Постановление европейского суда по правам человека от 26.07.2007 <дело мусаева и другие (musayeva and others) против россии> [англ.]

or with a higher State agency, which must review the complaint within one month. If the complaint is rejected by the latter or there has been no response on its part, the person concerned has the right to bring the matter before a court.
63. Under Section 5 of the Law on Operational Search Activities, an individual who considers that his rights and freedoms have been violated by the bodies carrying out the operational search activities can complain of those actions to a higher body carrying out the operational search activities, a prosecutor or a court.
THE LAW
I. The Government's preliminary objection
A. Submissions of the parties
64. The Government requested the Court to declare the case inadmissible as the applicants had failed to exhaust domestic remedies. They claimed that the applicants could have complained to a court under Article 46 of the Russian Constitution, Section 5 of the Law on Operational Search Activities and the Law on Complaints to Courts against Actions and Decisions Violating the Rights and Freedoms of Citizens about the unlawful detention of their relatives or about the unlawful actions of personnel of law-enforcement agencies, but had failed to do so. In support of their argument, the Government referred to the letters from the Russian courts which they had submitted to the Court (see paragraph 59).
65. The applicants contested the Government's objection. They pointed out that immediately after their relatives' detention and thereafter they had repeatedly applied to law-enforcement bodies, including various prosecutors. This avenue had proved futile, however, given that the criminal investigation had now been pending for several years but had failed to find and identify those responsible. The applicants also stated that there was no specific requirement in national law to have recourse to any other remedy once criminal proceedings were instituted and an investigation was under way. The applicants contended that, in any event, in the absence of an effective investigation any other remedy, including a civil claim, would also be rendered ineffective by the fact that court decisions would be based on the findings made within the context of the criminal investigation, which had so far failed to establish whether State agents had been involved in the murder of the Musayev brothers. In this latter respect the applicants referred to the judgments of Basmanny District Court of 23 December 2003 and 21 May 2004 which had dismissed their claims for compensation for non-pecuniary damage in connection with the unlawful detention on the ground that it had not been established that the applicants had lost their relatives as a result of State agents' unlawful actions.
B. The Court's assessment
66. The Court notes that, in its decision of 1 June 2006, it considered that the question of exhaustion of domestic remedies was closely linked to the substance of the applicants' complaints and that it should be joined to the merits. It will now proceed to assess the parties' arguments in the light of the Convention provisions and its relevant practice.
67. The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275 - 76, §§ 51 - 52; Akdivar and Others, cited above, p. 1210, §§ 65 - 67; and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, No. 41964/98, § 64, 27 June 2006).
68. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicants' complaints and offered reasonable prospects of success (see Akdivar and Others, cited above, p. 1211, § 68, or Cennet Ayhan and Mehmet Salih Ayhan, cited above, § 65).
69. In the present case, in so far as the Government argued that the applicants had not lodged a complaint in court about the detention of Ali and Umar Musayev, the Court observes that in the period between 8 August and 13 September 2000, when their relatives remained missing, the applicants actively attempted to establish their whereabouts and applied to various official bodies (see paragraphs 17 - 21 above), whereas the authorities denied that they had ever detained the Musayev brothers (see paragraph 22 above). In such circumstances, and in particular in the absence of any proof to confirm the very fact of the detention, even assuming that the remedy referred to by the Government was accessible to the applicants, it is more than questionable whether a court complaint about the unacknowledged detention of the applicants' relatives by the authorities would have had any prospects of success. Moreover, the Government have not demonstrated that the remedy indicated by them would have been capable of providing redress in the applicants' situation, namely that the applicants' recourse to this remedy would have led to the release of the Musayev brothers and the identification and punishment of those responsible.
70. As regards the period after 13 September 2000, the date on which the corpses of the Musayev brothers were found, a court complaint about their detention would clearly have been an inadequate remedy.
71. In the light of the foregoing, the Court considers that it has not been established with sufficient certainty that the remedy advanced by the Government would have been effective within the meaning of the Convention. The Court finds that the applicants were not obliged to pursue that remedy, and that this limb of the Government's preliminary objection should therefore be dismissed.
72. To the extent the Government argued that the applicants had not complained to a court about the actions or omissions of the investigating or other law-enforcing authorities, the Court considers that this limb of the Government's preliminary objection raises issues which are closely linked to the question of the effectiveness of the investigation, and therefore it would be appropriate to address the matter in the examination of the substance of the applicants' complaints under Article 2 of the Convention.
II. Alleged violation of Article 2 of the Convention
73. The applicants complained of the killing of their relatives and the failure of the domestic authorities to carry out an effective investigation in this respect. They relied on Article 2 of the Convention, which provides:
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."
A. Alleged failure to protect the right to life
1. Arguments of the parties
74. The applicants first pointed out that it was undisputed that on 8 August 2000 Ali and Umar Musayev had been taken away from their home by federal servicemen under the command of Major S. and delivered to the Urus-Martan Temporary Office of the Interior. They referred further to Major S.'s statement to the effect that "on the instructions of the superiors, the detained persons and the cars had been left at the command centre", to the fact that they had purchased from a federal officer a plan of a burial site where the bodies of Ali and Umar Musayev had been found, and to the fact that Ali Musayev's body had been shown on NTV as that of a killed rebel fighter. The applicants argued that, in such circumstances, there was no doubt that federal servicemen had intentionally killed the Musayev brothers. They also pointed out that no evidence had been submitted that the deprivation of their relatives' lives had been justified under Article 2 § 2 of the Convention.
75. The Government conceded that the applicants' relatives had been apprehended by the federal officers and then found dead, but contended that there were no grounds to claim that the right to life of the applicants' relatives had been breached by the State. They referred to a reply of the Prosecutor General's Office stating that the investigation had not established that the killing of the Musayev brothers had been committed by representatives of the federal power structures. The Government specifically referred to the statement of Mr M., an investigator of the Urus-Martan prosecutor's office, to the effect that military commander G. had allegedly told him that the Musayev brothers had been detained and then released.
2. The Court's assessment
(a) General considerations
76. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A No. 324, §§ 146 - 147).
77. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. The obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, amongst other authorities, Orhan v. Turkey, No. 25656/94, § 326, 18 June 2002, and the authorities cited therein).
78. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], No. 21986/93, § 100, ECHR 2000-VII, and {Cakici} v. Turkey [GC], No. 23657/94, § 85, ECHR 1999-IV).
(b) Application in the present case
79. The Court observes that although the Government denied the State's responsibility for the killing of the applicants' two relatives, they acknowledged the specific facts underlying the applicants' version of the Musayev brothers' detention and deaths. In particular, it is common ground between the parties that on 8 August 2000 Ali and Umar Musayev were apprehended by federal servicemen in the course of a special operation and delivered to the temporary headquarters of the federal forces near the village of Gekhi. It was not alleged by the Government that the applicants' relatives had had any pre-existing injuries or active illnesses. The Court further notes the Government's reference to the statement of Mr M., an investigator of the Urus-Martan prosecutor's office, to the effect that military commander G. had allegedly told him that the Musayev brothers had been detained and then released. It notes that this statement has not been corroborated by any other witness statements, such as, in particular, that of military commander G., who was never questioned, or any other evidence. The Government did not produce a transcript of Mr M.'s interview to which they referred, any formal records attesting the date of the Musayev brothers' arrest or release or any others documents. The Court therefore regards the statement referred to by the Government as unreliable and untenable on the facts and finds it established that Ali and Umar Musayev were apprehended in good health and placed in custody under the control of the State.
80. The parties further agreed that four dead bodies were found in a burial site on the outskirts of Gekhi on 13 September 2000. Two of the bodies were identified as those of the Musayev brothers, whilst the two other corpses were that of Mr A., a man killed in the applicant's house on 8 August 2000, and that of a resident of Gekhi detained on the same date, along with the applicants' relatives. The identity of the deceased and the violent nature of their deaths were acknowledged by the domestic authorities, who had instituted criminal proceedings into the murder, and were never disputed by the Government. The Court also notes that the formal date of the Musayev brothers' death, 12 September 2000, remained undisputed by the Government.
81. On the facts of the case, it is therefore clear that the applicants' relatives were taken into custody in apparent good health and their bodies later found showing signs of having met a violent death. The Court considers it established that the applicants' relatives died whilst detained by the federal forces. In the absence of any