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Abayeva and Others – Abdurashidova – Mudayevy – Sadulayeva – Seriyevy – Tasatayevy – Umalatov and Others v. Russia

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Abayeva and Others – Abdurashidova – Mudayevy – Sadulayeva – Seriyevy – Tasatayevy – Umalatov and Others v. Russia

The ECHR cases of Abayeva and Others v. Russia (no. 2952/06); Abdurashidova v. Russia (no. 32968/05); Mudayevy v. Russia (no. 33105/05); Sadulayeva v. Russia (no. 38570/05); Seriyevy v. Russia (no. 20201/05); Tasatayevy v. Russia (no. 37541/05); and Umalatov and Others v. Russia (no. 8345/05).

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EUROPEAN COURT OF HUMAN RIGHTS

293

08.04.2010

Press release issued by the Registrar

Seven Chamber judgments against Russia concerning Chechnya and Dagestan

The European Court of Human Rights has today notified in writing seven Chamber judgments concerning Russia, none of which are final.

All seven cases concerned the applicants’ allegations that their close relatives were killed by Russian agents of the State in Chechnya, notably after detention and disappearance or during a security operation. All the applicants further complained that the domestic authorities had 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) of the European Convention on Human Rights. In one case the applicant also complained that her property had been damaged during the security operation in breach of Article 1 of Protocol No. 1 (protection of property) to the Convention.

1. Abayeva and Others v. Russia (no. 37542/05)

The applicants are four Russian nationals who live in the town of Urus-Martan in Chechnya. The first three applicants are the mother, wife and son of Magomed-Ali Abayev, who was born in 1970. The fourth applicant is the mother of Anvar Shaipov, born in 1976. Magomed-Ali Abayev and Anvar Shaipov disappeared on 13 September 2000 when, walking to the town centre, they were stopped at a Russian military checkpoint and taken into a nearby factory building. Neighbours witnessed the two men being taken into the building and, warned of this, the applicants waited at the checkpoint. While they were waiting they saw a grey military vehicle leaving the factory yard with its windows closed; a soldier told them, however, that their relatives had been released from the other side of the building. They have had no reliable news of the two men apart from at the end of September 2000 when a young Chechen man went to see Anvar Shaipov’s mother to tell her that he had seen her son chopping firewood at the headquarters of an infantry regiment. The Court found as follows:

Violation of Article 2 (right to life) in respect of Magomed-Ali Abayev and Anvar Shaipov;

Violation of Article 2 (right to life) for failure to conduct an effective investigation into the circumstances of their disappearance;

Violation of Article 3 (inhuman and degrading treatment) on account of the applicants’ mental suffering;

Violation of Article 5 (unacknowledged detention) in respect of Magomed-Ali Abayev and Anvar Shaipov;

Violation of Article 13 (lack of an effective remedy) in conjunction with Article 2.

The Court decided to strike out of its list of cases the application in so far as it concerned Magomed-Ali Abayev’s wife as she no longer intended to pursue her complaints.

The Court awarded Magomed-Ali Abayev’s mother and son jointly 12,000 euros (EUR) in respect of pecuniary damage. In respect of non-pecuniary damage, they were further awarded EUR 60,000, jointly, and Anvar Shaipov’s mother EUR 60,000. All the applicants were awarded EUR 2,115 for costs and expenses.

2. Abdurashidova v. Russia (no. 32968/05)

The applicant is a Russian national who is currently an asylum seeker living abroad. The case concerned her allegation that her seven-year old daughter, Summaya Abdurashidova, was killed by police gunfire when the family home in the village of Solnechnoye in Dagestan (Russia) was stormed in the early hours of 14¬†March 2005. No autopsy was carried out as the applicant and her family decided against it. The authorities‚Äô investigation, based on a forensic expert‚Äôs report which stated that the applicant‚Äôs daughter had died from splinter wounds caused by an explosive device, concluded that, during an operation to apprehend two armed suspects in hiding at the applicant‚Äôs house, there had been a skirmish in which the two criminals ‚Äď also killed ‚Äď had used hand grenades against police officers, resulting in Summaya‚Äôs death. The applicant further alleged that her house had been severely damaged and was uninhabitable. The Court found as follows:

No violation of Article 2 (right to life) concerning direct State responsibility for Summaya Abdurashidova’s death;

Violation of Article 2 (right to life) on account of the Russian authorities’ failure to take reasonable measures to prevent a real and immediate risk to the life of Summaya Abdurashidova;

Violation of Article 2 (right to life) for failure to conduct an effective investigation into the circumstances in which Summaya Abdurashidova died;

Violation of Article 1 of Protocol No. 1 (protection of property) on account of the damage to the applicant’s home;

Violation of Article 13 (lack of an effective remedy) in conjunction with Article 2 and Article 1 of Protocol No. 1.

The Court awarded the applicant EUR 8,000 in respect of pecuniary damage, EUR 60,000 in respect of non-pecuniary damage and EUR 3,480 for costs and expenses.

3. Mudayevy v. Russia (no. 33105/05)

The applicants are two Russian nationals who live in Raduzhnoye (Grozny district, Chechnya). They are the father and aunt of Aslan and Mokhmad Mudayev, brothers, born in 1985 and 1982 respectively. The Mudayev brothers have not been seen since they were taken away from the family home in the village of Raduzhnoye (Chechnya) by Russian servicemen during a security operation on 29 January 2003. More than 20 other people detained during the security operation were released the following day. The Government acknowledged that the brothers had been detained and taken for questioning by the security services but stated that they had been released at a later date. The applicants further alleged that their relatives, according to detainees held with them, had been held in inhuman conditions of detention and been severely beaten. Furthermore, their allegations were not properly examined despite having reported them in detail to the investigating authorities. The Court found as follows:

Violation of Article 2 (right to life) in respect of Aslan and Mokhmad Mudayev;

Violation of Article 2 (right to life) for failure to conduct an effective investigation into the circumstances of Aslan and Mokhmad Mudayev’s disappearance;

Violation of Article 3 (investigation) on account of the failure to conduct an effective investigation into the allegations of ill-treatment of Aslan and Mokhmad Mudayev;

Violation of Article 5 (unacknowledged detention) in respect of Aslan and Mokhmad Mudayev;

Violation of Article 13 (lack of an effective remedy) in conjunction with Article 2.

The Court awarded the first applicant EUR 20,000 in respect of pecuniary damage. In respect of non-pecuniary damage it awarded EUR 100,000 to the first applicant and EUR 20,000 to the second applicant. EUR 3,150 was awarded for costs and expenses.

4. Sadulayeva v. Russia (no. 38570/05)

The applicant is a Russian national who lives in Martan-Chu (Urus-Martan district, Chechnya). The case concerned her allegation that her son, Aslan Sadulayev, born in 1978, was detained and disappeared on 9 December 2002 when, on his way to the family home in Urus-Martan (Chechnya), he was stopped by Russian servicemen at a mobile military checkpoint for an identity check. Two acquaintances, travelling in a bus and also stopped at the checkpoint, witnessed Aslan being taken away along with two other men in the car. He has not been seen since. The Court found as follows:

Violation of Article 2 (right to life) in respect of Aslan Sadulayev;

Violation of Article 2 (right to life) for failure to conduct an effective investigation into the circumstances of Aslan Sadulayev’s disappearance;

Violation of Article 3 (inhuman and degrading treatment) on account of the applicant’s mental suffering;

Violation of Article 5 (unacknowledged detention) in respect of Aslan Sadulayev;

Violation of Article 13 (lack of an effective remedy) in conjunction with Article 2.

