THIRD SECTION

DECISION

Application no. 27628/18 Alzira Akramovna SHCHERBAKOVA against Russia

The European Court of Human Rights (Third Section), sitting on 17 November 2020 as a Committee composed of:

Darian Pavli, President, Dmitry Dedov , Peeter Roosma, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 10 May 2018,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Alzira Akramovna Shcherbakova , is a Russian national, who was born in 1963 and lives in Kazan. She was represented before the Court by Mr Igor Sholokhov, a lawyer practising in Kazan.

The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

At around 3 a.m. on 4 June 2017 the applicant ’ s son, Mr S.S., then aged 27, and his friend Mr A.M., both apparently drunk, walked down Pavlyukhina street in Kazan. It appears that they were involved in a conflict with Mr R.M., a local resident, who apparently tried to stop them from throwing stones at parked cars. All three of them were arrested by police officers for having committed the minor administrative offence of disorderly conduct. Later, at around 11 a.m. on the same day, the police drew up respective records in this connection.

After the arrest of the applicant ’ s son, Mr A.M. and Mr R.M. were put in a police van and transported to the police department of the Gorki district of Kazan. During the journey, Mr S.S. fell out of the van onto the street. As a result of the fall, he sustained serious injuries to his head, shoulders and upper body and died on the spot.

On the same day an investigator of the Investigative Committee in the Sovetskiy District Department of Kazan drew up a report regarding the incident, suggesting that a crime of negligence may have been committed. The scene of the events was examined and described in the relevant report, whilst the police van was seized and kept in a safe place pending the proceedings.

After a check, on 13 June 2017 a criminal investigation was carried out in respect of the events. T hat decision was later quashed by the Regional Prosecutor ’ s office. It appears that the bulk of the ensuing investigation took place within the framework of a pre-investigation inquiry.

During the subsequent proceedings the investigator identified and questioned witnesses of the events, including the three policemen present on that night, Mr A.M and Mr R.M., as well as people residing on Pavlyukhina street. The investigator also ordered a forensic examination of the corpse of the applicant ’ s son with a view to identifying the causes of his death and an expert report regarding the lock on the police van ’ s back door and the reasons for the opening of the door.

On 13 September 2017 investigator Kh . took the decision not to bring criminal proceedings into the events, having concluded that the applicant ’ s son ’ s fall had resulted from his own unlawful behavior, as he had tried to escape from the police van by pushing open the locked door and jumping. The decision established that after the applicant ’ s son and Mr A.M. were placed in the van ’ s compartment for detainees, the door was locked by officer F. in the presence of the other two officers. It also established that in the moments preceding the incident the van was moving at a speed of about 30 to 40 km per hour and that the witnesses, including Mr R.M., who was in a separate compartment, heard the applicant ’ s son and Mr A.M. shouting swear words and beating on the walls of the van. Then one of the police officers realised that the back door of the van had opened and stopped the car. On the basis on the forensic report, the investigation concluded that the applicant ’ s son ’ s death resulted from his fall onto the street, during which he seriously injured his neck, head and chest area and those injuries caused his death shortly thereafter. It also established that Mr S. S. had a low to medium level of alcohol intoxication. The decision also examined the condition of the lock on the back door of the van and the back door itself. With reference to the expert report which indicated that the metal covering on the inside of the compartment had been bent and the lock had been broken by forcing the door from the inside, the investigation concluded that the unfortunate event had resulted from Mr S. S. ’ s own reckless behavior and accordingly refused to prosecute the police officers.

The applicant appealed against this decision in court. She argued, in particular, that the investigation was incomplete and insisted that her son had fallen out of the van incidentally as a result of the negligence of the police.

O n 20 March 2018, a fter two rounds of court proceedings at two levels of jurisdiction, the Privolzhskiy District Court of Kazan upheld the decision of 13 September 2017. This judgment was upheld on appeal by the Supreme Court of Tatarstan on 24 April 2018.

COMPLAINTS

The applicant complained under Article 2 of the Convention that her son ’ s death had resulted from the negligent behaviour of the policemen who failed to exercise due care while transporting her son to the police station. She also complained about the lack of proper and effective investigation into the events by the authorities.

THE LAW

The applicant complained about the death of her son as a result of the allegedly negligent behaviour of the police officers and was also dissatisfied with the quality and conclusions of the investigation in this connection. She relied on Article 2 of the Convention, which, insofar as relevant, provides as follows:

“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.”

The Government disagreed with the applicant and referred to the outcome of the domestic investigation into the events. They maintained that it had been complete and of overall good quality and that it established the exact course of the events on that night. They further argued that the applicant ’ s son had become a victim of his own negligent behaviour, that the police officers could not be blamed for his death and that therefore there had been no violation of either procedural or substantive aspects of Article 2 of the Convention.

The applicant disagreed with the outcome of the proceedings in the case and blamed the police for the death of her son.

The Court reiterates that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The first sentence of Article 2 enjoins the Contracting States not only to refrain from the taking of life “intentionally” or by the “use of force” disproportionate to the legitimate aims referred to in sub-paragraphs (a) to (c) of the second paragraph of that provision, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, for example, L.C.B. v. the United Kingdom , 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III, and Keenan v. the United Kingdom , no. 27229/95, § 89, ECHR 2001 ‑ III ).

The Court further emphasises that persons in custody are in a particularly vulnerable position and the authorities are under an obligation to account for their treatment. As a general rule, the mere fact that an individual dies in suspicious circumstances while in custody should raise an issue as to whether the State has complied with its obligation to protect that person ’ s right to life (see Slimani v. France , no. 57671/00, § 27, ECHR 2004 ‑ IX (extracts) ). Such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every claimed risk to life can entail a Convention requirement for the authorities to take operational measures to prevent that risk from materialising.

A positive obligation will arise, the Court has held, where it has been established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual by a third party or himself and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Keenan v. the United Kingdom , cited above, § 90, and Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 55, ECHR 2002 ‑ II ). However, even where it is not established that the authorities knew or ought to have known about any such risk, there are certain basic precautions which police officers and prison officers should be expected to take in all cases in order to minimise any potential risk to protect the health and well-being of the arrested person (see Mižigárová v. Slovakia , no. 74832/01, § 89, 14 December 2010 ).

In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the co ‑ existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. 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 custody, 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, among many other authorities, Anguelova v. Bulgaria , no. 38361/97, §§ 109-11 , ECHR 2002 ‑ IV ).

The obligation to protect the right to life under Article 2 of the Convention requires by implication that there should be some form of adequate and effective official investigation when individuals have died in suspicious circumstances (see YaÅŸa v. Turkey , 2 September 1998, §§ 98 and 100, Reports 1998 ‑ VI). For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. The essential purpose of such an investigation is to ensure effective implementation of the domestic laws which protect the right to life. The investigation must be capable, firstly, of ascertaining the circumstances in which the incident took place and, secondly, of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. A requirement of promptness and reasonable expedition is implicit in this context. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness (see, with further references, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §§ 232-33, 30 March 2016) .

(a) Alleged failure to carry out an effective investigation into Mr S.S. ’ s death

Turning to the circumstances of the present case, the Court notes that the domestic investigation was carried out by the Investigative Committee of Russia and the proceedings resulted in the decision of 13 September 2017 not to initiate criminal proceedings against the officers. The decision relied on various items of evidence obtained from the scene of the incident, from interviews with various witnesses and from a number of forensic examinations. On the basis of that evidence, it was decided that Mr S.S. ’ s death had resulted from his attempt to force open the door of the van and jump out of the moving vehicle onto the street.

It is clear that the investigation was reasonably prompt, as it was instituted at once after the events, lasted only about four months and was concluded with a decision reaching specific conclusions concerning the factual circumstances of the incident in question. The Court also takes note of the fact that the entire investigation was conducted by the Investigative Committee, an authority which was institutionally independent from the police. It remains to be examined whether the investigation conducted was effective in its ability to ascertain the circumstances in which the incident had taken place and identify the person or persons who may have been responsible for the death of the applicant ’ s son.

The Court notes that it was clear from the outset and not argued otherwise by the applicant that the death of Mr S.S. had resulted from an accident or another unintentional act, and the hypothesis of unlawful killing was not even an arguable probability (compare with Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 133, 14 April 2015). In such circumstances, despite the fact that the domestic authorities conducted the proceedings within the framework of a “pre ‑ investigation inquiry”, they were nevertheless successful in securing all of the available evidence and thoroughly examining it. In particular, they examined the scene of the incident, carried out detailed expert examinations of the corpse and the van as well as identified and repeatedly questioned those involved and present during the events of 4 June 2017. Having considered the parties ’ submissions and the case-file materials, the Court finds that the evidence collected by the authorities was generally consistent with the version of the facts as set out by the investigation above (see, for similar approach, Shchebetov v. Russia , no. 21731/02, §§ 56-57, 10 April 2012 ).

The Court also does not lose sight that the applicant appealed against the outcome of the investigation to the courts, which in adversarial proceedings confirmed the validity of the investigation ’ s conclusions. Regard being had to the above considerations, the Court finds that the domestic investigation into the death of Mr S.S. on 4 June 2017 conducted by the authorities was in compliance with the requirements of the procedural aspect of Article 2 of the Convention.

(b) Alleged breach of Mr S.S. ’ s right to life

The Court will now turn to the applicant ’ s allegation that the respondent Government was responsible for the death of her son.

In this connection, the Court notes that the investigation established that the applicant ’ s son died after he had tried to escape from the police van by pushing open the locked door and jumping onto the street. The decision underlined that prior to departure the van door had been locked by officer F. in the presence of the other two officers, that it had been functioning properly prior to the incident and that the reason for the door ’ s sudden opening during the journey was that its metal covering had been bent and that the lock had been broken by pushing from within. In addition, Mr S.S. ’ s loud and aggressive behavior during the journey was cited in statements by the police officers and also Mr R.M., a witness who clearly had no personal interest in the outcome of the investigation. In view of the above and given its earlier conclusions concerning the overall quality of the investigation, the Court finds no reason to disregard the outcome of particular investigative actions or the factual findings made by the investigative body in its decision of 13 September 2017.

Having examined the evidence in the case file and the parties ’ submissions, the Court finds that it cannot be said that the authorities knew or ought to have known of the existence of a real and immediate risk to Mr S.S. ’ s life on that night and that it also cannot be maintained that the police officers had failed to take basic precautions in order to minimise any potential risk to protect the health and well-being of the arrested person (see, by contrast, Fanziyeva v. Russia , no. 41675/08, §§ 57 ‑ 58, 18 June 2015, and Keller v. Russia , no. 26824/04, § 89, 17 October 2013 ).

Against this background, the Court finds that the authorities cannot be held responsible for the death of the applicant ’ s son.

In light of the foregoing the Court finds that the applicant ’ s complaints are manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 10 December 2020 .

Olga Chernishova Darian Pavli Deputy Registrar President