Strasbourg Observers

Estemirova v. Russia: A missed opportunity for the protection of human rights defenders

October 08, 2021

By Dr Cornelia Klocker

Does the finding of an ineffective investigation and a violation of the duty to cooperate compensate for a non-engagement with the substantive limb of Article 2 ECHR? Natalia Estemirova was one of the most prominent human rights defenders in Chechnya, investigating and documenting cases of enforced disappearances, abductions, torture and extrajudicial killings until she herself fell victim to these practices. While the Court has found that the authorities did not conduct an effective investigation into her abduction and murder in the case Estemirova v. Russia handed down on 31 August 2021, it held that the involvement of state agents was not proven ‘beyond reasonable doubt’ due to a lack of evidence – the Government refused to disclose the full case file on the domestic investigation, even after an explicit request by the Court to do so. Yet should the applicant, Natalia Estemirova’s sister, bear the consequences of this lack of evidence when the blame for it lies with the Government? This post discusses the facts and findings of the case, the question of evidence in the context of uncooperative states and the situation of human rights defenders in Chechnya since Natalia Estemirova’s murder in 2009.

Overview of the facts and judgment

In the morning of 15 July 2009, Natalia Estemirova was abducted by unidentified persons close to her home in Grozny, Chechnya. Later in the afternoon, she was found dead in a field near a motorway in the neighbouring Republic of Ingushetia. An investigation into her abduction and murder was opened right away on the same day, headed by the chief of the Russian Investigative Committee of the Prosecutor General’s Office due to the high profile of the case. The investigation concluded that Natalia Estemirova was abducted and killed by Mr Bashayev, member of the militant group Shalazhi jamaat. As for the motive, the investigation noted Natalia Estemirova’s reporting on the human rights violations committed by the group as well as the use of the crime to frame the Chechen authorities for the murder of a well-known human rights defender. Mr Bashayev was charged with her abduction and murder in February 2010 in his absence, and many members of Shalazhi jamaat had been killed three months earlier in an air attack. Mr Bashayev’s whereabouts are unknown, and he could have been amongst those killed in the air attack. According to the documents made available by the Russian authorities to the Court, the investigation into Natalia Estemirova’s abduction and murder was still ongoing (paras. 9-15).

The applicant highlighted that the investigation was one-sided and did not follow other possible leads, such as the abduction and murder by state agents. Natalia Estemirova had investigated human rights violations committed by state agents and as a result of this she had received threats from officials. A former colleague of hers reported that in 2009, he had been stopped by men in military uniforms driving a car of the same model as the one used in the abduction of Natalia Estemirova. Two unidentified persons came forward over the years to state that they had seen the abduction and that the kidnappers were military officers and armed men (para. 47). Furthermore, the applicant held that the conclusions reached by the investigators were not credible, pointing to several incidents of conflicting expert reports on the analysis of the bullets found on the crime scene and the silencer and gun found at Mr Bashayev’s home, the mismatch in soil samples from the crime scene and the car, the loss of original DNA samples, questionable statements by state officials and no explanation as to why Mr Bashayev’s DNA was not present on the crime scene (paras. 47-53). The government contested these allegations (paras. 54-58).

The Court found a violation of Article 2 ECHR under its procedural limb as the authorities did not conduct an effective investigation into the abduction and murder of Natalia Estemirova. In addition, it found that the Government had failed to comply with its obligations under Article 38 ECHR due to its unwillingness to cooperate with the Court and provide the complete case file of the domestic investigation. However, the Court did not find a violation of Article 2 ECHR under its substantive limb as it held that the applicant was unable to prove ‘beyond reasonable doubt’ that state agents were involved in the abduction and murder of her sister.

As this short summary suggests, the question of evidence was at the centre of the case. While the Court itself suggested that the main issue impeding the full and fair assessment of the applicant’s case was the Government’s non-disclosure of crucial information, it did not follow through to draw an inference from this behaviour on the well-foundedness of the applicant’s claim and did not accept prima facie evidence for the involvement of state agents in the abduction and murder of Natalia Estemirova.


Proof “beyond reasonable doubt”, evidence and Article 2 ECHR

Article 2 ECHR procedural aspect

While the Court noted several times that the Government did not disclose the main share of the domestic case file, it also stated that the authorities ‘did not remain idle’ (para. 68). Yet opening an investigation hours after the murder and effectively investigating it are two different things. Looking at the parts of the case file provided by the Government, it becomes clear that the investigation was marred with inconsistencies: consulted experts were unable to confirm that the bullets and cartridges from the crime scene were part of the same ammunition, that the clothes found at Mr Bashayev’s house had been in contact with Natalia Estemirova’s clothes, that the fibres collected in the car belonged to Natalia Estemirova, that the silencer used to kill her belonged to Mr Bashayev’s gun or even that the bullets found on the crime scene were shot from the silencer. In addition, the experts were unable to find soil traces from the crime scene on the car or traces of Mr Bashayev’s DNA (or other members of Shalazhi jamaat) on Natalia Estemirova’s body, the crime scene or the car (para. 69).

Charging a potential suspect when the proof of his involvement has been contested, these doubts not refuted and no other lines of investigation pursued, does not speak for a thorough, impartial and effective investigatory process, or, as the Court put it ‘cast[s] doubt on the thoroughness of the investigation’ (para. 69). Concluding that the investigation was ineffective, the Court found a violation under the procedural limb of Article 2 ECHR by five votes to two (para. 72).

Article 2 ECHR substantive aspect

At the start of its analysis, the Court recalled its judgments on previous abduction cases from the North Caucasus and that it was sufficient for applicants to present a prima facie case for the involvement of state agents in the abduction to reverse the burden of proof. Consequently, should the government fail to provide a convincing explanation of the events, the Court would find a violation of Article 2 ECHR under its substantive limb (para. 63).

The Court listed several instances where a prima facie case had been accepted; such as abductions during special operations (e.g. Gaysanova v. Russia), using special vehicles (e.g. Nazyrova and Others v. Russia), after taking someone to a police department (e.g. Tsakoyevy v. Russia) or during the day near police stations or police officers (e.g. Alikhanovy v. Russia) (para. 64).

In just three paragraphs, the Court concluded that the applicant did not establish such a prima facie case (paras. 65-67). It held that her case was different compared to other abduction cases from the region, as it was committed by a small group of persons away from many witnesses. In addition, it did not give much consideration to the statements by the two unidentified persons who confirmed the involvement of state agents, instead putting more weight on the eyewitness accounts collected right after the abduction. Furthermore, the Court did not engage with the numerous inconsistencies around the crime scene investigation. There was also no consideration of the broader context that could have supported the applicant’s claim: already in 2012, the Court itself held that abductions and enforced disappearances in the region and the failure to investigate them posed a systemic problem and it indicated general measures to be taken to remedy the situation within the framework of Article 46 ECHR (Aslakhanova and Others v. Russia). In the present case however, the Court did ‘not consider it necessary to indicate any general measures’ (para. 92).

In the end, the Court concluded unanimously that the applicant failed to prove ‘beyond reasonable doubt’ that the abduction and murder were committed by state agents and therefore there was no substantive violation of Article 2 ECHR (para. 67).

Article 38 ECHR and the duty to cooperate

The applicant also alleged a violation of Articles 34 and 38 ECHR due to the Government’s refusal to disclose the full domestic investigation file. Under this head, the Court noted the importance of the Government’s duty to cooperate (Article 38 ECHR) to enable individual applications (Article 34 ECHR). This includes the provision of ‘all necessary facilities’ (Article 38 ECHR) to make an effective examination of the application possible (para. 74). Given that the Government did not comply with the Court’s explicit request to hand over the complete file, the Court held that ‘[t]he selective approach to the submission of the investigative materials prevented the Court from having a full and undistorted picture of the investigation which it had to assess’ (para. 76). Consequently, it found a violation of Article 38 ECHR (para. 77).

Articles 2 and 38 ECHR in context: drawing inferences from a non-disclosure of evidence

In the past, the Court has drawn inferences regarding the ‘well-foundedness of the applicant’s allegations’ from the Government’s non-disclosure of requested information (Aktaş v. Turkey, para. 272; Timurtaş v. Turkey, para. 66; Tahsin Acar v. Turkey, para. 254; Nachova and Others v. Bulgaria, para. 147; Ireland v. the United Kingdom, para. 161; Rule 44C (Failure to participate effectively), Rules of Court). While the Court’s role is subsidiary in nature, it can take ‘any investigative measure which it considers capable of clarifying the facts of the case’ (Rule A1(1), Annex to the Rules (concerning investigations)). This is particularly true for cases involving violations of Articles 2 and 3 ECHR (e.g. Aktaş v. Turkey, para. 271; Bitiyeva and X v. Russia, para. 130) and could have enabled a more comprehensive assessment of the case at hand, including the substantive aspect of Article 2 ECHR.

The standard of proof ‘beyond reasonable doubt’ is a maximum standard and its suitability for a human rights court has been questioned (see Separate Opinions of Judge Bonello in Sevtap Veznedaroğlu v. Turkey and Tahsin Acar v. Turkey; Partly Dissenting Opinion of Judge Spielmann in Alibekov v. Russia). Although the critique on this threshold is nothing new, the present case is a prime example of the consequences arising from it: the applicant is unable to present proof ‘beyond reasonable doubt’ of state involvement due to the state withholding the necessary evidence. The consequences of this circle fall squarely on the applicant. One way to mitigate such an outcome lies in the Court’s power to draw inferences from the behaviour of the parties to the case. As Judge Bonello held in the context of a disappearance case with findings of a procedural violation of Article 2 ECHR and of Article 38 ECHR, but not Article 2 ECHR in its substantive aspect:

‘In my view the Court ought to have declared, boldly and defiantly, that, when a State defaults in its duties to investigate and to hand over what evidence it has under its control, the burden of proof shifts. It is then for the Government to disprove the applicant’s allegations. Failure to draw these inferences will only embolden rogue States in their efforts to rig sham investigations, and encourage the suppression of incriminating evidence.’

Tahsin Acar v. Turkey, Concurring Opinion of Judge Bonello, para. 12.

This quote also highlights the concerns accompanying the present judgment and the message it sends to states as well as human rights defenders at risk.

Dissenting opinion

The Joint Dissenting Opinion of Judges Dedov and Zünd centred on the procedural violation of Article 2 ECHR, arguing that the authorities had carried out an effective investigation. According to the two judges, the Court went beyond its remit when it looked into the quality of the investigation and not only procedural issues such as the time of the opening of the investigation. They dismissed the contradictions throughout the investigation as ‘insignificant’ and a ‘normal feature of a complex criminal investigation at the pre-trial stage of the proceedings’ (para. 7). Yet these points are not convincing, as the effectiveness of an investigation cannot be fully established through formal standards and criteria such as the thoroughness of the investigation will require a qualitative assessment (judgment, para. 69).

What next for human rights defenders in Chechnya?

As the Council of Europe Commissioner for Human Rights, intervening as third party in the case, held, the murder of Natalia Estemirova should have been ‘seen as part of a pattern of killings and intimidation of human rights defenders in the North Caucasus’ (para. 59). This context however, is missing from the judgment.

Since Natalia Estemirova’s murder, the situation of human rights defenders in the region has not improved, to say the least. Right after her death, the NGO Memorial had to evacuate its staff from the local office and it could only resume work several months later. The head of their Grozny office, Oyub Titiev, was arbitrarily detained in 2018 on fabricated drug charges (Amnesty International) and released on parole in 2019 after 17 months of imprisonment (Front Line Defenders). Last year, the UN Report of the Special Rapporteur on the situation of human rights defenders mentioned a death threat issued by the Chechen President Ramzan Kadyrov against Elena Milashina, a Russian journalist reporting on the handling of the COVID-19 pandemic in Chechnya. Furthermore, since the introduction of the “Foreign Agents Law” in 2012, the ability of human rights and civil society organisations to carry out their work in Russia has been severely limited (Council of Europe Expert Council on NGO Law).

With the present judgment, the Court has confirmed that a quickly established but inconclusive investigation combined with a refusal to cooperate and disclose vital information will allow a state to block the assessment of a substantive violation of the right to life. Even now, twelve years after Natalia Estemirova’s murder, those responsible have not been identified and she, her relatives, friends and colleagues have been denied the justice they sought from the Court. This is a disappointing and worrying outcome, as has already been voiced by several NGOs (EHRAC, Memorial, Human Rights Watch) and a missed opportunity for the Court to take a stance in favour of the protection of human rights defenders at risk not only in the North Caucasus, but across its jurisdiction.

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