I correctly predicted that there was a violation of human rights in UDUT v. RUSSIA.

Judgment

THIRD SECTION

CASE OF UDUT v. RUSSIA

(Application no. 1115/10)

JUDGMENT

STRASBOURG

28 May 2019

This judgment is final but it may be subject to editorial revision. In the case of Udut v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,Dmitry Dedov,Jolien Schukking, judges,and Stephen Phillips, Section Registrar,
Having deliberated in private on 7
May 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 1115/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Nailya Zakirovna Udut (“the applicant”), on 11 November 2009. 2. The applicant, who had been granted legal aid, was represented by Mr E. Markov, a lawyer practising in Strasbourg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. The applicant complained under Article 2 of the Convention of the failure of the domestic authorities to carry out an effective investigation into her daughter’s death. 4. On 29 January 2015 notice of the application was given to the Government. 5. On 22 January 2019 the Government were informed that the case had been assigned to a Committee. They did not raise any objection. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1958 and lives in Tolyatti. A. Death of the applicant’s daughter and investigation thereof
7. On 8 May 2007 the applicant’s daughter, Z., was found hanged in the apartment where she had been living with her husband, Ch., and their two minor children. 8. On the same day the law-enforcement bodies of the Nenetskiy Autonomous Region were informed of Z.’s death. An on-site inspection and an initial examination of Z.’s body were carried out. Statements were obtained from those who had had contact with Z. shortly before her death and a post-mortem examination of Z.’s body was ordered. 9. The post-mortem examination (in a report of 1 June 2007) established that Z. had died as a result of mechanical asphyxia caused by deliberate self‐harm by means of hanging. Apart from a strangulation mark, multiple bruises and abrasions were discovered on Z.’s face, forearms and shins which could have manifested shortly before Z.’s death as a result of impacts from blunt objects, such as blows inflicted on her face, arms and legs at the hands of another person. Ethyl alcohol was found in Z.’s blood and urine, which confirmed that she had been in a state of alcohol intoxication. 10. In May to June 2007 the applicant lodged complaints with the Nenetskiy Regional Prosecutor’s Office, seeking to have criminal proceedings instituted against her son-in-law, Ch., who she alleged had incited Z. to commit suicide by inflicting regular beatings and other violent actions on her. 11. Between 18 May 2007 and 14 October 2009 nineteen decisions were taken by an investigator refusing to institute a formal criminal investigation into Z.’s death. The pre-investigation inquiry established that Z., in a state of alcohol intoxication and after having had a row with Ch., had committed suicide by hanging herself. The above decisions were subsequently set aside by the supervising prosecutor and by the Naryan-Mar Town Court of the Nenetskiy Autonomous Region (“the Town Court”) as unlawful and unsubstantiated. On each occasion it was noted that the instructions, given to the investigator by the prosecutor and the head of the criminal investigations department, to carry out procedural measures aimed at establishing the existence of the circumstances mentioned in the applicant’s complaint and the circumstances surrounding Z.’s death, had not been complied with. 12. On 13 November 2009 the applicant complained to the Regional Prosecutor’s Office of the failure of the criminal investigations department and the police department to carry out comprehensive and prompt inquiries into the death of her daughter. 13. On the same day the first deputy prosecutor of the Regional Prosecutor’s Office held that there had been a failure to comply with the law and the requirement of promptness in carrying out the inquiry into Z.’s death by the officers of the criminal investigations department and the police department, which had violated the applicant’s rights. 14. Subsequently, on 15 December 2009 the investigator took another decision refusing to institute a criminal investigation into Z.’s death. 15. On 16 September 2011 the chief of the Inter-District Investigative Department of the Investigation Committee of the Russian Federation for the Arkhangelsk Region and the Nenetskiy Autonomous Region set aside the decision of 15 December 2009 as unlawful and unsubstantiated. He noted, in particular, that the investigator had not given due consideration to information received from several persons to the effect that Ch. had regularly subjected Z. to beatings and humiliation. In order to establish the circumstances of the incident and the reasons and the motives for the suicide, the chief investigator considered it necessary to carry out investigative measures involving, in particular, specialists and experts in psychology and psychiatry, which was only possible in the framework of a criminal investigation. 16. On 19 September 2011 criminal proceedings were instituted against Ch. under Article 110 of the Criminal Code (incitement to commit suicide). 