Communicated on 17 December 2015

THIRD SECTION

Application no. 688/11 Asli GAYEVA against Russia lodged on 24 December 2010

STATEMENT OF FACTS

The applicant, Ms Asli Gayeva , is a Russian national, who was born in 1958 and lives in the village of Gerpegezh , Cherekskiy District, in the Kabardino-Balkarian Republic. She is represented before the Court by lawyers of Memorial Human Rights Centre and Ms Larisa Dorogova , a lawyer practising in Nalchik.

The applicant is the mother of Mr Zeitun Gayev , who was born in 1977.

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

A. Arrest of Mr Zeitun Gayev , his death and surrounding circumstances

At about 7 p.m. on 15 November 2007 Mr Zeitun Gayev and his fellow villager, Mr Zh ., were on their way from Nalchik to Gerpegezh , when the transport police stopped their car for a check. Following their search of the car, the police apprehended the two men and took them to the Nalchik Department for the Fight against Organised Crime at the Kabardino-Balkarian Ministry of the Interior (hereinafter “the UBOP”). Mr Zh . was released on the following day and returned home. It transpires from the documents submitted that Mr Zeitun Gayev was subsequently taken to the Nalchik Department of the Interior no.1 (hereinafter “the police station”).

At about 9 p.m. on the same evening the two brothers of Mr Zeitun Gayev (Mr A.G. and Mr Z.G.) and a lawyer, Mr R.E., arrived at the UBOP to visit him. They were told that Mr Zeitun Gayev was not there; however, his car was parked in the courtyard of the UBOP premises. Sometime later, at about midnight, they went to the Nalchik town prosecutor ’ s office and complained to an officer on duty, Mr T., about Mr Zeitun Gayev ’ s unacknowledged detention. Mr T. immediately called the UBOP and obtained informal confirmation of Mr Zeitun Gayev ’ s detention on the UBOP premises.

At 2 p.m. on 16 November 2007 several UBOP officers arrived at the applicant ’ s home in Gerpegezh , searched the house and left. They arrived again at 8 p.m. on the same date. The applicant and her husband, Mr M.G. – Mr Zeitun Gayev ’ s father – were at home. The officers were all wearing balaclavas, except for one of them named Aslan, who was in charge of the group. At some point during the search Aslan phoned another UBOP officer, whose name was Arsen . From their conversation the applicant understood that they were searching for a gun. Aslan passed the telephone to Mr M.G. so that he could talk to Mr Zeitun Gayev and ask him where the gun was hidden. Mr M.G. spoke to his son, who told him where the gun was to be found. During the conversation Mr M.G. noticed that his son ’ s voice was very weak and that he could barely speak. Having found no gun or anything else that was prohibited, the UBOP officers left.

Meanwhile, at the same time (about 8 p.m. on 16 November 2007) Mr A.G. went to the UBOP to take some food to Mr Zeitun Gayev . He asked an officer on duty to pass the food on to his brother. The officer agreed and took delivery of the food. Then Mr A.G. asked the officer whether his brother looked as though he had been beaten. The officer replied that he looked normal.

At about 10 p.m. on the same date the police called the applicant and informed her that Mr Zeitun Gayev had committed suicide, having jumped out of the window located on the fourth floor of the police station.

Several days later, the applicant and Mr M.G. were summoned to the UBOP for an interview. They were interviewed by an officer who introduced himself as Arsen . The latter confirmed Mr Zeitun Gayev ’ s detention at the UBOP by telling them that their late son had been questioned in the same office as the one in which they were being interviewed and that nobody had beaten him.

B. Autopsy on Mr Zeitun Gayev

Between 17 November 2007 and 14 December 2007 an expert from the Kabardino-Balkarian forensic assessment office carried out an autopsy of Mr Zeitun Gayev ’ s corpse. The expert ’ s findings read as follows:

“ B lunt complex trauma of the head, body and extremities: [ f ] ocal subarachnoid hemorrhages, breastbone fracture, double-sided multiple rib fractures, contusion of the left kidney, multiple bruising of the head, body and extremities.

Complication: [ p ] ost -traumatic shock. Cephaledema .”

The expert concluded, inter alia , that:

“... Z. Gayev ’ s death was caused by blunt complex trauma to the head, body and extremities, accompanied by: focal hemorrhages under the cerebral meninges, breastbone fracture, double-sided multiple rib fractures, left kidney contusion, and multiple bruising of the head, body and extremities.

