenched into a fist, a shod foot, a stick, or something else. [They] are cumulatively assessed as GRIEVOUS bodily harm on the grounds of danger to life. All the injuries are intravital in nature and were sustained between six and twelve hours before the moment of death. … [That t]he injuries [resulted from] … a fall from an altitude exceeding a human’s height is improbable. … [Following their infliction, Mr Zeytun Gayev] was able for some time (up to several hours) to make independent movements …
Apart from the above-mentioned injuries, the autopsy … revealed a fracture of the right thigh bone … [which was sustained] after death…
The estimated length of time that Mr Z. Gayev had been dead as at the moment of the autopsy is twelve to twenty-four hours, [judging by] the character of the post mortem changes.”
B. Official investigation into Mr Gayev’s death
13. On 26 November 2007 the Nalchik inter-district investigation department of the Kabardino-Balkarian Investigation Committee (the district investigation department) decided not to open a criminal investigation into Zeytun Gayev’s death. The reasons for that decision are unknown.
14. On 5 December 2007 the investigators’ supervisor quashed that decision and ordered that an investigation be opened.
15. On 15 December 2007 (in the documents submitted the date was also referred to as 14 December 2007) the district investigation department opened criminal case no. 71/478-07 under Article 286 § 3 of the Criminal Code (Aggravated abuse of authority). Concerning the sequence of the events, the decision read as follows:
“… at about 8:50 p.m. [on 15 November 2007 traffic police officers] stopped … [Zeytun Gayev’s car] … In the course of the search of the car … two RGD-5 hand grenades, two detonation fuses for hand grenades … and twenty 7.62 mm bullets were found …
Then Z. Gayev was taken to the UBOP … where he was unlawfully detained until 8 p.m. on 16 November 2007.
… at 5:30 p.m. [on 16 November 2007] … a criminal case was instituted against Z. Gayev under Article 222 § 1 of the Criminal Code [Illegal possession of firearms], and at 8.20 p.m. on the same date … [he] was arrested … [and questioned in the police station].
On 16 November 2007 the Nalchik inter-district investigation department of the Kabardino-Balkaria Investigation Committee was informed of … Z. Gayev’s death.”
16. On 18 December 2007 the father of Mr Gayev, Mr M.G., was granted victim status in the case and questioned. His official statement was similar to the applicant’s submission before the Court.
17. On 28 January 2008 Mr M.G. was informed that the criminal case had been transferred to the Special Cases Directorate at the Kabardino‑Balkaria Investigation Committee (Отдел по расследованию особо важных дел следственного управления Следственного комитета при прокуратуре РФ по КБР – hereinafter “the investigators”) for further investigation.
18. On unspecified dates between 2007 and 2008 the investigators questioned a number of witnesses, who made submissions regarding the circumstances surrounding Mr Gayev’s death. Copies of their statements as submitted to the Court can be summarised as follows.
19. Mr A.A., a UBOP officer, stated in particular that after the traffic police had apprehended Zeytun Gayev and handed him over to the UBOP, one or two grenades and several bullets had been found hidden in his car. Thereafter, a UBOP investigator had interviewed him and obtained from him a confession of complicity with an illegal armed group hiding in the mountains. On the morning of the following day operational search activities had started. He and a group of about fifty law-enforcement officers had taken Mr Gayev into the mountains in search of the illegal armed group. In the course of the operation, Mr Gayev had on several occasions fallen striking the ground, rocks and trees. At some point, Mr Gayev and another UBOP officer, Mr A.S., had fallen off a ledge and struck a tree. Subsequently, Mr Gayev had neither complained nor requested medical assistance. The operation had lasted for several hours and had finished in the afternoon, with no positive results. At about 8 p.m. on the same date he (that is to say Mr A.A.) had taken Mr Gayev to the police station, where the investigator had questioned him in the presence of a legal-aid lawyer, Mr Zh.M. During the questioning (which had lasted for about an hour) Mr Gayev had not made any complaints. At the end of the questioning, he and the UBOP officer, Mr A.S., had led Mr Gayev out of the investigator’s office into the corridor, prior to taking him to a temporary detention centre. Suddenly, Mr Gayev had broken away, run towards the window shouting Allāhu akbar and jumped from the fourth floor. He and Mr A.S. had immediately gone downstairs. They had found Zeytun Gayev lying on the ground in the courtyard of the police station. The latter had still been alive and had been able to talk. He (Mr A.A.) had heard him answering questions that Mr A.S. had asked him. After about ten minutes, the ambulance had arrived and taken him to hospital. He had subsequently been told that Mr Gayev had died in the ambulance on the way to hospital.
