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Home » ECHR Cases

Khalitova and Others – Khasuyeva v. Russia

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Khalitova and Others – Khasuyeva v. Russia

The ECHR cases of Khalitova and Others v. Russia(application no. 33264/04) and Khasuyeva v. Russia (application no.28159/03).

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EUROPEAN COURT OF HUMAN RIGHTS

460

11.06.09

Press release issued by the Registrar

Two Chamber Judgments in respect of Russia
concerning disappearances in Chechnya

The European Court of Human Rights has today notified in writing the following two Chamber judgments concerning Russia, neither of which is final. The applicants alleged in particular that their relatives disappeared after being detained by Russian servicemen and that the domestic authorities failed to carry out an effective investigation into their allegations. They relied, in particular, on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security) and 13 (right to an effective remedy).

1. Khalitova and Others v. Russia (application no. 33264/04)

The applicants in this case are four Russian nationals who live in the Groznenskiy District (Chechen Republic). The first applicant’s husband, Ali Uspayev, and her son, Amir Magomedov, were seen for the last time in the early hours of 18 July 2001, when they were taken from the family home by a group of armed men wearing camouflage uniforms. The second and third applicants are the sister and wife of Aslan Dokayev, and the fourth applicant is the father of Rustam Achkhanov; the two men have not been seen since early in the morning of 18 July 2001 when, according to the applicants, the car in which their relatives were travelling came under fire from servicemen. Aslan and Rustam, wounded, were loaded into an armoured military vehicle; they have not been seen since. The Government, although accepting that a special military operation had been carried out in the applicants’ district on 18 July 2001, denied that Aslan and Rustam were shot; they submitted that the two men escaped and have since been missing.

Violations of Article 2 (right to life) on account of the deaths of Ali Uspayev, Amir Magomedov, Aslan Dokayev and Rustam Achkhanov and the absence of an effective investigation into their disappearance.

Violation of Article 3 (prohibition of inhuman treatment) on account of the mental suffering endured by the applicants.

Violation of Article 5 (right to liberty and security) on account of the unacknowledged detention of the four men.

Violation of Article 13 (right to an effective remedy) taken in conjunction with Article 2.

In respect of non-pecuniary damage, the Court made awards of 40,000 euros (EUR) to the first applicant and EUR 20,000 to each of the other three applicants. EUR 4,500 was awarded in total for pecuniary damage.

2. Khasuyeva v. Russia (no. 28159/03)

The applicant in this case is a Russian national who lives in Urus-Martan (Chechen Republic). She is the mother of Abu Khasuyev, born in 1978, who has not been seen since the early afternoon of 30 August 2001 when he was abducted from the family home by a group of about ten masked, armed men in camouflage uniforms. Abu Khasuyev’s wife, present at the scene of the abduction with her baby daughter, claimed that the men who broke into the family’s flat, situated at that time near to a Russian military checkpoint, spoke unaccented Russian and drove her husband away in a vehicle with tinted windows and no registration plate. The applicant’s neighbours corroborated that version of events. The official investigation into the disappearance established that there were sufficient grounds to assume that a special operation had been carried out in respect of the applicant’s son during which armoured vehicles had been used. The Government submitted that, the investigation still in progress, Abu Khasuyev’s abductors had not yet been identified.

Violations of Article 2 (right to life) on account of the death of Abu Khasuyev and the lack of an effective investigation into his disappearance.

Violation of Article 3 (prohibition of inhuman treatment) on account of the mental suffering endured by the applicant.

Violation of Article 5 (right to liberty and security) on account of the unacknowledged detention of the applicant’s son.

Violation of Article 13 (right to an effective remedy) taken in conjunction with Article 2.

The Court awarded the applicant EUR 12,000 for pecuniary damage, EUR 35,000 for non-pecuniary damage and EUR 8,093 for costs and expenses.

CASE OF KHALITOVA AND OTHERS v. RUSSIA

(Application no. 33264/04)

JUDGMENT

STRASBOURG

11 June 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 Khalitova 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 S√łren Nielsen, Section Registrar
,

Having deliberated in private on 19 May 2009,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 33264/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‚Äúthe Convention‚ÄĚ) by four Russian nationals listed below (‚Äúthe applicants‚ÄĚ), on 7 September 2004.

2.¬†¬†The applicants, who had been granted legal aid, were represented by lawyers of the International Protection Centre, an NGO based in Moscow. The Russian Government (‚Äúthe Government‚ÄĚ) were represented by Ms¬†V.¬†Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.

3.  On 1 September 2005 the Court decided to apply Rule 41 of the Rules of Court.

4.  On 26 March 2007 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

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) Ms Nebist Khalitova, born in 1959;

2) Ms Zarema Almurzayeva, born in 1971;

3) Ms Zalina Chapayeva, born in 1982; and

4) Mr Maulat Achkhanov, born in 1929.

The first applicant lives in the village of Raduzhnoe. The second, third and fourth applicants live in the village of Pobedinskoe. The two villages are located a short distance one from another in the Groznenskiy District of the Chechen Republic.

7.  The first applicant is the wife of Mr Ali Uspayev and the mother of Mr Amir Magomedov. The second applicant is the sister of Mr Aslan Dokayev. Aslan Dokayev was married to the third applicant. The fourth applicant is the father of Mr Rustam Achkhanov.

A.  Disappearance of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov

1.¬†¬†The applicants’ account

(a)  Amir Magomedov and Ali Uspayev

8.  On the night of 18 July 2001 the first applicant, her son and husband were sleeping in their house in Raduzhnoe. At about 5 a.m. around thirty unidentified armed men wearing camouflage uniforms broke into it. The men did not identify themselves. They had Slavic features and spoke Russian without an accent.

9.  The first applicant looked out of the window and saw the armed men dragging Amir Magomedov, who had his legs in a plaster cast because of a previous trauma, to the gates. Ali Uspayev was lying on the ground in the courtyard with his arms handcuffed behind his back. Then one of the armed men hit the first applicant with a rifle butt and she lost consciousness. Having recovered a few minutes later, she saw that everyone had left the house.

10.¬†¬†According to her neighbours who witnessed the events, the armed men loaded Amir Magomedov and Ali Uspayev into one of two armoured personnel carriers (‚ÄúAPCs‚ÄĚ) parked next to the first applicant’s house and drove away. Outside the village the two vehicles were joined by two more APCs.

(b)  Aslan Dokayev and Rustam Achkhanov

11. On the morning of 18 July 2001 Rustam Achkhanov was driving his VAZ 2106 car. He was accompanied by his acquaintance, Aslan Dokayev.

12.  At about 6 a.m., when they reached the village of Raduzhnoe, unidentified armed men in four APCs without registration numbers opened fire in the direction of the VAZ 2106 car. Aslan Dokayev and Rustam Achkhanov got out of the car and started running. The armed men continued shooting, wounded Aslan Dokayev and Rustam Achkhanov and loaded them into one of the APCs. Then they took the music player and some other valuable items from the VAZ 2106 car, poured petrol over it and then set it on fire. The car blew up. The four APCs drove away.

13.  The second, third and fourth applicants did not see their relatives being taken away and obtained the description of the events from inhabitants of Raduzhnoe.

2.  Information submitted by the Government

14.  On 18 July 2001 units of the federal troops and the Internal Troops of the Russian Ministry of the Interior carried out a special operation in the village of Pobedinskoe with a view to arresting members of illegal armed groups and prosecuting them in accordance with the law in force. The servicemen of the Internal Troops had a right to carry and use arms when ensuring peace and order. Residents of the Chechen Republic were advised by officials to abstain from using cars or other vehicles at night because of the unlawful activities of illegal armed groups and the counter-attacks of federal troops.

15.¬†¬†At about 5 a.m. on 18 July 2001 Aslan Dokayev and Rustam Achkhanov were travelling in a VAZ 2106 car in the direction of the village of Pobedinskoe. At some point near the bridge on the Alkhanchurskiy canal servicemen participating in the counter-terrorism campaign flagged down the VAZ 2106 car. The servicemen intended to check the identities of those travelling in the car. Rustam Achkhanov stopped the car within seventy metres of the servicemen; Aslan Dokayev and Rustam Achkhanov left the car and started running. The servicemen fired warning shots in the air. The two men ignored the shots and continued running in the direction of civilians’ houses in the village of Raduzhnoe. Aslan Dokayev and Rustam Achkhanov escaped the scene and their whereabouts were not established. The servicemen examined the VAZ¬†2106 car and the surrounding area. They found a RPG-26 hand-held grenade launcher (¬ę—Ä—É—á–Ĺ–ĺ–Ļ –≥—Ä–į–Ĺ–į—ā–ĺ–ľ–Ķ—ā –†–ü–ď-26 ¬ę–ú—É—Ö–į¬Ľ¬Ľ) lying next to the car and two shells for a RPG-7 hand-held grenade launcher (¬ę—Ä—É—á–Ĺ–ĺ–Ļ –≥—Ä–į–Ĺ–į—ā–ĺ–ľ–Ķ—ā –†–ü–ď-7¬Ľ) in the car boot.

16.  At about 5 a.m. on 18 July 2001 unidentified persons in camouflage uniforms abducted Amir Magomedov and Ali Uspayev in the village of Raduzhnoe. The whereabouts of the two men were not established.

B.  The search for Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov and the investigation

1.¬†¬†The applicants’ account

17.¬†¬†On 18 July 2001, shortly after Aslan Dokayev and Rustam Achkhanov were taken away, the second applicant discovered that Amir Magomedov and Ali Uspayev had been abducted as well. She was also told that the four APCs had headed to Solenaya Balka area where the 21st brigade of the Russian federal troops (‚Äúthe Sophrino brigade‚ÄĚ) was stationed. The second applicant immediately communicated that information to the military commander’s office of the Groznenskiy District, the Groznenskiy district department of the interior and the prosecutor’s office of the Groznenskiy District (‚Äúthe district prosecutor’s office‚ÄĚ). Some officials visited the headquarters of the Sophrino brigade and were informed that its officers had not been implicated in the abductions.

18.¬†¬†On 18 July 2001 officials from a prosecutor’s office visited the first applicant and questioned her about the circumstances of the abduction of her son and husband.

19.¬†¬†After 18 July 2001 the applicants repeatedly contacted various official bodies, both in person and in writing. In particular, they applied to prosecutors’ offices at different levels, the Administration of the Chechen Republic, the Russian State Duma and the Special Envoy of the Russian President in Chechnya for Rights and Freedoms. The applicants retained copies of some of these complaints and submitted them to the Court. The official bodies forwarded the majority of the complaints to the various prosecutors’ offices for investigation.

20.¬†¬†On 18 July 2001 the district prosecutor’s office instituted an investigation into the murder of Aslan Dokayev and Rustam Achkhanov under Article 105 ¬ß 2 of the Russian Criminal Code (aggravated murder). The case file was given the number 19109.

21.¬†¬†On 20 July 2001 the investigation file in case no. 19109 was forwarded to the military prosecutor’s office of military unit no. 20102 (‚Äúthe unit prosecutor’s office‚ÄĚ). It appears that the case was then assigned the number 14/33/0405-01.

22.¬†¬†On 1 August 2001 the second applicant wrote to the prosecutor’s office of the Chechen Republic describing in detail the circumstances of the abduction of Aslan Dokayev and Rustam Achkhanov and asking for help in establishing their whereabouts.

23.¬†¬†On 2 August 2001 the unit prosecutor’s office summoned the second applicant for an interview.

24.¬†¬†On 13 August 2001 the unit prosecutor’s office transferred the investigation file in case no. 14/33/0405-01 to the military prosecutor’s office of the North Caucasian Circuit (‚Äúthe circuit prosecutor’s office‚ÄĚ).

25.¬†¬†On 16 August 2001 the unit prosecutor’s office sent a request to the temporary department of the interior of the Staropromyslovskiy District (‚Äúthe VOVD‚ÄĚ), which stated that on 18 July 2001 a group of servicemen commanded by an officer of the Federal Security Service (‚Äúthe FSB‚ÄĚ) had shot Aslan Dokayev and Rustam Achkhanov during an attempt to escape arrest and that their corpses had been transported by the APCs. The VOVD was instructed to verify whether the bodies of Aslan Dokayev and Rustam Achkhanov were among any unidentified corpses.

26.¬†¬†On 29 November 2001 the district prosecutor’s office forwarded the second and fourth applicants’ complaints to the unit prosecutor’s office.