... The injuries were caused by repeated impacts against hard blunt items ... which may have been fingers clenched in a fist, a shod foot, a stick, or some other. [They] are cumulatively assessed as GRIEVOUS bodily harm on the grounds of danger to life. All the injuries are intravital in nature and were sustained between six and twelve hours before the moment of death. ... [T]he injuries [resulting from] ... a fall from an altitude exceeding a human ’ s height is improbable. ... [Following their infliction, Mr Zeitun Gayev ] was able for some time (up to several hours) to make independent movements ...

Apart from the above injuries, the autopsy ... revealed a fracture of the right thigh bone ... [which was sustained] after death ...

The estimate of the length of time that Mr Z. Gayev had been dead as at the moment of the autopsy is twelve to twenty-four hours, which follows from the character of the post mortem changes.”

C. Official investigation into Mr Zeitun Gayev ’ s death

On 26 November 2007 the Nalchik inter-district investigation department of the Kabardino-Balkarian Investigation Committee (the district investigation department) refused to open a criminal investigation into Mr Zeitun Gayev ’ s death. The reasons for the refusal are unknown.

On 5 December 2007 the supervisor quashed that decision and ordered that an investigation be opened.

On 15 December 2007 (in the documents submitted the date was also referred to as 14 December 2007) the district investigation department opened criminal case no. 71/478-07 under Article 286 § 3 of the Criminal Code (aggravated abuse of authority). Concerning the sequence of the events, the decision read as follows:

“... a t about 8:50 p.m. [on 15 November 2007 traffic police officers] stopped ... [Mr Zeitun Gayev ’ s car] ... In the course of the search of the car ... two hand grenades RGD-5, two detonating fuses for hand grenades ... and twenty 7,62 mm bullets were found...

Then Z. Gayev was taken to the UBOP ... where he was unlawfully detained until 8 p.m. on 16 November 2007.

... at 5:30 p.m. [on 16 November 2007] ... a criminal case was instituted against Z. Gayev under Article 222 § 1 of the Criminal Code [illegal possession of firearms] and at 8.20 p.m. on the same date ... [he] was arrested ... [and questioned in the police station].

On 16 November 2007 the Nalchik inter-district department of the Kabardino-Balkarian Investigative Committee was informed of ... Z. Gayev ’ s death.”

On 18 December 2007 Mr M.G. was granted victim status in the case and questioned. His official statement was similar to the applicant ’ s submission before the Court.

On 28 January 2008 Ms M.G. was informed that the criminal case had been transferred to the Special Cases Directorate at the Kabardino-Balkarian Investigation Committee ( Отдел по расследованию особо важных дел следственного управления Следственного комитета при прокуратуре РФ по КБÐ ) (hereinafter “the investigators”) for further investigation.

On unspecified dates between 2007 and 2008 the investigators questioned a number of witnesses, who made submissions regarding the circumstances surrounding Mr Zeitun Gayev ’ s death. Their statements can be summarised as follows.

The UBOP officer Mr A.A. stated in particular that after the traffic police had apprehended Mr Zeitun Gayev and handed him over to the UBOP, one or two grenades and several bullets had been found hidden in his car. Thereafter, a UBOP investigator had interviewed him and obtained a confession of complicity with an illegal armed group hiding in the mountains. On the morning of the following day operational search activities had started. He and a group of about fifty law-enforcement officers had taken Mr Zeitun Gayev into the mountains in search of the illegal armed group. In the course of the operation, Mr Zeitun Gayev had on several occasions fallen and hit himself against the ground, stones and trees. At some point, Mr Zeitun Gayev and another UBOP officer, Mr A.S., had fallen off a cliff and hit a tree. Subsequently, Mr Zeitun Gayev had neither complained nor requested medical assistance. The operation had lasted for several hours and had finished in the afternoon, with no positive results. At about 8 p.m. on the same date he (that is to say, Mr A.A.) had taken Mr Zeitun Gayev to the police station, where the investigator had questioned him in the presence of a legal-aid lawyer, Mr Zh.M . During the questioning (which had lasted for about an hour) Mr Zeitun Gayev had not made any complaints. At the end of the questioning, he and the UBOP officer, Mr A.S., had led Mr Zeitun Gayev out of the investigator ’ s office into the corridor, prior to taking him to a temporary detention centre. Suddenly, Mr Zeitun Gayev had broken away, run towards the window shouting “ Allahu Akbar” and jumped from the fourth floor. He and Mr A.S. had immediately gone downstairs. They had found Mr Zeitun Gayev lying on the ground in the courtyard of the police station. The latter had still been alive and had been able to talk. He (Mr A.A.) had heard him answering questions which Mr A.S. had asked him. After about ten minutes the ambulance had arrived and taken him to hospital. He was subsequently told that Mr Zeitun Gayev had died in the ambulance on the way to hospital.