The Court awarded the applicant EUR 60,000 in respect of non-pecuniary damage, and EUR 1,110 for costs and expenses.

5. Seriyevy v. Russia (no. 20201/05)

The applicants are two Russian nationals who currently live in Shali (Chechnya). They are the father and sister of Sarali Seriyev, born in 1980, who has not been seen since 1 June 2004 when he was taken away from the then family home in Belgatoy (Chechnya) by 30 heavily-armed and masked men in uniforms. The first applicant tried to prevent his son, who was disabled and blind in one eye, from being taken away by throwing himself onto one of the abductors’ cars, but was stopped when he had liquid sprayed into eyes. The Court found as follows:

Violation of Article 2 (right to life) in respect of Sarali Seriyev;

Violation of Article 2 (right to life) for failure to conduct an effective investigation into the circumstances of Sarali Seriyev’s disappearance;

Violation of Article 3 (inhuman and degrading treatment) on account of the applicants’ mental suffering;

Violation of Article 5 (unacknowledged detention) in respect of Sarali Seriyev;

Violation of Article 13 (lack of an effective remedy) in conjunction with Article 2.

The Court awarded the applicants jointly EUR 60,000 in respect of non-pecuniary damage, and EUR 6,500 for costs and expenses.

6. Tasatayevy v. Russia (no. 37541/05)

The applicants are two Russian nationals who live in Urus-Martan (Chechnya). They are the mothers of Aslan Tasatayev who was born in 1975 and his cousin, Aslanbek Tasatayev, born in 1979 of whom they have had no news since the early hours of 1 June 2001 when they were taken away from the family home by 30 masked men, some armed with sniper rifles, accompanied by a sniffer dog. The Court found as follows:

Violation of Article 2 (right to life) in respect of Aslan and Aslanbek Tasatayev;

Violation of Article 2 (right to life) for failure to conduct an effective investigation into the circumstances of their disappearance;

Violation of Article 3 (inhuman and degrading treatment) on account of the applicants’ mental suffering;

Violation of Article 5 (unacknowledged detention) in respect of Aslan and Aslanbek Tasatayev;

Violation of Article 13 (lack of an effective remedy) in conjunction with Article 2.

The Court awarded each applicant 60,000 EUR in respect of non-pecuniary damage, and EUR 5,000, jointly, for costs and expenses.

7. Umalatov and Others v. Russia (no. 8345/05)

The applicants are three Russian nationals who live in the Chechen Republic. The first and second applicants are the father and wife of Usman Umalatov who was born in 1969. The third applicant is the father of Shamad Durdiyev, born in 1976. The two men have not been seen since they were taken away from the family home by Russian servicemen during a security operation in the village of Nagornoye (Chechnya) on 15 October 2002. A few days later nine men apprehended during the security operation in Nagornoye were released; the Government suggested that the applicants’ relatives had either been released or abducted and killed by paramilitaries. The Court found as follows:

Violation of Article 2 (right to life) in respect of Usman Umalatov and Shamad Durdiyev;

Violation of Article 2 (right to life) for failure to conduct an effective investigation into the circumstances of their disappearance;

Violation of Article 3 (inhuman and degrading treatment) on account of the applicants’ mental suffering;

Violation of Article 5 (unacknowledged detention) in respect of Usman Umalatov and Shamad Durdiyev;

Violation of Article 13 (lack of an effective remedy) in conjunction with Article 2.

In respect of non-pecuniary damage, the Court awarded EUR 60,000, jointly, to the first and second applicants, and EUR 60,000 to the third applicant. The Court awarded the applicants EUR 2,750 for costs and expenses.

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Additional information concerning the Court’s findings in these cases

In the six disappearance cases the Court considered that the applicants, mostly eyewitnesses to the incidents, had presented a coherent and convincing picture of their relatives‚Äô detention, corroborated by other eyewitnesses including family and/or neighbours. In all but one (Mudayevy) of those cases it further considered it unlikely that, as suggested by the Government, the abductors of the applicants‚Äô relatives could have been criminals or members of paramilitary groups. In particular, in the cases of Sadulayeva, Seriyevy, and Tasatayevy the fact that a large group of armed men in uniform were able to move freely in such areas, carry out identity checks and apprehend people at a checkpoint or in their homes strongly supported the applicants‚Äô allegation that those men had been Russian servicemen conducting a security operation. In the cases of Mudayevy and Umalatov the Court further observed that the Government had either not presented evidence at all or it had been contradictory to support their claim that the applicants‚Äô relatives had been released. Further drawing inferences from the Russian Government‚Äôs failure to submit documents in most of those cases ‚Äď despite specific requests from the Court ‚Äď to which it exclusively had access and the fact that it had not provided any other plausible explanation for the events in question, the Court considered that the applicants‚Äô relatives had to be presumed dead following their unacknowledged detention by Russian servicemen. Accordingly, there had been a violation of Article 2 in respect of the disappeared men of these six cases.

In the case of Abdurashidova the Court noted, however, that the applicant‚Äôs allegation had been based exclusively on her own statement with no corroborating statements or evidence. Indeed, the forensic report, which the Court saw no reason to doubt, indicated that the applicant‚Äôs daughter had been killed by splinters from an explosive device used by two criminal suspects whereas the police had used firearms during the security operation. Unfortunately, there was no other document such as an autopsy report to provide a complete and accurate record of the seven year old‚Äôs injuries and the cause of her death. Accordingly, the Court found that it had not been established ‚Äúbeyond reasonable doubt‚ÄĚ that the security forces had been directly responsible for the death of the applicant‚Äôs daughter and therefore held that there had been no violation of Article 2. On the other hand, there was nothing in the case file to suggest that any serious consideration had been given to adequate planning, control and execution of the search and apprehension in the applicant‚Äôs home, especially bearing in mind that, not spontaneous, it had been set up in full knowledge of the danger posed by two criminal suspects and had been carried out by well-equipped and trained servicemen. Furthermore, it was entirely unclear why it had been possible to evacuate the applicant, her husband and two other children but not her daughter. The Court therefore concluded that the authorities had failed to take reasonable measures to prevent a real and immediate risk to the life of the applicant‚Äôs daughter, in violation of Article¬†2.

In all seven cases, the Court further held that there had been violations of Article 2 relating to the authorities’ failure to carry out effective criminal investigations into the circumstances in which the applicants’ relatives had disappeared or been killed.

The Court also found that the applicants in five of the cases had suffered and continued to suffer distress and anguish as a result of the disappearance of their relatives and their inability to find out ‚Äď despite repeated enquiries, both in writing and in person, to various official bodies ‚Äď what had happened to them. The manner in which their complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment in violation of Article¬†3.