27.¬†¬†On 30 November 2001 the prosecutor’s office of the Chechen Republic forwarded the fourth applicant’s complaint to the district prosecutor’s office.

28.¬†¬†On 14 December 2001 the unit prosecutor’s office forwarded the fourth applicant’s letter to the circuit prosecutor’s office to be included in the investigation file in case no. 14/33/0405-01.

29.¬†¬†On 18 June 2002 the circuit prosecutor’s office suspended the investigation in case no. 14/00/0019-01 for failure to identify the perpetrators.

30.¬†¬†On 13 November 2002 the second applicant complained to the prosecutor’s office of the Chechen Republic that there had been no progress in the investigation in case no. 14/33/0405-01 and asked for assistance in establishing her brother’s whereabouts.

31.¬†¬†On 17 July 2003 the district prosecutor’s office issued the third applicant with a progress report on case no. 19109 which stated that the investigation had been opened on 18 July 2001 and that on 20 July 2001 the investigation file had been transferred to the unit prosecutor’s office.

32.¬†¬†On 18 September 2003 the unit prosecutor’s office informed the third applicant that the investigation file in case no. 14/33/0405-01 had been transferred to the circuit prosecutor’s office on 13 August 2001.

33.¬†¬†On 10 November 2003 the second applicant requested the circuit prosecutor’s office to update her on progress in the investigation in case no.¬†14/33/0405-01 and to send her a copy of the latest decision.

34.¬†¬†On 7 February 2004 the second applicant again wrote to the circuit prosecutor’s office repeating her request of 10 November 2003.

35.¬†¬†On 5 March 2004 the circuit prosecutor’s office forwarded the second applicant’s complaint to the military prosecutor’s office of the United Group Alignment (‚Äúthe UGA prosecutor’s office‚ÄĚ) and invited the second applicant to send any further queries to the UGA prosecutor’s office or the prosecutor’s office of the Chechen Republic.

36.¬†¬†On 8 March 2004 the UGA prosecutor’s office forwarded the second applicant’s letter to the prosecutor’s office of the Chechen Republic and mentioned that the investigation file in case no. 34/33/0405-01 had been transferred to the prosecutor’s office of the Chechen Republic on 19¬†February 2003. A copy of the letter was sent to the second applicant.

37.¬†¬†On 26 March 2004 the UGA prosecutor’s office forwarded the fourth applicant’s complaint to the unit prosecutor’s office.

38.¬†¬†On 26 April 2004 the unit prosecutor’s office informed the prosecutor’s office of the Chechen Republic that an inquiry had not established that federal servicemen were implicated in the kidnapping of Aslan Dokayev and Rustam Achkhanov, and forwarded the results of the inquiry.

39.¬†¬†On 27 April 2004 the prosecutor’s office of the Chechen Republic forwarded the second applicant’s complaint to the district prosecutor’s office.

40.¬†¬†On 1 June 2004 the second and fourth applicants requested the district prosecutor’s office to inform them of progress in case no.¬†34/33/0405-01 and to grant them victim status.

41.¬†¬†On an unspecified date in June 2004 the first, second and fourth applicants visited the district prosecutor’s office and were served with a copy of the decision to suspend the investigation of 18 June 2002.

42.¬†¬†On 7 July 2004 the unit prosecutor’s office informed the fourth applicant that the investigation file in case no. 19109 had been forwarded to the circuit prosecutor’s office.

43.¬†¬†In a letter of 7 September 2004 the unit prosecutor’s office informed the Committee on the Constitutional Rights of Nationals of the Chechen Republic and the fourth applicant that the inquiry had established that federal servicemen had not been involved in the kidnapping of Aslan Dokayev and Rustam Achkhanov and that the file had been forwarded to the prosecutor’s office of the Chechen Republic.

44.¬†¬†On 30 September 2004 the prosecutor’s office of the Chechen Republic informed the second applicant that it had instructed the district prosecutor’s office to reinvigorate the investigation, to take requisite measures to solve the crime and to examine the feasibility of the transfer of the file to a military prosecutor’s office. The second applicant was invited to send further queries to the district prosecutor’s office.

45.¬†¬†On 12 October 2004 the fourth applicant complained to the Main Military Prosecutor’s Office of Russia that there had been no effective investigation into his son’s disappearance.

46.¬†¬†On 29 October 2004 the second, third and fourth applicants requested the prosecutor’s office of the Chechen Republic to inform them which prosecutor’s office was in charge of the investigation and to report on its results.

47.¬†¬†On 9 November 2004 the second, third and fourth applicants complained to the district prosecutor’s office and the prosecutor’s office of the Chechen Republic that they had not been given any information about the investigation into their relatives’ deaths and requested that they be informed immediately of the outcome of the investigation.

48.¬†¬†On 9 November 2004 the district prosecutor’s office forwarded the investigation file in case no. 19109 into the murder of Aslan Dokayev and Rustam Achkhanov and the kidnapping of Amir Magomedov and Ali Uspayev to the prosecutor’s office of the Chechen Republic. The cover letter stated that ‚Äúthe investigation [had] established that the crimes had been committed by servicemen of military unit no.¬†3499‚ÄĚ. The prosecutor’s office of the Chechen Republic was also asked to consider forwarding the file to the UGA prosecutor’s office.

49.¬†¬†On 31 December 2004 the unit prosecutor’s office informed the first, second and fourth applicants that the investigation in case no.¬†14/33/04-05 D had been commenced on 18 July 2001 and that the investigation file had been forwarded to the circuit prosecutor’s office on 13 August 2001 and had not been returned to the unit prosecutor’s office.

50.¬†¬†On 31 March 2005 the fourth applicant wrote to the Main Military Prosecutor’s Office of Russia complaining of the abduction and disappearance of his son and Aslan Dakayev. In reply, on 11 April 2005, he was informed that the complaint had been forwarded to the UGA prosecutor’s office.

51.¬†¬†It appears that the investigation into the disappearance and death of the applicants’ relatives has not been completed to date.

2.  Information submitted by the Government

52.¬†¬†On 18 July 2001 the district prosecutor’s office instituted a criminal investigation into the murder of Aslan Dokayev and Rustam Achkhanov under Article 105 ¬ß 2 of the Russian Criminal Code (aggravated murder). The case was assigned the number 19109. Later the case file was transferred to the unit prosecutor’s office to verify the hypothesis of the involvement of servicemen of the Internal Troops in the crime and assigned the number 14/33/0405-01.

53.¬†¬†On 13 August 2001 the case was transferred to the circuit prosecutor’s office and assigned the number 14/00/0019-01.

54.¬†¬†In February 2003 the case was returned to the district prosecutor’s office under the number 19109 because the involvement of the servicemen of the Internal Troops in the crime had not been proven.

55.¬†¬†On 3 November 2004 the district prosecutor’s office instituted a criminal investigation into Amir Magomedov and Ali Uspayev’s disappearance following their abduction by unknown persons under Article¬†126 ¬ß 2 of the Russian Criminal Code (aggravated kidnapping). The case was assigned the number 34113 and then joined to case no. 19109.

56.¬†¬†On 8 November 2004 case no. 19109 was transferred pursuant to the jurisdiction rules to the UGA prosecutor’s office and then accepted for processing by the unit prosecutor’s office under the number 34/33/0405-01. On the same date the investigation was suspended for failure to identify those responsible.

57.¬†¬†On 19 January 2005 the unit prosecutor’s office quashed the decision of 8 November 2004 and resumed the investigation in case no.¬†34/33/0405-01.

58.  The circumstances in which Aslan Dokayev and Rustam Achkhanov were shot at were uncertain. Witnesses claimed that Aslan Dokayev and Rustam Achkhanov had either been wounded or killed by servicemen and that their bodies had then been put in the APCs. The servicemen who had been present at the scene of the incident denied the allegations and stated that they had fired warning shots in the air to stop Aslan Dokayev and Rustam Achkhanov who had been trying to run away.

59.  The APCs used in the special operation were examined in the course of the investigation. No traces of blood were found on them.

60.¬†¬†The bullets and cartridges found at the scene of the incident had not been fired from the servicemen’s weapons.

61.¬†¬†The investigation failed to prove the involvement of federal servicemen in the crime or to establish the whereabouts of the missing men. The criminal proceedings related to the disappearance of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov in case no.¬†34/33/0405-01 have been pending before a military prosecutor’s office.

62.¬†¬†Despite specific requests by the Court, the Government did not disclose any documents from the investigation files in cases nos. 19109, 14/00/0019-01 and 34/33/0405-01, except for a copy of the decision of 19¬†January 2005 by the unit prosecutor’s office. They 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 files contained information of a military nature and personal data concerning witnesses or other participants in criminal proceedings.

C.  Proceedings against law-enforcement officials

1.¬†¬†The applicants’ account

63.¬†¬†On 7 March 2004 the fourth applicant lodged with the Military Court of the North Caucasus Circuit (‚Äúthe circuit court‚ÄĚ) a complaint concerning the disappearance of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov and that there had been no effective investigation.

64.  On 15 March 2004 the second applicant lodged a complaint with the circuit court about the disappearance of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov, also alleging an ineffective investigation,

65.¬†¬†On 2 April 2004 the circuit court forwarded the fourth applicant’s complaint to the Military Court of the Grozny Garrison (‚Äúthe Grozny court‚ÄĚ) for examination on the merits.

66.¬†¬†On 6 May 2004 the Grozny court returned the complaint about ‚Äúthe decision of the [circuit] prosecutor’s office to suspend investigation in case no. 14/33/0405-01‚ÄĚ to the second applicant for lack of jurisdiction. It explained that the complaint should be lodged with a district court of general jurisdiction.

67.  On 1 June 2004 the Grozny court informed the fourth applicant that a hearing of his complaint would be held on 4 June 2004.

68.¬†¬†On 4 June 2004 the Grozny court, relying on the rules of territorial jurisdiction, decided to forward the fourth applicant’s complaint to the Military Court of the Rostov-on-Don Garrison (‚Äúthe Rostov court‚ÄĚ).

69.  On 8 July 2004 the Rostov court summoned the fourth applicant to attend a hearing of 9 July 2004 to clarify his claims.

70.¬†¬†On 2 August 2004 the Rostov court informed the fourth applicant that it had requested the prosecutor’s office of the Chechen Republic to report on the location of the case file and the progress in the investigation.

71.  On 30 July 2004 the first, second and fourth applicants lodged a complaint with the Rostov court that the investigative authorities had taken no action and requested that the decision to suspend the investigation of 18 June 2002 be quashed.

72.  On 8 September 2004 the Rostov court summoned the first, second and fourth applicants to attend a hearing scheduled for 10 September 2004.

73.  On 22 November 2004 the fourth applicant was summoned to attend a hearing of the Rostov court on 24 December 2004. In reply the first, second and fourth applicants agreed to have the case examined in their absence and asked to be informed of the eventual outcome of the hearing.

2.¬†¬†The Government’s account

74.  On 18 May 2004 the Grozny court received a complaint by the fourth applicant dated 15 March 2004 about the decision to suspend the investigation into the kidnapping of his son Rustam Achkhanov. In his complaint the fourth applicant reported the following. On 18 July 2001 the car in which Aslan Dokayev and Rustam Achkhanov had been riding had been fired at by servicemen in the village of Raduzhnoe. Aslan Dokayev and Rustam Achkhanov had been wounded and taken away to an unknown destination. On the same date servicemen had kidnapped Amir Magomedov and Ali Uspayev.

75.¬†¬†The Grozny court accepted the complaint, scheduled a hearing for 4¬†June 2004 and notified the fourth applicant accordingly. The latter failed to attend the hearing. On 4 June 2004 the Grozny court was informed that the investigation was pending before the circuit prosecutor’s office and transferred the fourth applicant’s complaint to the Rostov court pursuant to procedural rules.

76.¬†¬†On 9 July 2004 the Rostov court accepted the fourth applicant’s complaint for processing. The fourth applicant was notified accordingly and replied that he could not attend a hearing on a particular date.

77.¬†¬†The Rostov court requested the case file from the circuit prosecutor’s office. It was revealed that on 22 November 2002 the Main Military Prosecutor’s Office had been ordered to transfer the case file to the UGA prosecutor’s office. Following an additional inquiry that had not proven the involvement of servicemen in the kidnappings of 18 July 2001 in the village of Raduzhnoe the case file was transferred to the prosecutor’s office of the Chechen Republic on 19 February 2003. On 27 February 2003 the case file was sent to the district prosecutor’s office. On 25 August 2004 the case was sent to the prosecutor’s office of the Chechen Republic. On 19 November 2004 it was transferred to the UGA prosecutor’s office.