Mr Zh.M ., a lawyer, submitted that on 16 November 2007 he had been appointed as Mr Zeitun Gayev ’ s legal-aid lawyer in connection with the criminal proceedings instituted against him. At about 8 p.m. on that date he had arrived at the police station to advise Mr Zeitun Gayev during his questioning as a suspect. Upon arrival, he had been given time to speak to his client. He had not noticed any injuries on his body, but nevertheless had asked him whether he had been subject to any physical or psychological pressure. Mr Zeitun Gayev had replied in the negative and had said that he had been neither beaten nor intimidated. The questioning had taken place in the presence of two UBOP officers in the investigator ’ s office located on the fourth floor and had lasted for about an hour. No physical violence had been applied to Mr Zeitun Gayev during the questioning. After the questioning, one of the UBOP officers had handcuffed Mr Zeitun Gayev and had taken him into the corridor. Suddenly, he had heard somebody shouting “Akbar” and the sound of breaking glass. Having rushed into the corridor, he had seen the UBOP officers standing around a window, whose glass had been smashed. One of the officers had told him that Mr Zeitun Gayev had jumped out of the window. He and the officers had immediately gone downstairs and found Mr Zeitun Gayev lying on the ground. The latter had been unconscious, but still alive. After about five minutes an ambulance had arrived and had taken him to hospital.

Ms M.L. and Mr Y.B., the emergency unit paramedics who attended the scene of Mr Zeitun Gayev ’ s fall, stated that at about 9.30 p.m. on 16 November 2007 they had received an emergency call from the police station. Having arrived at the scene, they had found a man lying unconscious on the ground in the courtyard of the police station. The man had been alive when the ambulance had arrived, albeit in a critical state. They had examined him and noticed in particular the abnormal mobility of the ribs and of the right thigh bone. Then they had loaded him into the ambulance in order to take him to hospital; however, he had died en route several minutes later.

On 24 April 2008 the investigators questioned the applicant. Her statement was similar to the submissions that she provided before the Court.

On 12 May 2008 the investigators ordered a forensic medical examination. A panel of five medical experts carried out the examination between 13 May and 23 June 2008. The expert panel upheld the previous findings as to the nature and cause of the injuries to Mr Zeitun Gayev and the length of time that had elapsed since they had been inflicted; it also found that after their infliction he had been able to move and talk for a certain period of time. The cause of the death was found to be:

“... traumatic shock, sustained as a result of blunt complex trauma to the head, body and extremities, accompanied by focal haemorrhages under the cerebral meninges , a breastbone fracture, double-sided multiple rib fractures, contusion of the left kidney and multiple bruising to the head, body and extremities.”

On 6 August 2008 Mr M.G. asked the investigators to inform him about the progress of the criminal case and to provide him with copies of the case file materials. The request was granted.

On 18 September 2008 the investigators ordered another forensic medical examination, which was carried out between 14 January and 25 February 2009 by a panel of four experts. The panel concluded that Mr Zeitun Gayev ’ s death had been caused by blunt complex trauma complicated by traumatic shock, cephaloedema (brain swelling) and pulmonary oedema. The blunt complex trauma was found to consist of the following injuries:

“... focal hemorrhages under the cerebral meninges ... , haemorrhaging into the paranephric body of the left kidney, haemorrhages under the epicardium ... of the heart, fractures of the third-ninth ribs ..., [ fractures ] of the fifth-eighth ribs ..., massive bruising (of the left shoulder ..., the left hip ..., the left lower leg ..., the left posterior surface of the thorax, the lumbar region), bruising around the right eye [and] on the left malar region, and also a fracture of the right thigh ..., bruising of the right shoulder ..., the right forearm ..., the right thigh ... and the right lower leg ...”.