17. On 20 September 2011, however, the deputy prosecutor of the Nenetskiy Autonomous Region set aside the above decision. 18. Following another round of pre-investigation inquiries, on 24 October 2011 the institution of a criminal investigation into the death of Z. was again refused under Article 24 § 1 (2) of the Code of Criminal Procedure, in view of a lack of the constituent elements of a crime under Article 110 of the Criminal Code in Ch.’s actions and the absence of any crime under Article 105 § 1 of the Criminal Code (murder). The investigator arrived at the conclusion that Z.’s decision to commit suicide had not been provoked by any actions of Ch. amounting to inhuman or degrading treatment. Z. had been in a state of severe alcohol intoxication and could not have fully understood her actions when taking the decision to take her own life. The bruises and abrasions on Z.’s face and body could have originated during a heated altercation with Ch. shortly before the former’s death. No direct evidence in support of the theory that Ch. had ill-treated Z. had been discovered. Even assuming that the two disclosed instances of Z. being beaten by Ch. (in 2005 and 2007) had indeed taken place, they would have been one-off unrelated events occurring under unspecified circumstances and could not have been connected to Z.’s decision to take her own life. Furthermore, Z. had not been fully dependent on Ch. or particularly vulnerable. According to Z.’s relatives, she could have left Ch. at any time, divorced him, taken the children and changed her place of residence. She could also have sought medical assistance, and/or complained about Ch.’s actions to the police. However, she had not done so. At the same time she had told her relatives that she loved her husband and did not want to divorce him. The case file further contained information indicating that Ch. had inflicted beatings on Z. in June 2006, of which Z. had complained to the police. However, Z.’s submissions had been inconsistent and she had eventually refused to pursue those proceedings. The applicant’s theory that Ch. had staged the suicide had been checked and found to be unsupported by the material in the case file. 19. Following a complaint by the applicant, on 10 September 2013 the Town Court found the decision of 24 October 2011 lawful and justified. B. Criminal proceedings against Ch. on account of regular beatings
20. In the meantime, on 8 May 2008 it had been established by the investigator that Ch.’s actions in respect of Z. contained the elements of a criminal offence under Article 117 § 1 of the Criminal Code (causing physical suffering by inflicting regular beatings) for the period between 19 June 2006 and 8 May 2007. The relevant material was submitted for a pre-investigation inquiry to the Nenetskiy Autonomous Region police department. 21. Between May 2008 and March 2010 at least seventeen decisions were taken by the police department refusing to institute criminal proceedings against Ch. under Article 117 § 1 of the Criminal Code, all of which were subsequently set aside by the supervising prosecutor as unlawful and unsubstantiated. 22. On 24 June 2010 criminal proceedings were instituted against Ch. under Article 117 § 1 of the Criminal Code. 23. On 7 July 2010 the applicant was granted victim status in the proceedings. 24. On 13 April 2011 Ch.’s actions were reclassified as inflicting beatings, thus coming under Article 116 § 1 of the Criminal Code, but charges under this Article could not be pursued in the absence of an application by the victim. Accordingly, the criminal proceedings were discontinued on the basis of Article 24 § 1 (5) of the Code of Criminal Procedure. C. Civil claim for damages
25. In April 2009 the applicant brought civil proceedings against the Ministry of Finance seeking damages for the non-pecuniary harm caused to her by the failure of the domestic authorities to carry out an effective investigation into the circumstances of her daughter’s death. 26. On 5 June 2009 the Naryan-Mar Town Court dismissed the applicant’s claim. 27. On 16 July 2009 the Nenetskiy Autonomous Regional Court upheld the judgment on appeal. II. RELEVANT DOMESTIC LAW
28. The provisions of the Code of Criminal Procedure governing the procedure for examining a criminal complaint are set out in Manzhos v. Russia (no. 64752/09, §§ 24-27, 24 May 2016). Article 144 of the Code, which defines the scope of a “pre-investigation inquiry”, was amended by Federal Law no. 23-FZ of 4 March 2013. The 2013 amendments expanded the list of investigative measures which may be carried out before reaching a decision on whether or not criminal proceedings should be instituted. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
29. The applicant complained that the domestic authorities had failed to carry out an effective investigation into the death of her daughter. She relied on Article 2 of the Convention, which, in so far as relevant, reads:
“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.”