78.  On 30 August 2004 the Rostov court received a complaint by the first, second and fourth applicants challenging the decision of 18 June 2001 to suspend the investigation concerning their missing relatives.

79.¬†¬†On 19 January 2005 the unit prosecutor’s office informed the Rostov court of the following. On 30 September 2004 the prosecutor’s office of the Chechen Republic had quashed the decision of 18 June 2002. On 8¬†November 2004 the district prosecutor’s office had again suspended the proceedings. On 19 January 2005 the unit prosecutor’s office had quashed the decision of 8 November 2004 and resumed the investigation concerning both the presumed killing and the kidnapping of 18 July 2001.

80.¬†¬†On 20 January 2005 the Rostov court examined the materials before it and dismissed the applicants’ complaint for the reason that the contested decision had already been quashed. On 24 January 2005 the first, second and fourth applicants were sent copies of the Rostov court’s decision.

81.  The decision of 20 January 2005 was not appealed against.

II.  RELEVANT DOMESTIC LAW

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

THE LAW

I.¬†¬†The government’s objection regarding non-exhaustion of domestic remedies

A.¬†¬†The parties’ submissions

83.¬†¬†The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the disappearance of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov had not yet been completed. They further argued that the applicants had not appealed against the decision of the Rostov court. It was also open to the applicants to complain of the inactivity of the investigators to higher prosecutors’ offices or to lodge civil claims for damages, which they had failed to do.

84.  The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective. Referring to the other cases concerning similar crimes reviewed by the Court, they alleged that the existence of an administrative practice of non-investigation of crimes committed by State servicemen in the Chechen Republic rendered any potentially effective remedies inadequate and illusory in their case.

B.¬†¬†The Court’s assessment

85.  The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and further that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June 2006).

86.¬†¬†It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Cennet Ayhan and Mehmet Salih Ayhan, cited above,¬†¬ß¬†65).

87.  The Court notes that the Russian legal system provides in principle two avenues of recourse for victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.

88.  As regards a civil action to obtain redress for damage sustained through alleged illegal acts or unlawful conduct on the part of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.

89.  As regards criminal law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law enforcement agencies immediately after the disappearance of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov. The investigation into the murder of Aslan Dokayev and Rustam Achkhanov has been pending since 18 July 2001, while the investigation into the kidnapping of Amir Magomedov and Ali Uspayev has been under way since 3 November 2004. The applicants and the Government dispute the effectiveness of the investigation into the murder and kidnapping.

90.¬†¬†The Court considers that this part of the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below.

II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

91.  The applicants complained that Amir Magomedov and Ali Uspayev had been arrested by Russian servicemen and then disappeared and that Aslan Dokayev and Rustam Achkhanov had been shot and taken away by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into these matters. They relied on Article 2 of the Convention, which 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.  Arguments of the parties

92.  The Government argued that there was no convincing evidence that Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov were dead. Neither was it proven that the four men had been arrested by State servicemen. The Government emphasised that Aslan Dokayev and Rustam Achkhanov had run away from servicemen who had intended to check their identities and that there had been weapons found in the VAZ 2106 car. The Government further argued that the investigation into the murder and kidnapping had been effective and was pending before an independent State agency. The applicants had been informed of progress in the investigation in due course. Repeated suspensions and resumptions of the investigation only showed that the proceedings had been ongoing and the requisite investigative measures had been taken.

93.  The applicants maintained that it was beyond reasonable doubt that the men who had shot Aslan Dokayev and Rustam Achkhanov and arrested Amir Magomedov and Ali Uspayev had been State agents because the federal forces had carried out a special operation on 18 July 2001 and the perpetrators had been travelling in APCs, which could only be used by State agencies. They further complained that the investigation into the murder and kidnapping of their relatives had been protracted and ineffective.

B.¬†¬†The Court’s assessment

1.  Admissibility

94.¬†¬†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 Court has already found that the Government’s objection concerning the alleged non-exhaustion of criminal domestic remedies should be joined to the merits of the complaint (see paragraph 90 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

2.  Merits

(a)  The alleged violation of the right to life of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov

i.  Establishment of the facts

95.¬†¬†The Court reiterates that, in the light of the importance of the protection afforded by Article¬†2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see Orhan v. Turkey, no. 25656/94, ¬ß 326, 18 June 2002). Where the events in question lie wholly or in a large part within the exclusive knowledge of the authorities, as in the case of persons under their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no.¬†21986/93, ¬ß¬†100, ECHR 2000-VII, and √áakńĪcńĪ v. Turkey [GC], no.¬†23657/94, ¬ß 85, ECHR 1999-IV).

96.  The Court observes that 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, §§ 103-09, 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).

97.¬†¬†The Court notes that, despite its requests for a copy of the entire investigation file into the murder of Aslan Dokayev and Rustam Achkhanov and the kidnapping of Amir Magomedov and Ali Uspayev, the Government refused to produce the case materials except for one document, on the grounds that they were precluded from providing them by Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva¬†v. Russia, no.¬†7615/02, ¬ß¬†123, ECHR 2006-… (extracts)).

98.¬†¬†In view of the foregoing and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government’s conduct in this respect.

99.  The applicants alleged that the persons who had taken Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov away on 18 July 2001 were State agents.

100.  The Court notes at the outset that the Government accepted that a special operation had been carried out by unspecified units of the federal military troops and the Internal Troops of the Ministry of the Interior in the village of Pobedinskoe on 18 July 2001 (see paragraph 14 above). They also confirmed that unnamed State servicemen who had been taking part in the security operation had stopped the VAZ 2106 car near the village of Raduzhnoe and had opened fire when Aslan Dokayev and Rustam Achkhanov started running (see paragraph 15 above). It was also accepted that those servicemen had been travelling in APCs (see paragraph 59 above).

101.  The Government nonetheless denied that the servicemen had shot Aslan Dokayev and Rustam Achkhanov and claimed that the two men had escaped and hidden somewhere in Raduzhnoe. They provided no explanation as to what happened to Amir Magomedov and Ali Uspayev since they had gone missing on 18 July 2001.

102.¬†¬†According to the Government, unnamed witnesses to the incident in which Aslan Dokayev and Rustam Achkhanov were shot at had stated before the domestic investigation that the two men had been either wounded or killed and then put into the APCs. The Government further claimed that the witnesses’ depositions had been refuted by the unnamed servicemen who had claimed that they had fired into the air, not at Aslan Dokayev and Rustam Achkhanov (see paragraph 58 above). The Court points out that the Government did not produce any transcripts of the interviews of the witnesses in question. Neither did they provide any information on the identities of the servicemen who had been present at the scene of the incident or the units they belonged to. In such circumstances the Court is ready to draw inferences from the Government’s failure to submit such information. In any event, the use of a plural form of a word ‚Äúwitness‚ÄĚ in the Government’s submissions indicates that there were at least two eyewitnesses to the shooting of Aslan Dokayev and Rustam Achkhanov who claimed to have seen the two men being wounded and put in the APCs. Furthermore, the applicants’ hypothesis that Aslan Dokayev and Rustam Achkhanov had been shot by State servicemen on 18 July 2001 is supported by the Government’s admission that the servicemen had opened fire in the immediate vicinity of the two men who were allegedly attempting to escape.

103.  The Court observes that those unnamed witnesses questioned by the investigators could not tell with certainty whether Aslan Dokayev and Rustam Achkhanov had died of the wounds received on the spot or had survived and remained in captivity for at least some time. Nonetheless, it follows from the depositions that they made, both before the domestic investigation and the applicants, that Aslan Dokayev and Rustam Achkhanov had been shot at and then taken away by armed men travelling in the APCs on the day of the special operation. This information combined with the fact that there has been no news from Aslan Dokayev and Rustam Achkhanov for nearly eight years confirms that those armed men were State servicemen.

104.¬†¬†Moreover, the applicants’ allegation that the armed men travelling in APCs who had abducted Amir Magomedov and Ali Uspayev were State agents is plausible in view of the Government’s statement that the special operation had been carried out in Pobedinskoe in the vicinity of Raduzhnoe on 18 July 2001. To assume the contrary would suggest that a group of insurgents had been able to travel unnoticed in highly visible vehicles such as APCs around a village where there were many federal troops.

105.¬†¬†The fact that the proceedings related to the disappearance of the applicants’ relatives were ‚Äď and apparently still are ‚Äď pending before military prosecutors’ offices empowered to deal with criminal cases attributable to military personnel implies that the domestic investigators accepted the applicants’ factual assumptions of servicemen’s implication in the crimes. Furthermore, on 9 November 2004 the district prosecutor’s office stated in affirmative terms that military involvement in the murder of Aslan Dokayev and Rustam Achkhanov and the kidnapping of Amir Magomedov and Ali Uspayev had been proven (see paragraph 48 above).

106.¬†¬†The Court observes that where the applicants make out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of documents, it is for the Government to show 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).

107.¬†¬†Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that Amir Magomedov and Ali Uspayev were abducted and that Aslan Dokayev and Rustam Achkhanov were shot and then taken away 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 shooting and 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 Amir Magomedov and Ali Uspayev were abducted and that Aslan Dokayev and Rustam Achkhanov were shot and then taken away by State servicemen during the security operation of 18¬†July 2001.

108.¬†¬†There has been no reliable news of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov since 18 July 2001. Their names have not been found in any official detention facilities’ records. The Government did not submit any explanation as to what had happened to them after that day.

109.¬†¬†The Court is not in a position to establish with certainty whether Aslan Dokayev and Rustam Achkhanov died on 18 July 2001 of the wounds received or not. At any rate, having regard to the previous cases concerning disappearances of people in the Chechen Republic which have come before the Court (see, for example, Luluyev and Others¬†v. Russia, no.¬†69480/01, ECHR 2006-… ), it considers that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgement of the detention, this can be regarded as life-threatening. The absence of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov or any news of them for almost eight years corroborates this assumption.

110.  Accordingly, the Court finds it established that on 18 July 2001 Amir Magomedov and Ali Uspayev were abducted and that Aslan Dokayev and Rustam Achkhanov were shot and then abducted by State servicemen and that the four men must be presumed dead following these events.

ii.¬†¬†The State’s compliance with Article 2

111.  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 (see McCann and Others v. the United Kingdom, 27 September 1995, § 147, Series A no. 324).

112.  The Court has already found it established that Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov must be presumed dead (see paragraph 110 above). Noting that the authorities do not rely on any ground of justification in respect of the use of lethal force by State servicemen, it considers that responsibility for their deaths lies with the respondent Government.

113.  Accordingly, the Court finds that there has been a violation of Article 2 of the Convention in respect of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov.

(b)  The alleged inadequacy of the investigation

114.¬†¬†The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article¬†1 of the Convention to ‚Äúsecure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention‚ÄĚ, 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 (see Kaya v. Turkey, 19 February 1998, ¬ß¬†86, Reports 1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no.¬†24746/94, ¬ß¬ß 105-09, ECHR 2001-III (extracts), and Douglas-Williams v. the United Kingdom (dec.), no.¬†56413/00, 8¬†January 2002).

115.  In the present case, the murder of Aslan Dokayev and Rustam Achkhanov and the kidnapping of Amir Magomedov and Ali Uspayev were investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

116.  The Court notes at the outset that all but one of the documents from the investigation remain undisclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the applicants and the sparse information on its progress presented by the Government.

117.¬†¬†The Court first notes that the authorities were immediately made aware of the murder of Aslan Dokayev and Rustam Achkhanov and the kidnapping of Amir Magomedov and Ali Uspayev through the applicants’ submissions (see paragraphs 17 and 18 above). The investigation into the murder was instituted in a timely fashion on 18 July 2001. However, the Government produced no explanation for the fact that the investigation into the kidnapping of Amir Magomedov and Ali Uspayev was instituted on 3¬†November 2004, that is, three years, three months and eighteen days after their abduction. Such an appallingly lengthy delay was in itself 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.

118.  The Court further points out that the information on the course of the investigation into the murder of Aslan Dokayev and Rustam Achkhanov and the kidnapping of Amir Magomedov and Ali Uspayev at its disposal is highly inadequate. It observes that the applicants, who themselves were not updated on progress in the case could not provide it with a list of investigative measures taken by the domestic authorities.