As regards the mechanism of the trauma, the experts found the following:

“... injuries indicating blunt complex trauma to Z. Gayev ’ s body were sustained as a result of an impact against hard blunt objects ... [ They might well have been sustained ] as a result of [ Mr Zeitun Gayev ’ s ] fall ... from a high altitude on the left side of the body.

... [ T ] he injuries are intra vitam ... [They] were sustained no more than twenty-four hours before the moment of Z. Gayev ’ s death.

... [A] fter the infliction of the blunt trauma to Z. Gayev , the possibility of independent, active movements was excluded, due to the severity of the injuries.”

The experts further found:

“... Apart from that, the forensic medical examination of Z. Gayev ’ s corpse revealed the following injuries:

- A transverse breast bone fracture ...

- Fracture[s] of the sixth ... seventh, eighth ribs ...

The above injuries were sustained as a result of an impact against a hard blunt object (objects) ... it cannot be excluded that ... [they] were sustained ... as a result of [attempts at the] resuscitation of Z. Gayev .

“... [I]t should be noted that no indications of fighting or self-defence , or signs showing that the position of [ Mr Zeitun Gayev ’ s ] corpse had been altered was evident from the material submitted for the examination.”

As for the time of Mr Zeitun Gayev ’ s death, the experts concluded that:

“... Z. Gayev had not been dead more than two-four hours, as at the moment when the post-mortem changes were recorded during the site inspection (the inspection started at 10.20 p.m. [and] ended at 11.30 p.m.) on 16 November 2007.”

On an unspecified date the applicant was granted victim status in the case.

On 19 April 2009 the investigation was suspended for failure to identify the perpetrators. It was resumed on an unspecified date, suspended on 19 September 2009, resumed again on 25 September 2009 and suspended on 25 October 2009.

It appears that the investigation is still pending.

D. Proceedings against the investigators

On 20 April 2010 the applicant challenged the effectiveness of the investigation before the Nalchik Town Court.

On 27 April 2010 the court terminated the proceedings, referring the applicant ’ s wish to withdraw the complaint. On 25 June 2010 the Supreme Court of the Kabardino -Balkar Republic upheld this decision on appeal.

COMPLAINTS

1. The applicant complains under Article 2 of the Convention that Mr Zeitun Gayev was murdered by agents of law-enforcement agencies. She further complains that the domestic authorities failed to thoroughly investigate her son ’ s alleged murder, in breach of the procedural obligation arising from Article 2 of the Convention.

2. The applicant complains under Article 3 of the Convention that agents of law-enforcement agencies ill-treated her son after he was apprehended. She also complains that the domestic authorities did not investigate the alleged instances of ill-treatment, in breach of the procedural obligation arising from Article 3 of the Convention.

3. The applicant complains that the provisions of Article 5 as a whole, which relate to the lawfulness of detention and guarantees against arbitrary detention, were violated in respect of Mr Zeitun Gayev .

4. The applicant complains under Article 13 of the Convention that she had no available effective domestic remedies against the above violations of the Convention.

QUESTIONS TO THE PARTIES

1. Has the right to life, as guaranteed by Article 2 of the Convention, been violated in respect of Mr Zeitun Gayev ?

Was Mr Zeitun Gayev deprived of his life intentionally, in breach of Article 2 of the Convention?

Were the national authorities in the circumstances of the case under an obligation under Article 2 of the Convention to protect life, in particular by taking measures at preventing the alleged suicide?

Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), was the investigation in the present case by the domestic authorities sufficient to meet their obligation to carry out an effective investigation, as required by Article 2 of the Convention?

2. Was Mr Zeitun Gayev ill-treated by agents of the State, in breach of Article 3 of the Convention?

Having regard to the procedural obligation arising from Article 3 of the Convention, was there an investigation conducted by the domestic authorities into the alleged instances of ill-treatment capable of meeting the criteria of an effective investigation?

3. Was Mr Zeitun Gayev deprived of liberty within the meaning of Article 5 § 1 of the Convention? Was his detention compatible with the guarantees of Article 5 §§ 1-5 of the Convention?

4. Did the applicant have at her disposal effective domestic remedies in respect of the above complaints, as required by Article 13 of the Convention?

5. The Government are invited to submit a copy of the entire investigation file in criminal case no. 71/478-07 instituted in relation to Mr Zeitun Gayev ’ s death .