FANZIYEVA v. RUSSIA - 41675/08 - Chamber Judgment [2015] ECHR 591 (18 June 2015)

In the case of Fanziyeva v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Linos-Alexandre Sicilianos,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 26 May 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 41675/08) 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 Mariya Mashevna Fanziyeva (“the applicant”), on 11 August 2008.

2. The applicant was represented by Mr I. Timishev, a lawyer practising in Nalchik. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that her daughter had died while in the hands of the State authorities and that there had been no effective investigation into her death.

4. On 10 February 2010 the application was communicated to the Government.

5. On 18 December 2014 the President of the Section requested the parties to submit a summary account of factual developments in the case after March 2010.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1942 and lives in Nalchik. She is the mother of the late Ms Madina Eneyeva, who was born in 1972 and died in 2007.

A. The events of 26 May 2007

7. On 26 May 2007 Ms Eneyeva was at a local market together with Mr A, her brother-in-law. One of the stall-holders, Ms G.Zh., suspected that Ms Eneyeva was planning to steal a skirt from her market stall. The two women started a fight and exchanged a few blows. The police arrived and arrested the applicant’s daughter on suspicion of theft. Ms Eneyeva and Mr A. were both put into a police vehicle.

8. The parties have presented different accounts of the subsequent events.

9. According to Mr A., after Ms Eneyeva had been put into the police vehicle, an unknown police officer with the rank of lieutenant approached the vehicle, kicked Ms Eneyeva fifteen times on her legs and then left. Once at the police station, Mr A. was released. According to the applicant, upon arrival at the police station, her daughter was taken to the interrogation room situated on the second floor (in Russian referred to as the “third floor”) of the police station and was beaten by the police officers until she fainted. While Ms Eneyeva was unconscious, unspecified police officers threw her out of the window.

10. In the Government’s submission, it was alleged that during the drive to the police station Ms Eneyeva had unsuccessfully tried to escape from the police vehicle. Upon arrival at the police station, she had been escorted to the office of Lieutenant A.Zh. She had refused to answer his questions and had asked for permission to use a lavatory. Since there were no female police officers in sight, A.Zh. escorted her to the lavatory on the second floor of the police station himself and waited for her in the corridor outside the locked door. Being unguarded, Ms Eneyeva jumped out of the window in an attempt to escape from police custody.

11. Ms Eneyeva was then taken to hospital by ambulance. She underwent urgent surgery. At 10.45 p.m. on 26 May 2007 Ms Eneyeva died of complex internal injuries to her head, body and extremities.

12. The applicant then sought an investigation into her daughter’s suspicious death and ill-treatment. According to the applicant, her daughter had no suicidal tendencies; she had three young children and a good home in recently obtained social housing.

B. Subsequent investigative proceedings

13. On 26 May 2007 the prosecutor’s office of Nalchik (“the town prosecutor’s office”) were notified that Ms Eneyeva had jumped out of the window of the police station and then died.

14. On an unspecified date the town prosecutor’s office opened pre-investigative inquiry no. 663-07 into the circumstances of Ms Eneyeva’s death.

15. On 28 May 2007 a forensic expert issued a post-mortem report, according to which ‒ apart from various injuries ‒ Ms Eneyeva had bruises and scratches on her legs, those injuries being unrelated to the fall.

16. On 4 June 2007 the deputy town prosecutor received and examined the applicant’s complaint, in which she alleged that her daughter had been thrown out of the window by the police officers. He stated that the investigator in charge of pre-investigative inquiry no. 663-07 had not yet carried out all requisite investigative measures, in particular, that he had not questioned a number of persons: the police officers who had arrived at the market once Ms G.Zh. had reported the theft, those who had arrested Ms Eneyeva, the ambulance crew members and Mr A. Nonetheless, the deputy town prosecutor concluded that “there is nothing to suggest that Ms Eneyeva’s death on 26 May 2007 in Nalchik was a violent one, as suggested in the complaint; moreover, there is no proof that the police officers of Nalchik were implicated in her death ...” and decided to dismiss the applicant’s complaint.

17. After a pre-investigation inquiry, on 5 June 2007 an investigator from the Nalchik prosecutor’s office concluded that the applicant’s daughter “had made another attempt” to escape from the police station, and refused to institute criminal proceedings in relation to Ms Eneyeva’s death.

18. The above decision was later quashed by the Nalchik prosecutor who considered that it was established that the applicant had sustained injuries at the hands of an unspecified police officer.

19. On 17 June 2007 the investigator again refused to open a criminal investigation into the applicant’s daughter’s death. The decision was quashed by the deputy town prosecutor on 20 June 2007.

20. On 7 July 2007 the investigator from the Nalchik prosecutor’s office refused to institute a criminal case to investigate the circumstances of Ms Eneyeva’s death.

21. On 27 July 2007 the Kabardino-Balkariya prosecutor’s office quashed the decision of 7 July 2007 refusing to open an investigation into Ms Eneyeva’s death. However, no further investigation into the circumstances of the death appears to have taken place and no further decision regarding this appears to have been taken after 27 July 2007. On 11 August 2007, however, Lieutenant A.Zh. was subjected to disciplinary measures for failure to comply with the procedure concerning escorting detainees.

22. For reasons unknown, on 27 July 2007, while quashing the refusal to investigate the death of Ms Eneyeva, the Kabardino-Balkariya prosecutor’s office opened criminal proceedings in case no. 25/35-07 to investigate an alleged abuse of powers by an unidentified police officer who had hit Ms Eneyeva on her legs inside the police vehicle at the market on 26 May 2007. They referred to the medical expert report (see paragraph 15 above) according to which there had been bruises on Ms Eneyeva’s legs which had not been caused by the fall out of the window. The authorities relied on Article 286 of the Russian Criminal Code (“abuse of power by a public official”). The circumstances of Ms Eneyeva’s death lay outside the scope of the investigation in question.

23. On 13 September 2007 the applicant was granted victim status in case no. 25/35-07.

24. On 22 October 2007 a forensic expert carried out another examination of Ms Eneyeva’s body to establish the origin of the scratches and bruises on the legs and concluded that the injuries in question had been inflicted by blunt objects.

25. On 27 October 2007 the investigation into the abuse of power was stayed for failure to identify those responsible. On 19 November 2007 the investigation was resumed and eventually stayed again on 28 February 2008.

26. In view of the authorities’ failure to institute a criminal investigation into Ms Eneyeva’s death, the applicant brought court actions on 31 January 2008 and on 26 February 2008. Eventually, on 23 June 2008 the Nalchik Town Court held in favour of the applicant, finding that the investigator’s failure to investigate had been unlawful.

27. On 8 April 2009 the applicant again complained about the investigator’s lack of action. On 14 May 2009 the Nalchik Town Court granted the applicant’s claim and held that the investigator’s continued failure to comply with the judgment of 23 June 2008 was unlawful.

28. On 23 March 2010 the deputy prosecutor of Nalchik quashed the ruling of 28 February 2008 staying the investigation (see paragraph 25 above).

29. Accordingly, on 31 March 2010 the investigation was again resumed.

30. On 11 April 2010 Mr K., a police officer on duty on 26 May 2007, was questioned as a witness. No essential information was obtained as a result of the interview.

31. In April 2010 the investigators tried to find eye-witnesses who had seen Ms Eneyeva at the market on 26 May 2007, but in vain. Also in April 2010 the certificate of death of Mr A. was included in the case file.

32. On 15 April 2010 the investigators decided to carry out a forensic medical examination of the injuries found on Ms Eneyeva’s body by a group of experts on the basis of the documents in the case file. However, no information on the results of the examination had been made available by 29 January 2015.

33. On 25 April 2010 Mr Ch., a police officer on duty on 26 May 2007, was questioned as a witness. He did not provide any relevant information.

34. On 8 May 2010 two shop assistants were questioned as witnesses and submitted that they had not seen the police using any force on Ms Eneyeva.

35. On 8 May 2010 the investigation was suspended owing to failure to find those responsible.

36. On 28 August 2010 the investigation was resumed.

37. On 22 September 2010 the investigators questioned Ms B. as a witness. Ms B. was the wife of Mr O., a forensic expert who had examined Ms Eneyeva’s dead body in 2007. Ms B. stated that her husband had left for Moscow for a lengthy period of time.

38. On 30 September 2010 the investigation was again suspended.

39. On 21 January 2015 the investigation was resumed. An internal inquiry was instituted by the Investigative Committee of Russia regarding poor supervision of the investigation of case no. 25-35/07. The investigation appears to be still pending.

