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Home » ECHR Cases

Dolsayev and Others v. Russia

Submitted by on Monday, 11 May 2009.    895 views No Comment
Dolsayev and Others v. Russia

The ECHR case of Dolsayev and Others v. Russia (application no. 10700/04).

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EUROPEAN COURT OF HUMAN RIGHTS

CASE OF DOLSAYEV AND OTHERS v. RUSSIA

(Application no. 10700/04)

JUDGMENT

STRASBOURG

22 January 2009

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.


In the case of Dolsayev and Others v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,
Nina Vajińá,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 16 December 2008,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.¬†¬†The case originated in an application (no. 10700/04) against the Russian Federation lodged with the Court on 5 February 2004 under Article¬†34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‚Äúthe Convention‚ÄĚ) by five Russian nationals, listed below.

2.¬†¬†The applicants were represented by lawyers of the Stichting Russian Justice Initiative (‚Äúthe SRJI‚ÄĚ), an NGO based in the Netherlands with a representative office in Russia. The second applicant died on 14 June 2007 and the other applicants expressed their wish to pursue the application on her behalf. The Russian Government (‚Äúthe Government‚ÄĚ) were represented by Mrs V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights.

3.  On 2 May 2007 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application.

4.  On 2 May 2007 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).

5.¬†¬†The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicants are:

(1) Mr Kursolt Biboltovich Dolsayev, born in 1949;

(2) Ms Mak (also spelled as Makka) Isayevna Dolsayeva, born in 1953;

(3) Ms Madina Kursoltovna Dolsayeva, born in 1982;

(4) Mr Shamil (also known as Adam) Kursoltovich Dolsayev, born in 1984; and

(5) Mr Baysongur Kursoltovich Dolsayev, born in 1995.

The first, third, fourth and fifth applicants live in the village of Martan-Chu, in the Urus-Martan district of Chechnya. Prior to her death in June 2007 the second applicant also lived there.

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

A.  Disappearance of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev

1.¬†¬†The applicants’ account

(a)  Abduction of the Dolsayev brothers

8.  The first and second applicants were married. They were the parents of Beslan Kursoltovich Dolsayev, born in 1974, Mr Rizvan Kursoltovich Dolsayev, born in 1977, Mr Rizavdi Kursoltovich Dolsayev, born in 1978, and Mr Shuddi Kursoltovich Dolsayev, born in 1980, as well as the third, fourth and the fifth applicants.

9.¬†¬†At the material time Beslan Dolsayev worked as a police officer of the department of the interior of the Zavodskoy district of Grozny (‚Äúthe Zavodskoy ROVD‚ÄĚ) and had a service machine gun. The Dolsayev brothers had positive references from local authorities and were not suspected of participation in illegal armed groups.

10.¬†¬†From December 1999 Martan-Chu was under the full control of the Russian federal forces. From the end of September 2001 the village was under curfew from 8 p.m. to 6 a.m. The checkpoints of the Russian military forces were located on the roads leading to and from the settlement. Military servicemen conducted regular identity checks in the village; prior to the events in question they had visited the applicants’ house for identity checks on eleven occasions.

11.¬†On the night between 20 and 21 October 2002 Beslan, Rizvan, Rizavdi and Shuddi Dolsayev, the applicants and other members of the Dolsayev family were sleeping in their house at 4 Tsentralnaya Street, Martan-Chu, in the Urus-Martan district of Chechnya.¬†At about 4 a.m. around thirty men in camouflage uniform and masks and armed with machine guns entered the Dolsayevs’ yard. They were equipped with portable radio transmitters but used gestures to communicate among themselves. The men shouted that they belonged to the Main Intelligence Department of the Ministry of Defence (‚Äúthe GRU‚ÄĚ) and ordered everyone not to move. Ten of them broke into the house. Meanwhile, one or two armoured personnel carriers (‚ÄúAPCs‚ÄĚ) and a Ural vehicle arrived at the house; their registration numbers were painted over.

12.¬†¬†The servicemen ordered the men from the Dolsayev family to stand along the wall, checked everyone’s identity papers and took Beslan Dolsayev’s service gun. Some of them searched the house without producing any warrant and took away a large knife with a black handle.

13.  The servicemen then instructed Beslan, Rizvan, Rizavdi and Shuddi Dolsayev to go outside; the brothers were not allowed to put on clothing. After that, the four brothers were placed in the APC. The servicemen also intended to take the fourth applicant with them, but the second applicant dissuaded them from doing so as he was sick.

14.  Having locked the women together with the fifth applicant in one room and the first and fourth applicants in another, the intruders left the house and drove away in the APCs and the Ural vehicle.

15.¬†¬†The applicants’ neighbour Ms A.M. submitted in her witness statement that on the night of the abduction of the Dolsayev brothers she had been awoken by the sounds of heavy military vehicles passing by her yard. When she had looked out of the window, she had seen an armoured military vehicle on wheels. She could not identify whether this was a tank or an APC. The vehicle had been parked about 50 metres away, next to the school yard; its headlights were off, but it was clearly visible in the electric light coming from the school’s boiler room. Some time later she had seen men in military uniform; the men had got into the vehicle and left without turning the headlights on. They had left in the direction of the military checkpoint located on the road to Urus-Martan.

16.¬†¬†After the abductors had left, the first and fourth applicants were released from the room by their neighbour, Mr A.S. The first applicant ran outside and saw footprints in the yard and the vegetable garden. The footprints led in the direction of the school, located 40-45 metres away from the applicants’ house. The first applicant followed the traces. Next to the school he saw APC tyre marks; they led in the direction of the road from Martan-Chu to Urus-Martan, where a military checkpoint manned by servicemen of the district military commander’s office was located.

17.  The applicants have had no news of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev since 21 October 2002.

(b)  Subsequent events

18.¬†¬†On one of the days between the end of October 2002 and the end of November 2002, in the morning, the second and fourth applicants were together at a market in Urus-Martan. There they saw a Russian soldier holding the knife which had been taken away by the abductors of their relatives. The applicants recognised the knife by its shape and the black handle. They followed the soldier to the town’s central square. There they met the first applicant and told him about the soldier. The latter was standing next to a group of parked APCs and military Ural vehicles. At that moment the first applicant saw an acquaintance of his who was a police officer, Captain T.Sh. The first applicant told him about his sons’ abduction and asked whether he could arrest the soldier. Mr T.Sh. told the applicant that the police did not have the jurisdiction to arrest military personnel.

19.¬†¬†According to the second applicant, in August 2003 she provided this information to the authorities investigating her sons’ abduction. She did not mention to them that she had been together with her younger son when she had seen the soldier as she feared for her son’s safety. The first applicant also provided the investigators with a statement concerning the events in question.

20.¬†¬†In support of their application the applicants submitted a number of documents, including the following: witness statements provided by the first applicant on 20 May 2003, 13 July 2003 and on an unspecified date; witness statements provided by the second applicant on 20 May 2003 and on an unspecified date; a witness statement by the applicants’ neighbour Mr¬†S.A., provided on an unspecified date; a witness statement by the applicants’ neighbour Mr A.S., provided on an unspecified date; a witness statement by the applicants’ relative Ms Z.G., provided on 20 May 2003; four character references for Beslan Dolsayev, provided by the Zavodskoy ROVD, the Urus-Martan ROVD and the Martan-Chu village administration on 25 July 2002 and on unspecified dates; a copy of the newspaper announcement introducing a curfew in the Urus-Martan district as of 25¬†September 2001; four statements certifying that Beslan, Rizvan, Rizavdi and Shuddi Dolsayev did not participate in military clashes in Chechnya, all dated 22 May 2003; character references for Rizvan, Rizavdi and Shuddi Dolsayev, all undated; three hand-drawn maps of the premises of the applicants’ house; and copies of documents received by the applicants from the investigating authorities.

2.  Information submitted by the Government

(a)  Abduction of the Dolsayev brothers

21.¬†¬†The Government did not challenge most of the facts as submitted by the applicants. According to the Government, ‚Äúat about 4 a.m. on 21¬†October 2002 unidentified persons armed with automatic weapons arrived at the village of Martan-Chu in the Urus-Martan district of Chechnya and took Beslan, Rizvan, Rizavdi and Shuddi Dolsayev away from their house‚ÄĚ.

22.¬†¬†At the same time the Government contended that the applicants’ statement of facts was unreliable. In particular, they pointed out that according to the first applicant’s witness statement of 2 November 2002, the abductors had locked him in a room with his younger son Adam. However, several years later the applicant changed his testimony. In his witness statement provided on 16 May 2007 the applicant stated that he had been locked by the abductors in a room with his son Shamil and that he had heard one of the intruders saying to the others in Russian: ‚ÄúThe commander said to leave Shamil [here] as he is an invalid‚ÄĚ.

23.¬†¬†The Government further pointed out that the applicants had not been sure about the precise number of intruders who had broken into their house on 21 October 2002 as in their statements the number varied from 10 to 25. In addition, the applicants had been inconsistent in their descriptions of the abductors’ behaviour: the first applicant had stated that the intruders had initially enquired whether there were any weapons in the house, whereas according to the second applicant, the intruders had not asked any questions.

24.¬†¬†The Government also expressed their doubts concerning the reliability of the witness statement provided by the applicants’ neighbour Ms A.M. In particular, they questioned her inability to distinguish between a tank and an APC and emphasised that she had not witnessed the Dolsayev brothers being placed in the vehicles.

(b)  Subsequent events

25.¬†¬†The Government did not dispute that the applicants had seen the soldier with the knife which had been taken away by the abductors. However, they contended that the first and second applicants had provided inconsistent accounts of these events: according to the second applicant’s witness statement of 14 August 2003, the events in question had taken place about a week after the abduction and the soldier had been walking alone, whereas according to the first applicant’s witness statement given at a later date (the Government did not specify the date), the events in question had taken place about a month after the abduction and the soldier had been accompanied by two other servicemen.

26.¬†¬†The Government further stated that the applicants’ failure to submit this information to the authorities in a timely manner had impeded the investigation into the abduction of the Dolsayev brothers.

B.  Search for Beslan, Rizvan, Rizavdi and Shuddi Dolsayev and the investigation into their disappearance

1.¬†¬†The applicants’ account

(a)¬†¬†The official investigation into the disappearance of the applicants’ relatives

27.¬†¬†Since 21¬†October 2002 the applicants have repeatedly applied in person and in writing to various public bodies. They have been supported in their efforts by the SRJI. In their letters to the authorities the applicants referred to their relatives’ abduction and asked for assistance and details of the investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given in which the applicants’ requests have been forwarded to various prosecutors’ offices. The applicants submitted to the Court some of their letters to the authorities and their replies. These documents are summarised below.

28.¬†¬†On 21 October 2002, immediately after the detention of her sons, the second applicant wrote to the prosecutor’s office of the Urus-Martan district (‚Äúthe district prosecutor’s office‚ÄĚ) describing in detail the circumstances of their abduction and asking for assistance in releasing them. In particular, she pointed out that on the morning after the abduction she and members of her family had discovered APC tyre marks next to their family’s vegetable garden.

29.¬†¬†On 30 October 2002 the district prosecutor’s office instituted an investigation into the disappearance of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev under Article 126 ¬ß 2 (aggravated kidnapping) of the Russian Criminal Code. The case was assigned no. 61144. No investigative measures, other than the questioning of the first and second applicants on 2¬†November 2002, were taken following the opening of the criminal proceedings.

30.¬†¬†On 22 November 2002 the second applicant wrote to the military commander of the Urus-Martan district (‚Äúthe district military commander‚ÄĚ), the Urus-Martan district department of the interior (ROVD) and the district prosecutor’s office. She stated that her four sons had been abducted by servicemen of law-enforcement agencies of the Urus-Martan district and requested assistance in establishing her sons’ whereabouts.

31.¬†¬†On 11 December 2002 the military prosecutor’s office of the North-Caucasus military circuit informed the second applicant that her complaint had been forwarded to the military prosecutor’s office of the United Group Alignment (‚Äúthe UGA‚ÄĚ).

32.¬†¬†On 30 December 2002 the district prosecutor’s office granted the second applicant victim status in criminal proceedings concerning the kidnapping of the Dolsayev brothers (case no. 61144).

33.¬†¬†On the same date the district prosecutor’s office suspended the investigation in case no. 61144 owing to the failure to identify the culprits. On 16 January 2003 the district prosecutor’s office informed the second applicant of the suspension of the investigation.

34.¬†¬†On 24 January 2003 the Chechnya prosecutor’s office informed the second applicant that in spite of the suspension of the investigation in criminal case no. 61144, operational-search measures were being taken to solve the crime.

35.¬†¬†On 1 February 2003 the military prosecutor’s office of military unit no. 20102 (‚Äúthe unit military prosecutor’s office‚ÄĚ) informed the second applicant that it did not have any information either about the involvement of military personnel, the police or the Federal Security Service (FSB) in the kidnapping of her relatives or about the whereabouts of the Dolsayev brothers.

36.¬†¬†On 3 March 2003 the Zavodskoy ROVD carried out an internal inquiry into the disappearance of Beslan Dolsayev. It was established that he had been kidnapped by ‚Äúunidentified persons armed with machine guns and wearing camouflage uniform and masks‚ÄĚ. Beslan Dolsayev’s service machine gun was declared lost and put on a missing list.

37.  On 17 March 2003 the office of the Prosecutor General sent a report to the Commission of the Russian State Duma for Assistance in Political Settlement and Protection of Human Rights in Chechnya. The report provided data on disappearances in Chechnya and described investigative measures taken by the authorities to solve the kidnappings. The document referred to a specific group of disappearance cases, including the abduction of the Dolsayev brothers, in which the investigation had been opened and then suspended owing to the failure to identify the perpetrators. It noted that in all such cases the investigation had found no evidence implicating federal servicemen and that further steps were being taken to solve these crimes.

38.¬†¬†On 24 March 2003 the Prosecutor General’s office forwarded a letter from a deputy of the Russian State Duma accompanying the second applicant’s complaint to the Chechnya prosecutor’s office.

39.¬†¬†On 4 April 2003 the first applicant requested the district prosecutor’s office to inform him of the progress in the investigation into his sons’ disappearance and to grant him victim status in the criminal case. On 11¬†April 2003 the district prosecutor’s office replied that the investigation had been suspended on 30 December 2002.

40.¬†¬†On 21 April 2003 the Chechnya prosecutor’s office informed the second applicant that the time-limit of the investigation in case no. 61144 had been extended until 20 May 2003 and that it was supervising the criminal proceedings.

41.¬†¬†On 25 April 2003 the district prosecutor’s office informed the first applicant that it was not necessary to grant him victim status in the criminal case since his wife had already been granted such status.

42.¬†¬†On 8 May 2003 the Main Military Prosecutor’s Office forwarded the first applicant’s complaint to the military prosecutor’s office of the UGA.

43.¬†¬†On 20 May 2003 the district prosecutor’s office suspended the investigation owing to the failure to identify the perpetrators and informed the second applicant of this.

44.¬†¬†On 13 June 2003 the Chechnya Ministry of the Interior (‚Äúthe Chechnya MVD‚ÄĚ) forwarded the first applicant’s complaint to the ROVD.

45.  On 30 June 2003 the district military commander informed the second applicant that he had no information either about the whereabouts of the Dolsayev brothers or about the reasons for their abduction.

46.¬†¬†On 11 July 2003 the military prosecutor’s office of the UGA requested the unit military prosecutor’s office to establish whether military personnel had been involved in the Dolsayev brothers’ abduction.

47.¬†¬†On 14 July 2003 the office of the Prosecutor General informed the first applicant that his complaint about the alleged ineffectiveness of the investigation in case no. 61144 had been forwarded to the Chechnya prosecutor’s office.

48.¬†¬†On 23 July 2003 the second applicant requested the Chechnya prosecutor’s office to overturn the decision to suspend the investigation into her sons’ abduction and to ensure that the investigators took the necessary measures to solve the crime.

49.¬†¬†On 7 August 2003 the Chechnya MVD informed the first applicant that the identities of the perpetrators of the Dolsayev brothers’ abduction had not been established, but that measures to identify the culprits were in progress.

50.¬†¬†On 14 August 2003 the second applicant was questioned by the investigators. In her statement she pointed out that at some time between the end of October and the end of November 2002, in Urus-Martan, she had seen a soldier with the knife which had been taken away from her house by her sons’ abductors.

51.¬†¬†On 6 September 2003 the district prosecutor’s office informed the second applicant that the investigation into her sons’ abduction had been suspended on 6 September 2003.

52.¬†¬†On 17 September 2003 the second applicant complained to the district prosecutor about the suspension of the investigation in the criminal case and requested that it be resumed. She expressed the opinion that her sons had been abducted by State representatives and pointed out that she had provided the investigators with detailed information which could have assisted them in identifying the perpetrators. In particular, she stated that she had told the investigators that the abductors had used military vehicles and had been able to pass through the checkpoints of the Russian military forces at night; that the abductors must have had permission from the military commander’s office to drive through the checkpoints; that the investigators had failed to question chief officers of local law-enforcement agencies who could have given such permission; and that the investigators had demonstrated their negligent attitude towards the investigation by failing to preserve and examine the tyre marks found next to the applicants’ yard and to question the servicemen who had manned the village checkpoints on the night of the abduction. The second applicant did not receive any response to this complaint.

53.¬†¬†On 28 April 2004 the district prosecutor’s office informed the first applicant that it was taking investigative measures to identify the perpetrators.

54.¬†¬†On 17 October 2005 the applicants’ representative, the SRJI, wrote to the district prosecutor’s office requesting information about the progress of the investigation in the criminal case and asking for the applicants to be allowed to study the material in the case file. No response was given to this letter.

55.¬†¬†On 16 November 2005 the first applicant wrote to the district prosecutor’s office. He expressed the opinion that his sons had been abducted by representatives of federal forces. He complained about the ineffectiveness of the investigation and pointed out that the lack of information about the investigation precluded him from appealing against the investigators’ decisions. He requested that the investigation into his sons’ abduction be resumed and that he be allowed to study the investigation file. No response was given to this request.

56.¬†¬†On 24 November 2006 the second applicant wrote to the district prosecutor’s office. She requested that the investigation be resumed and that she be provided with information concerning its progress.

57.¬†¬†On 27 November 2006 the district prosecutor’s office informed the second applicant that it had rejected her request of 24 November 2006.

58.¬†¬†On 28 November 2006 the district prosecutor’s office informed the second applicant that on the same date it had suspended the investigation owing to the failure to identify the perpetrators.

59.¬†¬†On 19 March 2007 the first applicant wrote to the district prosecutor’s office. He complained about the lack of information concerning the investigation and requested that the investigation be resumed and that he be allowed to study the case file.

60.¬†¬†On 22 March 2007 the district prosecutor’s office informed the first applicant that ‚Äúas a person who has witness status in the criminal case, [he did] not have the right to lodge the request [to study the case file]…‚ÄĚ.

61.¬†¬†On 10 May 2007 the first applicant complained to the district prosecutor’s office about the lack of information concerning the investigation and requested to be granted victim status in the criminal proceedings.

62.¬†¬†On 10 May 2007 the second applicant complained to the district prosecutor’s office about the lack of information concerning the investigation and requested that the investigation be resumed and that she be allowed to study the case file.

63.¬†¬†On 14 May 2007 the district prosecutor’s office partly allowed the second applicant’s complaint. Its decision stated that the applicant would receive permission to study the material in the case file ‚Äúwhich would not divulge investigative secrets‚ÄĚ.

64.¬†¬†On 16 May 2007 the district prosecutor’s office granted the first applicant victim status in criminal case no.¬†61144.

65.¬†¬†On 5 July 2007 the district prosecutor’s office conducted a crime scene examination at the applicants’ household. No evidence was collected from the scene.