20. Mr Zh.M., a lawyer, submitted that on 16 November 2007 he had been appointed as Zeytun Gayev’s legal-aid lawyer in connection with the criminal proceedings instituted against him. At about 8 p.m. on that date he had arrived at the police station to advise Mr Gayev during his questioning as a suspect. Upon arrival, he had been given time to speak to his client. He had not noticed any injuries on his body, but had nevertheless asked him whether he had been subject to any physical or psychological pressure. Mr Gayev had replied in the negative and had said that he had been neither beaten nor intimidated. The questioning had taken place in the presence of two UBOP officers in the investigator’s office located on the fourth floor and had lasted for about an hour. No physical violence had been applied to Mr Gayev during the questioning. After the questioning, one of the UBOP officers had handcuffed Mr Gayev and had taken him into the corridor. Suddenly, he had heard somebody shouting “Akbar” and the sound of breaking glass. Having rushed into the corridor, he had seen the UBOP officers standing around a window, the glass of which had been smashed. One of the officers had told him that Mr Gayev had jumped out of the window. He and the officers had immediately gone downstairs and found Mr Gayev lying on the ground. The latter had been unconscious, but still alive. After about five minutes an ambulance had arrived and had taken him to hospital.
21. Ms M.L. and Mr Y.B., the emergency unit paramedics who attended the scene of Mr Gayev’s fall, stated that at about 9.30 p.m. on 16 November 2007 they had received an emergency call from the police station. After arriving at the scene, they had found a man lying unconscious on the ground in the courtyard of the police station. The man had been alive when the ambulance had arrived, albeit in a critical state. They had examined him and noticed in particular the “abnormal movement” of the ribs and of the right thigh bone. Then they had loaded him into the ambulance in order to take him to hospital; however, he had died en route several minutes later.
22. On 24 April 2008 the investigators questioned the applicant. Her statement was similar to the submissions that she provided to the Court.
23. On 12 May 2008 the investigators ordered a forensic medical examination of Mr Gayev’s body. A panel of five medical experts carried out the examination between 13 May and 23 June 2008. The expert panel upheld the previous findings as to the nature and cause of the injuries to Mr Gayev and the length of time that had elapsed since they had been inflicted; it also found that after their infliction he had been able to move and talk for a certain period of time. The cause of the death was found to be:
“… traumatic shock, sustained as a result of blunt complex trauma to the head, body and extremities, accompanied by focal haemorrhaging under the cerebral meninges, a breastbone fracture, double-sided multiple rib fractures, contusion of the left kidney and multiple bruising to the head, body and extremities.”
24. On 6 August 2008 Mr M.G. requested the investigators to inform him about the progress of the criminal case and to provide him with copies of the case-file materials. The request was granted.
25. On 18 September 2008 the investigators ordered another forensic medical examination, which was carried out between 14 January and 25 February 2009 by a panel of four experts. The panel concluded that Mr Gayev’s death had been caused by blunt complex trauma complicated by traumatic shock, cephaloedema (brain swelling) and pulmonary oedema. The blunt complex trauma was found to consist of the following injuries:
“… focal haemorrhages under the cerebral meninges …, haemorrhaging into the paranephric body of the left kidney, haemorrhages under the epicardium …, fractures of the third-ninth ribs …, [fractures] of the fifth-eighth ribs …, massive bruising (of the left shoulder …, the left hip …, the lower left leg …, the left posterior surface of the thorax, the lumbar region), bruising around the right eye [and] on the left malar region, and also a fracture of the right thigh …, bruising of the right shoulder …, the right forearm …, the right thigh … and the right lower leg …”.
As to how the trauma was inflicted, the experts found the following:
“… injuries indicating blunt complex trauma to Z. Gayev’s body were sustained as a result of impact with hard blunt objects … [It might well have been sustained] as a result of [Mr Gayev’s] fall … from a high altitude onto the left side of the body.
… [T]he injuries are intra vitam … [They] were sustained no more than twenty-four hours before the moment of Z. Gayev’s death.
… [A]fter the infliction of the blunt trauma on Z. Gayev, the possibility of independent, active movements was excluded, owing to the severity of the injuries.”
The experts furthermore found:
“… Apart from that, the forensic medical examination of Z. Gayev’s corpse revealed the following injuries:
– A transverse breast bone fracture …
– Fracture[s] of the sixth … seventh, and eighth ribs …
The above injuries were sustained as a result of an impact with a hard blunt object (or objects) … [I]t cannot be excluded that … [they] were sustained … as a result of [attempts to] resuscitation of Z. Gayev.
