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

plausible explanation on the part of the Government as to the circumstances of the Musayev brothers' deaths, it further finds that the Government have not accounted for the deaths of Ali and Umar Musayev during their detention and that the respondent State's responsibility for these deaths is therefore engaged.
82. Accordingly, there has been a violation of Article 2 of the Convention in this respect.
B. Alleged inadequacy of the investigation
1. Submissions of the parties
83. As regards the procedural aspect of Article 2 of the Convention, the applicants claimed that the authorities had defaulted in their obligation to carry out an effective investigation into the circumstances of the deaths of Ali and Umar Musayev. They argued that the investigation had fallen short of the Convention standards. In particular, it does not appear that the authorities adequately investigated the possible involvement of the military personnel in the killing of Ali and Umar Musayev. Furthermore, the identity of the generals in charge of the "sweeping" operation that had been conducted in the village of Gekhi on 8 August 2000 were never established. Moreover, the investigating authorities never attempted to eliminate substantial discrepancies between the accounts of the events of 8 August 2000 made by the first applicant and Major S. by confronting them.
84. The Government claimed that the investigation into the death of the applicants' relatives met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators.
2. The Court's assessment
(a) General considerations
85. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention", also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see McCann and Others, cited above, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 329, § 105). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. The authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see {Ilhan} v. Turkey [GC] No. 22277/93, § 63, ECHR 2000-VII).
86. The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see {Ogur} v. Turkey [GC], No. 21954/93, § 88, ECHR 1999-III). The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (with regard to autopsies, see, inter alia, Salman cited above, § 106; concerning witnesses, inter alia, Tanrikulu v. Turkey [GC], No. 23763/94, ECHR 1999-IV, § 109; concerning forensic evidence, inter alia, {Gul} v. Turkey, No. 22676/93, § 89, judgment of 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling below this standard.
87. In this context, there must also be an implicit requirement of promptness and reasonable expedition (see {Yasa} v. Turkey, judgment of 2 September 1998, Reports 1998-VI, § 102 - 04; and Mahmut Kaya v. Turkey, No. 22535/93, ECHR 2000-III, §§ 106 - 07). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in maintaining public confidence in maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.
(b) Application in the present case
88. The Court observes that some degree of investigation was carried out into the killing of the applicants' relatives. It must assess whether that investigation met the requirements of Article 2 of the Convention. The Court notes in this respect that its knowledge of the criminal proceedings at issue is limited to the materials from the investigation file selected by the respondent Government (see paragraphs 57 - 58 above). Drawing inferences from the respondent Government's behaviour when evidence is being obtained (Ireland v. the United Kingdom judgment of 18 January 1978, Series A No. 25, pp. 64 - 65, § 161), the Court will assess the merits of this complaint on the basis of the available information in the light of these inferences.
89. The Court notes that the authorities were immediately made aware of the detention of the Musayev brothers, as the first applicant personally visited the local administration, the district military commander's office and the district prosecutor's office in the days following 8 August 2000, this fact having not been disputed by the Government. However, despite the first applicant's numerous complaints, the authorities made no attempts to investigate the circumstances of the detention and disappearance of Ali and Umar Musayev during the period when they remained missing.
90. Moreover, the authorities were instantly aware of the deaths of the applicants' relatives, as the burial site in which the dead bodies were found was excavated in the presence of the police. The Court is struck by the fact that following the discovery on 13 September 2000 of four bodies which showed signs of having met a violent death, the authorities refused to institute criminal proceedings in this respect with reference to "the absence of the constituent elements of a crime". It further notes that the official investigation was not commenced until 18 October 2000, which was more than two months after the detention of the applicants' relatives and more than a month after the discovery of their remains. The Court sees no reasonable explanation for such long delays where prompt action was vital.
91. The Court further notes that once the investigation was opened it was plagued with inexplicable shortcomings in taking the most essential steps. In particular, it is clear that no forensic examination or autopsy of the bodies was ever carried out. The Government alleged that after the applicants had buried their relatives, they had refused to disclose the location of the grave to the authorities and to allow a forensic examination. The Court observes in this respect that on 13 September 2000 the second applicant notified the local authorities and the police of his intention to excavate the burial site, according to a plan which he had obtained from a serviceman, and that the exhumation took place in the presence of a number of officials, including a police officer. The police could at least have ensured that proper forensic photographs be taken on the spot, but even this most basic action was not taken. Moreover, it does not appear that the scene of the incident at the applicants' house or the site where the remains of the Musayev brothers and two other men had been found was ever inspected by the investigating authorities in the context of the criminal proceedings.