40. The applicant stated that after 23 March 2010 she had not received any update on the progress of the investigation from the domestic authorities.

II. RELEVANT DOMESTIC LAW

41. For a summary of relevant domestic law see Keller v. Russia (no. 26824/04, §§ 54-73, 17 October 2013).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

42. The applicant complained that her daughter had been thrown from the window by police officers and that no meaningful investigation into those circumstances had been carried out. She relied on Article 2 of the Convention, which, in so far as relevant, reads:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

43. The Government contested that argument. They argued that Ms Eneyeva’s death had been the result of an unfortunate attempt to flee the premises. They also argued that it could have been a suicide attempt since Ms Eneyeva had had a history of drug abuse and had attempted suicide by jumping out of a window at the age of eighteen. In sum, they insisted that Ms Eneyeva’s death was not imputable to the State.

44. The applicant maintained her complaint. She argued that a jump from the second floor window could not have caused lethal injuries, which, in her submission, proved that her daughter had been badly beaten by the police officers. Moreover, she asserted that her daughter, herself a mother of three children who had been allocated social housing, had had no reason to commit suicide.

A. Admissibility

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

B. Merits

1. General principles

46. The Court reiterates that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The first sentence of Article 2 enjoins the Contracting States not only to refrain from the taking of life “intentionally” or by the “use of force” disproportionate to the legitimate aims referred to in sub-paragraphs (a) to (c) of the second paragraph of that provision, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, inter alia, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001-III).

47. The Court further emphasises 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)). Such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (see, among others, Rantsev v. Cyprus and Russia, no. 25965/04, § 219, ECHR 2010 (extracts); Renolde v. France, no. 5608/05, § 82, ECHR 2008 (extracts); and Shumkova v. Russia, no. 9296/06, § 90, 14 February 2012).

48. A positive obligation will arise, the Court has held, where it has been established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual by a third party or himself and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Keenan, cited above, § 90, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 55, ECHR 2002-III). However, even where it is not established that the authorities knew or ought to have known about any such risk, there are certain basic precautions which police officers and prison officers should be expected to take in all cases in order to minimise any potential risk to protect the health and well-being of the arrested person (see Mižigárová v. Slovakia, no. 74832/01, § 89, 14 December 2010, and Eremiášová and Pechová v. the Czech Republic, no. 23944/04, § 110, 16 February 2012).

49. 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).

50. The obligation to protect the right to life under Article 2 of the Convention requires by implication that there should be some form of adequate and effective official investigation when individuals have died in suspicious circumstances (see Yaşa v. Turkey, 2 September 1998, §§ 98 and 100, Reports 1998-VI). The essential purpose of such an investigation is to ensure effective implementation of the domestic laws which protect the right to life. The investigation must be capable, firstly, of ascertaining the circumstances in which the incident took place and, secondly, of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. A requirement of promptness and reasonable expedition is implicit in this context. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness (see, with further references, Makaratzis v. Greece [GC], no. 50385/99, § 74, ECHR 2004-XI).

2. Application of the above principles to the present case

(a) Alleged failure to carry out an effective investigation into Ms Eneyeva’s death

51. The Court reiterates that where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 entails a duty for the State to ensure, by all means at its disposal, an adequate response - judicial or otherwise - so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 91, ECHR 2004-XII). Where a positive obligation to safeguard the life of people in custody is at stake, the system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. The requirement of public scrutiny is also relevant in this context (see Shumkova, cited above, § 109).

52. The Court observes that a criminal investigation into Ms Eneyeva’s death has never been instituted. It notes that, despite the applicant’s objections, the domestic authorities inexplicably refused to look into the circumstances of death in police custody and focused their efforts on finding an unidentified police officer who had allegedly hit the victim on her legs a few hours prior to her death (see paragraph 22 above).