“… [I]t should be noted that no indications of fighting or [attempts at] self-defence, or [indications] that the position of [Mr Zeytun Gayev’s] corpse had been altered was evident from the material submitted for examination.”
As for the time of Mr Gayev’s death, the experts concluded that:
“… Z. Gayev had not been dead more than two-four hours, as at the moment when the post-mortem changes were recorded during the site inspection (the inspection started at 10.20 p.m. [and] ended at 11.30 p.m.) on 16 November 2007.”
26. On an unspecified date in 2008 or 2009 the applicant was granted victim status in the case.
27. On 18 April 2009 the investigation was suspended for failure to identify the perpetrators.
28. On 28 April 2009 the investigators’ superior overruled the decision to suspend the investigation as unlawful and premature and ordered that it be resumed in order that a number of steps be taken, including the following:
“[E]stablish whether Z. Gayev complained of ill-treatment [and] whether anyone heard screams and other sounds from a beating or a fight; clarify the circumstance of Z. Gayev’s fall from the fourth floor; …
… additionally, question the investigators M. and G. and find out what state Z. Gayev was in while in … the police station, whether he moved around on his own or with assistance, and which … police staff members were on the fourth floor at the time; …
… in addition, question [officers] T., S. and A. and find out how they can explain Z. Gayev’s bodily injuries and haematomas on his face, given that in their statements [to the investigation] they indicated that there had been no visible injuries on the uncovered parts of Z. Gayev’s body and face;
… take [disciplinary] steps … concerning the violations noted in forensic export report no. 19/09 of 14 January 2009 that were committed by the staff of the forensic assessments office; …”
29. On 28 April 2009 the investigation was resumed, but on 4 June 2009 the investigators again suspended it, without complying with the above‑mentioned orders.
30. On 30 July 2009 the deputy Kabardino-Balkaria regional prosecutor ordered the investigators to “rectify the breaches of federal legislation committed in the course of the preliminary investigation” (требование об устранении нарушений федерального законодательства допущенных в ходе предварительного следствия) in which he criticised the investigation and ordered that a number of steps be taken. In particular, the wording of the request stated:
“[T]he investigation established that at about 8.50 p.m. on 15 November 2007 Z. Gayev had been detained by [the police] officers … and taken to the police station … where he had been unlawfully detained until 8 p.m. on 16 November 2007.
… to date the police officers T., M., R., and A. who arrived with investigator Kh. to detain Z. Gayev, have not been questioned by the investigators;
… the investigation has not established the identities of the officers who carried out the operational search measures in the mountainous area between Gerpegezh and Khasanya during which, according to the statements of witnesses A. and S., Z. Gayev fell and may have hurt himself; …
According to the statement of M.G. [the father of Z. Gayev], as well as those of the witnesses A.G., Z.G., and A.G. [the applicant], at about 8 p.m. on 16 November 2007 unidentified police officers searched their household; … during the search M.G. spoke with Zeytun Gayev, who had been detained prior to the search at the UBOP building, by mobile telephone … A police officer named Aslan threatened M.G. on account of their failure to find the handgun they were looking for.
In order to confirm that allegation, witness A.G. [the applicant] provided the names of [eight] local residents who had been present during the search and who had heard the threats that the police officer had made to M.G.;…
… Up to the present, there is no information regarding the basis on which Zeytun Gayev was detained at the police station …
… From the statement of Mr. Zh., who had been in Z. Gayev’s car during his arrest, it can be seen that he was also unlawfully detained at the UBOP from the time of his apprehension until 6 p.m. on 16 November 2007; however, the investigation has not duly examined his submission …”
31. Following the criticism voiced by the deputy Kabardino-Balkaria regional prosecutor (see paragraph 30 above), on 8 August 2009 the investigators’ supervisor ordered that the investigation be resumed and number of steps taken – including those listed in the above-mentioned request, as well as the steps that had been ordered previously.
32. On 8 August 2009 the investigation was resumed; it was suspended again on 19 September 2009.
33. On 25 September 2009 the investigation was resumed again in order that a number of steps could be taken.
34. On 25 October 2009 the investigators again suspended the proceedings for failure to identify the perpetrators.
35. According to the information that the Government submitted on 8 April 2016 together with their observations on the admissibility and merits of the application, on 14 March 2016 the investigators’ superior overruled the decision of 25 October 2009 as unlawful and premature, and ordered that the proceedings be resumed and a number of previously ordered steps taken. Those steps included “establishing whether the convoy officers took the necessary steps to protect the detainee’s [that is to say Zeytun Gayev’s] life and to pre-empt his possible suicide” and “establishing the circumstances under which Z. Gayev received his bodily injuries – including fractures of the chest, ribs and the hip”. It is unclear whether those orders were complied with.
36. The investigation in respect of the criminal case is still pending.
37. In reply to the Court’s request for a copy of criminal case file no. 71/478-07, the Government furnished a copy of its contents, which amounted to 716 pages.
C. Proceedings against the investigators
38. On 20 April 2010 the applicant lodged a complaint with the Nalchik Town Court challenging the effectiveness of the investigation.
39. On 27 April 2010 the court terminated the proceedings, referring the applicant’s wish to withdraw the complaint. On 25 June 2010 the Supreme Court of the Kabardino-Balkaria upheld that decision on appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
40. For a summary of the relevant domestic law see Turluyeva v. Russia, no. 63638/09, §§ 56-63, 20 June 2013.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
41. The applicant complained that her son Zeytun Gayev had been killed by agents of law-enforcement agencies and that the domestic authorities had failed to investigate the matter effectively, in violation of Article 2 of the Convention, which reads as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
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.”
42. The Government submitted that the application was inadmissible for the applicant’s failure to comply with the six-month requirement as it had been lodged belatedly – that is to say three years after the incident. The applicant should have complained to the Court within six months of the date of the decision of 25 October 2009 to suspend the investigation.
43. The applicant contended that she had lodged her application without undue delay.
A. Admissibility
44. The Court observes that at the time of the lodging of the application, the investigation was ongoing and that no final domestic decision had been taken regarding the results thereof. The decision of 25 October 2009 referred to by the Government concerned a procedural step taken within the framework of ongoing criminal proceedings and, therefore, could not serve as constituting a final domestic decision capable of triggering the six-month time-limit (see Kushtova and Others v. Russia (no. 2), no. 60806/08, § 68, 21 February 2017).
45. In the light of the foregoing, the Court finds that the applicant complied with the time-limit and dismisses the Government’s objection.
46. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
47. The Government did not comment on the merits of the applicant’s allegations.
48. The applicant stated that the Government had neither challenged her allegations nor produced any explanation regarding the circumstances surrounding the death of her son. In particular, the Government had made no comments indicating that Mr Gayev had been in good health at the time of his arrest on 15 November 2007 and that, according to the forensic experts, on 16 November 2007 he had died from injuries sustained between six and twelve hours prior to his death, that had been “caused by repeated impact with hard blunt items, which may have been fingers clenched into a fist, a shod foot, a stick, or something else” (see paragraph 12 above). His body had had no injuries caused by broken glass, which would have been the case if he had thrown himself out of the window.
49. Furthermore, despite the applicant’s relatives’ complaint lodged on 16 November 2007 prior to his death concerning the possible ill-treatment of Mr Gayev at the hands of the police officers, the authorities had taken no steps whatsoever to protect him against the risk of torture (see paragraph 8 above). Even assuming that Mr Gayev had indeed committed suicide, the police officers had taken no steps to prevent the risk thereof.
50. In respect of the investigation into the death of her son, the applicant submitted that it had been initiated with undue delay – twenty-nine days after the incident (see paragraph 15 above). Furthermore, neither she nor her relatives had been able to participate in the proceedings and they had not been duly informed of the progress in the investigation. She stressed that the investigation had been neither independent nor thorough. The investigators’ consistent failures had been criticised by the supervising authorities, whose direct orders to take necessary steps had not been systematically complied with. The fact that the proceedings had been ordered to be resumed indicated de facto their ineffectiveness (see paragraphs 28, 30 and 35 above).
2. The Court’s assessment
(a) Substantive aspect under Article 2 of the Convention
51. The Court observes that in its extensive case-law it has developed a number of general principles relating to the establishment of matters in dispute – in particular when faced with allegations of violations of fundamental rights (for a summary, see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012).
52. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the co‑existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. 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 custody, 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, among many other authorities, Anguelova v. Bulgaria, no. 38361/97, §§ 109-11, ECHR 2002-IV).
53. The Court furthermore notes that persons in custody are in a particularly vulnerable position and the authorities are under an obligation to account for their treatment. As a general rule, the mere fact that an individual dies in suspicious circumstances while in custody should raise an issue as to whether the State has complied with its obligation to protect that person’s right to life (see Slimani v. France, no. 57671/00, § 27, ECHR 2004-IX (extracts)).