66.¬†¬†On 5 July 2007 and 17 July 2007 the first applicant requested the district prosecutor’s office that he be granted the status of a civil plaintiff in the criminal case. No response was given to these requests.

67.¬†¬†On 20 July 2007 the applicants’ lawyer Mr M.A. submitted to the SRJI a written statement concerning his study of the investigation file in case no.¬†61144. In this letter he described the following:

‚Äú… the criminal case file comprises one volume. The case was opened on 30¬†October 2002 … Makka Dolsayeva was granted victim status and questioned. Kursolt Dolsayev was also questioned. No other investigative measures were taken. The investigation forwarded information requests to law-enforcement agencies in Chechnya asking whether the latter had apprehended the Dolsayev brothers; according to the responses, the brothers had not been apprehended [by the law-enforcement agencies].

On 30 December 2002 [the prosecutor’s office] decided to suspend the investigation owing to the failure to identify the perpetrators; the investigator’s decision stated that all possible investigative measures in the absence of anyone to be charged with the crime had been taken.

… the crime scene examination was not conducted. Therefore it is possible to conclude that from the very beginning the investigation in the criminal case led to a dead-end; one could not possibly talk about its effectiveness.

For instance, in their witness statements Kursolt and Makka Dolsayev stated that after the abduction they had seen tyre marks of military vehicles on the ground; however, the investigation did not find that it was necessary to examine the crime scene [although] traces of the criminals or any other evidence left [by the culprits] could have been discovered there …

The investigation did not question all the witnesses to the crime. [The applicants’] neighbours were questioned only in August 2003.

… on 20 April 2003 the investigation in the criminal case was resumed owing to ‘the lack of response to several information requests forwarded to law-enforcement agencies in Chechnya’.

… on 20 May 2003 the decision to suspend the criminal investigation was taken.

On 6 August 2003 the investigation was resumed.

A plan of operational-investigative measures was drawn up on 6 August 2003. According to the prosecutor’s office, the investigation’s main theory was the abduction of the Dolsayev brothers by servicemen of federal forces. To verify this theory, [the investigation] issued the order ‘to conduct by 18 August 2003 an expert evaluation of the objects collected from the crime scene’. However, it should be recalled that the crime scene examination had not been conducted and, consequently, no objects had been collected from the scene. The investigative orders listed in the plan of operational-investigative measures had not been carried out.

The investigation in the criminal case was suspended on 6 September 2003.

On 4 April 2005 the investigation was resumed.

Orders concerning ‘verification of the operations conducted by the servicemen of the Urus-Martan FSB and servicemen of the Urus-Martan district military commander’s office on the day of abduction’ were issued …

On 4 May 2005 the investigation in the criminal case was suspended.

On 6 June 2005 the investigation was resumed …

On 6 July 2005 the investigation was suspended.

On 27 November 2006 the investigation was resumed …

On 28 November 2006 the investigation was suspended.

On 14 May 2007 the investigation was resumed …

On 18 May 2007 the investigation was suspended again.

On 29 June 2007 the investigation was resumed.

On 5 July 2007 the investigation conducted a crime scene examination, during which photos of the Dolsayev family’s household were taken. ‘Nothing was collected from the crime scene.’

The investigation file contains the response of military unit no.¬†6845 to an information request by the prosecutor’s office: ‘the military commander’s office of the Internal Troops [of the Ministry of the Interior] has been stationed in the Urus-Martan district since 2003. At present it is not possible to provide information concerning the military units and their servicemen [stationed in the area in 2002] as in 2002 the military commander’s office consisted of units of the Ministry of Defence. [However,] in 2003 the office was discontinued; therefore, it is not possible to provide information as to which units became its successor.’

[In the investigation file] there is also the response of the OG VOGO (operational unit of the temporary operational group ‚Äď –ĺ–Ņ–Ķ—Ä–į—ā–ł–≤–Ĺ–į—Ź –≥—Ä—É–Ņ–Ņ–ł—Ä–ĺ–≤–ļ–į –≤—Ä–Ķ–ľ–Ķ–Ĺ–Ĺ–ĺ–Ļ –ĺ–Ņ–Ķ—Ä–į—ā–ł–≤–Ĺ–ĺ–Ļ –≥—Ä—É–Ņ–Ņ—č) and PMVD (units of the Ministry of the Interior) (–Ņ–ĺ–ī—Ä–į–∑–ī–Ķ–Ľ–Ķ–Ĺ–ł–Ļ –ú–í–Ē): ‘there is no information concerning the passage of military vehicles through the checkpoints in the Urus-Martan district in the end of 2002 as there is no archive.’

In conclusion, it is possible to say that the investigation of this criminal case has not been carried out. The investigation file contains practically no information other than requests for information and assistance and responses to them; the latter state that none of the law-enforcement agencies in Chechnya apprehended the Dolsayev brothers. The prosecutor’s office did not even try to verify whether this was true. The crime scene examination was not conducted until five years after the abduction …‚ÄĚ

(b)  Court proceedings initiated by the applicants

68.¬†¬†On 31 October 2003 the Urus-Martan District Court of Chechnya (‚Äúthe District Court‚ÄĚ) granted a request by the second applicant and declared Beslan Dolsayev a missing person as of 21 October 2002.

69.  On 17 November 2003 the District Court delivered a similar decision in respect of Rizvan, Rizavdi and Shuddi Dolsayev and declared them missing persons as of 21 October 2002.

70.  On 31 January 2005 the District Court granted a request by the first applicant and declared Beslan Dolsayev deceased as of 21 October 2002.

2.  Information submitted by the Government

71.¬†¬†On 30 October 2002 the district prosecutor’s office instituted an investigation into Beslan, Rizvan, Rizavdi and Shuddi Dolsayev’s abduction under Article 126 ¬ß 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned no. 61144. The criminal case was opened within the time-frame prescribed by Articles 143 and 145 of the Code of Criminal Procedure (decisions taken upon receipt of information about a crime) ‚Äď that is, within ten days from the receipt of the information about the abduction of the applicants’ relatives.

72.  The first applicant was questioned on 2 November 2002; the second applicant was questioned on the same date. The second applicant was granted victim status on 30 December 2002; the first applicant was granted this status on 16 May 2007.

