PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES, JOINED BY JUDGE SPIELMANN

I agree with the Court ’ s finding in this case, except as regards the conclusion that there has been no violation of Article 2 of the Convention in its substantive aspect with regard to the killing of Salaudi Zubayrayev.

Evidence for the killing in question was submitted by the applicant ’ s mother, who testified that:

“in the early hours of 17 September 2000 the family had been woken by loud screams. A large group of men in camouflage uniforms and, in some instances, masks, whom she identified as belonging to the Russian special services (“ spetsnaz ”), entered the house and forced all the inhabitants outside. They were not allowed to get dressed and no reasons were given for their intervention. According to her, the intruders wore insignia of the Russian army and spoke Russian without an accent.

According to the applicant, the inhabitants of the house were lined up in the courtyard facing the wall and their passports were collected. The servicemen read out the names in the passports one by one. One of the applicant ’ s brothers, Magomed, was not at home that night and the men asked about his whereabouts. The applicant ’ s father Salaudi (also spelled Salavdi) Zubayrayev replied that he was not at home. The intruders hit the applicant ’ s other brother, Khasan Zubayrayev, with a rifle butt on the head and led the applicant ’ s father away. They then forced the women into one of the rooms. In the meantime others opened all the rooms in the house and searched them. They collected valuables and family photographs.

Once the armed men had left, the women went outside and found Khasan in the courtyard. The body of the applicant ’ s father was found about 100-200 metres from the house. He had been shot in the back of the head with an automatic rifle ” (paragraphs 10-12 of the judgment).

This evidence shows that the murder was committed openly and fearlessly. In my opinion, this argues in favour of a conclusion that the crime resulted from organised military action by a group of persons who did not expect that they would be arrested or prosecuted. In other words, persons who were backed by the State authorities.

Furthermore, there is evidence, accepted by the majority, that the authorities “failed to carry out an effective criminal investigation into the circumstances surrounding ... Zubayrayev[ ‘ s] death, and therefore there was a violation of Article 2 in its procedural aspect” (paragraph 102). This is particularly strong corroboration of the fact that the killing of Mr Zubayrayev was carried out by members of the Russian army: a murder by a group of persons who, according to the Government, were other than Government agents would have provided strong grounds for an immediate, quick and effective investigation. Thus, the lack of interest in any proper and effective investigation evidently strengthens the version that the killing was the work of Government agents.

Moreover, the Court rightly found that “there has been a failure to comply with Article 38 §§ 1 (a) of the Convention because the Government ... refused to disclose most of the documents of substance from the criminal investigation file ... ; ... the Court consider[ed] the Government ’ s explanations concerning the disclosure of the case file insufficient to justify the withholding of the key information requested by the Court. ... the Court [found] that it can draw inferences from the Government ’ s conduct in this respect. ... and note[d] that there has been a breach of the obligations laid down in Article 38 § 1 (a) of the Convention to furnish all necessary facilities to the Court in its task of establishing the facts” (paragraphs 76 and 77). Again, this conduct on the part of the Government amounts to sufficiently strong, clear and concordant inference supporting the testimony of the applicant ’ s mother. The majority found that the evidence in support of the version that Mr Zubayrayev had been killed by Government agents was insufficient to prove such a version beyond reasonable doubt. In this respect the majority relied on the following aspects:

a. the domestic investigation failed to produce any tangible results as to the identities of the persons who committed the murder (paragraph 91);

b. [t]he applicant was unable to submit persuasive evidence to support his allegations that State agents had been the perpetrators of the murder (paragraph 91);

c. although - in view of the evidence of the applicant ’ s mother, coupled with the fact that they did not disclose the documents required by the Court - the burden of proof was on the Government to disprove any responsibility on the part of its agents, the Court had already noted that “it had been unable to benefit from the results of the domestic investigation owing to the Government ’ s failure to disclose certain documents from the file. Nevertheless, it is clear that the investigation did not identify the perpetrators of the killings and did not establish the circumstances of the death of the applicant ’ s father” (paragraphs 80-81);

d. “unlike the position in [other] cases, the applicant and his family members have never communicated to the authorities their version of [the] events, as the statement of the applicant ’ s mother was produced only in connection with her application to Strasbourg. Nor is the Court aware of any similar allegations by other families of the victims. There exists no independent confirmation in the press or NGO reports of the applicant ’ s contention” (paragraph 84);

e. the majority was unable to establish ‘ beyond reasonable doubt ’ that Salaudi Zubayrayev was deprived of his life by State agents (paragraph 91).

I feel that the above arguments are weak, and insufficient to destroy the credibility of the version of the applicant ’ s mother as corroborated by the above-mentioned conduct of the Government. I do not think that it is reasonable to refer to the result of an investigation which the Court has just found to be inadequate in order to substantiate the statement that “Nevertheless, it is clear that the investigation did not identify the perpetrators of the killings and did not establish the circumstances of the death of the applicant ’ s father” (paragraph 81). The applicant produced testimony by his mother and corroboration in support of it, and no reason has been produced as to why she could possibly have had a motive to lie. Among the facts included in her statement is direct evidence that the people who killed the applicant ’ s father “wore insignia of the Russian army”. The majority does not seem to have attached appropriate weight to this aspect. It is not even repeated in the conclusions of the judgment. At the same time, I do not understand what the majority means by saying that the applicant did not “submit persuasive evidence”. I will not repeat the evidence here but I consider it necessary to point out that the evidence already referred to above is coherent, spontaneous and corroborated. The fact that it comes from only one witness does not detract from its credibility, nor is this a factor affecting the strength of such evidence. Times have changed. Proof of the truth in judicial proceedings no longer requires a minimum number of witnesses, as was once the case in many ancient legal systems.

The fact that “the applicant and his family members have never communicated to the authorities their version of [the] events” is of no consequence if one bears in mind the tragic and dangerous conditions prevailing in the area of residence of the applicant and his family and the nature of the crime in question. Surely persons whose relative was murdered in the way described before the Court in this case are not expected to seek remedy from the same authorities to which the murderers belonged? That others pursued similar complaints before the same authorities does not make the reluctance of the complainants in this case any less justified, especially if one bears in mind that, in general, those other complaints did not result in any effective remedy or, in most cases, in any effective investigation.

The majority has not been convinced “beyond reasonable doubt” that Salaudi Zubayrayev was deprived of his life by State agents.

The “reasonable doubt” formula originates from the common-law world. In the common law, especially in England , the phrase “reasonable doubt” has given rise to confusion as a result of courts ’ many attempts to define or explain its meaning. Furthermore, other expressions have been employed as an alternative to that form of direction: for example, the jury should be “satisfied” of guilt, or “satisfied so that they can feel sure” or even “reasonably satisfied”. One famous criminal lawyer, Professor Glanville Williams, suggested that there is no objection to stating that a reasonable doubt “is one for which a sensible reason can be supplied” [1] or that such doubt means “not a mere fanciful doubt, but one to which a reasonable man would give weight.”

However, it is interesting to quote here a much praised explanation of the phrase in question by Lord Denning, who said:

“The degree of cogency need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘ Of course it is possible, but not in the least probable ’ , the case is proved beyond reasonable doubt, but nothing short of that will suffice [2] .”

The explanation has a certain similarity with what the European Commission of Human Rights stated in the “ Greek c ase ” [3] , where it held:

“That a reasonable doubt means not a doubt based on a merely theoretical possibility or raised in order to avoid a disagreeable conclusion, but a doubt for which reasons can be drawn from the facts presented”.

In the case of Ireland v. the United Kingdom [4] the Court stated that it:

“ a dopts the standard of proof beyond reasonable doubt but adds that such proof may follow from the co-existence 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” (emphasis added).

For the above reasons I find that there has been also a violation of Article 2 in its substantive aspect.

[1] Criminal Law, General Part, Second Ed., p. 873

[2] M iller v. Minister of Pensions [1947] 2 All E.R. 372. See also R. v. Bracewell (1978) 68 Cr. App. Rep. 44 at. 49, where it is pointed out that proof beyond reasonable doubt does not mean proof “to a scientific certainty”. There is no such thing as certainty in this life, absolute certainty. You ask yourselves the simple question upon the whole of the evidence  - do I feel sure?”

[3] The Greek case, Yearbook 12.

[4] Judgment of 18 January 1978, Series A, n o. 25, p. 65, para. 161.