54. Turning to the circumstances of the present case, the Court notes the applicant’s allegation is not disputed by the Government and is supported by the criminal case-file material submitted. The applicant, therefore, made a prima facie case that Mr Zeytun Gayev had died at the hands of the police. Given the Government’s failure to discharge their burden of proof by providing a plausible explanation for or alternative version of the events in question, the Court concludes that there are in the present case sufficient elements engaging the State’s responsibility under the substantive limb of Article 2 of the Convention. There has therefore been a violation of this Article on this account.
55. The Court furthermore notes that the applicants’ complaint under Article 2 of the Convention also encompasses an allegation that the police failed to take measures to protect her son against a known risk to his life.
56. The Court finds that in the light of its above conclusions concerning the State’s responsibility for the death of Mr Zeytun Gayev (see paragraph 54 above), there is no need to examine this complaint separately (see, for example, Lykova v. Russia, no. 68736/11, §§ 129 and 132, 22 December 2015, and Aliyev and Gadzhiyeva v. Russia, no. 11059/12, § 89, 12 July 2016).
(b) Procedural aspect under Article 2 of the Convention
57. The obligation to carry out an effective investigation into allegations of treatment infringing Articles 2 and 3 suffered at the hands of State agents is well established in the Court’s case-law (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §§ 229-39, ECHR 2016; El‑Masri, cited above, §§ 182-85, ECHR 2012; and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 316-26, ECHR 2014 (extracts)).
58. The nature and degree of scrutiny needed to satisfy the minimum threshold of an investigation’s effectiveness depend on the circumstances of the particular case and must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Armani Da Silva, cited above, § 234). Where a suspicious death has been inflicted at the hands of a State agent, particularly stringent scrutiny must be applied by the relevant domestic authorities to the ensuing investigation (ibid.).
59. Turning to the circumstances of the present case, the Court notes that the applicant’s allegation is not disputed by the Government and is supported by the criminal case-file material submitted. The investigation into the death of the applicant’s son has been ongoing for more than ten years without any results being attained. Moreover, according to the last order issued by the investigators’ superior in April 2016, the investigators had failed to take steps that had been ordered prior to the suspension of the proceedings in October 2009 (see paragraphs 28, 30 and 35 above). In such circumstances – given the investigators’ inexplicable delay in securing important evidence for more than seven years, despite direct orders to that end – the Court does not find it necessary to examine other aspects of the criminal proceedings.
60. The Court therefore concludes that there has also been a violation of Article 2 of the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
61. The applicant complained under Article 3 of the Convention that agents of law-enforcement agencies had ill-treated her son after his apprehension and that the domestic authorities had not investigated the matter, in breach of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
62. The Government made no comments in respect of this allegation.
63. The Court observes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
64. The Court reiterates that where an individual is taken into police custody in good health and is found to be injured upon release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V, and Gäfgen v. Germany [GC], no. 22978/05, § 92, ECHR 2010).
65. Allegations of ill-treatment must be supported by appropriate evidence. In assessing the evidence on which to base a decision as to whether or not there has been a violation of Article 3 of the Convention, it is appropriate to adopt the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Bouyid v. Belgium [GC], no. 23380/09, § 82, ECHR 2015).
66. It is not disputed by the parties that Mr Gayev was detained on 15 November 2007 by the above-mentioned police officers. The Government did not deny that when he had been arrested he had been in good health, or that he had then been taken to the police station, where he had died on the following day; nor did they deny that his body had borne numerous injuries, as confirmed by the forensic examination carried out by the authorities following Mr Gayev’s death.
67. In such circumstances, taking into account the Government’s failure to comment on the matter, the Court considers that the evidence before it enables it to find beyond reasonable doubt that Mr Gayev was ill‑treated in detention. Given the degree of the injuries sustained by him at the hands of the police (see paragraph 12 above), they must have caused him suffering of sufficient severity to be categorised as torture within the meaning of Article 3 of the Convention.
68. It follows that there has been a violation of Article 3 of the Convention under its substantive limb in that the applicant’s son was subjected to torture, in breach of that provision.
69. Having regard to the particular circumstances of this case and its finding in respect of the procedural aspect of Article 2 of the Convention (see paragraph 60 above), the Court does not deem it necessary to make a separate finding under Article 3 of the Convention in respect of the alleged deficiencies in the investigation (see Salman v. Turkey [GC], no. 21986/93, § 117, ECHR 2000‑VII, and Khambulatova v. Russia, no. 33488/04, § 110, 3 March 2011).
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
70. The applicant complained that the provisions of Article 5 as a whole, which relate to the lawfulness of detention and guarantees against arbitrary detention, had been violated in respect of Mr Zeytun Gayev. The relevant provision provides as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; …
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
71. The Government did not make any comments.
72. The Court observes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
73. The Court confirms that, since Mr Zeytun Gayev died while in detention at the police station, in view of the material in the criminal case file supporting the allegation of the unlawfulness of his detention there (see paragraphs 15 and 30 above), as well the absence of any explanation on the part of the Government, this constitutes a violation of the right to liberty and security of persons, as enshrined in Article 5 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
74. The applicant complained of a violation of Article 13 in connection with Articles 2 and 3 of the Convention, which reads:
“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.”
75. The Court observes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
76. Having regard to the findings relating to Articles 2 and 3 of the Convention under its procedural limb (see paragraphs 60 and 69 above), the Court considers that it is not necessary to examine whether, in this case, there have been violations of Article 13 taken in conjunction with Articles 2 and 3 of the Convention (see Fanziyeva v. Russia, no. 41675/08, § 85, 18 June 2015).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
77. 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.”
A. Damage
78. The applicant claimed just satisfaction in respect of non-pecuniary damage and left the determination of the amount thereof to the Court.
79. The Government did not comment on the applicant’s claim.
80. Having regard to its conclusions and the applicant’s submission, the Court awards the applicant EUR 80,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. The applicant’s request for a fresh investigation
81. The applicant also requested, referring to Article 41 of the Convention, that a “fresh investigation leading to the prosecution of those respobsible should follow the entry into force of the Court’s judgement”.
82. The Government did not make any comments.
83. The Court notes that in several similar cases it has decided that it was most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention (see, among other authorities, Mutsolgova and Others v. Russia, no. 2952/06, § 168, 1 April 2010, and Gisayev v. Russia, no. 14811/04, § 183, 20 January 2011). It does not see any exceptional circumstances that would lead it to reach a different conclusion in the present case.
C. Costs and expenses
84. The applicant was represented by lawyers from EHRAC/Memorial Human Rights Centre, a non-governmental organisation. The total amount of her claim in respect of costs and expenses relating to her legal representation amounted to 4,444 pounds sterling (GBP) and 4,000 euros (EUR). She requested that those amounts be paid into the representatives’ bank account in the United Kingdom. It was broken down as follows:
(a) GBP 975 for preparing the application form, reviewing and providing comments – a total of six and a half hours of work undertaken by Mr A. Williams and Ms S. Knight at a rate of GBP 150 per hour;
(b) GBP 3,243 for translation costs, as certified by invoices;
(c) GBP 226 for administrative costs;
(d) EUR 2,200 for twenty-two hours of legal work by Ms T. Chernikova at a rate of EUR 100 per hour;
(e) EUR 1,800 for 18 hours of legal work undertaken by Ms N. Yermolayeva at a rate of EUR 100 per hour.
85. The Government did not make any comments.
86. The Court has firstly to establish whether the costs and expenses indicated by the applicant were actually incurred and, secondly, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).
87. Having regard to the details of the claims submitted by the applicant, the Court awards her the amount of EUR 4,000 covering costs under all heads, together with any value-added tax that may be chargeable to the applicant, the net award to be paid into the representatives’ bank accounts in the United Kingdom, as identified by the applicant.
D. Default interest
88. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a substantive violation of Article 2 of the Convention on account of Mr Zeytun Gayev’s death at the hands of police;
3. 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 Mr Zeytun Gayev died;
4. Holds that there has been a violation of Article 3 of the Convention on account of Mr Zeytun Gayev’s torture in police custody;
5. Holds that there is no need to examine the complaint under Article 3 of the Convention in respect of the alleged deficiencies in the investigation;
6. Holds that there has been a violation of Article 5 of the Convention on account of Mr Zeytun Gayev’s unlawful detention between 15 and 16 November 2007;
7. Holds that there is no need to examine the complaint under Article 13 taken in conjunction with Articles 2 and 3 of the Convention;
8. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, save for the payment in respect of costs and expenses:
(i) EUR 80,000 (eighty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, the net award to be paid into the representatives’ respective bank accounts, as identified by the applicant;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
9. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 23 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Alena Poláčková
Deputy Registrar President
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