119.¬†¬†The Government, in their turn, vaguely referred to certain investigative steps taken to solve the murder of Aslan Dokayev and Rustam Achkhanov, such as inspecting the scene of the incident, examining the APCs and the questioning of witnesses (see paragraphs 58 ‚Äď 60 above). However, they did not mention when such steps had taken place and did not provide any further details enabling the Court to assess their effectiveness.

120.  Furthermore, the Government did not inform the Court if any investigative steps had been taken to solve the kidnapping of Amir Magomedov and Ali Uspayev at all. For instance, it is not clear whether such basic measures as conducting witness interviews and inspecting the crime scene have ever been taken.

121.  Accordingly, the Court considers that the domestic investigative authorities demonstrably failed to act of their own motion and breached their obligation to exercise exemplary diligence and promptness in dealing with such serious crimes as murder and kidnapping (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II).

122.¬†¬†The Court also notes that the applicants were not promptly informed of significant developments in the investigation and considers therefore that 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 (see O√Ņur v. Turkey [GC], no.¬†21594/93, ¬ß¬†92, ECHR 1999-III).

123.¬†¬†Lastly, the Court notes that the investigation into the murder of Aslan Dokayev and Rustam Achkhanov and the kidnapping of Amir Magomedov and Ali Uspayev was on numerous occasions transferred from a civilian prosecutor’s office to a military prosecutor’s office. Moreover, it was repeatedly suspended and then resumed, which led to lengthy periods of inactivity on the part of the investigators when no proceedings were pending. Such handling of the investigation could not but have had a negative impact on the prospects of identifying the perpetrators and establishing the fate of the applicants’ relatives.

124.¬†¬†Having regard to the limb of the Government’s objection that was joined to the merits of the application, in so far as it concerns the fact that the domestic investigation is still pending, the Court notes that the investigation, having been repeatedly suspended and resumed and plagued by inexplicable delays, has been ongoing for almost eight years and has produced no tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their objection in this part.

125.¬†¬†The Government also mentioned that the applicants had the opportunity to apply for judicial review of the decisions of the investigating authorities in the context of exhaustion of domestic remedies and to complain to higher prosecutors. The Court observes that the applicants indeed did institute court proceedings, although they did not appeal against the first-instance judgment. Nonetheless, the court complaint did not impel the investigators to investigate the applicants’ allegations thoroughly. The applicants also complained on several occasions to higher prosecutors such as the prosecutor’s office of the Chechen Republic and the UGA prosecutor’s office, but in vain. Moreover, owing to the time that had elapsed since the events complained of, certain investigative steps that ought to have been carried out much earlier could no longer be usefully conducted. The Court finds therefore that it is highly doubtful that the remedies relied on by the Government would have had any prospects of success and considers that they were ineffective in the circumstances of the case. It thus rejects the Government’s objection in this part as well.

126.  In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov, in breach of Article 2 in its procedural aspect.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

127.¬†¬†The applicants complained that Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov had probably been ill-treated while in the hands of Russian servicemen following their abduction. They further submitted that, as a result of their relatives’ disappearance and the State’s failure to investigate it properly, they had endured severe mental suffering. The applicants relied on Article 3 of the Convention, which reads:

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

A.¬†¬†The parties’ submissions

128.  The Government disagreed with these allegations and argued that neither the applicants nor Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.

129.  The applicants maintained their complaints.

B.¬†¬†The Court’s assessment

1.  Admissibility

(a)  The complaint concerning Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov

130.¬†¬†The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof ‚Äúbeyond reasonable doubt‚ÄĚ but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, cited above, ¬ß 161 in fine).

131.  The Court has found it established that Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov were taken away on 18 July 2001 by Russian federal forces and that no reliable news of them has been received since. It has also found that, in view of all the known circumstances, they can be presumed dead and that the responsibility for their deaths lies with the State authorities (see paragraph 112 above). However, questions remain as to the exact way in which they died and whether they were subjected to ill-treatment following their abduction. The Court considers that the materials at its disposal do not enable it to find beyond all reasonable doubt that Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov were ill-treated in detention. It thus finds that this part of the complaint under Article 3 of the Convention has not been substantiated.

132.  It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b) The complaint concerning the applicants’ mental suffering

133.  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.

2.  Merits

134.¬†¬†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).

135.¬†¬†The Court further reiterates that while a family member of a ‚Äúdisappeared person‚ÄĚ can claim to be a victim of treatment contrary to Article 3 (see Kurt v. Turkey, 25 May 1998, ¬ß¬ß 130-34, Reports 1998-III), the same principle would not usually apply to situations where the person taken into custody has later been found dead (see Tanl√Ņ v. Turkey, no. 26129/95, ¬ß¬†159, ECHR 2001-III (extracts)). The Court observes in this respect that Aslan Dokayev and Rustam Achkhanov were thought to be dead, not merely kidnapped, as the investigation into their disappearance was opened under the head of ‚Äúmurder‚ÄĚ. Nonetheless, their dead bodies have never been found and their fate after 18 July 2001 has not been elucidated. In such circumstances the Court readily accepts that the second, third and fourth applicants have sustained uncertainty, anguish and distress characteristic to the specific phenomenon of disappearances.

136.¬†¬†Furthermore, the Court points out that the second applicant, Aslan Dokayev’s sister, actively participated in the search for her brother and lodged numerous complaints with the authorities (see, for example, paragraphs 22, 28 and 33 above). In such circumstances the Court does not consider it necessary to distinguish in the present case the second applicant as a person who could not have standing as a victim for the purposes of Article 3 (see Luluyev and Others v. Russia, no. 69480/01, ¬ß¬ß 112-13, ECHR 2006-… (extracts).

137. The Court notes that the applicants have not had any reliable information on the fate of their close relatives for nearly eight years. During this period the applicants have applied to various official bodies with enquiries about their family members, both in writing and in person. Despite these attempts, they have never received any plausible explanation or information as to what became of their family members. The Court’s findings under the procedural aspect of Article 2 of the Convention are also of direct relevance here.

138.  In view of the above, the Court finds that the applicants suffered distress and anguish as a result of the disappearance of their close relatives 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.

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

IV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

140.  The applicants further stated that Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov 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

141.¬†¬†In the Government’s opinion, no evidence was obtained by the investigators to confirm that Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov had been deprived of their liberty in breach of the guarantees set out in Article 5 of the Convention.

142.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

143.  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

144.  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, cited above, § 122).

145.  The Court has found it established that Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov were abducted by State servicemen on 18 July 2001 and have not been seen since. Since it is impossible to establish whether Aslan Dokayev and Rustam Achkhanov were killed before their bodies were loaded into the APCs, the Court assumes that there might have been an undetermined period of time during which these two men were kept alive under the control of State servicemen.

146.¬†¬†The detention of the four relatives of the applicants 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 records noting such matters as the name of the detainee, the date, time and location of detention, reasons for it 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).

147.  In view of the foregoing, the Court finds that Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov 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.

V.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

148.  The applicants complained that they had been deprived of the right of access to court in relation to their complaints against the investigative authorities. They relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:

‚Äú1.¬†¬†In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…‚ÄĚ

149.¬†¬†The Court finds that Article 6 ¬ß 1 of the Convention is, in principle, inapplicable to the proceedings in question, as they clearly have not involved the determination of the applicants’ civil rights or obligations or a criminal charge against the applicants, within the Convention meaning (see Akhmadov and Others v. Russia (dec.), no. 21586/02, 3 May 2007).

150.  It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof.

VI.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

151.  The applicants complained that they had been deprived of effective remedies in respect of the alleged violations above, 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

152.  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 applicants had challenged the actions of the investigators in court, but had not appealed against the first-instance decision. They could also have complained to higher prosecutors or claimed damages, but failed to do so. In sum, the Government submitted that there had been no violation of Article 13.

153.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

154.¬†¬†In so far as the complaint under Article 13 concerns the existence of a domestic remedy in respect of the complaint concerning the alleged ill-treatment of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov, the Court notes that this part of the complaint under Article 3 was found unsubstantiated in paragraph¬†132 above. Accordingly, the applicants did not have an ‚Äúarguable claim‚ÄĚ of a violation of a substantive Convention provision and, therefore, Article 13 of the Convention is inapplicable.

155.¬†¬†Given that the applicants’ complaint under Article 6 of the Convention has been declared incompatible ratione materiae in paragraph 150 above, the Court considers that the applicants did not have an ‚Äúarguable claim‚ÄĚ of a violation of a substantive Convention provision and, therefore, Article 13 of the Convention is inapplicable.

156.  It follows that these parts of the complaint under Article 13 of the Convention are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof.

157.  The Court notes that the remaining complaints under Article 13 are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds and must therefore be declared admissible.

2.  Merits

158.¬†¬†The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. According to the Court’s settled case-law, the effect of Article 13 of the Convention is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of a relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as ‚Äúarguable‚ÄĚ in terms of the Convention (see Halford v. the United Kingdom, 25 June 1997, ¬ß 64, Reports 1997-III).

159.¬†¬†As regards the complaint of the lack of effective remedies in respect of the applicants’ complaint under Article 2, the Court emphasises that, given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article¬†3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v.¬†Bulgaria, no. 38361/97, ¬ß¬ß¬†161-62, ECHR 2002-IV). The Court further reiterates that the requirements of Article¬†13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see¬†Khashiyev and Akayeva, cited above, ¬ß¬†183).

160.¬†¬†In view of the Court’s above findings with regard to Article¬†2, this complaint is clearly ‚Äúarguable‚ÄĚ for the purposes of Article¬†13 (see Boyle and Rice v. the United Kingdom, 27 April 1988, ¬ß 52, Series A no. 131). The applicants should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article¬†13.

161.¬†¬†It follows that in circumstances where, as here, the criminal investigation into the disappearance of the applicants’ close relatives 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.

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

163.¬†¬†In so far as the complaint under Article 13 concerns the existence of a domestic remedy in respect of the complaint concerning the applicants’ mental suffering, the Court notes that it has found a violation of Article 3 on this account. 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 conjunction with Article 3 of the Convention.

164.¬†¬†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 and in view of the above findings of a violation of Article 5 of the Convention resulting in unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 in conjunction with Article 5 of the Convention.

VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

165.  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.  Pecuniary damage

166.¬†¬†The applicants claimed damages in respect of the lost wages of their relatives. Although the latter had been unemployed, the applicants assumed that eventually each of them would have earned at least 100 euro (EUR) per month. The first applicant claimed in total EUR 12,420, the second and third applicants claimed EUR 6,210 each and the fourth applicant claimed EUR 7,200. Moreover, the fourth applicant claimed EUR¬†4,700 as compensation for his son’s VAZ 2106 car that had been incinerated by Russian servicemen. He did not provide any documents to substantiate his claims in this regard.

167.  The Government regarded these claims as unfounded.

168.¬†¬†The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention. Furthermore, under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, ‚Äúfailing which the Chamber may reject the claim in whole or in part‚ÄĚ.

169.¬†¬†The Court first notes that the pecuniary damage may be awarded in respect of loss of earnings. However, it is not persuaded that Aslan Dokayev would have necessarily supported his sister financially and rejects her claims in this respect. The Court considers that there is a direct causal link between the violation of Article¬†2 in respect of the applicants’ close relatives and the loss by the first, third and fourth applicants of the financial support which they could have provided. The Court finds it reasonable to assume that Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov would eventually have had some earnings. Having regard to the applicants’ submissions and the fact that Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov were not employed at the time of their disappearance, the Court awards EUR¬†3,000 to the first applicant and EUR 1,500 to the third and fourth applicants each in respect of pecuniary damage, plus any tax that may be chargeable on these amounts.

170.  The Court further notes that the fourth applicant failed to substantiate his pecuniary damage claims as regards the destroyed car of his son and thus makes no award in this respect.

B.  Non-pecuniary damage

171.  The applicants claimed compensation in respect of non-pecuniary damage for the suffering they endured as a result of the loss of their family members and the indifference shown by the authorities towards them. The first applicant claimed EUR 40,000, while the second, third and fourth applicants claimed EUR 20,000 each.

172.  The Government found the amounts claimed exaggerated.

173.¬†¬†The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the 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 therefore the first applicant EUR 40,000 and the second, third and fourth applicants EUR 20,000 each, plus any tax that may be chargeable thereon.

C.  Costs and expenses

174.  The applicants also claimed a total of EUR 7,900 to be paid to five lawyers of the International Protection Centre who had prepared their application form and observations on the admissibility and merits of the case. They failed to produce any documents or invoices to confirm that the amounts claimed had been paid to the representatives.

175.  The Government indicated that the applicants had not shown that the expenses claimed for legal representation had actually been incurred and that three of the five lawyers mentioned by the applicants had not been named in the powers of attorney.

176.  The Court may make an award in respect of costs and expenses in so far as they were actually and necessarily incurred (see Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V). Given that the applicants failed to submit any evidence to justify their costs and expenses related to the legal representation, it makes no award under this head.

D.  Default interest

177.  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.¬†¬†Decides to join to the merits the Government’s objection as to non-exhaustion of criminal domestic remedies and rejects it;

2.¬†¬†Declares the complaints under Articles 2 and 5 of the Convention, the complaint under Article 3 concerning the applicants’ mental suffering, the complaints under Article 13 in conjunction with Articles 2 and 5, as well as the complaint under Article 13 in conjunction with the complaint concerning the applicants’ mental suffering admissible and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 2 of the Convention in respect of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov;

4.  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 in which Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov had disappeared;

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

6.  Holds that there has been a violation of Article 5 of the Convention in respect of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov;

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

8.  Holds that no separate issues arise under Article 13 of the Convention in conjunction with Articles 3 and 5 of the Convention;

9.  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  3,000 (three thousand euros) to the first applicant and EUR 1,500 (one thousand five hundred euros) to the third and fourth applicants each in respect of pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on these amounts;

(ii)  EUR  40,000 (forty thousand euros) to the first applicant and EUR 20,000 (twenty thousand euros) to the second, third and fourth applicants each in respect of non-pecuniary damage to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable thereon;

(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;

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

CASE OF KHASUYEVA v. RUSSIA

(Application no. 28159/03)

JUDGMENT

STRASBOURG

11 June 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 Khasuyeva v. Russia,

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

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou,
and S√łren Nielsen, Section Registrar,

Having deliberated in private on 19 May 2009,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 28159/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‚Äúthe Convention‚ÄĚ) by a Russian national, Mrs Zura Abdullayevna Khasuyeva (‚Äúthe applicant‚ÄĚ), on 29 July 2003.

2.¬†¬†The applicant, who had been granted legal aid, was represented by lawyers of the Stichting Russian Justice Initiative (‚ÄúSRJI‚ÄĚ), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (‚Äúthe Government‚ÄĚ) were represented by their Agent, Mr¬†P.¬†Laptev, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their new representative, Mr G. Matyushkin.

3.  The applicant alleged that her son had disappeared after being detained by servicemen in Chechnya on 30 August 2001. She complained under Articles 2, 3, 5 and 13.

4.  By a decision of 25 September 2008, the Court declared the application partially admissible.

5.¬†¬†The President of the Chamber acceded to the Government’s request not to make publicly accessible the documents from the criminal investigation file deposited with the Registry in connection with the application (Rule 33 of Rules of Court).

6.¬†¬†The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 ¬ß 3 in fine), the parties replied in writing to each other’s observations.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

7.  The applicant was born in 1955 and lives in Urus-Martan. The applicant is the mother of Abu Khasuyev, who was born in 1978.

A.¬†¬†The disappearance of the applicant’s son

1.  General background information

8.¬†¬†At the material time the applicant lived with her son, Abu Khasuyev, his wife and his minor daughter. Abu Khasuyev worked as a physical training teacher. The family lived in a flat in a two-storey block of flats at 20 Sovetskaya Street, Urus-Martan, Chechnya. The applicant submitted a copy of Abu Khasuyev’s passport with the official registration of his domicile at 20 Sovetskaya Street in Urus-Martan. According to the applicant, houses in the street were renumbered at some point later, after the events, and their address was changed to 18 Sovetskaya Street. According to the Government, at the material time the applicant and her family resided at 18 Sovetskaya Street.

9.¬†¬†The Russian federal forces had had full control over the town of Urus-Martan since December 1999. Numerous military units were stationed in the town and on its outskirts. The various public bodies, including the town administration, the district military commander’s office and law enforcement agencies, were functioning properly.

10.  In August 2001 the federal military authorities placed further checkpoints around the town to ensure that all transport going into or out of Urus-Martan passed through those checkpoints.

11.¬†¬†At the time of the events described below one of the checkpoints was located just across the street from the applicant’s block of flats. In the vicinity of the applicant’s building there was another checkpoint of the Russian military forces, the town administration and the Urus-Martan district department of the interior (the ROVD). Several police officers stood watch on the roof of the ROVD round the clock. According to the applicant, her house could be clearly seen from the rooftop. The applicant produced a photograph of her street and indicated the location of the checkpoints and the respective administrative buildings.

2.  Information submitted by the applicant

12.¬†¬†According to the applicant, on 30 August 2001 she was at work. Her son was at home. He was sick and was staying in bed with an intravenous drip. His wife, daughter, and one of the applicant’s sisters were also at home.

13.¬†¬†Around 1 p.m. the applicant’s daughter-in-law was about to leave for a local food market. When she opened the door a group of about ten men in camouflage uniforms rushed into the flat. They had machine guns and sniper rifles with silencers (‚Äúvintorez‚ÄĚ). They spoke unaccented Russian. All but two of them were wearing masks. Those without masks were fair-haired, blue-eyed and had a Slavic appearance. The applicant’s relatives thought that the intruders were Russian military servicemen.

14.  The intruders did not produce identity papers or any documents to justify their actions, gave no explanations, and quickly searched the flat.

15.¬†¬†The applicant’s sister lost consciousness at the sight of the men. The men pointed their machine guns at the applicant’s daughter-in-law and her three-month-old daughter. The applicant’s daughter-in-law heard the intruders enter Abu Khasuyev’s room and order him to lie on the floor. After that she saw the intruders taking her husband outside. He was barefoot, a T-shirt which he was wearing was pulled over his head and his hands were behind his head.

16.¬†¬†The applicant’s daughter-in-law asked one of the men without masks why they were arresting Abu Khasuyev and where they were taking him. In response the officer asked her what relation she was to the arrested person, his wife or sister. The applicant’s daughter-in-law replied that she was Abu Khasuyev’s wife, and the man ordered the others not to let her out and to block the flat door. After that they left. The applicant’s daughter-in-law managed to run out into the entrance hall of the block of flats. The intruders then blocked the hall’s entrance door from the outside; the applicant’s daughter-in-law could not get out and started screaming.

17.¬†¬†The men took Abu Khasuyev outside and forced him into a white VAZ-2107 (‚ÄúZhiguli‚ÄĚ) car parked next to the block of flats, a few metres from the checkpoint. According to eyewitnesses, the officers who were on duty at the checkpoint saw what was happening, but made no attempt to interfere. Two intruders placed Abu Khasuyev between them, and another one ordered the driver to go to ‚Äúthe base‚ÄĚ. One of the intruders stood next to the car, pointing his gun at the gathering crowd, and ordering them to keep away. He shouted that the detainee had a grenade.

18.¬†¬†When the applicant’s daughter-in-law managed to get outside she ran to the white VAZ-2107 car and saw her husband in the car with his hands tied behind his head. He had no grenade. A red VAZ-2121 (‚ÄúNiva‚ÄĚ) car with a man in military uniform and a UAZ vehicle (‚ÄúTabletka‚ÄĚ) with several masked men in camouflage uniforms were parked nearby. All the vehicles had tinted windows and no registration plates. The vehicles then left in a northerly direction.

19.  The applicant has had no news of her son since 30 August 2001.

20.¬†¬†In support of her statement concerning the circumstances of Abu Khasuyev’s abduction the applicant submitted the following documents: a statement by Mrs R.Zh. dated 8 June 2004; a statement by Mrs A.E. dated 14 July 2004; a statement by Mrs A.Kh. dated 20 July 2004; a statement by herself dated 3 July 2005 and a statement by Mr R.D. dated 18 July 2005.

3.  Information submitted by the Government

21.¬†¬†The Government did not challenge most of the facts as presented by the applicant. They stated that it had been established that ‚Äúon 30 August 2001, at about 1 p.m., unidentified persons in camouflage uniforms and masks, armed with automatic weapons, abducted A. Kh. Khasuyev from 18¬†Sovetskaya Street in the town of Urus-Martan, Chechnya‚ÄĚ.

B.¬†¬†The applicant’s search for Abu Khasuyev

22.¬†Immediately after Abu Khasuyev’s abduction, the applicant’s daughter-in-law found the applicant and informed her about the events.

23.¬†¬†On 30 August 2001 the applicant went to the ROVD and submitted a written complaint about her son’s abduction to the head of the ROVD. The officer told her that he was unaware that her son had been taken away.

24.¬†¬†On the same date the applicant went to the military commander’s office; a duty officer informed her that the military commander was away.

25.¬†¬†On 31 August 2001 the applicant requested in writing that the military commander, the head of the ROVD, and the head of the Urus-Martan administration assist her in establishing her son’s whereabouts.

26.  On 1 September 2001 the applicant spoke to the military commander, General Gadzhiyev. He told her that he had been away from Urus-Martan on 30 August 2001, was unaware of the incident, and invited her to come again on 3 September 2001.

27.¬†¬†On 3 September 2001 the applicant again met Mr Gadzhiyev and enquired about her son. The military commander asked her whether she was talking about someone from the two-storey block of flats. The applicant answered in the affirmative and then Mr Gadzhiyev told her that the person in question was not detained in the military commander’s office and had probably been taken to the Chernokozovo detention centre.

28.  On the following day the applicant went to Chernokozovo and spoke with the head of the detention centre, who informed her that Abu Khasuyev was not listed among the detainees.

29.  On 20 September 2001 the applicant spoke with the deputy head of the Chechnya Department of the Federal Security Service (the FSB) who assured her that they had not arrested her son and that they were unaware of his whereabouts. He also stated that it was difficult to find out who had detained Abu Khasuyev, as there were a lot of different military units in Urus-Martan.

30.¬†¬†Since then the applicant has repeatedly applied in person and in writing to various public bodies, including prosecutors of various levels, administrative authorities of Chechnya, the ROVD, the Urus-Martan military commander, the Chechnya FSB, the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms, a deputy of the State Duma, and the Russian President. She has also addressed herself to the OSCE and various NGOs, including Memorial and the International Committee of the Red Cross. In her letters to the authorities the applicant referred to the circumstances of her son’s abduction and asked for assistance and details of the investigation. She also stated that her son was a school teacher and had never participated in illegal armed groups. Those enquiries mostly remained unanswered, or only formal responses were given by which the respective requests were forwarded to various prosecutors’ offices ‚Äúfor examination‚ÄĚ.

31.  According to the applicant, she and her daughter-in-law also participated in examinations of unidentified corpses found in Chechnya.

C.  The official investigation into the disappearance of Abu Khasuyev

1.  Information submitted by the applicant

32.¬†¬†At some point in October 2001 an investigator from the ROVD visited the applicant’s home and informed her that a search for her son had commenced on 10 October 2001. Then the investigator questioned the applicant, her daughter-in-law and one of the neighbours. According to the applicant, the questions related mostly to Abu Khasuyev’s personality rather than to the circumstances of his disappearance.

33.¬†¬†Some time later in October 2001 the applicant was summoned to the ROVD; an investigator, who introduced himself as Sasha, told her that her son was dead. In reply to the applicant’s request for proof, the investigator referred to a certain register in which there was an entry to this effect. Some time later she spoke to an officer from the ROVD, who showed her the register and read out from it that ‚ÄúKhasuyev had been killed‚ÄĚ. During the ensuing conversation the applicant found out that the investigator had mistakenly been referring to another person. After that the investigator assured her that the search for her son would be continued.

34.  On 29 October 2001 the Chechnya FSB informed the applicant that they had not detained Abu Khasuyev, and that they were unable to establish his whereabouts.

35.¬†¬†On 12 November 2001 the military prosecutor of the North Caucasus Military Circuit forwarded the applicant’s complaint about her son’s abduction to the military prosecutor of military unit no. 20102.

36.¬†¬†On 22 December 2001 the Urus-Martan district prosecutor’s office (the Urus-Martan prosecutor’s office) opened a criminal investigation into Abu Khasuyev’s disappearance under Article 126 ¬ß 1 of the Criminal Code (kidnapping). The file was assigned no. 25170.

37.  On 9 January 2002 the applicant was granted victim status in the criminal case.

38.  On 22 February 2002 the investigators suspended the investigation in the criminal case for failure to establish the identity of the perpetrators. The applicant was informed about this decision on 3 December 2002 (see paragraph 42 below).

39.  On 18 April 2002 the Department of Administration of Punishments of the Volgograd Region informed the applicant that Abu Khasuyev had not been detained in their pre-trial detention centres or penitentiary facilities.

40.¬†¬†On 1 July 2002 the Chechnya representative in the State Duma referred the applicant’s complaint that her son had been abducted to the Chechnya prosecutor’s office.

41.¬†¬†On 2 October 2002 the Department of the Prosecutor General’s office in the Southern Federal Circuit forwarded the applicant’s request for assistance in establishing Abu Khasuyev’s whereabouts to the Chechnya prosecutor’s office for examination.

42.¬†¬†On 3 December 2002 the Chechnya prosecutor’s office informed the applicant that the criminal investigation had been suspended on 22 February 2002, then resumed on 20 November 2002, and that it was currently in progress.

43.¬†¬†On 24 March 2003 (in the submitted documents the date is also given as 25 March 2003) the Urus-Martan prosecutor’s office suspended the investigation in the criminal case for failure to establish the identity of the perpetrators. The applicant was not informed about this decision.

44.¬†¬†On 5 April 2003 the military prosecutor of the United Group Alignment (the UGA) forwarded the applicant’s complaint that her son had been abducted to the military prosecutor of military unit no. 20102. On 16¬†and 22 May 2003 the latter informed the applicant that ‚Äú[her] request did not contain any information concerning the involvement of military personnel in the abduction of Abu Khasuyev‚ÄĚ.

45.¬†¬†On 2 September 2003 the applicant complained to the Urus-Martan district prosecutor that her son had been abducted. In her letter she stated that Abu Khasuyev had been abducted by representatives of law-enforcement agencies, who had arrived in a red VAZ-2121 car and a white VAZ-2107 car with blackened windows and without registration numbers and that her son had been taken away in the white car. Further, the applicant complained that the officers from the military commander’s office who had been on duty that day had failed to stop the abductors. The applicant pointed out that she had spoken with the military commander General Gadzhiyev, who had told her that her son had probably been taken to the Chernokozovo detention centre. No response was given to this complaint.

46.  On 4 October 2003 the investigation in the criminal case was suspended for failure to establish the identity of the perpetrators.

47.  On 20 January 2004 the investigators informed the applicant that on 4 October 2003 they had suspended the investigation in the criminal case.

48.¬†¬†On 27 April 2004 the Urus-Martan prosecutor’s office rejected the applicant’s request for access to the investigation file, stating that access could be granted only upon completion of the criminal investigation.

49.  On 7 June 2004 the investigators informed the applicant that they had suspended the investigation in the criminal case owing to the expiration of the time-limits and failure to establish the identity of the perpetrators.

50.¬†¬†On 7 August 2004 the applicant requested the Urus-Martan prosecutor’s office to inform her about the progress of the investigation in the criminal case. No response was given to this request.

51.¬†¬†On 15 August 2004 the Urus-Martan prosecutor’s office resumed the investigation in criminal case no.¬†25170. The applicant was informed about the decision on the same date.

52.¬†¬†On 3 December 2004 the applicant requested the Urus-Martan prosecutor’s office to inform her of progress in case no. 25170; to question the officers who had been manning the checkpoint located in the vicinity of the applicant’s house and to resume the investigation. No response was given to this request.

53.¬†¬†On 15 June 2004 the applicant complained to the Urus-Martan Town Court (‚ÄúTown Court‚ÄĚ) that the investigation in the criminal case was ineffective. She requested the court to order the prosecutor’s office to resume the criminal investigation, carry it out in a thorough and effective manner, take necessary investigative measures, and authorise her access to the investigation file.

54.¬†¬†On 16 June 2005 the applicant complained to the Urus-Martan district prosecutor that her son had been abducted by servicemen of the Urus-Martan power structures (—Ā–ł–Ľ–ĺ–≤—č—Ö —Ā—ā—Ä—É–ļ—ā—É—Ä). In her letter she pointed out that employees of the Urus-Martan district military commander’s office had witnessed the abduction as they had been on watch duty in close proximity to her house. The applicant pointed out that she had already submitted her account to this effect to the investigative authorities but the latter had failed to establish the whereabouts of her abducted son. The applicant complained about the lack of information concerning the investigation and requested to be informed in writing of what measures were being taken by the prosecutor’s office. No response was given to this complaint.

55.¬†¬†On 29 June 2004 the Town Court allowed the applicant’s complaint in part and ordered the prosecutor’s office to carry out a thorough and effective investigation. As regards the request for access to the investigation file, the court stated that the investigation was still pending and therefore the applicant had no right of access to the file. On 17 August 2004 the Chechnya Supreme Court upheld this decision on appeal.

56.  On 15 September 2004 the investigators suspended the investigation in the criminal case for failure to establish the identity of the perpetrators. The applicant was informed about the decision on the same date.

57.¬†¬†On 21 October 2005 the applicant again complained to the Urus-Martan prosecutor’s office. She stated that she had not received any response to her request of 16 June 2005 and pointed out that the lack of information concerning the criminal proceedings precluded her from appealing against the actions of the prosecutor’s office, which had been procrastinating in the investigation. The applicant requested to be informed about the progress of the investigation and asked the authorities to resume the investigation in the criminal case. No response was given to this complaint.

58.¬†¬†On 25 October 2005 the Urus-Martan prosecutor’s office resumed the investigation in the criminal case owing to ‚Äúthe need to carry out a number of investigative actions aimed at solving the crime‚ÄĚ. The applicant was informed about this decision on the same date.

59.  On 25 November 2005 the investigation in the criminal case was suspended for failure to establish the identity of the perpetrators. The applicant was informed about this decision on the same date.

60.¬†¬†On 19 June 2006 the Urus-Martan prosecutor’s office resumed the investigation in the criminal case. The applicant was informed about the decision on the same date. The applicant was not informed about further developments in the criminal case.

2.  Information submitted by the Government

61.¬†¬†Referring to the information provided by the Prosecutor General’s office, the Government stated in their initial submission that upon receipt of the applicant’s written complaint about her son’s abduction, on 22¬†December 2001 the Urus-Martan prosecutor’s office had opened criminal case no. 25170 under Article 126 of the Criminal Code (kidnapping). At the same time, in their later submission, the Government stated that on 27 October 2001 the district prosecutor’s office opened another investigation into the same events and the criminal case file was assigned no.¬†25140. The investigation of both criminal cases was joined in one criminal case in December 2006 (see paragraph 75 below).

62.¬†¬†According to the Government, the criminal investigation into the abduction of Abu Khasuyev had been suspended on a number of occasions, specifically: on 22 February 2002, 24 March and 4 October 2003, 15¬†September 2004, 25 November 2005, 19 July 2006 and 12 January 2007, and had been resumed on 20 November 2002, 4 September 2003, 15 August 2004, 25 October 2005, 19 June and 12 December 2006 and 10 April 2008; but it had failed to identify those responsible for the abduction of the applicant’s son. However, the applicant had been duly informed about all suspensions and resumptions of the criminal proceedings.

63.¬†¬†According to the Government, on 9 January 2002 the applicant was granted victim status in criminal case no. 25170 and questioned. Nonetheless, in November 2006 the applicant was again granted victim status, this time in criminal case no.¬†25140, and questioned again (see paragraph 74 below). On both occasions she provided similar statements by describing in detail the circumstances of her son’s abduction. She stated that her son had been abducted by military servicemen, who had arrived in a red VAZ-2121 car, a white VAZ-2107 car, and a UAZ vehicle; that the abductors had spoken unaccented Russian and refused to explain the reasons for her son’s abduction.

64.  On 6 September 2004 the investigators again questioned the applicant. Her witness statement was similar to the one provided on 9 January 2002. In addition, the applicant stated that although the servicemen who had been manning the checkpoint across the street from her house had witnessed the abduction, they had failed to stop the perpetrators; that the military commander General Gadzhiyev had told her that Abu Khasuyev had been taken to the detention centre in Chernokozovo and that the administration of the detention centre had denied having him as one of their detainees.

65.   On 8 September 2004 the investigators questioned the wife of Abu Khasuyev, Mrs R.Zh., who stated that at 1.30 p.m. on 30 August 2001 a group of about ten armed men in camouflage uniform had broken into the flat. They spoke unaccented Russian. Abu Khasuyev had been sick and stayed at home that day. The intruders had taken him away without providing any explanations. The men had arrived in a red VAZ-2121 car, a white VAZ-2107 car, and a UAZ vehicle; none of the vehicles had had registration numbers. The witness had seen the intruders forcing her husband into the white VAZ car and the cars driving away in the direction of Grozny.

66.   On 29 October 2005 the investigators again questioned the applicant. She explained that she had nothing to add to the statements she had given previously.

67.¬†¬†The Government further submitted that on 19 June 2006 the district prosecutor had approved a plan of measures to be taken by the investigation into the disappearance of the applicant’s son. According to the plan, a number of requests for investigative measures had been issued to various law enforcement bodies; however, those efforts had failed to produce any tangible results.

68.¬†¬†On 20 June 2006 the investigators forwarded a number of requests for information to various detention centres concerning the whereabouts of Abu Khasuyev. According to their replies, the applicant’s son was not detained in any of those centres.

69.¬†¬†On 22 June 2006 the investigators questioned Mrs A.Kh., who stated that at about 1 p.m. on 30 August 2001 she had arrived at the applicant’s house. Abu Khasuyev was ill and had stayed at home that day. According to the witness, she had been changing in one of the rooms when two armed men in camouflage uniforms, one of them masked, walked into the room. When Mrs A.Kh. saw the men she fainted. When she regained consciousness the intruders had already gone, taking Abu Khasuyev with them.

70.  On 28 June 2006 the investigators questioned an officer of the ROVD, Mr R.G., who stated that in October 2002 the applicant had not requested any information from him and that he had not shown to her any registration logs.

71.¬†¬†On 28 June 2006 the investigators also questioned Mr R.D., who stated that at lunchtime on 30 August 2001 he and his friend Mr Kh.O. had been walking past the two-storey apartment building at¬†20 Sovetskaya Street and past the checkpoint situated across from the building when they saw men in military uniforms armed with automatic weapons; two of them were putting a tall young man who was barefoot and had his T-shirt pulled over his head into a white VAZ-2107 car. The third man, who was the driver, had ordered: ‚ÄúTo the base, to the base‚ÄĚ. Another armed man had been standing next to the car, pointing his machine gun around and yelling that everyone should keep away. The witness and Mr Kh.O. had been standing about five metres away and could observe closely what was happening. Another two vehicles had been parked nearby; a military UAZ vehicle had been on the left side of the road and a VAZ-2121 car on the right. After the young man had been placed in the car, all three vehicles had driven away in a northerly direction.

72.¬† According to the Government, on 28 June 2006 the investigators also questioned Mrs A.E., who stated that at about 10 a.m. on 30 August 2001 she had been at home. Suddenly, she had heard screaming from the applicant’s flat and gone to the yard. She had seen a group of men armed with automatic weapons taking a young man outside with a T-shirt pulled over his head. Some time later she had found out that this young man was Abu Khasuyev.

73.¬†¬†On 6 July 2006 the investigators conducted a crime scene examination in the applicant’s flat. Nothing was collected from the scene.

74.  On 8 November 2006 the applicant was granted victim status in criminal case no. 25410 and questioned again. The applicant provided a statement similar to the ones she had provided on 9 January 2002 and 6 September 2004.

75.  On 12 December 2006 the investigators joined the investigation of criminal cases no. 25140 and no. 25170. The joined case file was assigned no. 25170.

76.  On 12 December 2006 the investigators again forwarded a number of requests to various law enforcement agencies asking for assistance in carrying out investigative measures aimed at establishing the whereabouts of Abu Khasuyev and identifying the perpetrators. According to their responses, the efforts made by the agencies in connection with those requests had failed to produce any tangible results.

77.  On 14 December 2006 the investigators questioned Mr S.G., who stated that in the evening of 30 August 2001 he had found out that a group of unidentified men armed with automatic weapons had abducted Abu Khasuyev.

78.  On 15 December, 22 December and 27 December 2006, and probably on 25 June 2007 (the date is illegible) the investigators questioned Mrs A.G, Mr L.M. Mr I.I. and Mr M. Sh., each of whom provided a statement similar to that of Mr S.G.

79.  On 22 June 2007 applicant was questioned again. Her statement was similar to the ones provided on 9 January 2002, 6 September 2004 and 8 November 2006.

80.¬†¬†On 10 April 2008 a supervisory prosecutor from the Chechnya prosecutor’s office ordered the investigators to resume the suspended investigation in the criminal case. The decision stated, inter alia, the following:

‚Äú…On 12 January 2007 the investigator of the Urus-Martan district prosecutor’s office decided to suspend the investigation in criminal case no.¬†25170 for failure to establish the identity of the perpetrators…

This decision is unlawful and unsubstantiated, as in violation of Article 208 § 5 of the Criminal Procedure Code the investigation failed to take all possible measures in the absence of the culprits.

For instance, the investigation failed to establish or question the witnesses to Abu Khasuyev’s abduction; to question the former head of the ROVD, as well as the head of the criminal search division of the ROVD and the head of the public safety division of the ROVD… during the questioning of Z. Khasuyeva the investigators failed to clarify a number of important circumstances surrounding her son’s abduction and take other possible investigative and operational search measures.

The decision to suspend the investigation in the criminal case should be overruled and the case should be returned [for further investigation]…‚ÄĚ

81.   On the same date the supervising prosecutor issued a decision ordering the investigation to take the following actions in the criminal case:

‚Äú1. To make a plan of the investigative and operational search measures …

2. To establish the identity of eyewitnesses to Abu Khasuyev’s abduction and question them about the incident.

3. ….to question the former head of the ROVD, as well as the head of the criminal search division of the ROVD and the head of the public safety division of the ROVD about the circumstances of the case; also, to find out what measures they had taken to establish the identity of the armed men who had been driving around in Urus-Martan on 30 August 2001 in a white VAZ-2107 or VAZ-2106 car, red Niva car [VAZ-2121] and a khaki UAZ Tabletka vehicle and had abducted Abu Khasuyev from his house.

4. …to question Mr G. Gadzhiyev, the former Urus-Martan district military commander, who, according to Z.Khasuyeva…., knew who had arrested her son Abu Khasuyev and told her that her son had probably been taken to the remand detention centre in Chernokozovo; [the investigators] should establish officers of which law enforcement agency had been manning the checkpoint located across from Z. Khasuyeva’s house…

5…to establish to the owners of the white VAZ-2107 or VAZ-2106, the red Niva car and the khaki UAZ Tabletka.

6. To establish which power structures had stationed people in August 2001 in Urus-Martan and to find out whether they used VAZ-2107 or VAZ-2106, the red Niva car and the khaki UAZ Tabletka.

7. ….to establish who was on duty at the checkpoint situated across the street from the house of Z. Khasuyeva on 30 August 2001 at about 1 p.m…..;

8. …to request from the UGA information concerning special operations on 30¬†August 2001 in Urus-Martan and to find out whether any military orders to conduct operational-search measures had been issued [by them] to the units stationed [at the time] in Urus-Martan.

9. To request the same information from the Central Archives of the Ministry of Defence.

10. To question again Z. Khasuyeva and find out the following:

-which relatives of hers had received information ‚Äúfrom unofficial sources‚ÄĚ that after the abduction her son Abu Khasuyev had been taken to the Urus-Martan district military commander’s office where he had been detained on the third floor?…..

11. To question the witnesses…. about the persons Z. Khasuyeva referred to as ‚Äúunofficial sources of information‚ÄĚ…

12. To establish …. the reasons for the failure [to act] by… the officers of the ROVD who…. had been on duty on the roof of the ROVD on 30 August 2001, from where [they] could clearly see the house….

13. … to question Mr Kh.O., who on 30 August 2001 was walking down Sovetskaya Street in Urus-Martan with Mr R.D. and saw the abduction of Abu Khasuyev…..

14. ….to verify whether any information concerning Abu Khasuyev is available in the Main Information Centre of the Chechnya Ministry of the Interior, the Main Informational and Analytical Centre of the Russian Ministry of the Interior and its Data Base…

17. … if there is sufficient information about the involvement of servicemen of the Russian federal forces …to forward the case … under the rules of jurisdiction… to an appropriate military investigating authority…‚ÄĚ

82.¬†¬†On 9 June 2008 the supervising prosecutor decided that the investigation in the criminal case should be conducted by a joint investigation group consisting of investigators from the public prosecutor’s office and the military prosecutor’s office. The reasons for this decision were as follows:

‚Äú…upon examination of the criminal case file it was established that there were sufficient grounds to assume that the crime [the abduction of Abu Khasuyev] had been committed with the participation of servicemen of the Russian federal forces, and this had been confirmed, in particular, by the use of armoured vehicles during the crime and by the carrying out of the special operation…‚ÄĚ

83.   According to the Government, the investigation into the abduction of Abu Khasuyev was still in progress. From the information obtained by the investigation it followed that Abu Khasuyev had not been detained by the Russian federal forces and that no special operations had been carried out in his respect.

3.  Documents submitted by the Government

84.  After the partial admissibility decision of 25 September 2008, the Court again requested the Government to submit a copy of the investigation file into the disappearance of Abu Khasuyev.

85.¬†¬†In response to the Court’s request, the Government submitted a substantial number of documents from the investigation file, comprising two volumes and running to 416 pages. The Government requested the Court to apply Rule 33¬†¬ß¬†3 of Rules of Court concerning confidentiality of the submitted documents and to restrict public access to the documentation submitted. In their request the Government stated that the criminal investigation was still in progress and that public disclosure of the documents submitted could be detrimental to the interests of participants in the criminal proceedings.

86. The Government further stated that a copy of the entire investigation file could not be submitted to the Court owing to the absence of any guarantees on the part of the Court of non-disclosure of the secret data contained in the investigation file. In this respect the Government referred to Article 161 of the Criminal Procedure Code, since the file contained information concerning the participants in the criminal proceedings.

II.  RELEVANT DOMESTIC LAW

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

THE LAW

I.¬†¬†THE GOVERNMENT’S PRELIMINARY OBJECTION

A.  Arguments of the parties

88.¬†¬†The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies as the investigationinto the disappearance of Abu Khasuyev was still in progress. They further submitted that the applicant had the right to appeal against the investigators’ decisions to supervising prosecutors or domestic courts.

89.¬†¬†The applicant contested that objection. She contended that the Government had not indicated which particular domestic remedy she had not availed herself of and further stated that the Government’s argument to the effect that the investigation was pending related to the merits of the present case rather than to the question of its admissibility.

B.¬†¬†The Court‘s assessment

90.  In the present case, the Court took no decision about the exhaustion of domestic remedies at the admissibility stage, having found that this question was too closely linked to the merits. It will now proceed to examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73-74, 12 October 2006).

91.¬†¬†As regards the Government’s objection concerning the pending criminal investigation, that is criminal law remedies, the Court observes that the applicant complained to the law enforcement authorities after the abduction of her son and that the investigation has been pending since 27¬†October 2001. The applicant and the Government dispute the effectiveness of this investigation.

92.¬†¬†The Court considers that this limb of the Government’s preliminary objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicant’s complaints. Thus, it considers that these matters fall to be examined below under the substantive provisions of the Convention.

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

A.¬†¬†The parties’ arguments

93.¬†¬†The applicant argued that it was beyond reasonable doubt that Abu Khasuyev had been detained by representatives of the Russian federal forces, this fact being confirmed by eyewitness statements. In particular, she stated that the abduction of Abu Khasuyev had been carried out by a large group of Russian-speaking representatives of law enforcement agencies who had been armed and driving the military cars. The applicant’s son had been detained in the daytime, in close proximity to the Russian federal forces’ checkpoint, in the town centre of Urus-Martan, which had been under the full control of the authorities, who nonetheless had failed to take any measures to stop the abduction. She further stressed that Abu Khasuyev had been taken away in life-threatening circumstances, given the widespread practice of forced disappearances in Chechnya during the period in question. The applicant thus argued that, in view of the above and given that her son had been missing for almost five years at the time of the submission of the observations, he may be presumed to have been deprived of his life by representatives of the State.

94.¬†¬†The Government argued that the investigation had not obtained any evidence to the effect that representatives of the Russian federal forces had been involved in the abduction of Abu Khasuyev. They argued therefore that there were no grounds to claim that Abu Khasuyev’s right to life, guaranteed by Article 2 of the Convention, had been breached by representatives of the Russian power structures. The Government further claimed that the investigation into the disappearance of the applicant’s son met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators.

B.  Article 38 § 1 (a) and consequent inferences drawn by the Court

95.¬†¬†In their observations made before the decision on admissibility, the Government stated that it would be contrary to Article 161 of the Code of Criminal Procedure for them to submit the complete investigation file. After the decision on admissibility of the application the Government provided an update on the progress of the investigation and 416 pages of documents from the file, including copies of the investigators’ decisions, which contained descriptions of the investigative steps that had been taken, and a number of witness statements. They argued that other documents from the investigation files could not be submitted and again referred to Article¬†161 of the Criminal Procedure Code.

96.¬†¬†The Court has on many occasions reiterated that the Contracting States are required to furnish all necessary facilities to the Court and that a failure on a Government’s part to submit information which is in their hands, without a satisfactory explanation, may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article¬†38¬†¬ß¬†1¬†(a) of the Convention (see Timurta√Ņ v. Turkey, no. 23531/94, ¬ß 66, ECHR 2000-VI).

97.¬†¬†The Court notes that in previous cases it has already found a reference to Article 161 of the Criminal Procedural Code insufficient to justify the withholding of key information requested by the Court (see, among other authorities, Imakayeva v. Russia, no. 7615/02, ¬ß 123, ECHR 2006-… (extracts)). It therefore regrets the Government’s position in respect of the remaining documents from the investigation file and does not find that reference to the above-mentioned provision of the national legislation can serve as a basis for withholding documents requested by the Court.

98.¬†¬†At the same time, the Court reiterates that Article 38 ¬ß 1 (a) of the Convention is applicable to cases which have been declared admissible. It notes that the Government have submitted a large part of the procedural documents from the criminal investigation file, as requested by the Court. These documents contain a detailed description of the investigation and witness statements which have made a significant contribution to the examination of the case. As to the remainder, the Court finds that it can draw inferences from the Government’s failure to disclose the entire contents of the file.

99.  In view of these inferences and the circumstances of the present case, the Court does not find it necessary to draw separate conclusions under Article 38 § 1 (a) of the Convention.

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

100.¬†¬†The Court observes that 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, ¬ß¬ß¬†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, ¬ß 161, Series A no. 25). 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 applicant’s allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicant’s son can be presumed dead and whether his death can be attributed to the authorities.

101.  The applicant alleged that the persons who had taken Abu Khasuyev away on 30 August 2001 and then killed him were State agents. The Government did not dispute any of the factual elements underlying the application and did not provide any other explanation of the events.

102.¬†¬†The Court notes that the applicant’s version of the events is supported by the witness statements collected by her and by the investigation. The applicant and the neighbours stated that the perpetrators had acted in a manner similar to that of a security operation ‚Äď they had been wearing masks and camouflage uniforms, had been armed with automatic weapons and spoke Russian among themselves and to the residents. They had broken into the applicant’s flat during the daytime, in close proximity to the checkpoint of the Russian federal forces. In her applications to the authorities the applicant consistently maintained that her son had been detained by unknown servicemen and requested the investigation to look into that possibility (see paragraphs 45 and 54 above).

103.¬†¬†The Court finds that the fact that a large group of armed men in uniform in broad daylight, equipped with vehicles, was able to move freely through military roadblocks and to proceed to arrest the applicant’s son at his home in a town area, across the street from a military checkpoint, strongly supports the applicant’s allegation that these were State servicemen. The domestic investigation also accepted factual assumptions as presented by the applicant and took steps to check whether law enforcement bodies were involved in the arrest. The investigation did establish that the military were involved in the abduction of the applicant’s son (see paragraph 82 above), but it does not appear that any further steps were taken to establish exactly which military unit.

104.¬†¬†The Court observes that where the applicant makes out a prima facie case and the Court 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 applicant, 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).

105.¬†¬†Taking into account the above elements, the Court is satisfied that the applicant has made a prima facie case that her son was detained by State servicemen. The Government’s statement that the investigation did not find any evidence to support the involvement of special forces in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing support from the consistent explanations and accounts contained in the documents submitted by the parties and having regard to the Government’s failure to provide any other plausible explanation of the events in question, the Court considers that Abu Khasuyev was arrested on 30¬†August 2001 in his flat in Urus-Martan by State servicemen during an unacknowledged security operation.

106.¬†¬†There has been no reliable news of the applicant’s son since 30¬†August 2001. His name has not been found in any official detention facilities’ records. Finally, the Government did not submit any explanation as to what had happened to him after his arrest.

107.¬†¬†The Court notes with great concern that a number of cases have come before it which suggest that the phenomenon of ‚Äúdisappearances‚ÄĚ is well known in Chechnya (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no.¬†69480/01, ECHR 2006-… (extracts); Baysayeva v.¬†Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia, cited above; and Alikhadzhiyeva v. Russia, no.¬†68007/01, 5¬†July 2007). A number of international reports point to the same conclusion. The Court has already found that, in the context of the conflict in Chechnya, 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 Abu Khasuyev or of any news of him for more than seven years supports this assumption. For the above reasons the Court considers that it has been established beyond reasonable doubt that he must be presumed dead following unacknowledged detention by State servicemen.

108.  As it follows from the documents submitted by the Government, as late as April 2008, that is more than six and half years after the crime had occurred and the investigation had been opened, the most basic steps had not been taken related to the establishment of the identity of the perpetrators and the questioning of the witnesses about the events of 30 August 2001 (see paragraph 81 above).

109.¬†¬†Furthermore, in a case involving disappearance, the Court finds it particularly regrettable that there should have been no thorough investigation of the relevant facts by the domestic prosecutors or courts. The documents submitted by the Government from the investigation file opened by the prosecutor’s office do not suggest any progress in more than six years and, if anything, show the incomplete and inadequate nature of those proceedings. Moreover, the stance of the prosecutor’s office and the other law enforcement authorities after the news of Abu Khasuyev’s detention had been communicated to them by the applicant contributed significantly to the likelihood of the disappearance, as no necessary steps were taken in the crucial first days and weeks after the arrest. The authorities’ behaviour in the face of the applicant’s well-substantiated complaints gives rise to a strong presumption of at least acquiescence in the situation and raises strong doubts as to the objectivity of the investigation.

110.  For the above reasons the Court considers that it has been established that Abu Khasuyev must be presumed dead following his unacknowledged detention by State servicemen.

III.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

111.  The applicant complained under Article 2 of the Convention that her son had disappeared after being detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of 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 alleged violation of the right to life of Abu Khasuyev

112.  The applicant maintained her complaint and argued that her son had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for several years.

113.  The Government referred to the fact that the investigation had obtained no evidence to the effect that Abu Khasuyev was dead, or that representatives of the federal power structures had been involved in his abduction or alleged killing.

114.¬†¬†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, to 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, judgment of 27¬†September 1995, Series A no. 324, ¬ß¬ß 146-147, and AvŇüar v. Turkey, no. 25657/94, ¬ß¬†391, ECHR 2001-VII (extracts)).

115.¬†¬†The Court has already established that the applicant’s son must be presumed dead following unacknowledged arrest by State servicemen. In the absence of any justification put forward by the Government, the Court finds that his death can be attributed to the State and that there has been a violation of Article 2 in respect of Abu Khasuyev.

B.  The alleged inadequacy of the investigation into the abduction

116.¬†¬†The applicant argued that the investigation into her son’s disappearance had fallen short of the requirements of domestic law and the Convention standards. She pointed out that although she had informed the authorities about her son’s abduction on 30 August 2001 the investigation had not commenced until 27 October 2001 (and/or 22 December 2001), almost two months after her son’s abduction. The applicant pointed out that from 22 December 2001 to 29 June 2004, that is for more than two years, she had been the only witness questioned by the investigation. The applicant also pointed out that prior to the communication of her application to the respondent Government, only she and two of her relatives had been questioned by the investigation; that the authorities had failed to question a number of important witnesses, including the military servicemen who had been on duty at the checkpoint and could have witnessed Abu Khasuyev’s abduction, as well as local residents who also could have witnessed the events. In addition, the investigation had failed to take any measures to establish the law enforcement agency to which the vehicles used during her son’s abduction could have belonged. The applicant argued that the investigation had been excessively long, that it had been pending for more than seven years but had failed to produce any tangible results, having been repeatedly suspended and reopened. Furthermore, although the authorities had provided the applicant with copies of the decisions concerning the suspensions of the criminal investigation, these documents had not contained sufficient information which would have enabled her to appeal against them. In addition, the applicant had not been granted access to the case file.

117.¬†¬†The Government claimed that the investigation into the disappearance of the applicant’s son met the Convention requirement of effectiveness as all measures envisaged in national law were being taken to identify those responsible.

118.¬†¬†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).

119.  In the present case, an investigation of the abduction was carried out. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

120.¬†¬†The Court notes at the outset that the documents from the investigation were partially disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of these documents, documents submitted by the applicant and the information about the investigation’s progress presented by the Government.

121.¬†¬†As to the facts of the case, it has already been established that no proper investigation has taken place into the disappearance of Abu Khasuyev. The Court notes that the investigation was opened on 27 October 2001, that is one month and twenty-seven days after the detention had occurred. This delay in itself was liable to affect the investigation of a crime such as abduction in life-threatening circumstances, where crucial action has to be taken in the first days after the event. The crime scene investigation in the applicant’s flat was conducted only on 6 July 2006, which is four years, ten months and seven days after the abduction (see paragraph 73 above). It also appears that within the two years following the abduction the applicant was the only witness questioned by the investigators. In April 2008 the supervising prosecutor criticised the investigation, indicated the number of crucial steps which had been delayed and ordered the investigators to carry them out (see paragraph 81 above).

122.¬†¬†It is obvious that these 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. These 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).

123.¬†¬†A number of essential steps were never taken. Most notably, it does not appear that the investigation tried to identify and question the servicemen who had been manning the checkpoint situated across the street from the applicant’s house or that they had tried to identify and question any of the servicemen who might have participated in a special operation in Urus-Martan and could have been involved in the detention of Abu Khasuyev.

124.  The Court also notes that even though the applicant was granted victim status twice (see paragraphs 63 and 74 above), she was only informed of the suspensions and resumptions of the proceedings, and not of any other significant developments. 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.

125.  Finally, the Court notes that the investigation was suspended and resumed at least seven times and that on several occasions the supervising prosecutors and the local court criticised deficiencies in the proceedings and ordered remedial measures. However, it appears that these instructions were not complied with.

126.¬†¬†The Government raised the possibility for the applicant to make use of judicial review of the decisions of the investigating authorities in the context of exhaustion of domestic remedies. The Court observes that the applicant, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged the actions or omissions of investigating authorities before a court. Furthermore, the investigation has been resumed by the prosecuting authorities themselves a number of times due to the need to take additional investigative¬†steps. However, they still failed to investigate the applicant’s allegations properly. Moreover, owing to the time that had elapsed since the events complained of, certain investigative measures that should have been carried out much earlier could no longer be usefully conducted. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicant’s failure to exhaust domestic remedies within the context of the criminal investigation.

127.¬†¬†In the light of the foregoing, the Court dismisses the Government’s preliminary objection as regards the applicant’s failure to exhaust domestic remedies within the context of the criminal investigation, and holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Abu Khasuyev, in breach of Article¬†2 in its procedural aspect.

IV.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

128.¬†¬†The applicant relied on Article 3 of the Convention, submitting that as a result of her son’s disappearance and the State’s failure to investigate those events properly, she 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

129.¬†¬†The Government contended that there was no evidence confirming that the applicant had been subjected to treatment in breach of Article 3 of the Convention stating that ‚Äúthe investigation did not receive any information concerning inhuman or degrading treatment of the applicant by officials of the Russian Federation‚ÄĚ.

130.¬†¬†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 applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably having been 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).

131.¬†¬†In the present case the Court notes that the applicant is the mother of the disappeared man. For more than seven years she has not had any news of him. During this period the applicant has applied to various official bodies with enquiries about her son, both in writing and in person. Despite her attempts, she has never received any plausible explanation or information as to what became of her son following his detention. The responses received by the applicant mostly denied that the State was responsible for his arrest or simply informed her that an investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.

132.  In view of the above, the Court finds that the applicant suffered, and continues to suffer, distress and anguish as a result of the disappearance of her son and her inability to find out what happened to him. The manner in which her complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3.

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

V.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

134.  The applicant further stated that Abu Khasuyev 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

135.¬†¬†In the Government’s opinion, no evidence was obtained by the investigation to confirm that Abu Khasuyev was detained in breach of the guarantees set out in Article 5 of the Convention.

136.  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, cited above, § 122).

137.¬†¬†The Court has found that Abu Khasuyev was detained by State servicemen on 30¬†August 2001 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his 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).

138.¬†¬†The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicant’s complaints that her son 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 him against the risk of disappearance.

139.  Consequently, the Court finds that Abu Khasuyev was 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

140.  The applicant complained that she 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

141.  The Government contended that the applicant had had effective remedies at her disposal as required by Article 13 of the Convention and that the authorities had not prevented her from using them. In particular, the applicant had had an opportunity to appeal against the actions or omissions of the investigating authorities to supervising prosecutors and to the courts.

142.¬†¬†The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article¬†3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see¬†Anguelova v. Bulgaria, no. 38361/97, ¬ß¬ß¬†161-162, ECHR 2002-IV, and S√ľheyla AydńĪn v. Turkey, no. 25660/94, ¬ß¬†208, 24 May 2005). The Court further reiterates that the requirements of Article¬†13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, ¬ß 183, 24 February 2005).

143.  It follows that in circumstances where, as here, the criminal investigation into the disappearance was ineffective and the effectiveness of any other remedy that may have existed was consequently undermined, the State has failed in its obligation under Article 13 of the Convention.

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

145.¬†¬†As regards the applicants’ reference to Articles 3 and 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in conjunction with Articles 3 and 5 of the Convention (see Kukayev v. Russia, no.¬†29361/02, ¬ß¬†119, 15¬†November 2007, and Aziyevy v. Russia, no. 77626/01, ¬ß¬†118, 20¬†March 2008).

VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

146.  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.  Pecuniary damage

147.¬†¬†The applicant made a claim in respect Abu Khasuyev’s loss of earnings. She claimed a total of 567,497 Russian roubles (RUB) under this head (16,200 euros (EUR)).

148.¬†¬†The applicant submitted that she was financially dependent on her son Abu Khasuyev and that she would have benefited from his financial support in the above amount. The applicant’s 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).

149.  The Government regarded these claims as unsubstantiated.

150.¬†¬†The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant 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 applicant’s son and the loss by her of the financial support which he could have provided. Having regard to the applicant’s submissions and the absence of any documents substantiating the earnings of Abu Khasuyev at the time of the abduction, the Court awards the applicant EUR¬†12,000 in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Non-pecuniary damage

151.  The applicant claimed EUR 50,000 in respect of non-pecuniary damage for the suffering she had endured as a result of the loss of her family member, the indifference shown by the authorities towards her and the failure to provide any information about the fate of her son.

152.  The Government found the amounts claimed excessive.

153.¬†¬†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 applicant’s son. The applicant herself has been found to have been victim of a violation of Article 3 of the Convention. The Court thus accepts that she has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicant EUR¬†35,000, plus any tax that may be chargeable thereon.

C.  Costs and expenses

154.¬†¬†The applicant was 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 SRJI lawyers and EUR 150 per hour for SRJI senior staff and experts. The aggregate claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR 8,943.

155.  The Government did not dispute the details of the calculations submitted by the applicant.

156.  The Court has to establish first whether the costs and expenses indicated by the applicant were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220).

157.¬†¬†Having regard to the details of the contract and submitted documents, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicant’s representatives.

158.  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.

159.¬†¬†Having regard to the details of the claims submitted by the applicant, the Court awards her the amount of EUR¬†8,943 as claimed, less EUR¬†850 received by way of legal aid from the Council of Europe, 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 applicant.

D.  Default interest

160.  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 preliminary objection;

2.  Holds that there has been a violation of Article 2 of the Convention in respect of Abu Khasuyev;

3.  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 in which Abu Khasuyev had disappeared;

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

5.  Holds that there has been a violation of Article 5 of the Convention in respect of Abu Khasuyev;

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

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

8. Holds that there is no need to examine separately the applicant’s complaints under Article 38¬†¬ß¬†1¬†(a) of the Convention;

9.  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, to be converted into Russian roubles at the rate applicable at the date of settlement, save for the payment in respect of costs and expenses:

(i)  EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the applicant;

(ii)  EUR 35,000 (thirty five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant;

(iii)¬†¬†EUR¬†8,093 (eight thousand and ninety three euros), plus any tax that may be chargeable to the applicant, 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;

10.¬†¬†Dismisses the remainder of the applicant’s claim for just satisfaction.

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