As regards the case Mudayevy, the Court held that there had been a violation of Article 3, given that no adequate investigation had been carried out into the applicants’ complaint concerning the ill-treatment of Aslan and Mokhmad Mudayev.

The Court found that in the six disappearance cases the applicants’ relatives had been held in unacknowledged detention without any of the safeguards contained in Article 5, which constituted a particularly grave violation of the right to liberty and security enshrined in that Article.

The Court finally held that as the criminal investigations into the disappearances and a violent death in these cases had been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies suggested by the Government, had consequently been undermined, the State had failed in its obligation under Article 13 of the Convention. Consequently in all seven cases there had been a violation of Article 13 in conjunction with Article 2. In the case of Abdurashidova the Court further held that there had been a violation of Article 13 in conjunction with Article 1 of Protocol No. 1 on account of the fact that, the authorities having denied any involvement in the damage to the applicant’s home and the matter not having been examined at all during the domestic investigation, the applicant did not have any effective domestic remedies in respect of the alleged violation of her property rights.

***

CASE OF ABAYEVA AND OTHERS v. RUSSIA

(Application no. 37542/05)

JUDGMENT

STRASBOURG

8 April 2010

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 Abayeva and Others 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, judges,
and S√łren Nielsen, Section Registrar,

Having deliberated in private on 18 March 2010,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 37542/05) 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 9 September 2005.

2.¬†¬†The applicants were represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government (‚Äúthe Government‚ÄĚ) were represented by Mr A. Savenkov, First Deputy Minister of Justice, and, subsequently, by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3.  On 17 March 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and 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.

4.¬†¬†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

5.  The applicants are:

1) Ms Arua Abayeva, born in 1949,

2) Ms Raminat Zhansayeva, born in 1983,

3) Mr Siddyk Abayev, born in 2000 and

4) Ms Malika Shaipova, born in 1947.

The applicants are two distantly related families of Russian nationals who live in the town of Urus-Martan, Chechnya. The first applicant is the mother of Magomed-Ali Abayev, who was born in 1970. The second applicant is his wife and the third applicant is his son. The fourth applicant is the mother of Anvar Shaipov, who was born in 1976.

A.  The disappearance of Magomed-Ali Abayev and Anvar Shaipov and subsequent events

1.¬†¬†The applicants’ account

a. Abduction of Magomed-Ali Abayev and Anvar Shaipov

6.  At the material time the town of Urus-Martan was under curfew. The first applicant lived there with Magomed-Ali Abayev and other relatives at 12 Lenin Street. Their house was in the town centre and less than a hundred metres from the nearest checkpoint of the Russian military forces. The checkpoint and its staff occupied two buildings; one was the building of the former Siluet clothing factory and the other was a nearby smaller building in Lenin Street.

7.¬†¬†At about 4 p.m. on 13 September 2000 Magomed-Ali Abayev and Anvar Shaipov left the first applicant’s house. They were walking to the town centre when two Russian servicemen at the checkpoint stopped them. The servicemen took their passports and one of the soldiers went with them into the factory building. A few minutes later he came out, took Magomed-Ali Abayev and Anvar Shaipov into the building and returned to the checkpoint without them.

8.¬†¬†The applicants’ neighbours Mr R.G. and Mr M.A. witnessed Magomed-Ali Abayev and Anvar Shaipov being taken into the factory building and did not see them come out. Several minutes later Mr R.G. asked the servicemen at the checkpoint why Magomed-Ali Abayev and Anvar Shaipov were still in the building; he did not receive any response. Meanwhile Mr M.A. went to the first applicant’s house and informed her and the second applicant about the arrest of Magomed-Ali Abayev and Anvar Shaipov at the checkpoint.

9.  The first and the second applicants immediately went to the checkpoint and asked the soldiers why Magomed-Ali Abayev and Anvar Shaipov had been arrested. They were told that the two men had been taken into the building for an identity check and that they would be released shortly. The applicants decided to wait for the men at the entrance to the building. While they were waiting, a grey military UAZ vehicle with open windows drove up to the factory building. The soldiers opened the factory gates and let the car into the yard. Shortly after its arrival the car left with its windows closed.

10.  After the car drove away the second applicant asked one of the soldiers about Magomed-Ali Abayev and Anvar Shaipov. The soldier spoke with someone on his portable radio set and told her that the two men had been released from the other side of the factory building.

11.  At that time the father of Magomed-Ali Abayev, Mr V.A., arrived at the checkpoint and went to the other side of the building to meet his son and Anvar Shaipov. About five minutes later he returned and told the first and the second applicants that Magomed-Ali Abayev and Anvar Shaipov had not left the building. He further informed them that he had met an acquaintance who had been waiting for someone on the other side of the building for two hours and that this man had not seen Magomed-Ali Abayev and Anvar Shaipov leaving the factory building.

12.¬†¬†Then the second applicant went to the fourth applicant’s house and told her Anvar Shaipov had been arrested. The second and the fourth applicants immediately went to the town centre, where they met the first applicant. In the late afternoon all of them managed to speak to the deputy head of the Urus-Martan district administration, Mr L.M., who told them that Magomed-Ali Abayev and Anvar Shaipov had been taken to the ‚ÄúWest‚ÄĚ group of the Russian federal forces (–≥—Ä—É–Ņ–Ņ–ł—Ä–ĺ–≤–ļ–į —Ą–Ķ–ī–Ķ—Ä–į–Ľ—Ć–Ĺ—č—Ö —Ā–ł–Ľ ‘–ó–į–Ņ–į–ī’) stationed in the village of Tangi-Chu in the Urus-Martan district, and that on 14 September 2000 the applicants’ relatives would be brought back to Urus-Martan.

13.  In support of their statements the applicants submitted the following: two accounts by the first applicant dated 19 March 2004 and 2 June 2005; an account by the second applicant dated 17 March 2004; an account by Mr R.G. dated 29 March 2004; an account by Mr M.A. dated 2 April 2004; an account by the fourth applicant dated 18 March 2004, on an account by Mr M.-E.A. dated 1 June 2005 and a hand-drawn map of the former clothing factory.

b. The subsequent events

14.  On the morning of 14 September 2000 the deputy head of the administration, Mr L.M., told the applicants that he had not been able to find out where Magomed-Ali Abayev and Anvar Shaipov had been taken. He suggested that they had been taken either to the main military base of the Russian federal forces in Khankala or to the detention centre of the Russian federal forces in the settlement of Chernokozovo.

15.  On 14 September 2000 the two applicant families started a joint search for Magomed-Ali Abayev and Anvar Shaipov. For the first few days the applicants addressed State authorities primarily in person, hoping for an immediate release of their relatives.

16.¬†¬†In the end of September 2000 (in the submitted documents the date was also stated as October 2001) a young Chechen man came to the fourth applicant’s house. He did not introduce himself. He told her that he had seen Anvar Shaipov at the headquarters of infantry regiment no.¬†245 of the West group of the Russian federal forces. Anvar Shaipov had been chopping firewood. He had told the man that he had been arrested by Russian military servicemen and asked him to inform his relatives that he had been detained at the headquarters of infantry regiment no.¬†245 of the West group. The young man said he had never heard of Magomed-Ali Abayev.

17.  Since the end of September 2000 the applicants have had no news of their disappeared relatives.

2.  Information submitted by the Government

18.¬†¬†The Government did not challenge most of the facts as presented by the applicants. According to their submission, ‚Äú…on 15 August 2002 M.A.¬†Shaipova complained to the Urus-Martan district prosecutor’s office that between 4 p.m. and 5 p.m. on 13 September 2000 her son Anvar Shaipov was abducted by identified men in civilian clothing next to the former Siluet clothing factory in Lenin Street, Urus-Martan… on 15¬†December 2000 a similar complaint was received by the Urus-Martan district prosecutor’s office from A. Abayeva…‚ÄĚ.

B.  The search for Magomed-Ali Abayev and Anvar Shaipov and the investigation

1.  Information submitted by the applicants

19.¬†¬†From 13¬†September 2000 onwards the applicants repeatedly applied in person and in writing to various public bodies. They have been supported in their efforts by the Memorial NGO. In their letters to the authorities the applicants referred to their relatives’ arrest and asked for assistance and details of the investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given in which the applicants’ requests have been forwarded to various prosecutors’ offices. The applicants submitted some of their letters and the authorities’ replies to the Court; these documents are summarised below.

20.¬†¬†On 26 and 29 September 2000 the fourth applicant complained to the Urus-Martan district prosecutor’s office (the district prosecutor’s office) about her son’s abduction. She described the circumstances of his arrest and requested assistance in searching for him. She also stated that her son had been seen in the village of Tangi-Chu, on the premises of infantry regiment no.¬†245 of the West group of federal forces.

21.¬†¬†On 1 October 2000 the district prosecutor’s office forwarded the fourth applicant’s complaint to the Urus-Martan district department of the interior (the ROVD) and requested them to open an operational-search file to establish the whereabouts of Anvar Shaipov.

22.¬†¬†On 19 November 2000 the district prosecutor’s office informed the first applicant that Magomed-Ali Abayev and Anvar Shaipov had not been detained at the headquarters of infantry regiment no.¬†245.

23.¬†¬†On 27 November 2000 the fourth applicant wrote to the ROVD. She described the circumstances of her son’s arrest and stated that he had been seen in the village of Tangi-Chu, at the headquarters of infantry regiment no.¬†245 of the West group of Russian federal forces.

24.¬†¬†On 21 August 2001 the Prosecutor General’s office informed the first applicant that her request for assistance in the search for her son had been forwarded to the Chechnya prosecutor’s office.

25.¬†¬†On 21 September 2001 the district prosecutor’s office forwarded the first applicant’s complaint to the ROVD.

26.¬†¬†On 1 October 2001 the first applicant complained to the district prosecutor’s office. She stated that in spite of all the information she had provided to the authorities they had failed to instigate an investigation into her son’s disappearance. The applicant further provided the names and the addresses of the witnesses to the abduction and requested that the authorities instigate an investigation into the abduction of Magomed-Ali Abayev. She requested the authorities to question the servicemen who had been manning the checkpoint on 13 September 2000.

27.¬†¬†On 19 August 2002 the Chechnya department of the interior forwarded the fourth applicant’s complaint to the ROVD, seeking a search for Anvar Shaipov to be set up.

28.¬†¬†On 28 August 2002 the district prosecutor’s office summoned the first applicant for questioning.

29.¬†¬†On 22 January 2003 the fourth applicant complained to the Urus-Martan district military commander’s office (the district military commander’s office). She described in detail the circumstances of her son’s abduction and requested assistance in the search for Anvar Shaipov.

30.¬†¬†On 6 February 2003 the district prosecutor’s office forwarded a letter to the first applicant stating that on the same date they had instituted an investigation into the disappearance of Magomed-Ali Abayev and Anvar Shaipov under Article 126 ¬ß¬†2 of the Criminal Code (aggravated kidnapping). The case file had been given the number 34013. According to the applicants, they were informed about this decision only on 11 March 2004 (see paragraph 51 below).

31.¬†¬†On 18 February 2003 the district prosecutor’s office granted the fourth applicant victim status in the criminal case.

32.¬†¬†On 9 March 2004 the first applicant complained to the district prosecutor’s office. She stated that Magomed-Ali Abayev and Anvar Shaipov had been arrested by Russian servicemen; that their removal had been witnessed by a number of her neighbours and relatives; and that, in spite of her numerous complaints to the district prosecutor’s office, the latter had failed to establish the whereabouts of the disappeared men. The applicant requested the authorities to take the following measures: to initiate an investigation into the abduction of Magomed-Ali Abayev and Anvar Shaipov, to grant her victim status in the criminal proceedings and conduct an effective investigation into the disappearance.

33.¬†¬†On 11 March 2004 the district prosecutor’s office informed the first applicant that on 6 February 2003 they had instituted an investigation into the disappearance of Magomed-Ali Abayev and Anvar Shaipov and that on 7 April 2003 the investigation in the criminal case had been suspended for failure to establish the identities of the perpetrators.

34.  On 12 April 2004 the first applicant requested the investigators to inform her about the progress of the investigation and take meaningful measures to establish the whereabouts of Magomed-Ali Abayev and Anvar Shaipov.

35.  On 6 October 2004 the first applicant requested the investigators to provide her with access to the investigation file and to resume the investigation in the criminal case.

36.  On 11 October 2004 the investigators informed the first applicant that under Article 42 of the Criminal Procedure Code she was entitled to familiarise herself with the investigation file only upon completion of the investigation. The letter also stated that the investigation had been suspended for failure to establish the identities of the perpetrators.

37.  On 12 June 2008 the investigators informed the applicants that on the same date they had suspended the investigation in the criminal case for failure to establish the identities of the perpetrators.

2.  Information submitted by the Government

38.  Referring to several witness statements, which are summarised below, and copies of some documents from the investigation file, the Government submitted the following.

39.¬†¬†On 15 December 2002 the first applicant complained to the authorities about the abduction on 13 September 2000 of Magomed-Ali Abayev and Anvar Shaipov by representatives of a law-enforcement agency stationed in the former clothing factory. She stated that the two men had been taken onto the factory premises by the servicemen and that afterwards they had not returned home. She further stated that she had complained about the abduction to the district prosecutor’s office, but the interim district prosecutor, Mr L.I., had refused to open a criminal investigation. The applicant also provided the names and addresses of two witnesses to the abduction and requested the authorities to open a criminal case and to question the representatives of the law-enforcement agency who had been stationed in the factory building at the material time.

40.¬†¬†On 14 February 2003 the investigators questioned the first applicant’s daughter, Ms L.A., who stated that at about 6 p.m. on 13¬†September 2000 her brother Magomed-Ali Abayev had left home with Anvar Shaipov. About five minutes later their neighbour Mr M.A. had arrived at the first applicant’s home and informed the relatives that Magomed-Ali Abayev and Anvar Shaipov had been arrested by representatives of a law-enforcement agency and had been taken to the premises of the former clothing factory. The witness and the first applicant had gone immediately to the checkpoint located in the factory building. While they were there a grey UAZ vehicle without registration numbers had driven away from the factory’s yard.

41.  On 14 February 2003 the ROVD informed the investigators that Anvar Shaipov had not been detained by their officers, that he had not been placed in their detention centre and that his corpse had not been found.

42.¬†¬†On 14 February 2003 the investigators questioned the first applicant who stated that at about 4 p.m. on 13 September 2000 her son Magomed-Ali Abayev had left home with Anvar Shaipov. A few minutes later their neighbour Mr M.A. had arrived at her house and informed the family that the two men had been arrested by representatives of a law-enforcement agency stationed in the former clothing factory. Immediately afterwards, the applicant with her daughter and Ms R. Sh. had gone to the checkpoint located in the building and asked the guards to release the arrested men. While the women had been talking to the guards, a grey UAZ vehicle with darkened windows and without registration numbers had driven away from the factory’s yard. The women’s attempts to obtain information about the arrested men had not produced any results.

43.¬†¬†On 17 February 2003 the investigators questioned Anvar Shaipov’s sister, Ms L.Sh., who stated that on 13 September 2000 she had been at home when Mr A.Zh. had arrived there and informed the family about the arrest of Magomed-Ali Abayev and Anvar Shaipov by military servicemen stationed at the former clothing factory. The witness and her relatives had immediately gone to the authorities and informed them about the incident. On 18 February 2005 the witness was questioned again and stated that her family had learnt from an acquaintance that in 2000 her brother Anvar Shaipov had been seen at a military unit in Tangi-Chu, Chechnya.

44. On 18 and 22 February 2003 the Urus-Martan district department of the Federal Security Service (the FSB) and the Chechnya FSB informed the investigators that they had not arrested or detained Magomed-Ali Abayev and Anvar Shaipov and had not opened criminal proceedings against them.

45.  On 24 February 2003 the investigators conducted a crime scene examination in the building of the former clothing factory. Nothing was collected from the scene.

46.¬†¬†In February 2003 the Achkhoy-Martan district prosecutor’s office, the Kurchaloy district prosecutor’s office, the Shali district prosecutor’s office and the Nadterechniy district prosecutor’s office informed the investigators that they had not opened criminal proceedings against Magomed-Ali Abayev and Anvar Shaipov; that they had not arrested or detained them and that their corpses had not been found in their districts.

47.  On various dates in 2003 the Main Department of the Ministry of the Interior in the Southern Federal Circuit, the Argun ROVD, the Sharoy ROVD, the Itum-Kali ROVD, the Naurskiy ROVD, the Kurchloy ROVD, the Shatoy ROVD, the Itum-Kali ROVD and the Zavodskoy ROVD of Grozny informed the investigators that they had no information concerning the arrest or detention of Magomed-Ali Abayev and Anvar Shaipov.

48.  According to the information received from the above-mentioned law-enforcement agencies, military unit no. 6779 had not been stationed at the headquarters of the former clothing factory in Urus-Martan.

49.  On 5 April 2003 the investigators suspended the investigation in the criminal case for failure to establish the identities of the perpetrators. The applicants were informed about this decision.

50.¬†¬†On 10 March 2004 the first applicant complained to the district prosecutor’s office about the abduction of her son and requested that the authorities open a criminal investigation into the incident.

51.  On 11 March 2004 the investigators informed the first applicant that in connection with the abduction they had already opened a criminal case, on 5 February 2003.

52.¬†¬†On 11 October 2004 the first applicant requested that the district prosecutor’s office provided her with full access to the investigation file. The investigators replied that she was entitled to access only upon completion of the criminal investigation.

53.¬†¬†On 20 January 2006 the investigators again questioned the first applicant, who stated that on 13 September 2000 her son Magomed-Ali Abayev and her relative Anvar Shaipov had been arrested at the checkpoint situated in Lenin Street in Urus-Martan and taken into the former clothing factory. Referring to the information received by her from the witness to the incident, Mr M.A., Magomed-Ali Abayev and Anvar Shaipov had been stopped by the servicemen who had manned the checkpoint. At first the officers had taken the two men’s documents and taken them into the building; a few minutes later Magomed-Ali Abayev and Anvar Shaipov had been taken into the factory. Immediately afterwards Mr M.A. had arrived at the applicant’s house and told her that Magomed-Ali Abayev and Anvar Shaipov had been detained at the checkpoint. The applicant had gone immediately to the checkpoint and asked the servicemen about Magomed-Ali Abayev and Anvar Shaipov. The officers told her that the two men were ‚Äúbeing checked‚ÄĚ and that they would be released soon. The applicant decided to wait for Magomed-Ali Abayev and Anvar Shaipov at the checkpoint. While she was waiting, a grey UAZ vehicle without registration numbers and with darkened windows drove into the factory’s yard. About five minutes later the car left the factory and drove in the direction of the town centre. Then the soldiers at the checkpoint told the applicant that they had released Magomed-Ali Abayev and Anvar Shaipov through the gates located on the other side of the building, in Krasnoarmeyskaya Street. According to the witness, at the time the checkpoint was being manned by officers of law-enforcement agencies from Yaroslavl and the Yaroslavl Region. The applicant further stated that at some point later Mr M.A. had moved abroad and that her husband, Mr V.A., had died in June 2003.

54.  On 24 January 2006 the investigators conducted a crime scene examination at the former clothing factory. Nothing was collected from the scene. According to the transcript, on the date of the examination, a special task force unit of the police (the OMON) from the Kostroma Region was stationed in the factory building.

55.  In January 2007 the investigators forwarded a number of information requests to various detention centres in Northern Caucasus and the nearby regions. According to the replies from the detention centres in the Kalmyk Republic, the Volgograd region, the Republic of Adigey, the Astrakhan region, the Republic of Dagestan, the Republic of Kabardino-Balkaria, the Krasnodar region, the Rostov region and the Stavropol region Magomed-Ali Abayev and Anvar Shaipov were not detained on their premises.

56.  On 25 January 2007 the investigators questioned officer Z. who stated that since September 2006 he had been working in Urus-Martan, in the police station located in the building of the former clothing factory. He had previously worked there from November 2003 to April 2004 and during this period of his service Magomed-Ali Abayev and Anvar Shaipov had not been arrested or detained on the factory premises. At the time a two-storey security post guarding the factory premises had been set up by Russian federal forces in front of the building. The only entrance to the security post had been through the factory building. The witness further stated that he did not know which law-enforcement agency had been stationed in the factory building in 2000.

57.¬†¬†On 31 January 2007 the investigators questioned the first applicant’s neighbour, Ms Kh. Kh., who stated that at about 5 p.m. on 13 September 2000 she had been at home when she had seen Magomed-Ali Abayev and Anvar Shaipov walking by her house. She had gone into the street and seen the two men next to the checkpoint situated in the former clothing factory. According to the witness, at the time servicemen of a law-enforcement agency were manning the checkpoint. The witness had walked to the checkpoint and seen Magomed-Ali Abayev and Anvar Shaipov going into the checkpoint building. Then a UAZ car had passed by her, pulled into the factory’s yard and driven away shortly afterwards. After she had arrived at the checkpoint, she had seen relatives of Magomed-Ali Abayev and Anvar Shaipov who had been waiting for the two men. The servicemen on duty had told them that they had already released Magomed-Ali Abayev and Anvar Shaipov and that the two men were waiting for their relatives on the other side of the checkpoint, in Krasnoarmeyskaya Street. The witness also stated that her son Mr M.A. had witnessed all the events and that he had moved abroad at some point later.

58.¬†On 7 February 2007 the Department of the Execution of Punishment of the Republic of Karachay-Cherkessia informed the investigators that they had not detained the applicants’ relatives.

59.¬†¬†On 7 February 2007 the investigators questioned the applicants’ relative Mr A. Zh., who stated that at about 5 p.m. on 13 September 2000 he had gone to the town centre of Urus-Martan to buy cigarettes. On the way there, next to the checkpoint situated in the former clothing factory, he had seen a crowd of local residents, who had told him that the servicemen at the checkpoint had arrested Magomed-Ali Abayev and Anvar Shaipov; that the two men had been taken into the factory yard; that a few minutes later a UAZ car had driven into the yard and that the two men had been taken away in this car. Then he had gone to the fourth applicant’s house and told her about the arrest.

60.¬†¬†On 11 February 2007 the investigators questioned the fourth applicant’s daughter, Ms L.Sh., who stated that at about 5 p.m. on 13¬†September 2000 their relative Mr A. Zh. had arrived at their house and told her about the arrest of Anvar Shaipov. She had immediately informed her relatives about it. The fourth applicant and other relatives had gone to the checkpoint, while the witness stayed at home. The witness further stated that Mr R.G. had witnessed how the two men had been taken into the factory by the servicemen, and provided the investigators with his address. She also stated that her relatives had complained about the abduction to various state authorities in 2000, but that the latter had failed to take measures to establish the whereabouts of the disappeared men. In connection with this she offered to provide the investigators with copies of letters from the district prosecutor’s office of 10 October 2000 and 28¬†February 2002 and from another law-enforcement agency of 19 August 2002, which confirmed the fact that her relatives had then informed the authorities about the abduction, but no tangible measures had been taken.

61.¬†¬†On 14 February 2007 the investigators questioned the fourth applicant, who stated that at about 5 p.m. on 13 September 2000 she had learnt from Ms R.Zh. that Magomed-Ali Abayev and Anvar Shaipov had been arrested by servicemen at the checkpoint located in Lenin Street, in the former clothing factory. The witness had immediately gone there with her relatives. At the checkpoint she had met relatives of Magomed-Ali Abayev. She had learnt from the first applicant that at about 4 p.m. Magomed-Ali Abayev and Anvar Shaipov had been stopped at the checkpoint for an identity check and then taken to the factory; after that a UAZ vehicle had driven into the factory yard and Magomed-Ali Abayev and Anvar Shaipov had been taken away in this car. According to the witness, after she had spoken with the first applicant, the servicemen at the checkpoint had informed them that Magomed-Ali Abayev and Anvar Shaipov had been released from the checkpoint through the other gates, in Krasnoarmeyskaya Street. After that incident her son had disappeared. The witness further stated that in October 2001 a man of average height, who must have been twenty-six or twenty-seven years old, had arrived at her house and told her that two days ago he had been leaving the headquarters of the 245th regiment of the federal forces under the command of General Shamanov and that he had seen Anvar Shaipov there. The latter asked him to inform his family that he was there. The witness had not seen the young man again. In 2002 a woman had arrived at the applicant’s house and told her that her son Anvar Shaipov had been detained in the Chernokozovo detention centre in Chechnya. After that the applicant had twice visited the detention centre where he had been told that her son had not been detained there. She did not hear any news about her disappeared son ever since. On 8 June 2007 the investigators again questioned the fourth applicant, who confirmed her previous statement.

62.¬†¬†On 16 February 2007 the investigators questioned the first applicant’s neighbour, Mr R.G., who stated that at the material time he had lived across the street from the first applicant’s house. A federal forces checkpoint was next to the former clothing factory; the servicemen manning the checkpoint lived in the factory building. On 13 September 2000 he had been repairing the house gates. Magomed-Ali Abayev and Anvar Shaipov had greeted him and walked by in the direction of the town centre. Then he had seen that the two men had been stopped at the checkpoint and that the servicemen had asked for their identity documents. After Magomed-Ali Abayev and Anvar Shaipov had provided their documents, one of the servicemen had taken them into the building. Meanwhile he approached Magomed-Ali Abayev and Anvar Shaipov and asked them what was happening. Magomed-Ali Abayev explained to him that the servicemen frequently stopped pedestrians for identity checks and that there was nothing to worry about. After that the servicemen asked Magomed-Ali Abayev and Anvar Shaipov to go into the building and the two men went inside. About ten minutes later he asked one of the officers what was taking so long and why Magomed-Ali Abayev and Anvar Shaipov had not come back. The servicemen called someone on the phone and told him that the two men would be released shortly. Then he went to the applicants and informed them about their relatives’ arrest. As the relatives of Magomed-Ali Abayev were approaching the checkpoint, a military UAZ-469 vehicle without a registration number was driving away from the factory premises. The witness said he did not see any passengers in the car, just the driver. When the relatives of Magomed-Ali Abayev arrived at the checkpoint, the servicemen on duty told them that the two men had been released from the factory building at the other gates, in Krasnoarmeyskaya Street. Nonetheless, when the witness expressed disbelief and asked one of the officers: ‚ÄúYou saw the two men being taken into the factory?‚ÄĚ and the latter replied: ‚Äúthere is no need to involve me in this, those who arrested the two men, they are from another agency‚ÄĚ and added that the men who had arrested the applicants’ relatives were from military intelligence. The witness further stated that on 13 September 2000 servicemen wearing a particular kind of camouflage uniform called ‚Äúdesert storm‚ÄĚ (‘–Ī—É—Ä—Ź –≤ –Ņ—É—Ā—ā—č–Ĺ–Ķ’), had been present at the checkpoint along with its regular staff and that these men had arrested Magomed-Ali Abayev and Anvar Shaipov.

63.¬†¬†On 21 June 2007 the investigators questioned Magomed-Ali Abayev’s brother, Mr M.A., who stated that at about 4.30 p.m. on 13¬†September 2000 his family had been informed about the arrest of Magomed-Ali Abayev and Anvar Shaipov by men in military uniform at the checkpoint located next to the former clothing factory. According to the witness, the guard at the checkpoint had explained to him that those who had arrested the applicants’ relatives had shown military intelligence identity documents and taken Magomed-Ali Abayev and Anvar Shaipov into the factory. After that a UAZ car with darkened windows had arrived at the building, Magomed-Ali Abayev and Anvar Shaipov had been taken outside, placed in the vehicle and taken to an unknown destination.

64.¬†¬†On 14 June 2007 the investigators questioned the first applicant’s neighbour, Mr Z.M., who stated that on 13 September 2000 his relatives had informed him about the arrest of Magomed-Ali Abayev and Anvar Shaipov at about 5 p.m. at the checkpoint situated next to the former clothing factory. According to the witness, Anvar Shaipov had not participated in activities of illegal armed groups.

65.¬†¬†On 1 July 2007 the investigators questioned the fourth applicant’s relative Ms T. Sh., whose statement was similar to the one given by Mr¬†Z.M.

66.¬†¬†According to the Government’s submission, the investigation failed to establish the whereabouts of Magomed-Ali Abayev and Anvar Shaipov. However, it found no evidence to support the involvement of Russian federal forces in the disappearance. The law enforcement authorities of Chechnya and the neighbouring regions had never arrested or detained Magomed-Ali Abayev and Anvar Shaipov on criminal or administrative charges and had not carried out a criminal investigation in respect of them. No special operations had been carried out against the applicants’ relatives.

67.  According to the documents submitted by the Government, the investigation in the criminal case was suspended and resumed on several occasions, and has so far failed to identify those responsible for the abduction of Magomed-Ali Abayev and Anvar Shaipov.

68.  The Government further submitted that the applicants had been duly informed of all decisions taken during the investigation.

69.  Despite specific requests by the Court the Government did not disclose most of the contents of criminal case no. 34013, but mainly provided copies of the information requests forwarded to various law-enforcement agencies and their replies, and copies of several witness statements, summarised above. The Government stated that the investigation was in progress and that disclosure of other documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained personal data concerning witnesses or other participants in the criminal proceedings.

C.  Proceedings against law-enforcement officials

70.  On 23 October 2004 the first applicant complained to the Urus-Martan town court. She sought a ruling obliging the investigators to provide her with access to the investigation file, to resume the investigation and to conduct it thoroughly and effectively. In her complaint she referred to the Constitution and the case-law of the European Court of Human Rights. On 22 November 2004 the town court rejected her claim. The applicant appealed.

On 8 February 2005 the Supreme Court of the Chechen Republic upheld the town court’s ruling. The text of the Supreme Court decision stated, inter alia, the following:

‚Äú…it follows from the contents of the investigation file that on 13 September 2000 representatives of Russian power structures had arrested M.-A. Abayev along with other persons and that in connection with this the criminal case was opened under Article 126 of the Criminal Code…

II. RELEVANT DOMESTIC LAW

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

THE LAW

I.      PRELIMINARY ISSUES

A.¬†¬†The second applicant’s complaints

72.¬†¬†The Court notes that in their submission of 1 September 2008 the applicants’ representatives informed it that the second applicant (Ms¬†Raminat Zhansayeva) did not intend to pursue the application before the Court. The other applicants did not express their wish to pursue the application on her behalf.

73.  Article 37 § 1 of the Convention, in its relevant part, reads:

‚Äú1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that…

(c)¬†¬†… it is no longer justified to continue the examination of the application…‚ÄĚ

The Court reiterates that it has been its practice to strike applications out of the list of cases in the absence of a close relative who has expressed a wish to pursue the application (see Scherer v. Switzerland, 25 March 1994, § 31, Series A no. 287; Karner v. Austria, no. 40016/98, § 23, ECHR 2003-IX; and Thevenon v. France (dec.), no. 2476/02, ECHR 2006-III).

74.¬†¬†The Court finds no special circumstances relating to respect for human rights as defined in the Convention and its Protocols which require it to continue the examination of the application in respect of the second applicant. Accordingly, the application should be struck out of the Court’s list of cases in so far as it relates to this applicant.

B. The Government’s objection regarding non-exhaustion of domestic remedies

1.¬†¬†The parties’ submissions

75.  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 Magomed-Ali Abayev and Anvar Shaipov had not yet been completed; that the applicants could challenge in court any acts or omissions on the part of the investigating authorities, and that they had already availed themselves of that remedy. The Government also argued that it was open to the applicants to pursue civil complaints but that they had failed to do so.

76.  The applicants contested that objection. They stated that the only effective remedy in their case Рcriminal investigation Рhad proved to be ineffective and that their complaints to that effect, including their application to the domestic courts, had been futile.

2.¬†¬†The Court’s assessment

77.  The Court will 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).

78.   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.

79.¬†¬†As regards a civil action to obtain redress for damage sustained through alleged illegal acts or unlawful conduct 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 (see Khashiyev and Akayeva v.¬†Russia, nos.¬†57942/00 and 57945/00, ¬ß¬ß¬†119-121, 24 February 2005, and Estamirov and Others, cited above, ¬ß¬†77). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed.

80.  As regards criminal law remedies, the Court observes that the applicants complained to the law enforcement authorities after the kidnapping of Magomed-Ali Abayev and Anvar Shaipov and that an investigation has been pending since 6 February 2003. The applicants and the Government dispute the effectiveness of the investigation of the kidnapping.

81.¬†¬†The Court considers that 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.¬†THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS

A.¬†¬†The parties’ arguments

82.  The applicants maintained that it was beyond reasonable doubt that on 13 September 2000 their relatives Magomed-Ali Abayev and Anvar Shaipov had been arrested by State agents at the checkpoint of Russian military forces and that they had been missing ever since. In support of their complaint they referred to a number of witness statements confirming that their relatives had been stopped for an identity check at the checkpoint located at the former clothing factory, that after that they had been taken inside the factory building and had not come out. The applicants stated that all the information disclosed from the criminal investigation file supported their assertion as to the involvement of State agents in the abduction. In connection with this they referred to the decision of the Chechnya Supreme Court (see paragraph 70 above), which confirmed in its text that Magomed Ali Abayev and Anvar Shaipov had been arrested at the checkpoint. They further contended that since their relatives had been missing for a very lengthy period they could be presumed dead. That presumption was further supported by the circumstances in which they had been arrested, which should be recognised as life-threatening.

83.¬†¬†The Government submitted that unidentified armed men, possibly criminals or members of illegal armed groups, had kidnapped Magomed-Ali Abayev and Anvar Shaipov. They further contended that the investigation of the incident was pending, that there was no evidence that the men were State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants’ rights. They further argued that there was no convincing evidence that the applicants’ relatives were dead and pointed out that the applicants had complained to the authorities about the abduction only in 2002, that is two years after the incident. The Government further alleged that the applicants’ description of the circumstances surrounding the abduction was inconsistent. In particular, the applicants were inconsistent in their description of the colour of the UAZ vehicle which had arrived at the checkpoint; that according to Mr R.G. the car had driven away without any passengers, whereas Ms Kh. Kh. had stated that it had taken away Magomed-Ali Abayev and Anvar Shaipov; the fourth applicant had stated that Magomed-Ali Abayev and Anvar Shaipov had been arrested by men in civilian clothing, whereas in their complaints to the authorities the applicants described the abductors as men in military uniforms.

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

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

85.  The Court notes that despite its requests for a copy of the investigation file into the abduction of Magomed-Ali Abayev and Anvar Shaipov, the Government produced only some of the documents from the case file. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-VIII (extracts)).