92. The Court also finds that the investigation can only be described as dysfunctional when it came to establishing the extent of the military and security personnel's involvement in the deaths of the applicants' relatives. Indeed, although it was acknowledged by the domestic authorities that Ali and Umar Musayev had been apprehended by federal military officers in the course of a "sweeping" operation, delivered to the headquarters and left there (see paragraphs 33 - 34 above), it does not appear that any meaningful efforts were made to investigate the possible involvement of the aforementioned personnel in the murder. The Court is sceptical about the Government's submission that the investigating authorities had questioned a number of servicemen and officials of law-enforcement agencies who had worked in Chechnya at the material time, as the Government did not produce any documents relating to the interviews, such as transcripts of questioning, nor did they indicate the names of any of those officials or servicemen. The only document containing witness statements, namely a transcript of Major S.'s interview, was submitted to the Court by the applicants.
93. The Court specifically notes that, in breach of a prosecutor's order (see paragraph 35 above), the authorities failed to question military commander G., despite his apparently important role in the Musayev brothers' detention. The Court cannot accept the Government's argument that it had been impossible to question Mr G., as he had died in a terrorist attack. It notes in this respect that the investigation was opened on 18 October 2000 and, upon receipt of the witness statements of Major S. on 27 November 2000, the prosecutor of the Urus-Martan District ordered Mr G. to be questioned, whilst, according to the Government, Mr G. was killed on 29 November 2001. No reasonable explanation was submitted to the Court as to why the investigators failed to comply with the prosecutor's order for a whole year.
94. Furthermore, there was a substantial delay in granting the status of victim to the first applicant. Whilst the investigation commenced on 18 October 2000, it was not until August 2002 that the first applicant was declared a victim in the case, which afforded her minimum guarantees in the criminal proceedings. The Court finds the Government's statement that the first applicant had been granted the status of victim on 20 October 2000 (see paragraph 50 above) unreliable, as they did not produce any documentary evidence in support of this affirmation, whilst the applicants, for their part, submitted a copy of the decision of 22 August 2002 declaring the first applicant a victim in criminal case No. 24047. Moreover, it appears that before - and even after - the said decision was taken, the information concerning the progress in the investigation was provided to the first applicant only occasionally and fragmentarily.
95. Finally, the Court observes that the investigation remained pending from October 2000 to August 2002, when it was suspended for over two years and not resumed until October 2004. After that it remained pending at least until August 2006. Between October 2000 and August 2006 the investigation was adjourned and reopened at least seven times. The prosecutors on several occasions ordered certain steps to be taken (see paragraphs 35 and 46 above), but there is no evidence that those instructions were ever complied with.
96. In the light of the foregoing, and with regard to the inferences drawn from the respondent Government's submission of evidence, the Court is bound to conclude that the authorities failed to carry out a thorough and effective investigation into the circumstances surrounding the deaths of Ali and Umar Musayev. It accordingly dismisses the Government's preliminary objection as regards the applicants' failure to exhaust domestic remedies within the context of the criminal proceedings, and holds that there has been a violation of Article 2 of the Convention on that account.
III. Alleged violation of Article 3 of the Convention
A. Submissions of the parties
97. The applicants next alleged that their relatives had been ill-treated after having been detained, which constituted a violation of Article 3 of the Convention. They referred to the medical certificate of death issued on 8 October 2001 in respect of Umar Musayev, confirming that there had been multiple stab wounds and bruises on the latter's head and chest. They further submitted that the authorities had failed to conduct an effective investigation in this respect, in violation of their procedural obligation under Article 3 of the Convention.
98. The Government made no comments as regards the document referred to by the applicants. They relied on a reply of the Prosecutor General's Office stating that the investigation had not established that the Musayev brothers had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.
B. The Court's assessment
1. Alleged ill-treatment of Umar Musayev
99. The Court reiterates that the authorities have an obligation to protect the physical integrity of persons in detention. 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. Otherwise, torture or ill-treatment may be presumed in favour of the claimant and an issue may arise under Article 3 of the Convention (see Tomasi v. France, judgment of 27 August 1992, Series A No. 241-A, pp. 40 - 41, §§ 108 - 11, and Selmouni v. France [GC], No. 25803/94, § 87, ECHR 1999-V).
100. The Court has established above that the applicants' relatives were taken into custody in good health, without any injuries (see paragraph 79 above). It further notes that the medical certificate of death (No. 51) issued on 8 October 2001 in respect of Umar Musayev confirmed the presence of various injuries on his body. The Government provided no plausible explanation as to the origin of those injuries, which must therefore be considered attributable to a form of ill-treatment for which the authorities were responsible.
101. In determining whether a particular form of ill-treatment should be qualified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. It appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see Salman, cited above, § 114). The Court has previously had before it cases in which it has found that there has been treatment which could only be described as torture (see Aksoy, cited above, p. 2279, § 64; Selmouni, cited above, § 105; Dikme v. Turkey, No. 20869/92, §§ 94 - 96, ECHR 2000-VIII; and, among recent authorities, {Bati} and Others v. Turkey, Nos. 33097/96 and