73.¬†¬†The investigation questioned a number of witnesses. On 2 November 2002 the second applicant testified that at about 4 a.m. on 21 October 2002 she had heard some noise from the street. She looked out from the window and saw a group of 20-25 armed men in camouflage uniform and masks. Some of these men entered her house. One of them told her that they were from the GRU. The men put four of the applicant’s sons against the wall and asked who was working in the police. Beslan Dolsayev told them that he worked at the Zavodskoy ROVD. Then the intruders took away his service gun, ammunition, service uniform and identity card. After that the men took the applicant’s sons outside. They locked her husband Kursolt Dolsayev and her sick son Shamil in a bedroom; the applicant and her daughter-in-law had been locked in another room. After the intruders left, the applicant saw on the ground tyre marks from a car and an APC. On 2¬†November 2002 the first applicant provided a similar witness statement. However, he also stated that one of the intruders had had a gun with a telescopic sight, and that he had been locked by the intruders in one of the rooms together with his son Adam. On 16 May 2007 the first applicant changed his previous testimony by stating that he had been locked in one of the bedrooms with his son Shamil. On an unspecified date the investigation questioned the fourth applicant, Shamil Dolsayev, whose description of the events was similar to that of his parents.

74.¬†¬†According to the Government, the applicants provided contradictory statements concerning the subsequent discovery of the knife: the second applicant testified that she had seen the soldier with the knife about a week after the abduction and that the soldier had been accompanied by other servicemen, whereas the first applicant submitted that he had seen the soldier a month after the abduction and that the soldier had been alone. In addition, the applicants’ statements contained discrepancies as to the way the soldier had escaped from the applicants. The applicants had also failed to describe the knife’s features to the investigation and to inform the authorities that the abductors had stolen their property.

75.¬†¬†The investigators questioned the applicants’ neighbours Ms Kh.N., Mr A.S. and Mr S.A., who had provided similar statements to the effect that they had discovered about the abduction of the Dolsayev brothers from the applicants. The investigators also questioned officer P.M., the head of the road-patrol unit of the Urus-Martan ROVD. According to his statement, he had been informed about the abduction on 21 October 2002. Another witness, the head of the Martan-Chu village administration, Mr E.M., testified that on 21 October 2002 one of the village residents had told him about the abduction of the Dolsayev brothers by unidentified men.

76.¬†¬†The investigators also requested information about the disappearance of the Dolsayev brothers from various State authorities. On 15 January 2003 the information centre of the Ministry of the Interior stated that it had no records concerning either the detention of the Dolsayev brothers or the opening of criminal proceedings against them. The investigators also obtained information from the public prosecutors’ offices and units of the Ministry of Defence, according to which the bodies of the Dolsayev brothers had not been found among the unidentified corpses discovered in Chechnya.

77.  The Government submitted that although the criminal investigation had failed to establish the whereabouts of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev and the internal investigation conducted by the Zavodskoy ROVD into the circumstances of the disappearance of its officer Beslan Dolsayev had also failed to identify those responsible for his abduction, the investigating authorities had forwarded information requests to competent State agencies and had taken other steps to solve the abduction. The investigation found no evidence to support the theory of the involvement of Russian federal forces in the abduction of the Dolsayev brothers. The law-enforcement agencies in Chechnya had never arrested or detained Beslan, Rizvan, Rizavdi and Shuddi Dolsayev on criminal or administrative charges and had not carried out any criminal investigations in respect of them. No special operations had been carried out in the Urus-Martan district on 21 October 2002. In addition, according to the statement provided by the head of the Martan-Chu village administration, at the material time it had been possible to drive in and from the village without passing through the military checkpoints by countryside roads located near Urus-Martan and the villages Tangi-Chu and Goy-Chu (also known as Komsomolskoye).

78.  The Government further submitted that the description of the perpetrators provided by the witnesses did not demonstrate that the perpetrators were representatives of the State. Although the camouflage uniform used by the perpetrators was similar to the uniform of military servicemen, such uniform was available for purchase everywhere in the Russian Federation. In addition, the masks used by the perpetrators did not have individual features distinguishing criminals from military servicemen. The fact that the perpetrators had spoken Russian did not mean that these men must have been Russian military servicemen; they could have been residents of Chechnya or members of illegal armed groups from other countries who spoke the language.

79.¬†¬†According to the Government, the investigation had been suspended and resumed on several occasions; in spite of the large volume of operational-search and investigative measures carried out by the authorities, the investigation had failed to identify those responsible for the abduction of the Dolsayev brothers. The Government further submitted that at the material time a counterterrorist operation had been taking place in Chechnya and there had been daily attacks on the federal forces. Therefore, owing to the risk this investigative measure could have represented for law-enforcement officers, the prosecutor’s office had not conducted the crime scene examination in the applicants’ house and its surroundings. The Government further contended that the applicants had been duly informed of all decisions taken during the investigation, that the first and second applicants had been granted victim status in the criminal case and that the investigators had complied with all the instructions issued by the supervising prosecutors.

80.  Despite specific requests by the Court, the Government did not disclose most of the contents of the investigation file in case no. 61144, providing only copies of the following documents:

(a) the second applicant’s witness statements, dated 2 November 2002 and 14 August 2003; and

(b) the first applicant’s witness statements, dated 2 November 2002, 6¬†April 2005, 16 June 2005 and 16 May 2007.

The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.

II.  RELEVANT DOMESTIC LAW

81.  For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.

THE LAW

I.¬†¬†THE GOVERNMENT’S OBJECTION AS TO ABUSE OF THE RIGHT OF PETITION

82.¬†¬†The Government submitted that the application had not been lodged in order to restore the allegedly violated rights of the applicants. The actual object and purpose of the application was clearly of a political nature as the applicants wanted to ‚Äúincriminate the Russian Federation of allegedly adopting a policy of violating human rights in the Chechen Republic‚ÄĚ. They concluded that the application should be dismissed pursuant to Article¬†35¬†¬ß¬†3 of the Convention.

83.¬†¬†The Court considers that the Government may be understood to be suggesting that there was an abuse of the right of petition on the part of the applicants. It observes in this connection that the complaints the applicants brought to its attention concerned genuine grievances. Nothing in the case file reveals any appearance of abuse of their right of individual petition. Accordingly, the Government’s objection must be dismissed.

II.¬†¬†THE COURT’S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS

A.¬†¬†The parties’ arguments

84.¬†¬†The applicants maintained that it was beyond reasonable doubt that the men who had taken away Beslan, Rizvan, Rizavdi and Shuddi Dolsayev had been State agents and that their relatives must have been killed after the abduction as there had been no news of them since 21 October 2002. In support of their complaint they referred to the following facts. The village of Martan-Chu in the Urus-Martan district of Chechnya had been under the total control of federal troops since December 1999. There had been Russian military checkpoints on the roads leading to and from the settlement. The armed men who had abducted Beslan, Rizvan, Rizavdi and Shuddi Dolsayev had arrived in military vehicles late at night, which indicated that they had been able to circulate freely during the curfew and to pass through the military checkpoints. The men had acted in a manner similar to that of special forces carrying out identity checks and had introduced themselves as representatives of the GRU. The applicants also pointed out that the ground given for the Government’s refusal to submit the investigation file in case no. 61144 was that it contained ‚Äúinformation of a military nature disclosing the location and nature of actions by military and special security forces‚ÄĚ.

85.¬†¬†The Government submitted that unidentified armed men had kidnapped Beslan, Rizvan, Rizavdi and Shuddi Dolsayev. They further contended that the investigation of the incident was pending, that there was no evidence that the men had been State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants’ rights. They further argued that there was no convincing evidence that the applicants’ relatives were dead. The Government also stated that, according to one of the versions of the events considered by the investigation, the crime could have been committed by members of illegal armed groups. They also pointed out that the applicants’ description of the circumstances of the kidnapping was unreliable and inconsistent.

B.¬†¬†The Court’s evaluation of the facts

86.  The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).

87.  The Court notes that despite its requests for a copy of the file on the investigation into the abduction of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev, the Government produced only a few documents from the case file. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by it (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-XIII).

88.¬†¬†In view of this, and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government’s conduct in respect of the well-foundedness of the applicants’ allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicants’ relatives can be presumed dead and whether their deaths can be attributed to the authorities.

89.  The applicants alleged that the persons who had taken Beslan, Rizvan, Rizavdi and Shuddi Dolsayev away on 21 October 2002 and then killed them had been State agents. The Government did not dispute any of the factual elements underlying the application.

90.  The Government suggested in their submission that the persons who had detained Beslan, Rizvan, Rizavdi and Shuddi Dolsayev could have been members of paramilitary groups. However, this allegation was not specific and they did not submit any material to support it. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see Çelikbilek v. Turkey, no. 27693/95, § 71, 31 May 2005).

91.¬†¬†The Court notes that the applicants’ allegation is supported by the witness statements collected by the applicants and by the investigation. It finds that the fact that a large group of armed men in uniform, equipped with military vehicles, was able to move freely through military roadblocks during curfew hours and proceeded to check identity documents strongly supports the applicants’ allegation that these were State servicemen conducting a security operation. In their applications to the authorities the applicants consistently maintained that Beslan, Rizvan, Rizavdi and Shuddi Dolsayev had been detained by federal servicemen and requested the investigation to look into that possibility (see paragraphs 28, 52 and 55 above), but it does not appear that the investigation took any serious steps in that direction.

92.¬†¬†The Court observes that where the applicants make out a prima facie case and it is prevented from reaching factual conclusions owing to a lack of documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Tońücu v. Turkey, no.¬†27601/95, ¬ß¬†95, 31 May 2005, and Akkum and Others v. Turkey, no.¬†21894/93, ¬ß¬†211, ECHR 2005-II).

93.¬†¬†The Government seemed to raise doubts as to the credibility of the applicants’ statements concerning the factual circumstances of the abduction of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev and the subsequent events (see paragraphs 22-25, 73-74 above).¬†¬†The Court notes in this connection that the crucial elements underlying the applicants’ submissions as to the facts have not been disputed by the Government. The Government did not dispute that the abduction of the applicants’ relatives had actually been committed by a group of armed men at the time stated by the applicants. This fact was confirmed by the official investigation conducted by the district prosecutor’s office (see paragraphs 21, 25, 71 above), by the internal inquiry carried out by the Zavodskoy ROVD into the disappearance of one of their officers, Beslan Dolsayev (see paragraph 36 above), as well as by the District Court’s decision declaring Rizvan, Rizavdi and Shuddi Dolsayev missing persons (see paragraphs 68-69 above) and Beslan Dolsayev a deceased person as of the day of their disappearance (see paragraph 70 above). The Court finds that the inconsistencies pointed out by the Government in the applicants’ description of events are so insignificant that they cannot cast doubt on the overall credibility of the applicants’ submission.

94.¬†¬†Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relatives were apprehended by State servicemen. The Government’s statement that the investigation did not find any evidence to support the involvement of the special forces in the kidnapping is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide another plausible explanation of the events in question, the Court considers that Beslan, Rizvan, Rizavdi and Shuddi Dolsayev were apprehended on 21¬†October 2002 by State servicemen during an unacknowledged security operation.

95.¬†¬†There has been no reliable news of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev since the date of the kidnapping. Their names have not been found in any official detention facilities’ records. The death of Beslan Dolsayev was officially acknowledged by a domestic court (see paragraph 70 above). Finally, the Government did not submit any explanation as to what had happened to the Dolsayev brothers after their arrest.

96.  Having regard to the previous cases concerning disappearances in Chechnya which have come before the Court (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-XIII; Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia, no. 40464/02, 10 May 2007; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007), in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev or of any news of them for several years supports this assumption.

97.¬†¬†The Court further notes that, regrettably, it has been unable to benefit from the results of the domestic investigation, owing to the Government’s failure to disclose most of the documents from the file (see paragraph 80 above). Nevertheless, it is clear that the investigation did not identify the perpetrators of the kidnapping.

98.  Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Beslan, Rizvan, Rizavdi and Shuddi Dolsayev must be dead following their unacknowledged detention by State servicemen.

III.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

99.  The applicants complained under Article 2 of the Convention that their relatives had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads:

‚Äú1.¬†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.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)¬†¬†in action lawfully taken for the purpose of quelling a riot or insurrection.‚ÄĚ

A.¬†¬†The parties’ submissions

100.¬†¬†The Government requested the Court to dismiss the complaint as manifestly ill-founded and contended that the domestic investigation had obtained no evidence that Beslan, Rizvan, Rizavdi and Shuddi Dolsayev were dead or that any servicemen of the federal law-enforcement agencies had been involved in their kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants’ relatives met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. In particular, they pointed out that the investigation had been opened within the ten-day time-frame prescribed by the provisions of the Code of Criminal Procedure.

101.¬†¬†The applicants argued that Beslan, Rizvan, Rizavdi and Shuddi Dolsayev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of them for several years. The applicants also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court’s case-law on Article¬†2. The applicants pointed out that the district prosecutor’s office had failed to take a number of crucial investigative steps, such as a crime scene examination (see paragraphs 29, 65, 67 and 79 above), or that it had taken them only after the communication of the application to the respondent Government. The investigation into Beslan, Rizvan, Rizavdi and Shuddi Dolsayev’s kidnapping had been opened nine days after the events and had then been suspended and resumed a number of times, thus delaying the taking of the most basic steps, and the applicants had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for almost six years without producing any known results was further proof of its ineffectiveness. The applicants invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to them or to the Court.

B.¬†¬†The Court’s assessment

1.  Admissibility

102.¬†¬†The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The complaint under Article¬†2 of the Convention must therefore be declared admissible.

2.  Merits

(a)  Alleged violation of the right to life of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev

103.¬†¬†The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, ¬ß¬†146-147, Series¬†A no.¬†324, and AvŇüar v. Turkey, no.¬†25657/94, ¬ß¬†391, ECHR 2001-VII).

104.¬†¬†The Court has already found it established that the applicants’ relatives must be dead following their unacknowledged detention by State servicemen and that their deaths can be attributed to the State. In the absence of any justification put forward by the Government, the Court finds that there has been a violation of Article 2 in respect of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev.

(b)  Alleged inadequacy of the investigation into the abduction of the Dolsayev brothers

105.¬†¬†The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention’s requirements (for a summary of these principles see Bazorkina, cited above, ¬ß¬ß¬†117-119).

106.  In the present case, the kidnapping of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

107.  The Court notes at the outset that most of the documents from the investigation were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the information about its progress presented by the Government.

108.¬†¬†The Court notes that the authorities were immediately made aware of the abduction as a result of the applicants’ submissions. The investigation in case no.¬†61144 was instituted on 30 October 2002, nine days after Beslan, Rizvan, Rizavdi and Shuddi Dolsayev had been taken away. Such a postponement per se was liable to affect the investigation of the kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. It appears that although the first and second applicants were questioned within the first few days of the investigation, after that a number of essential steps were delayed and were eventually taken only several years later, or not at all. The Court notes that the district prosecutor’s office conducted the crime scene examination several years after the abduction and that it failed to collect any evidence, including the tyre marks, from the scene of the abduction (see paragraphs 65, 67 and 79 above); that the prosecutors did not identify or question the servicemen of the local law-enforcement agencies and the military commander’s office about their possible participation in a security operation on 21 October 2002; that the investigation failed to establish whether any APCs and other military vehicles had been used by federal authorities that night; and that the investigators failed to identify and question the officers who had manned the checkpoints in Martan-Chu on the night of the abduction and to collect the registration log of the passing vehicles. It is obvious that these investigative measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, ¬ß 86, ECHR 2002-II).

109.  The Court also notes that even though the first and second applicants were eventually granted victim status in case no. 61144, they were primarily informed of the suspensions and resumptions of the proceedings, and not of any other significant developments. In spite of their numerous requests, the applicants were allowed to access the investigation file only in May 2007 (see paragraph 63 above). Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.

110.¬†¬†Finally, the Court notes that the investigation in case no.¬†61144 was suspended and resumed at least seven times and that there were lengthy periods of inactivity on the part of the district prosecutor’s office when no proceedings were pending.

111. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev, in breach of Article 2 in its procedural aspect.

IV.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

112.¬†¬†The applicants relied on Article 3 of the Convention, alleging that following their abduction Beslan, Rizvan, Rizavdi and Shuddi Dolsayev had been subjected to inhuman or degrading treatment. The applicants further complained that as a result of their relatives’ disappearance and the State’s failure to investigate it properly, they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:

‚ÄúNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.‚ÄĚ

A.¬†¬†The parties’ submissions

113.  The Government disagreed with these allegations and argued that the investigation had not established that the applicants and Beslan, Rizvan, Rizavdi and Shuddi Dolsayev had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.

114.  In their observations on the admissibility and merits of the application the applicants submitted that they no longer wished to have the complaint regarding alleged ill-treatment of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev examined. They further reiterated the complaint concerning the mental suffering they themselves had endured.

B.¬†¬†The Court’s assessment

1.  The complaint concerning the ill-treatment of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev

115.  The Court, having regard to Article 37 of the Convention, finds that the applicants do not intend to pursue this part of the application, within the meaning of Article 37 § 1 (a). The Court also finds no reasons of a general character, affecting respect for human rights, as defined in the Convention, which require further examination of the present complaints by virtue of Article 37 § 1 of the Convention in fine (see, for example, Chojak v.Poland, no. 32220/96, Commission decision of 23 April 1998; Singh and Others v. the United Kingdom (dec.), no. 30024/96, 26 September 2000; and Stamatios Karagiannis v. Greece, no. 27806/02, § 28, 10 February 2005).

116.  It follows that this part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention.

2.¬†¬†The complaint concerning the applicants’ mental suffering

(a)  Admissibility

117.  The Court notes that this part of the complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(b)  Merits

118.¬†¬†The Court observes that the question whether a member of the family of a ‚Äúdisappeared person‚ÄĚ is a victim of treatment contrary to Article¬†3 will depend on the existence of special factors which give the suffering of the applicants a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not mainly lie in the fact of the ‚Äúdisappearance‚ÄĚ of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see Orhan v. Turkey, no. 25656/94, ¬ß¬†358, 18 June 2002, and Imakayeva, cited above, ¬ß¬†164).

119.¬†¬†In the present case the Court notes that the applicants are close relatives of the disappeared persons and that they witnessed their abduction. For more than five years they have not had any news of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev. During this period the applicants have applied to various official bodies with enquiries about their family members, both in writing and in person. Despite their attempts, the applicants have never received any plausible explanation or information as to what became of their family members following their kidnapping. The responses received by the applicants mostly denied that the State was responsible for their arrest or simply informed them that an investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.

120.  In view of the above, the Court finds that the applicants suffered distress and anguish as a result of the disappearance of their family members and their inability to find out what happened to them. The manner in which their complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3.

121.  The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicants.

V.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

122.  The applicants further stated that Beslan, Rizvan, Rizavdi and Shuddi Dolsayev had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant:

‚Äú1.¬†Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.¬†Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.‚ÄĚ

A.¬†¬†The parties’ submissions

123.¬†¬†In the Government’s opinion, no evidence had been obtained by the investigators to confirm that Beslan, Rizvan, Rizavdi and Shuddi Dolsayev had been deprived of their liberty in breach of the guarantees set out in Article 5 of the Convention.

124.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

125.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible.

2.  Merits

126.  The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others, cited above, § 122).

127.¬†¬†The Court has found it established that Beslan, Rizvan, Rizavdi and Shuddi Dolsayev were apprehended by State servicemen on 21¬†October 2002 and have not been seen since. Their detention was not acknowledged, was not logged in any custody records and there exists no official trace of their subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, ¬ß¬†371).

128.¬†¬†The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants’ complaints that their relatives had been detained and taken away in life-threatening circumstances. However, the Court’s findings above in relation to Article 2 and, in particular, the conduct of the investigation leave no doubt that the authorities failed to take prompt and effective measures to safeguard them against the risk of disappearance.

129.  In view of the foregoing, the Court finds that Beslan, Rizvan, Rizavdi and Shuddi Dolsayev were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

VI.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

130.  The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:

‚ÄúEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.‚ÄĚ

A.¬†¬†The parties’ submissions

131.¬†¬†The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them. The first and second applicants had been granted victim status in the criminal case and could have taken full advantage of such status in order ‚Äúto influence the investigation of the criminal case‚ÄĚ or bring a civil claim for compensation for non-pecuniary damage. In sum, the Government submitted that there had been no violation of Article 13.

132.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

133.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

134.  The Court reiterates that in circumstances where, as here, the criminal investigation into the disappearance has been ineffective and the effectiveness of any other remedy that may have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183).

135.  Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.

136.¬†¬†As regards the applicants’ reference to Article 3 of the Convention, the Court notes that it has found a violation of the above provision on account of the applicants’ mental suffering as a result of the disappearance of their close relatives, their inability to find out what had happened to them and the way the authorities handled their complaints. However, the Court has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention on account of the authorities’ conduct that led to the suffering endured by the applicants. The Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in connection with Article 3 of the Convention.

137.¬†¬†As regards the applicants’ reference to Article 5 of the Convention, the Court reiterates that according to its established case-law, the more specific guarantees of Article 5 ¬ß¬ß 4 and 5, being a lex specialis in relation to Article¬†13, absorb its requirements. In view of its above findings of a violation of Article 5 of the Convention resulting from the unacknowledged detention of the applicants’ relatives, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case.

VII.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

138.  In their initial submission the applicants stated that they had been discriminated against on the grounds of their ethnic origin, contrary to the provisions of Article 14 of the Convention. Article 14 provides:

‚ÄúThe enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.‚ÄĚ

139.  The Government disputed this allegation.

140.  In their observations on the admissibility and merits of the application the applicants stated that they no longer wished to maintain this complaint.

141.  The Court finds that the applicants do not intend to pursue this part of the application, within the meaning of Article 37 § 1 (a). The Court also finds no reasons of a general character, affecting respect for human rights as defined in the Convention, which require the further examination of the present complaints by virtue of Article 37 § 1 of the Convention in fine (see, among other authorities, Stamatios Karagiannis , cited above).

142.  It follows that this part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention.

VIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

143.  Article 41 of the Convention provides:

‚ÄúIf 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.‚ÄĚ

A.¬†¬†The Government’s objection

144.¬†¬†The Government submitted that the document containing the applicants’ claims for just satisfaction had been signed by Mr O. Solvang, Mr R. Lemaitre and Mr A. Sakalov, whereas the applicants had in fact been represented by Ms E. Ezhova, Ms A. Maltseva and Mr A. Nikolayev. They insisted therefore that the applicants’ claims for just satisfaction were invalid.

145.¬†¬†The Court points out that the applicants issued powers of attorney in the name of the SRJI, an NGO that collaborates with a number of lawyers. Since the SRJI lists Mr O. Solvang, Mr R. Lemaitre and Mr¬†A.¬†Sakalov as members of its staff and of its governing board, the Court has no doubt that they were duly authorised to sign the claims for just satisfaction on behalf of the applicants. The Government’s objection must therefore be dismissed.

B.  Pecuniary damage

146.  The first applicant claimed damages on his own behalf and on behalf of the second applicant in respect of the lost wages of their abducted sons. The applicants claimed a total of 634,650 Russian roubles (RUB) under this heading (18,133 euros (EUR)).

147.¬†¬†The first applicant submitted that he and the second applicant were financially dependent on their abducted sons and would have benefited from their financial support (in the second applicant’s case, until her death in June 2007) in the above amount of EUR 18,133. Their calculations were based on the provisions of the Russian Civil Code and the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary’s Department in 2007 (‚ÄúOgden tables‚ÄĚ).

148.  The Government regarded these claims as unsubstantiated.

149.¬†¬†The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article¬†2 in respect of the first applicant’s sons and the loss by the first and second applicants of the financial support which they could have provided. Having regard to the applicants’ submissions and the absence of any documents substantiating the earnings of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev at the time of their abduction, the Court awards the first applicant EUR¬†10,000 in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

C.  Non-pecuniary damage

150.  The applicants claimed EUR 210,000 in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family members, the indifference shown by the authorities towards them and the failure to provide any information about the fate of their close relatives.

151.  The Government found the amounts claimed exaggerated.

152.¬†¬†The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants’ relatives. The applicants themselves have been found to have been victims of a violation of Article 3 of the Convention. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards to the applicants jointly EUR¬†140,000 plus any tax that may be chargeable thereon.

D.  Costs and expenses

153.¬†¬†The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Chechnya and Moscow, at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for the SRJI lawyers and EUR 150 per hour for the SRJI senior staff. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 7,855.

154.  The Government disputed the reasonableness and the justification of the amounts claimed under this heading.

155.¬†¬†The Court has to establish first whether the costs and expenses indicated by the applicants’ relatives were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, ¬ß 220).

156.¬†¬†Having regard to the details of the representation contract, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives.

157.¬†¬†Further, it has to be established whether the costs and expenses incurred for legal representation were necessary. The Court notes that this case was rather complex and required a certain amount of research and preparation. It notes at the same time that, as the admissibility and merits of the application in the present case were examined together (Article 29 ¬ß 3), the applicants’ representatives submitted their observations on admissibility and merits in one set of documents. The Court thus doubts that legal drafting was necessarily time-consuming to the extent claimed by the representatives. The Court also notes that the applicants did not submit any documents in support of their claim for administrative costs.

158.¬†¬†Having regard to the details of the claims submitted by the applicants and acting on an equitable basis, the Court awards them the amount of EUR¬†5,500 together with any value-added tax that may be chargeable, the net award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicants.

F.  Default interest

159.  The Court considers it appropriate that the default interest 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.¬†¬†Dismisses the Government’s objection as to the abuse of the right of petition;

2.¬†¬†Decides to strike the application out of its list of cases in accordance with Article 37 ¬ß 1 (a) of the Convention in so far as it concerns the applicants’ complaint under Article 3 about the alleged ill-treatment of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev and the applicants’ complaint under Article 14 of the Convention;

3. Declares the complaints under Articles 2, 3, 5 and 13 admissible;

4.  Holds that there has been a violation of Article 2 of the Convention in respect of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev;

5.  Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances surrounding the disappearance of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev;

6.  Holds that there has been a violation of Article 3 of the Convention in respect of the applicants;

7.  Holds that there has been a violation of Article 5 of the Convention in respect of Beslan, Rizvan, Rizavdi and Shuddi Dolsayev;

8.  Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;

9.  Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5;

10.  Holds

(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i)  EUR 10,000 (ten thousand euros) in respect of pecuniary damage to the first applicant, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable to this amount;

(ii)  EUR 140,000 (one hundred and forty thousand euros) in respect of non-pecuniary damage to the applicants jointly, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable to this amount;

(iii)¬†¬†EUR¬†5,500 (five thousand five hundred euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands;

(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;

11.¬†¬†Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 22 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Christos Rozakis
Deputy Registrar President


DOLSAYEV AND OTHERS v. RUSSIA JUDGMENT

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