53. The Court reiterates that the failure to open a criminal investigation in a situation where an individual has died or has been seriously injured while in police custody is in itself a serious breach of domestic procedural rules capable of undermining the validity of any evidence which had been collected (see Kleyn and Aleksandrovich v. Russia, no. 40657/04, § 56, 3 May 2012). It notes that, as a result of their repeated refusals to open a criminal case into Ms Eneyeva’s death, the investigative authorities never conducted a proper criminal investigation in which the whole range of investigative measures was carried out, including questioning, confrontation, identification parade, search, seizure and crime reconstruction. The Court has previously ruled that in the context of the Russian legal system a “pre-investigation inquiry” alone is not capable of leading to the punishment of those responsible, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators which may then be examined by a court (see Lyapin v. Russia, no. 46956/09, §§ 132 and 135-36, 24 July 2014, and Zelenin v. Russia, no. 21120/07, §§ 56-57, 15 January 2015). Accordingly, the Court does not consider it necessary to analyse every alleged deficiency in the domestic proceedings. The absence of a criminal investigation lead it to the conclusion that the Russian authorities did not take all reasonable steps to ascertain the circumstances in which Ms Eneyeva died (see Kleyn and Aleksandrovich, cited above, § 58, and Lyapin, cited above, § 137).

54. There has therefore been a violation of Article 2 of the Convention under its procedural limb.

(b) Alleged breach of Ms Eneyeva’s right to life

55. The Court observes that the factual circumstances surrounding Ms Eneyeva’s death are disputed by the parties. The applicant insisted that her daughter had been thrown out of the window by the police officers, while the Government suggested that Ms Eneyeva had jumped from the window while attempting to flee.

56. The Court reiterates in this respect that the applicable standard of proof under Article 2 is “beyond reasonable doubt”. In the instant case it finds no serious evidence in support of the hypothesis of the intentional taking of Ms Eneyeva’s life. The applicant’s assertion that Ms Eneyeva could not have jumped from the window of her own volition because she had been allocated social housing does not satisfy this standard and is in itself insufficient to shift the burden of proof on to the respondent Government. Her contention that traumas caused by jumping from the height of the second floor level could not be lethal is not supported by any medical or forensic evidence. Nor are there sufficiently strong, clear and concordant inferences allowing the Court to deem the explanation provided by the Government unsatisfactory or unconvincing (see Kleyn and Aleksandrovich, cited above, § 49). Having regard to the case file and the parties’ submissions, the Court finds that it is most conceivable that Ms Eneyeva’s death was the result of an unfortunate attempt to escape from police detention.

57. However, this conclusion does not absolve the respondent State from responsibility for Ms Eneyeva’s death. The Court reiterates that the obligation to protect the health and well-being of persons in detention clearly encompasses an obligation to protect the life of arrested and detained persons from a foreseeable danger (see Eremiášová and Pechová, cited above, § 117, and Mižigárová, cited above, § 89). Although there is insufficient evidence to show that the authorities knew or ought to have known that there was a risk that Ms Eneyeva might attempt to escape by jumping out of a second floor window, there were certain basic precautions which police officers should be expected to take in respect of the persons held in detention in order to minimise any potential risk (see Keller, cited above, § 88; Mižigárová, cited above, § 89; and Eremiášová and Pechová, cited above, § 110).

58. The Court points out in this connection that, in the absence of any findings by domestic authorities as to the establishment of the facts surrounding Ms Eneyeva’s death (see paragraph 21 above), it cannot assess in detail whether the escort and supervision arrangements for Ms Eneyeva’s detention were adequate. Nonetheless, it is clear from the Government’s submissions that Lieutenant A.Zh. allowed an arrested person to remain unsupervised in the lavatory equipped with an opening window, for which he was later subjected to disciplinary measures (see paragraphs 10 and 21 above). This omission in itself runs contrary to the authorities’ duty to protect physical well-being of persons in custody.

59. The Court would reiterate its view that it would be excessive to request the States to put bars on every window at a police station in order to prevent tragic events like the one in the instant case (see Eremiášová and Pechová , cited above, § 117). However, this does not relieve the States of their duty under Article 2 of the Convention to protect the life of arrested and detained persons from a foreseeable danger.

60. In the circumstances of the present case, the Court cannot but conclude that the State authorities failed to provide Ms Eneyeva with sufficient and reasonable protection as required by Article 2 of the Convention. There has accordingly been a violation of Article 2 of the Convention on account of the authorities’ failure to safeguard the right to life of Ms Eneyeva.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

61. The applicant complained that her daughter had been ill-treated at the police station and that there had been no meaningful investigation into the matter in breach of Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

62. The Government contested that argument. In their submission, Ms Eneyeva had not been ill-treated in any manner by the police. She had tried to escape from the police vehicle. The bruises and scratches on Ms Eneyeva’s legs had resulted from the fight with Ms G.Zh. Mr A. ‒ who had allegedly witnessed her being hit by the police officer ‒ could not be regarded as a reliable witness as he had previous history of drug abuse. They further added that the applicant suffered from paranoid schizophrenia.

63. The applicant insisted that Mr A.’s statement had proven that Ms Eneyeva had been ill-treated by the police officers and suggested that the State authorities had implicitly confirmed this hypothesis by opening an investigation into the alleged abuse of power by unidentified police officers.

A. Admissibility

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

B. Merits

1. General principles

65. The Court reiterates that where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see, among many other authorities, Mrozowski v. Poland, no. 9258/04, § 26, 12 May 2009). Although the use of force during arrest, even if resulting in injury, may disclose no breach of Article 3 if the use of force was indispensable and resulted from the conduct of the applicant (see Klaas v. Germany, 22 September 1993, § 30, Series A no. 269), the Court also points out that where an individual, when taken into police custody, is 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 a clear issue arises under Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).

66. The Court further notes that in assessing evidence in a claim of a violation of Article 3 of the Convention, it adopts the standard of proof “beyond reasonable doubt”. Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Farbtuhs v. Latvia, no. 4672/02, § 54, 2 December 2004; Bazjaks v. Latvia, no. 71572/01, § 74, 19 October 2010; and Krivošejs v. Latvia, no. 45517/04, § 69, 17 January 2012).

67. Where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

68. An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily come to a conclusion which coincides with the applicant’s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006).

69. The investigation into allegations of ill-treatment must be thorough. That means that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, §§ 103 et seq., Reports 1998-VIII). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness accounts and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of the applicable standard (see Mikheyev, cited above, § 108).

70. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used by the police was or was not justified in the circumstances (see Kaya v. Turkey, 19 February 1998, § 87, Reports 1998-I).

2. Application of the principles to the present case

(a) Substantive limb of Article 3 of the Convention

71. Turning to the facts of the present case, the Court notes that the post-mortem report of 28 May 2007 confirmed that Ms Eneyeva had had scratches and bruises on her legs that had not been caused by the fall out of the window (see paragraph 15 above). The parties disagreed as to the origin of those injuries: according to the Government, they had been inflicted in the course of Ms Eneyeva’s fight with Ms G.Zh., while the applicant asserted, relying on Mr A.’s statement (see paragraph 9 above), that her daughter had sustained the injuries in question while at the hands of the police.

72. The Court observes in this connection that the Government’s hypothesis is not confirmed by the materials of the case file as it does not appear that the domestic authorities questioned Ms G.Zh. to establish the circumstances surrounding her supposed fight with Ms Eneyeva. On the contrary, already in the early days of the inquiry the Nalchik town prosecutor established that an unknown police officer had inflicted injuries on Ms Eneyeva (see paragraph 18 above). Moreover, the domestic authorities instituted an investigation into the abuse of powers by an unidentified police officer who had allegedly beaten Ms Eneyeva’s on her legs in the police vehicle (see paragraph 22 above).

73. In such circumstances the Court is ready to accept that the applicant made a credible assertion that her daughter had been ill-treated while at hands of the police. It notes that it was open to the Government to refute the applicant’s allegations by providing their own plausible version of events and submitting evidence to corroborate their version. Bearing in mind the authorities’ obligation to account for injuries caused to persons within their control in custody, and in the absence of a convincing and plausible explanation by the Government in the instant case, the Court considers that it can draw inferences from the Government’s conduct and finds it established to the standard of proof required in the Convention proceedings that the injuries sustained by Ms Eneyeva were the result of the treatment for which the Government bore responsibility (see Barabanshchikov v. Russia, no. 36220/02, §§ 49-50, 8 January 2009).

74. Accordingly, having regard to the nature and the extent of Ms Eneyeva’s injuries, the Court concludes that the State is responsible under Article 3 on account of the inhuman and degrading treatment to which the applicant’s daughter was subjected.

75. There has therefore been a violation of Article 3 of the Convention under its substantive limb.

(b) Procedural limb of Article 3 of the Convention

76. The Court observes that the applicant’s allegations that her daughter had sustained injuries were confirmed by the medical evidence and were thus sufficiently serious to reach the “minimum level of severity” required under Article 3 of the Convention. Furthermore, these allegations were “arguable” and thus required an investigation by the national authorities. It is the Court’s task to assess whether the respondent State has complied with its procedural obligation under Article 3 of the Convention.

77. The Court reiterates in this respect that important factors for an effective investigation, viewed as a gauge of the authorities’ determination to identify and prosecute those responsible, are its promptness and expedition (see Gäfgen v. Germany [GC], no. 22978/05, § 121, ECHR 2010). In the present case the authorities opened an investigation into the abuse of powers by an unidentified police officer on 27 July 2007, that is to say, two months after the date of the alleged ill-treatment (see paragraph 22 above). Such delay in itself was liable to affect the investigation (see, mutatis mutandis, Betayev and Betayeva v. Russia, no. 37315/03, § 85, 29 May 2008).

78. The Court further notes that the authorities in charge of the investigation into the abuse of powers, which was repeatedly stayed and resumed and thus protracted over years and yet did not lead to any meaningful results, did very little to identify the perpetrator. For example, an examination of the case materials was ordered in April 2010 but remained unperformed for almost five years (see paragraph 32 above). Moreover, it appears that when the investigators chose to act, they concentrated their efforts on measures that were devoid of purpose (see paragraph 37 above).

79. Having regard to the above failings of the Russian authorities, the Court finds that the investigation carried out into the allegations of ill-treatment of Ms Eneyeva was not thorough, adequate or effective.

80. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

81. The applicant complained that she had no effective domestic remedies at her disposal in respect of the alleged breaches of Articles 2 and 3 of the Convention. She relied on Article 13 of the Convention, which reads as follows:

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

82. The Government contested that argument. They claimed that the applicant’s complaints to the prosecutor’s offices at two levels had been mostly successful and that she had had ample opportunity to initiate court proceedings.

83. The applicant maintained her complaint.

84. The Court observes that the complaint relating to the lack of an adequate investigation into the circumstances of Ms Eneyeva’s ill-treatment and death is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

85. Having regard to the findings relating to Articles 2 and 3 of the Convention under its procedural limb (see paragraphs 9 and 80 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, mutatis mutandis, Khodzhayev v. Russia, no. 52466/08, § 151, 12 May 2010).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

86. 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

87. The applicant claimed lost income for Ms Eneyeva ‒ whose children are minors ‒ in the amount of 404,000 Russian roubles (RUB) (approximately 10,200 euros (EUR)) in respect of pecuniary damage and a further EUR 100,000 in respect of non-pecuniary damage.

88. The Government considered the amounts claimed to be excessive.

89. The Court rejects the applicant’s claims in respect of pecuniary damage as unsubstantiated. Given that violations of Article 2 on two accounts have been found, as well as violations of Article 3 of the Convention, it awards the applicant EUR 26,000 on an equitable basis in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

90. The applicant also claimed RUB 164,500 (approximately EUR 4,000) in respect of the costs and expenses incurred before the Court. She submitted invoices confirming that she had paid her lawyer RUB 7,500 (approximately EUR 191) and a copy of a retainer agreement of 28 January 2008 listing her lawyer’s standard rates.

91. The Government did not comment on this claim.

92. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, taking account of the documents in its possession and the above criteria, the Court accepts the claim for costs and expenses and awards the sum of EUR 4,000 in respect of proceedings before the Court, plus any tax that may be chargeable to the applicant on that amount.

C. Default interest

93. 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 violation of Article 2 of the Convention in its procedural limb on account of the authorities’ failure to investigate the circumstances of Ms Eneyeva’s death;

3. Holds that there has been a violation of Article 2 of the Convention on account of the authorities’ failure to safeguard the right to life of Ms Eneyeva;

4. Holds that there has been a violation of Article 3 of the Convention in its substantive limb on account of Ms Eneyeva’s ill-treatment;

5. Holds that there has been a violation of Article 3 of the Convention in its procedural limb on account of the authorities’ failure to investigate the circumstances of Ms Eneyeva’s ill-treatment;

6. Holds that there is no need to examine the complaint under Article 13 taken in conjunction with Articles 2 and 3 of the Convention;

7. Holds

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

(i) EUR 26,000 (twenty-six 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;

(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;

8. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> FANZIYEVA v. RUSSIA - 41675/08 - Chamber Judgment [2015] ECHR 591 (18 June 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/591.html Cite as: [2015] ECHR 591