30. The Government argued that the investigation carried out into the death of the applicant’s daughter had been in compliance with the requirements of Article 2 of the Convention. It had started immediately after the law-enforcement agencies had received a report on Z.’s death, and had been effective and thorough. The measures necessary to establish the circumstances and the cause of Z.’s death, as well as the examination of its possible criminal nature and the involvement of third parties, had been undertaken by the pre-trial investigation agency within a month and a half of the incident. The length of the investigation had been caused by numerous complaints brought by the applicant, in which she had raised new arguments regarding crimes allegedly committed by Ch. in respect of her daughter and pointed to new circumstances to be examined or specified. The Government concluded, therefore, that the applicant’s complaint was manifestly ill-founded. 31. The applicant maintained her complaint. She argued that the investigating authorities had failed to consider any other version of events in respect of her daughter’s death aside from suicide. The applicant noted that between May 2007 and October 2011 twenty decisions had been taken refusing to institute criminal proceedings against Ch. on the count of incitement to commit suicide and between May 2008 and June 2010 twenty decisions had been taken refusing to institute criminal proceedings against Ch. on the count of inflicting regular beatings. The applicant contended that this was a strong indicator of the ineffectiveness of the investigation. It had been repeatedly noted by the supervising prosecutors and the courts that the inquiries had been incomplete and the decisions refusing to institute criminal proceedings had been unlawful and unsubstantiated. The applicant outlined the major deficiencies of the investigation which had undermined the authorities’ ability to establish the true cause of her daughter’s death and to identify the perpetrator. She further noted that the investigators had been limited in their powers since the pre-investigation inquiry had never progressed to the stage of a criminal investigation and had therefore not been capable of meeting the requirements of an effective investigation under Article 2 of the Convention. The criminal proceedings opened against Ch. in June 2010 had been limited to the beatings inflicted on Z. Lastly, the applicant noted that she had not been afforded an opportunity to participate effectively in the proceedings. A. Admissibility
32. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
33. The general principles concerning the State’s obligation inherent in Article 2 of the Convention to investigate cases where there has been a deprivation of life caused by private individuals have been summarised in the case of Mazepa and Others v. Russia (no. 15086/07, §§ 69-70, 17 July 2018). 34. The Court observes that on 8 May 2007 the applicant’s daughter, Z., was found hanged in her flat. The post-mortem examination established that she had died as a result of asphyxia. Apart from a strangulation mark, multiple bruises and abrasions were discovered on Z.’s face, forearms and shins which could have originated shortly before her death as a result of impacts from blunt objects, such as blows inflicted on her face, arms and legs at the hands of another person (see paragraph 9 above). The applicant sought to have criminal proceedings instituted against her son-in-law, Ch., laying the blame at his door for inciting Z.’s suicide. 35. The Court further observes that in the span of over four years from May 2007 to October 2011 the circumstances surrounding the applicant’s daughter’s death gave rise to twenty-one sets of pre-investigation inquiries, all resulting in decisions refusing to institute criminal proceedings (see paragraphs 11, 14 and 18 above). All but the most recent decision to refuse to institute criminal proceedings were set aside by the supervising prosecutor and the Town Court as unlawful and unsubstantiated. On each occasion it was noted that the instructions given to the investigator by the prosecutor to carry out procedural measures aimed at establishing the existence of the circumstances mentioned in the applicant’s complaint and the circumstances surrounding Z.’s death had not been complied with. Although within the above period criminal proceedings were in fact instituted on one occasion in September 2011, the decision in question was set aside on the following day and was, therefore, of no significance to the investigation. 36. The Court reiterates that the protracted nature of proceedings is a strong indication that they were defective to the point of constituting a violation of the respondent State’s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify the length of the proceedings (see Mazepa and Others, cited above, § 80). It notes in this connection that in November 2009 the Regional Prosecutor’s Office even stated, in reply to the applicant’s complaint, that the domestic authorities’ failure to comply with the law and the requirement of promptness in carrying out the inquiry into Z.’s death had violated the applicant’s rights (see paragraphs 12-13 above). 37. The Court has previously found in many Russian cases that the authorities, when confronted with credible allegations of ill-treatment or deprivation of life by State agents, have a duty to open a criminal case and conduct an investigation, a “pre‐investigation inquiry” alone not being capable of meeting the requirements of an effective investigation under Articles 2 or 3 of the Convention. That preliminary stage was found to have too restricted a scope and could not lead to the identification and punishment of the perpetrators of the alleged ill-treatment or deprivation of life, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against alleged perpetrators, which may then be examined by a court. The Court has held that a refusal to open a criminal investigation into credible allegations of serious ill‐treatment or deprivation of life is indicative of the State’s failure to comply with its procedural obligations under Articles 2 and 3 of the Convention (see Ilgiz Khalikov v. Russia, no. 48724/15, § 35, 15 January 2019, with further references, and Dalakov v. Russia, no. 35152/09, § 71, 16 February 2016). 38. The Court notes that the context of the case at hand is different in that the deprivation of life had allegedly been incited by a private person rather than a State agent. The Court considers, however, that since in both cases the requirements in respect of an official investigation are similar, its previous findings under Articles 2 and 3 of the Convention should be equally applicable to situations where there are credible allegations of ill‐treatment or deprivation of life at the hands of private individuals. 39. Having regard to the foregoing, the Court considers that the limited scope, the lack of reasonable expedition and the general inefficiency of the many rounds of pre-investigation inquiries, resulting in repeated refusals, over the course of four and a half years, to institute criminal proceedings into the death of the applicant’s daughter attest to the absence of a genuine and serious investigative effort on behalf of the domestic authorities to ascertain the circumstances surrounding the death. Accordingly, the Court does not consider it necessary to analyse every alleged deficiency in the domestic proceedings. The absence of a criminal investigation leads it to the conclusion that the Russian authorities did not comply with their procedural obligation under Article 2 of the Convention to investigate the applicant’s daughter’s death on 8 May 2007 (see S.M. v. Russia, no. 75863/11, §§ 69‐73, 22 October 2015). 40. There has therefore been a violation of the State’s procedural obligation under Article 2 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
41. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
42. The applicant claimed 50,000 euros (EUR) in respect of non‐pecuniary damage. 43. The Government considered that amount to be excessive. 44. The Court observes that the prolonged failure of the authorities to give satisfactory answers to the questions raised by Z.’s death must have caused the applicant – her mother – acute mental suffering. At the same time, the Court’s findings under Article 2 in the present case are of a procedural nature. In the light of all the material in its possession and making its assessment on an equitable basis, the Court awards the applicant EUR 19,500 on account of non‐pecuniary damage, plus any tax that may be charged on this amount. B. Costs and expenses
45. The applicant also claimed EUR 3,050 for her legal representation before the Court and associated administrative expenses (telephone calls and postal, photocopying and printing expenses), to be paid directly into the bank account of her lawyer. She submitted (i) a copy of a legal services agreement with Mr E. Markov, (ii) an invoice reflecting the amount of legal work performed in the case (25 hours at the rate of EUR 120 per hour), and (iii) receipts supporting the administrative expenses. The applicant further claimed EUR 2,700 for other costs and expenses incurred before the domestic courts and the Court, calculated on an approximate basis and not supported by relevant documents, to be paid into her own bank account. 46. The Government argued that the applicant’s claim for costs and expenses that she had allegedly incurred was unsubstantiated and should therefore be dismissed. As regards legal fees and associated administrative expenses incurred by Mr E. Markov, the Government noted that the lawyer’s hourly rate and the total amount due from the applicant had not been specified in the legal services agreement. Furthermore, they submitted that the number of hours claimed by the lawyer for research and preparation of the observations in the case had been excessive. 47. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and taking note of the fact that the applicant has benefited from legal aid which has already been paid to her representative in the amount of EUR 850, the Court considers it reasonable to award the sum of EUR 2,200, for the proceedings before the Court, to be paid directly into the bank account of Mr E. Markov, plus any tax that may be chargeable to the applicant on that amount. It rejects the remainder of the claim for costs and expenses. C. Default interest
48. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;

2. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;

3. Holds
(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 19,500 (nineteen thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,200 (two thousand two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the bank account of Mr E. Markov;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 May 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsAlena PoláčkováRegistrarPresident