CASE OF ALBAKOVA v. RUSSIA
Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1956 and lives in Ordzhonikidzevskoye, Ingushetiya Republic. 6. According to the applicant, on 10 July 2009 she was at her flat with her two daughters, her son Batyr Albakov and his wife. At about 5.30 a.m. four men arrived at the flat to carry out a passport check. They introduced themselves as officers of the Nazran District Department of the Interior. The men were armed, some were wearing camouflage uniforms and the rest were in civilian clothes. They spoke Russian, Chechen and Ingush. They checked the passports of the applicant’s family members and then announced that they were taking Batyr Albakov to the police station to complete the identity check. There were four other men waiting outside the building. At the time, Batyr Albakov was wearing black trousers and a black-and-white striped shirt with short sleeves. The applicant was not allowed to accompany him. 7. The men and Batyr Albakov left in two silver VAZ 2110 cars. The applicant’s neighbour, Ms M. Galayeva, witnessed their departure. The applicant was able to remember part of the registration number of one of the cars, which appeared to have been registered in the Chechen Republic. 8. On the same day the applicant saw several silver VAZ cars parked at the premises of the operational search unit (hereinafter “the ORB-2”). She also saw a group of men in camouflage uniforms exit the building. Among them she identified three of the men who had fetched her son. The men got into one of the cars and left before the applicant was able to talk to them. 9. On 21 July 2009 the applicant read on the internet that her son had been shot dead by State servicemen in the course of a counter-terrorist operation in a forest close to Arshty, a village in the Ingushetiya Republic. According to the website, Batyr Albakov had been a member of an illegal armed group and had been offering active armed resistance to the federal forces. It was claimed that a number of items including a Kalashnikov machine gun and its ammunition, one bullet shell, fragments of a spent grenade, a backpack containing clothes and the deceased’s passport were found at the scene. Mr M. Albakov, the uncle of the deceased, identified Batyr Albakov’s body in the morgue in Nazran. The deceased was then dressed in a camouflage uniform. 10. On the same day medical forensic expert O. conducted a forensic examination of Batyr Albakov’s body. He documented seven gunshot wounds which the deceased had sustained shortly before his death and considered them to be the cause of his death. He further noted five bruises on the deceased’s legs and arms, which the latter could have sustained shortly before his death. The camouflage uniform was removed, packed, sealed and admitted as evidence. The report made no mention of the presence of gunshot residue on the deceased’s body. 11. On 22 July 2009 the deceased’s naked body wrapped in a cellophane bag was taken to the applicant’s flat. The applicant, one of her daughters, her son’s wife and some other relatives saw multiple injuries on his body, including a gunshot wound to his chest, stab wounds, fractured bones, burns and bruises. His left arm was partially severed. The applicant’s daughter took photographs of Batyr Albakov’s body and injuries. 12. On 10 July 2009 the applicant addressed a complaint to the Suzhenskiy District prosecutor’s office in respect of her son’s disappearance. In her statement she expressed doubts as to whether the persons who had taken Batyr Albakov had been State agents and asked the prosecutor to open a criminal investigation into his disappearance. She also contacted the Suzhenskiy District department of the interior, alleging that her son had been abducted by unidentified State agents. On the same day she asked the Ministry of the Interior of the Ingushetiya Republic and the Ingushetiya Republic department of the Federal Security Service to provide her with information about her son’s detention. In response, the applicant was informed that her son had not been in the custody of the said authorities and that they had no information as to his whereabouts. 13. On 13 and 14 July 2009 an investigator at the prosecutor’s office questioned the applicant and her two daughters, L. and Z. Albakova, about the events of 10 July 2009. They gave some information as to the registration number of one of the vehicles used by the alleged abductors and claimed that they could identify the perpetrators. 14. On 23 July 2009 a senior investigator, G., of the district prosecutor’s office refused to open a criminal investigation into Batyr Albakov’s alleged abduction. In his decision the investigator summed up the statements provided by the applicant’s family as regards the events of 10 July 2009. He further noted that he had not yet received any materials concerning the operation conducted by law-enforcement officers at the applicant’s residence and concluded that there was no evidence to support her allegations. 15. On 24 July 2009 the applicant provided a statement to the prosecutor’s office of the Ingushetiya Republic, alleging that law-enforcement agents were implicated in her son’s abduction, torture and unlawful killing. Referring to the traces of decomposition on his body, she considered that her son had been executed by the law-enforcement agents before 21 July 2009. 16. On 27 July 2009 the head of the Sunzhenskiy district investigative division of the prosecutor’s office of the Ingushetiya Republic quashed the decision of 23 July 2009, noting that the inquiry conducted by the investigator was incomplete, and remitted the matter to him for further inquiry. 17. On 1 August 2009 the Sunzhenskiy District prosecutor’s office opened a criminal investigation concerning an unidentified person on charges of attempted killing of State agents, unlawful possession of firearms and participation in an illegal armed group. The criminal case file was given number 09600099. 18. On 24 August 2009 the investigator ordered a new forensic examination of Batyr Albakov’s body. 19. On 28 August 2009 O. conducted a new forensic examination of Batyr Albakov’s body. He reproduced verbatim the summary of his findings in his previous report of 21 July 2009, according to which the deceased had been wearing a camouflage uniform at the time of the examination. 20. On 10 September 2009 the investigator questioned forensic expert O., who confirmed that he had observed a number of penetrating gunshot wounds on the deceased. He added that he had seen bruises on the deceased’s arms and legs, which could have been caused by blows by, or collisions with, a blunt object. O. denied that the left arm of the deceased had been partially severed. Lastly, he concluded that the cause of death had been multiple gunshots which the deceased must have sustained some four to six hours prior to the examination of the body on 21 July 2009. 21. On 14 September 2009 the applicant again asked the prosecutor’s office of the Ingushetiya Republic to open a criminal investigation into the abduction and unlawful killing of her son by law-enforcement agents. 22. On 24 September 2009 the applicant was notified that her application had been added to criminal case no. 09600099. 23. On 1 November 2009 the investigator closed criminal case no. 09600099. Referring to the crime-scene examination report, forensic evidence (examination of the bullet shell, the machine gun and its ammunition and the fragments of the spent grenade found at the crime scene, and the examination of the deceased’s body) and the statements made by the applicant and her family, the investigator concluded that sufficient evidence collected in the course of the criminal investigation indicated that Batyr Albakov had attempted to kill a law-enforcement agent and the case should be closed in view of his death. 24. On 3 November 2009 the head of the Sunzhenskiy district investigative division of the prosecutor’s office of the Ingushetiya Republic quashed the decision of 1 November 2009 and re-opened the criminal investigation. In particular, he stated that the investigator had failed to verify the circumstances of Batyr Albakov’s abduction (the alleged perpetrators had not been questioned, the cars used by the persons who had abducted the deceased had not been identified, and Batyr Albakov’s alleged involvement in a terrorist organisation had not been confirmed). 25. On 1 December 2009 the investigator refused to institute criminal proceedings into the abduction of the deceased. The investigator concluded that Batyr Albakov had been released by “the persons who had abducted him” and that he had been a member of an illegal armed group who “had threatened the life of State agents” on 21 July 2009. 26. The applicant appealed against the decision of 1 December 2009. According to her, her son had been kidnapped by State agents. He had then been tortured and killed by them. In order to disguise those crimes, the agents had taken her son’s body to the forest and left it there together with a Kalashnikov machine gun, alleging that he had been killed when attempting to assault them. When the applicant had received her son’s body, it had already started to decompose and was covered with numerous injuries such as bruises, burns and cuts. His arm had been almost completely severed. 27. On 29 March 2010 the Sunzhenskiy District Court of the Ingushetiya Republic dismissed the applicant’s allegations as unsubstantiated, upholding the investigator’s findings of 1 December 2009. On 18 May 2010 the Supreme Court of the Ingushetiya Republic upheld the decision of 16 January 2010 on appeal. 28. According to the Government, in the course of the investigation into the activities of an illegal armed group, one of the suspects testified that Batyr Albakov had been a leading member of the group. 29. On 14 May 2012 the criminal investigation into the circumstance of Batyr Albakov’s death was re-opened. The investigator questioned two military officers, I. and M., who had participated in the operation conducted by Ministry of the Interior forces on 21 July 2009. They submitted that in the course of the operation Batyr Albakov had opened gunfire against their military unit and they had had to put an end to his attack and had shot back at him. He had died in the exchange of gunfire. The investigator also noted that he had been unable to determine whether the vehicles used by the alleged abductors had belonged to the State in view of the destruction of the relevant documentation. 30. On 15 June 2012 the investigator closed the investigation into the events of 21 July 2009. 31. On 12 October 2010 the applicant submitted the digital photographs of Batyr Albakov’s body taken by his sister to an independent expert centre. 32. On 1 November 2010 forensic medical experts examined the photographs. They considered that some of them could not be examined in view of their poor quality. From the remainder of the photographs, the experts discerned four wounds: a gunshot wound on the right side of the chest; a deep wound on the left shoulder joint, probably resulting from a blow by a blunt solid object; a surface wound on the left side of the chest (the experts ruled out the possibility of its being a gunshot wound); and a wound on the left side of the back, possibly caused by a hollow rectangular box-shaped object. In addition to the bruises documented in the official forensic report, the experts noted abrasions and bruises on the deceased’s chest. Lastly, they concluded that all the injuries visible in the photographs of Batyr Albakov must have been caused while he was still alive. 34. Referring to her account of the events of 11 July 2009 (see paragraphs 6-8), the applicant maintained that her son Batyr Albakov had been abducted, detained, tortured and executed by State agents. The Russian authorities had falsely accused him of being a member of an illegal armed group in an attempt to cover up State agents’ unlawful actions. 35. The Government denied any involvement of its agents in Batyr Albakov’s abduction. They argued that Batyr Albakov had been a member of an illegal armed group and considered that the abduction had been staged by his co-conspirators. In their opinion, the applicant’s allegations concerning her son’s abduction, detention and torture lacked any evidentiary basis. 36. A number of principles have been developed in the Court’s case-law as regards cases where the Court is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court refers to its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005–VIII). 37. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336; and Avşar, cited above, § 283), even if certain domestic proceedings and investigations have already taken place. 38. The Court reiterates that it has noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. Where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to convince the Court that the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005; and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005II). 39. The Court has previously found the Russian State authorities responsible for extra-judicial executions or disappearances of civilians in the Chechen Republic in a number of cases, even in the absence of final conclusions from the domestic investigation (see Khashiyev and Akayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006XIII (extracts); Estamirov and Others v. Russia, no. 60272/00, 12 October 2006; and Baysayeva v. Russia, no. 74237/01, 5 April 2007). 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. It has relied on references to military vehicles and equipment, on witness accounts, on other information on security operations and on the undisputed effective control of the areas in question by the Russian military. On that basis, it has 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 conducted there and the presence of servicemen (see, for example, Zubayrayev v. Russia, no. 67797/01, § 82, 10 January 2008). 40. However, on the basis of the account of the events given by the applicant in the present case, the Court has little evidence on which to draw such conclusions. 41. The Court observes that the documents submitted by the Government provide no evidence of a security operation having taken place on 10 July 2009. As to the applicant’s submissions, she and her relatives witnessed the abduction of Batyr Albakov. In support of her argument that her son had been abducted by State agents, she argued that the men who had taken her son had been armed, spoke Russian, Chechen and Ingush and that some of them had been wearing camouflage uniforms and had arrived in civilian VAZ cars. 42. The Court is not convinced, however, that those details necessarily prove that the men were State servicemen. The applicant did not allege that the camouflage uniform some of the men had been wearing had borne any of the insignia characteristic of the uniform of State agents. It cannot be ruled out that the uniform, as well as the firearms carried by the men, could have been obtained by them via various, possibly illegal, channels. Furthermore, there are no witness statements confirming that Batyr Albakov was taken to any State agency after his abduction. In this connection, the Court also takes into account the applicant’s own statement to the prosecutor’s office in which she expressed doubts as to the affiliation of the kidnappers with any State agency (see paragraph 12 above). 43. Accordingly, the information in the Court’s possession does not suffice to establish that Batyr Albakov was kidnapped and held in detention by State agents. In such circumstances, the Court cannot attribute responsibility for the unlawful acts in the present case to the respondent State without additional evidence to that effect. 44. It has not, therefore, been established to the required standard of proof “beyond reasonable doubt” that State agents were implicated in the abduction and ensuing detention, if any, of Batyr Albakov.