CASE OF FANZIYEVA v. RUSSIA
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
6. The applicant was born in 1942 and lives in Nalchik. She is the mother of the late Ms Madina Eneyeva, who was born in 1972 and died in 2007. 7. On 26 May 2007 Ms Eneyeva was at a local market together with Mr A, her brother-in-law. One of the stall-holders, Ms G.Zh., suspected that Ms Eneyeva was planning to steal a skirt from her market stall. The two women started a fight and exchanged a few blows. The police arrived and arrested the applicant’s daughter on suspicion of theft. Ms Eneyeva and Mr A. were both put into a police vehicle. 8. The parties have presented different accounts of the subsequent events. 9. According to Mr A., after Ms Eneyeva had been put into the police vehicle, an unknown police officer with the rank of lieutenant approached the vehicle, kicked Ms Eneyeva fifteen times on her legs and then left. Once at the police station, Mr A. was released. According to the applicant, upon arrival at the police station, her daughter was taken to the interrogation room situated on the second floor (in Russian referred to as the “third floor”) of the police station and was beaten by the police officers until she fainted. While Ms Eneyeva was unconscious, unspecified police officers threw her out of the window. 10. In the Government’s submission, it was alleged that during the drive to the police station Ms Eneyeva had unsuccessfully tried to escape from the police vehicle. Upon arrival at the police station, she had been escorted to the office of Lieutenant A.Zh. She had refused to answer his questions and had asked for permission to use a lavatory. Since there were no female police officers in sight, A.Zh. escorted her to the lavatory on the second floor of the police station himself and waited for her in the corridor outside the locked door. Being unguarded, Ms Eneyeva jumped out of the window in an attempt to escape from police custody. 11. Ms Eneyeva was then taken to hospital by ambulance. She underwent urgent surgery. At 10.45 p.m. on 26 May 2007 Ms Eneyeva died of complex internal injuries to her head, body and extremities. 12. The applicant then sought an investigation into her daughter’s suspicious death and ill-treatment. According to the applicant, her daughter had no suicidal tendencies; she had three young children and a good home in recently obtained social housing. 13. On 26 May 2007 the prosecutor’s office of Nalchik (“the town prosecutor’s office”) were notified that Ms Eneyeva had jumped out of the window of the police station and then died. 14. On an unspecified date the town prosecutor’s office opened preinvestigative inquiry no. 663-07 into the circumstances of Ms Eneyeva’s death. 15. On 28 May 2007 a forensic expert issued a post-mortem report, according to which ‒ apart from various injuries ‒ Ms Eneyeva had bruises and scratches on her legs, those injuries being unrelated to the fall. 16. On 4 June 2007 the deputy town prosecutor received and examined the applicant’s complaint, in which she alleged that her daughter had been thrown out of the window by the police officers. He stated that the investigator in charge of pre-investigative inquiry no. 663-07 had not yet carried out all requisite investigative measures, in particular, that he had not questioned a number of persons: the police officers who had arrived at the market once Ms G.Zh. had reported the theft, those who had arrested Ms Eneyeva, the ambulance crew members and Mr A. Nonetheless, the deputy town prosecutor concluded that “there is nothing to suggest that Ms Eneyeva’s death on 26 May 2007 in Nalchik was a violent one, as suggested in the complaint; moreover, there is no proof that the police officers of Nalchik were implicated in her death ...” and decided to dismiss the applicant’s complaint. 17. After a pre-investigation inquiry, on 5 June 2007 an investigator from the Nalchik prosecutor’s office concluded that the applicant’s daughter “had made another attempt” to escape from the police station, and refused to institute criminal proceedings in relation to Ms Eneyeva’s death. 18. The above decision was later quashed by the Nalchik prosecutor who considered that it was established that the applicant had sustained injuries at the hands of an unspecified police officer. 19. On 17 June 2007 the investigator again refused to open a criminal investigation into the applicant’s daughter’s death. The decision was quashed by the deputy town prosecutor on 20 June 2007. 20. On 7 July 2007 the investigator from the Nalchik prosecutor’s office refused to institute a criminal case to investigate the circumstances of Ms Eneyeva’s death. 21. On 27 July 2007 the Kabardino-Balkariya prosecutor’s office quashed the decision of 7 July 2007 refusing to open an investigation into Ms Eneyeva’s death. However, no further investigation into the circumstances of the death appears to have taken place and no further decision regarding this appears to have been taken after 27 July 2007. On 11 August 2007, however, Lieutenant A.Zh. was subjected to disciplinary measures for failure to comply with the procedure concerning escorting detainees. 22. For reasons unknown, on 27 July 2007, while quashing the refusal to investigate the death of Ms Eneyeva, the Kabardino-Balkariya prosecutor’s office opened criminal proceedings in case no. 25/35-07 to investigate an alleged abuse of powers by an unidentified police officer who had hit Ms Eneyeva on her legs inside the police vehicle at the market on 26 May 2007. They referred to the medical expert report (see paragraph 15 above) according to which there had been bruises on Ms Eneyeva’s legs which had not been caused by the fall out of the window. The authorities relied on Article 286 of the Russian Criminal Code (“abuse of power by a public official”). The circumstances of Ms Eneyeva’s death lay outside the scope of the investigation in question. 23. On 13 September 2007 the applicant was granted victim status in case no. 25/35-07. 24. On 22 October 2007 a forensic expert carried out another examination of Ms Eneyeva’s body to establish the origin of the scratches and bruises on the legs and concluded that the injuries in question had been inflicted by blunt objects. 25. On 27 October 2007 the investigation into the abuse of power was stayed for failure to identify those responsible. On 19 November 2007 the investigation was resumed and eventually stayed again on 28 February 2008. 26. In view of the authorities’ failure to institute a criminal investigation into Ms Eneyeva’s death, the applicant brought court actions on 31 January 2008 and on 26 February 2008. Eventually, on 23 June 2008 the Nalchik Town Court held in favour of the applicant, finding that the investigator’s failure to investigate had been unlawful. 27. On 8 April 2009 the applicant again complained about the investigator’s lack of action. On 14 May 2009 the Nalchik Town Court granted the applicant’s claim and held that the investigator’s continued failure to comply with the judgment of 23 June 2008 was unlawful. 28. On 23 March 2010 the deputy prosecutor of Nalchik quashed the ruling of 28 February 2008 staying the investigation (see paragraph 25 above). 29. Accordingly, on 31 March 2010 the investigation was again resumed. 30. On 11 April 2010 Mr K., a police officer on duty on 26 May 2007, was questioned as a witness. No essential information was obtained as a result of the interview. 31. In April 2010 the investigators tried to find eye-witnesses who had seen Ms Eneyeva at the market on 26 May 2007, but in vain. Also in April 2010 the certificate of death of Mr A. was included in the case file. 32. On 15 April 2010 the investigators decided to carry out a forensic medical examination of the injuries found on Ms Eneyeva’s body by a group of experts on the basis of the documents in the case file. However, no information on the results of the examination had been made available by 29 January 2015. 33. On 25 April 2010 Mr Ch., a police officer on duty on 26 May 2007, was questioned as a witness. He did not provide any relevant information. 34. On 8 May 2010 two shop assistants were questioned as witnesses and submitted that they had not seen the police using any force on Ms Eneyeva. 35. On 8 May 2010 the investigation was suspended owing to failure to find those responsible. 36. On 28 August 2010 the investigation was resumed. 37. On 22 September 2010 the investigators questioned Ms B. as a witness. Ms B. was the wife of Mr O., a forensic expert who had examined Ms Eneyeva’s dead body in 2007. Ms B. stated that her husband had left for Moscow for a lengthy period of time. 38. On 30 September 2010 the investigation was again suspended. 39. On 21 January 2015 the investigation was resumed. An internal inquiry was instituted by the Investigative Committee of Russia regarding poor supervision of the investigation of case no. 25-35/07. The investigation appears to be still pending. 40. The applicant stated that after 23 March 2010 she had not received any update on the progress of the investigation from the domestic authorities.