CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 10 janvier 2008

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   11 10.1.2008   Press release issued by the Registrar   CHAMBER JUDGMENT ZUBAYRAYEV v. RUSSIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Zubayrayev v. Russia (application no. 67797/01).   The Court held: by five votes to two, that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights concerning the killing of the applicant’s father; unanimously, that there had been a violation of Article 2 concerning the failure to conduct an effective investigation into the circumstances of his death; unanimously, that there had been a violation of Article 13 (right to an effective remedy) of the Convention; and, unanimously, that there had been a failure to comply with Article 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case).   Under Article 41 (just satisfaction), the Court awarded the applicant 8,000   euros (EUR) in respect of non-pecuniary damage. (The judgment is available only in English.)   1.     Principal facts   The applicant, Adam Zubayrayev, is a Russian national who was born in 1967 and lives in Nice (France). Before 1999 he lived in Starye Atagi (Chechnya).   The case concerned the killing of his father, Salaudi Zubayerayev, by armed gunmen on 17 September 2000.   The applicant’s mother, Malika Zubayrayeva, testified that in the early hours of that day the family had been woken by loud screams. A large group of men in camouflage uniforms, who spoke Russian without an accent and whom she identified as belonging to the Russian special services (“spetsnaz”), came into the house and forced everyone outside.   The applicant submitted that the inhabitants of the house were lined up in the courtyard facing the wall and their passports were collected. One of the applicant’s brothers was hit with a rifle butt on the head and his father was led away. Later his father’s body was found about 100-200 metres from the house. He had been shot in the back of the head with an automatic rifle. On 18 September 2000 it had been announced on Russian television news that several people, including the applicant’s father, had been killed the previous night in Starye Atagi by religious extremists, the “wahhabists”.   According to the Russian Government, in the early hours of 17 September 2000 a group of unidentified armed persons murdered five men in the village of Starye Atagi, all of whom had been shot with automatic weapons. The Government stressed that all those killed had been loyal to the federal authorities, and had openly expressed their negative opinion of “wahhabists”, and that one of those killed was the son of a police officer from the Ministry of the Interior. They submitted that there was no reason to suspect that the killings had been committed by State agents.   A criminal investigation into the murders was opened the same day. During the investigation the law-enforcement officers carried out an on-site inspection, briefly examined the bodies of the victims and collected a number of important items of evidence, such as cartridges and bullets. The investigation was adjourned on 17 November 2000 because the killers could not be identified then resumed again and adjourned again.   Following the communication of the applicant’s case before the European Court to the Russian Government in September 2004, the investigation was resumed and eye-witnesses questioned for the first time. Certain relatives of the deceased were granted victim status in October 2004.   At some point in 2004 a man charged with membership of an organised illegal armed group confessed to his involvement in the crime, but later retracted his statements, claiming that they had been made under duress. He was cleared of the murder charges.   According to the Russian Government the investigation was adjourned and resumed four times in total. Ultimately it failed to identify those responsible for the killing.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 9 March 2001 and declared partly admissible on 28 September 2006.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Loukis Loucaides (Cypriot), Françoise Tulkens (Belgian), Nina Vajić (Croatian), Anatoli Kovler (Russian), Dean Spielmann (Luxemburger), Sverre Erik Jebens (Norwegian), judges , and also André Wampach , Deputy Section Registrar . 3.     Summary of the judgment [2]   Complaints   The applicant alleged, in particular, that his father was killed by Russian servicemen in Chechnya in September 2000, and that there was no effective investigation. He relied on Articles 2 and 13.   Decision of the Court   Article 38 § 1 (a)   The Court noted that it had asked the Russian Government to produce documents from the criminal investigation file opened in relation to the murder, the evidence in that file being crucial to the establishment of the facts. However, the Government had refused to produce more than 250 pages of the documents requested, relying on Article 161 of the Russian Code of Criminal Procedure.   The Court noted that the Government did not request the application of Rule 33 § 2 of the Rules of Court of the European Court of Human Rights, which allowed for documents to be treated as confidential for legitimate purposes, such as the protection of national security or the interests of justice. The Court further reiterated that Article 161 did not preclude disclosure of the documents from a pending investigation file. The Government’s explanations concerning the disclosure of the case file was therefore insufficient to justify the withholding of the key information requested by the Court. The Court concluded that it could draw inferences from the Government’s conduct and found that there had been a breach of the obligations laid down in Article 38 § 1 (a) to furnish all necessary facilities to the Court in its task of establishing the facts.   Establishment of the Facts   The Court noted that the applicant’s allegation that servicemen were responsible for the killing of his father was based on his mother’s statement that they had spoken Russian and wore camouflage uniforms. The applicant himself was not an eye-witness to the events. No other witness statements were submitted and no additional information was available about the events of 17 September 2000. The Government pointed out that there were reasons to believe that the crimes had been committed by illegal insurgents.   