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

57834/00, § 116, ECHR 2004-IV (extracts)).
102. Having regard to the document submitted by the applicants, which certified the presence of multiple injuries and stab wounds on Umar Musayev's body, the Court finds that the treatment inflicted on him involved very serious and cruel suffering that may be characterised as torture within the meaning of Article 3 of the Convention.
103. Accordingly, there has been a breach of Article 3 of the Convention in this regard.
104. It 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, cited above, § 117).
2. Alleged ill-treatment of Ali Musayev
105. The Court observes that the applicants did not submit any documentary evidence, such as medical certificates, confirming the presence of injuries on Ali Musayev's body. It is therefore unable to establish, to the necessary degree of proof, that Ali Musayev had been ill-treated, and finds that this complaint has not been substantiated.
106. Against this background, the Court finds no violation of Article 3 of the Convention in respect of Ali Musayev.
IV. Alleged violation of Article 5 of the Convention
107. The applicants complained that Ali and Umar Musayev had been detained in breach of the guarantees of Article 5 of the Convention, the relevant parts of which provide:
"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.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
108. The applicants stated that there had been no grounds for their relatives' arrest or detention, and in particular, no reason to believe that they had committed any criminal offence. At the time of their apprehension, the Musayev brothers had been at home with other family members, had identity papers, had no firearms, and had not attempted to assist A., the man who had run into their house, or to resist the federal servicemen. They voluntarily reported to the district office of the Interior for questioning. Furthermore, the officers who had taken the Musayev brothers away had not given any reason for their detention. The applicants thus argued that their relatives had been detained in breach of the guarantees of Article 5 of the Convention.
109. The Government conceded that the applicants' two relatives had been detained by the federal servicemen and escorted to the temporary headquarters for questioning. However, they argued that after the Musayev brothers had been delivered to the headquarters "their whereabouts had been unknown" and that the investigation "had obtained no evidence that they had been detained in violation of Article 5".
110. The Court has frequently emphasised the fundamental importance of the guarantees contained in Article 5 for securing the rights of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. In that context, it has repeatedly stressed that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrary detention. To minimise the risks of arbitrary detention, Article 5 provides a corpus of substantive rights intended to ensure that the act of deprivation of liberty is amenable to independent judicial scrutiny and secures the accountability of the authorities for that measure. The unacknowledged detention of an individual is a complete negation of these guarantees and discloses a most grave violation of Article 5 (see, among other authorities, {Cakici} cited above, § 104).
111. It has been established above that the applicants' relatives were apprehended on 8 August 2000 by federal servicemen and were not seen until 13 September 2000, when their corpses were found in a mass grave. The Government produced no formal acknowledgement of or justification for the detention of the applicants' relatives during the period in question. The Court thus concludes that Ali and Umar Musayev were victims of unacknowledged detention in complete disregard of the safeguards enshrined in Article 5, and that this constitutes a particularly grave violation of their right to liberty and security enshrined in Article 5 of the Convention.
V. Alleged violation of Article 13 of the Convention
112. The applicants complained about the absence of effective remedies in respect of the violations alleged under Articles 2, 3 and 5, contrary to Article 13 of the Convention. This Article provides:
"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."
113. The applicants contended that the investigation into the murder of Ali and Umar Musayev had been pending with no tangible results for several years, and that their attempt to obtain compensation for non-pecuniary damage for the unlawful detention of their relatives had proved unsuccessful, and that they therefore had no effective remedies against the aforementioned violations, contrary to Article 13 of the Convention.
114. The Government argued that the applicants had had effective remedies at their disposal enshrined in Article 13 of the Convention and that the authorities had not prevented them from using those remedies. In particular, the first applicant was declared a victim and a civil claimant in the criminal case opened in connection with the killing of her sons and she had received reasoned replies to all her complaints. Besides, the applicants had had an opportunity to complain of the actions or omissions of the investigating authorities in court.
115. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an "arguable complaint" under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be "effective" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by acts or omissions by the authorities of the respondent State (see Aksoy, cited above, § 95).
116. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, No. 38361/97, §§ 161 - 162, ECHR 2002-IV; Assenov and Others, cited above, § 117; and {Suheyla Aydin} v. Turkey, No. 25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State's obligation under Article 2 to conduct an effective investigation (see Orhan, cited above, § 384).
117. In view of the Court's findings above with regard to Article 2 and Article 3, in so far as the treatment inflicted on Umar Musayev was concerned, these complaints were clearly "arguable" for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A No. 131, § 52). The applicants should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article 13.
118. It follows that in circumstances where, as in the present case, the criminal investigation into the death was ineffective (see paragraph 96 above) and the effectiveness of any other remedy that may have existed, including the civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention.
119. Consequently, there has been a violation of Article 13 of the Convention in connection with Articles 2 and 3 of the Convention, in so far as this latter provision was breached as a result of the treatment inflicted on Umar Musayev.
120. As regards the applicants' reference to Article 5 of the Convention, the Court refers to its findings of a violation of this provision set out above. It considers that no separate issues arise in respect of Article 13 read in conjunction with Article 5 of the Convention, which itself contains a number of procedural guarantees related to the lawfulness of detention.
VI. Compliance with Article 38 § 1 (a) of the Convention
121. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see {Tanrikulu}, cited above, § 70). This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. Failure on a Government's part to submit such information which is in their hands, without a satisfactory explanation, may not only give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention (see {Timurtas} v. Turkey, No. 3531/94, § 66, ECHR 2000-VI). In a case where the application raises issues of the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of facts and their absence may prejudice the Court's proper examination of the complaint both at the admissibility stage and at the merits stage (see {Tanrikulu}, cited above, § 70).
122. The Court observes that it has on several occasions requested the Government to submit a copy of the investigation file opened into the killing of the applicants' relatives. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case. In reply, the Government produced only copies of procedural decisions instituting, suspending and reopening criminal proceedings, those of investigators' decisions taking up the criminal case and letters informing the first applicant of the suspension and reopening of the criminal proceedings in the case. They refused to submit any other documents, such as transcripts of witness interviews, reports on investigative actions and others, with reference to Article 161 of the Russian Code of Criminal Procedure.
123. The Court notes in this connection that the Government did not request the application of Rule 33 § 2 of the Rules of Court, which permits a restriction on the principle of the public character of the documents deposited with the Court for legitimate purposes, such as the protection of national security and the private life of the parties, and the interests of justice. The Court further notes that the provisions of Article 161 of the Code of Criminal Procedure, to which the Government referred, do not preclude disclosure of the documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure. The Government failed to specify the nature of the documents and the grounds on which they could not be disclosed (see, for similar conclusions, Mikheyev v. Russia, No. 77617/01, § 104, 26 January 2006). The Court also notes that in a number of comparable cases that have been reviewed by or are pending before the Court, similar requests have been made to the Russian Government and the documents from the investigation files submitted without reference to Article 161 (see, for example, Khashiyev and Akayeva v. Russia cited above, § 46, and Magomadov and Magomadov v. Russia (dec.), No. 58752/00, 24 November 2005). For these reasons, the Court considers the Government's explanations concerning the disclosure of the case file insufficient to justify withholding the key information requested by the Court.
124. Having regard to the importance of cooperation by the respondent government in Convention proceedings and the difficulties associated with the establishment of the facts in cases such as the present one, the Court finds that the Russian Government fell short of their obligations under Article 38 § 1 (a) of the Convention on account of their failure to submit copies of the documents requested in respect of the murder of Ali and Umar Musayev.
VII. Application of Article 41 of the Convention
125. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention