Abduction and disappearance of a citizen by the police. Violation of procedural and substantive aspects of the right to life

JUDGMENT

Murdalovy v. Russia  31.03.2020 (no. 51933/08)

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SUMMARY

Police abduction and subsequent disappearance of a relative of the fugitives during a counter-terrorism operation in Chechnya. Lack of effective investigation into his disappearance and possible death. Violation of Article 2 of the ECHR (right to life).

Torture by the police. Effective investigation and conviction of the guilty police officer for abuse. Urban compensation of relatives. The amount paid to the first applicant by the national courts as compensation for the torture suffered by his relative was reasonable. Non-violation of Article 3 of the ECHR (prohibition of torture).

Finally, the ECtHR found that the applicants did not have at their disposal effective remedies for their allegations under Articles 2 and 3 of the Convention, in breach of Article 13. Violation of Article 13 (right of appeal) of the ECHR.

PROVISIONS

Article 2

Article 3

Article 13

PRINCIPAL FACTS

  1. Abduction and ill-treatment of Mr Murdalov

According to the applicants, at 11 a.m. on 2 January 2001 Mr Murdalov was walking along Musorov Street in Grozny, next to the Oktyabrskiy District temporary department of the interior (“the VOVD”) when six police officers surrounded him, searched him under the pretext of suspicion of his unlawfully using drugs, and then beat him. Then the officers put a coat over his head and forced him into the VOVD. Subsequently, an investigator, Zh., formally arrested Mr Murdalov and opened criminal case no. 15201/03 against him under Article 228 of the Criminal Code (illegal possession of drugs). It appears that subsequently the criminal case was terminated owing to the absence of corpus delicti.

At the VOVD a police officer, L. – also known by the nickname of “Cadet” (Кадет) – subjected Mr Murdalov to beatings with fists, boots and a baton with the aim of forcing him to become an informant for the police. At about 7 p.m. on 2 January 2001 Mr Murdalov was transferred to the VOVDs temporary detention unit (“the IVS”) with visible injuries, which were recorded by a doctor. Those injuries included head trauma with loss of consciousness, disruption to breathing, an open fracture of the left arm, and a torn ear. Then Mr Murdalov was placed in a cell, where he suffered several strokes. The doctor was called to the cell and administered some injections.

On 3 January 2001 Zh., the investigator, handed an order for Mr Murdalovs release to officer L. The latter, apparently having falsified the signature of Mr Murdalov, returned the release order to the investigator in order to deceive the investigator into believing that Mr Murdalov had been released. Later on the same day, Mr Murdalov was taken from his cell by several police officers, including officer L. (who had beaten him). He has not been seen since.

The Government did not dispute the facts, as submitted by the applicants

B. Official investigation into the incident

The second investigation, number 90003, was opened into his ill-treatment by three police officers and their alleged malfeasance and abuse of power. The third investigation, number 61883, was opened into his ill-treatment by two police officers and their alleged malfeasance and abuse of power . The fourth investigation, under an unknown number, (which was opened into the murder of Mr Murdalov) and the fifth investigation (under the number 252/404523-15) were merged into one criminal investigation concerning his murder and disappearance.

By decisions dated 18 and 26 January 2016 the criminal proceedings against officers P. and M. respectively were terminated for lack of corpus delicti in their actions. In the wording of those decisions, the investigators stated that the investigation had found no evidence indicating that either officer M. or officer P. had abused their power or inflicted injuries on Mr Murdalov. The decisions also stated that of seven eyewitnesses interviewed in the course of the investigation, only officer L. – when questioned in the absence of his lawyer – had given a statement incriminating officers M. and P; however, he had subsequently – in the presence of his lawyer – retracted his earlier statement in respect of both officers as having allegedly been given under duress. Furthermore, during a subsequent confrontation held with officers M. and P., officer L. had not reaffirmed his allegation that M. and P. had been involved in Mr Murdalovs ill-treatment.

On 22 March 2016 the first applicant wrote to the Deputy Prosecutor General requesting that officers P. and M. be prosecuted for their alleged involvement in his sons ill-treatment and possible murder. In reply, he was informed that an inquiry into Mr Murdalovs murder had been opened.

On an unspecified date between 2003 and 2004 the investigators in criminal case no. 90003 charged officer L. with abuse of power, the infliction of serious injuries on Mr Murdalov, and malfeasance

On 29 March 2005 the Oktyabrskiy District Court in Grozny found officer L. guilty of offences under Articles 111 (serious damage to health), 286 (abuse of power) and 292 (official malfeasance) of the Criminal Code and sentenced him to eleven years imprisonment and banned his employment in the sphere of law enforcement for three years. The court found it established that officer L. had subjected Mr Murdalov to illtreatment by punching, kicking and hitting him with batons with the aim of forcing him to become an informant for the police. 

Γ. The third investigation no. 61883, also concerned his ill-treatment by two police officers and allegations of abuse of power, which merged with the latter investigation.

D. Two other investigations were also carried out that merged into one on murder and disappearance. On May 28, 2016, the investigation was suspended due to the non-identification of the perpetrators. The first applicant was informed. There is no information on further developments in these procedures.

C. Civil proceedings for non-pecuniary damage
On 24 February 2009 the first applicant lodged an application with the District Court requesting that he be granted the status of a political plaintiff in the case concerning the disappearance of Murdalov. Referring to the prosecution of police officer L., he demanded compensation of 10,000,000 Russian rubles (216,000 euros) for material damage and moral damage caused by the mistreatment and disappearance of Murdalov, as well as the expenses.

On June 11, 2009, the District Court, referring to L.’s prosecution, awarded the first 500,000 rubles (approximately € 11,500) in compensation for Murdalov’s misconduct. This decision became irrevocable on 15 September 2009.

THE DECISION OF THE COURT…

Άρθρο 2 (ουσιαστική και διαδικαστική πτυχή)

The court has already ruled that Murdalov should be considered dead after his detention. In the absence of any contrary memorandum or any explanation from the government, the Court found that his death could be attributed to the State and that there had been a breach of the substantive aspect of Article 2 concerning Murdalov.

The Court has already found that a criminal investigation is not an effective remedy in relation to the disappearances that took place in Chechnya between 1999 and 2006 in particular and that such a situation constitutes a systemic problem under the Convention.

In this case, as in many similar cases examined by the ECtHR, the investigation has been pending for many years without significant developments regarding the identity of the perpetrators or the fate of Murdalov. While the obligation to conduct an effective investigation is considered a means and not an outcome, the Court notes that the criminal proceedings were marred by misconduct. The investigation was repeatedly suspended, and these suspensions were followed by periods of inactivity, which further reduced the chances of the crime being investigated. Furthermore, the case file shows that investigators have taken measures only to investigate the infliction of bodily harm and abuse of power (criminal cases 90003 and 61883), while the proceedings have not progressed in relation to the disappearance and murder (criminal cases). cases 15004 and 252 / 404523-15). No timely and thorough action was taken by investigators to locate and question the witnesses – including police officers, who could have seen Murdalov there and could have been involved in his disappearance and death. Finally, L.’s involvement in the disappearance should have been at the heart of the research conducted by the national authorities.

Based on the above, the Court found that the authorities did not conduct an effective criminal investigation into the circumstances of Mr Murdalov’s disappearance and death. As a result, there has been a violation of the procedural aspect of Article 2 of the ECHR.

Article 3

The applicants also complained that Mr Murdalov had been tortured by the police and that the investigation into his mistreatment was ineffective.
With regard to the government’s allegation that the second and third applicants were omitted to bring legal action, the Court notes that none of them (unlike the first applicant) ever sued Murdalov for misconduct by the national courts, who would otherwise have had the opportunity to look into the matter, since the perpetrator of the abuse had been identified and prosecuted (such as Officer L.).

Taking into account the evidence presented, the Court found that the first applicant had filed a claim for damages and that the amount paid by the national courts as compensation for the torture Murdalov had suffered was reasonable.

In addition, the Court held that the defendant State had fulfilled its obligations under Article 3 of the Convention to conduct an effective investigation into Murdalov’s mistreatment.
In view of the above, the Court can only find that there has been no violation of Article 3 of the ECHR on the mistreatment of Murdalov.

Article 13 in conjunction with Articles 2 and 3

The applicants complained that, contrary to Article 13 of the Convention, they had been deprived of effective legal remedies in respect of their allegations under Article 2 of the Murdalov Disappearance and Mortality Act under Article 3 of the Convention on the mistreatment of Mr Murdalov. Murdalov and their own mental anguish.

The Court reiterates its findings on the general ineffectiveness of criminal investigations into cases such as this one. In the absence of an effective criminal investigation, any other possible remediation was inaccessible in practice. Consequently, the ECtHR found that the applicants did not have at their disposal an effective remedy for their complaints under Article 2 of the Convention, in breach of Article 13.

In addition, the ECtHR considers that the applicants did not have at their disposal an effective remedy for their grievances under Article 3 in respect of the moral damage caused by the disappearance of their close relative in breach of Article 13 in conjunction with Article 3. of the contract

Article 41

The ECtHR awarded each of the first and second applicants the amounts: EUR 5,000 in compensation, EUR 80,000 for non-pecuniary damage and EUR 2,000 for expenses and expenses.


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