The Court reiterated that the evidentiary standard of proof required for the purposes of the Convention was proof “beyond reasonable doubt”. The Court had also noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the Government concerned were in possession of the relevant documentation but had failed to submit it. Where the applicant made out a prima facie case and the Court was prevented from reaching factual conclusions owing to the lack of such documents, it was for the Government to argue conclusively why the documents in question could not serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred.   The Court reiterated that it had found the Russian State authorities to be responsible for extra-judicial executions or disappearances of civilians in Chechnya in a number of cases, even in the absence of final conclusions from the domestic investigation. It has done so primarily on the basis of witness statements and other documents attesting to the presence of military or security personnel in the area concerned at the relevant time. On that basis, it had concluded that the areas in question were “within the exclusive control of the authorities of the State” in view of military or security operations being held there and the presence of servicemen.   However, in the applicant’s case, the Court had little evidence on which to draw such conclusions. The only witness statement indicated that the killers were armed, spoke Russian and wore camouflage uniforms. That did not suffice to establish that the killers belonged to the security forces or that a security operation had been carried out in the village. On the other hand, the Court took into account the Government’s submission that the crimes could have been committed by illegal insurgents, for example the killing of the local police inspector’s son. The Court accepted that the situation in Chechnya in 2000 was marked by a breakdown of law and order and that the activities of illegal armed groups continued to pose a serious threat to public security even after the federal authorities had established formal control over the territory of the republic. In such circumstances, the Court could not attribute responsibility for the unlawful acts in the applicant’s case to the Russian State without additional evidence.   The Court further noted that the applicant and his family had never communicated to the authorities their version of events. Nor was the Court aware of any similar allegations by other families of the victims. There existed no independent confirmation of his allegations in the press or in reports from non-governmental organisations. In fact the killings were reported in the press as being the work of religious extremists.   It had therefore not been established to the required standard of “beyond reasonable doubt” that the security forces had been implicated in the death of Salaudi Zubayrayev; nor did the Court consider that the burden of proof could be entirely shifted to the Government.   Article 2   The killing of Salaudi Zubayrayev The Court noted that the applicant was unable to submit persuasive evidence to support his allegations that State agents were responsible. Being unable to establish “beyond reasonable doubt” that Salaudi Zubayrayev was deprived of his life by State agents, the Court found no violation of Article 2 concerning his death.   The investigation into Salaudi Zubayrayev’s death The Court noted that a criminal investigation into the killings in Starye Atagi was opened the day they occurred. During the investigation an on-site inspection was carried out, the bodies of the victims were briefly examined and cartridges and bullets were collected. However, it did not appear that any other steps were taken at that time to solve the murders.   The Court noted that even the most basic procedural steps in the investigation were not taken until October 2004, after the applicant’s case before the European Court was communicated to the Russian Government and more than four years after the events in question. Those measures included such crucial steps as questioning eye-witnesses, local police officers and officials, obtaining an expert ballistic report and drawing up an official inventory of the real evidence. It was obvious that those measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation started. The Court reiterated that it was crucial in cases of deaths in contentious situations for the investigation to be prompt.   A number of indispensable steps were never taken. For example, no autopsies or forensic analysis were carried out, or even ordered. The investigation was thus deprived of information about the precise nature of the injuries sustained and the exact cause of death.   The Court also noted that the relatives of the deceased were granted victim status only in October 2004. Even then, those concerned were only informed of the adjournment and reopening of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny or to safeguard the interests of the next-of-kin in the proceedings.   Finally, the Court noted that the investigation was adjourned and resumed a number of times and that on several occasions the supervising prosecutors criticised the deficiencies in the proceedings and ordered remedial measures, but these instructions were not complied with.   The Court concluded that there had been a violation of Article 2 in that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding Salaudi Zubayrayev’s death.   Article 13   The Court found that there had been a violation of Article 13 in conjunction with Article 2 in that the criminal investigation into the violent death of the applicant’s father was ineffective and the effectiveness of any other remedy that might have existed, including civil remedies, was consequently undermined.   Judges Loucaides and Spielmann expressed dissenting opinions, which are annexed to the judgment. ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.