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

87.  The applicants alleged that the persons who had arrested Magomed-Ali Abayev and Anvar Shaipov on 13 September 2000 and then killed had been State agents.

88.  The Government suggested in their submissions that the abductors of Magomed-Ali Abayev and Anvar Shaipov may have been criminals or members of paramilitary groups. However, this allegation was not specific and the Government did not submit any material to support it. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see Çelikbilek v. Turkey, no. 27693/95, § 71, 31 May 2005).

89.¬†¬†The Court notes that the applicants’ allegation is supported by the witness statements collected by the applicants and by the investigation. It also notes that it is common ground between the parties that the applicants’ relatives had been arrested at the checkpoint on 13 September 2000 and that afterwards they had disappeared. The domestic investigation also accepted factual assumptions as presented by the applicants and took steps to check whether law-enforcement agencies or military units had been involved in the disappearance of Magomed-Ali Abayev and Anvar Shaipov (see paragraphs 22, 44, 46-48, 55 and 58 above), but it does not appear that any serious steps were taken in that direction.

90.¬†¬†The Government questioned the credibility of the applicants’ statements in view of certain discrepancies relating to the exact circumstances of the incident. The Court notes in this respect that no other elements underlying the applicants’ submissions of facts have been disputed by the Government. In the Court’s view, the fact that over a period of several years the applicants’ recollection of an extremely traumatic and stressful event differed in rather insignificant details does not in itself suffice to cast doubt on the overall veracity of their statements.

91.¬†¬†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 relevant documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Tońücu v. Turkey, no.¬†27601/95, ¬ß¬†95, 31 May 2005, and Akkum and Others v. Turkey, no.¬†21894/93, ¬ß¬†211, ECHR 2005-II).

92.¬†¬†Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relatives were arrested by State servicemen. The Government’s statement that the investigators had not found any evidence to support the involvement of the federal forces in the kidnapping is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties, and drawing inferences from the Government’s failure to submit the remaining documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court finds that Magomed-Ali Abayev and Anvar Shaipov were arrested on 13¬†September 2000 by State servicemen at the checkpoint located on Lenin Street in Urus-Martan.

93.  There has been no reliable news of Magomed-Ali Abayev and Anvar Shaipov since the date of the kidnapping. Their names have not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to them after their arrest.

94.  Having regard to the previous cases concerning disappearances in Chechnya which have come before it (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-VIII (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007), the Court finds that in the context of the conflict in the Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Magomed-Ali Abayev and Anvar Shaipov or of any news of them for more than nine years supports this assumption.

95.  Accordingly, the Court finds that the evidence available permits it to establish that Magomed-Ali Abayev and Anvar Shaipov must be presumed dead following their unacknowledged detention by State servicemen.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

96.  The applicants complained under Article 2 of the Convention that their relatives had been deprived of their lives 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 parties’ submissions

97.¬†¬†The Government contended that the domestic investigation had obtained no evidence to the effect that Magomed-Ali Abayev and Anvar Shaipov were dead or that any servicemen of the federal law-enforcement agencies had been involved in their kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants’ relatives met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible. They further alleged that the applicants and the witnesses had impeded the investigation of the abduction by belatedly informing the investigators about the special uniform of the officers who had allegedly taken away Magomed-Ali Abayev and Anvar Shaipov and about the young men and the woman who had informed the fourth applicant about her son’s alleged whereabouts.

98.¬†¬†The applicants argued that Magomed-Ali Abayev and Anvar Shaipov had been detained by State servicemen and should be presumed dead in the absence of any reliable news of them for several years. The applicants also argued that the investigation had not met the effectiveness and adequacy requirements, laid down by the Court’s case-law. For instance, the criminal investigation into the abduction had been opened more than two years after the incident; the investigators had failed to take such crucial investigative steps, as identification and questioning of officers who had been stationed in the building of the former clothing factory and establishing which military units manned the checkpoint at the time. The applicants further argued that the investigation of the abduction had been suspended and resumed a number of times ‚Äď thus delaying the taking of the most basic steps ‚Äď and that they had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for such a long period of time without producing any known results was further proof of its ineffectiveness. They also invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to them or to the Court.

B.¬†¬†The Court’s assessment

1.  Admissibility

99.¬†¬†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. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 81 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 Magomed-Ali Abayev and Anvar Shaipov

100.¬†¬†The Court has already found that the applicants’ relatives must be presumed dead following unacknowledged detention by State servicemen. In the absence of any justification put forward by the Government, the Court finds that their deaths can be attributed to the State and that there has been a violation of Article 2 in respect of Magomed-Ali Abayev and Anvar Shaipov.

(b)  The alleged inadequacy of the investigation of the kidnapping

101.¬†¬†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).

102.  In the present case, the kidnapping of Magomed-Ali Abayev and Anvar Shaipov was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

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

104.¬†¬†The Court notes that the authorities were made aware of the crime by the applicants’ submissions by 1 October 2000 as on the latter date the district prosecutor’s office forwarded the fourth applicant’s complaint to the ROVD and requested them to open an operational-search file to establish the whereabouts of Anvar Shaipov (see paragraphs 20-22 above). The investigation in case no. 34013 was instituted on 6 February 2003, that is more than two years and four months after Magomed-Ali Abayev and Anvar Shaipov’s abduction. Such a postponement per se was liable to affect the investigation of the kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. It appears that after that a number of essential steps were not taken at all. For instance, the investigators had failed to establish which military units had been stationed at the former clothing factory in Urus-Martan at the material time; they had not identified and questioned the servicemen who had been manning the checkpoint on 13 September 2000. Furthermore, it does not appear that the investigators had attempted to identify and question the owners of the UAZ vehicle which had driven on the checkpoint’s premises at the time of the incident. The Court also notes that the investigators questioned the fourth applicant only in February 2007 (see paragraph 61 above); they had questioned the majority of witnesses to the abduction (see paragraphs 53, 57, 59, 60-64 above) only in 2006 and 2007 that is more than three years after the opening of the criminal investigation. Even then, having obtained the fourth applicant’s statement concerning the possible detention of her son at the Chernokozovo detention centre in 2002 (see paragraph 61 above), the investigators failed to check this submission and request information from the centre. It is obvious that these investigative measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, as soon as the investigation commenced and the relevant information was obtained. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious matter (see √ĖneryńĪldńĪz v. Turkey [GC], no. 48939/99, ¬ß 94, ECHR 2004-XII).

105.  The Court also notes that even though the first and fourth applicants were granted victim status in the criminal case concerning the abduction of their relatives, they were 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.

106.¬†¬†Finally, the Court notes that the investigation was suspended and resumed on numerous occasions and that there were lengthy periods of inactivity on the part of the prosecutor’s office when no proceedings were pending.

107.¬†¬†Having regard to the limb of the Government’s preliminary objection that was joined to the merits of the complaint, inasmuch as it concerns the fact that the domestic investigation is still pending, the Court notes that the investigation, having being repeatedly suspended and resumed and plagued by inexplicable delays, has been pending for many years without producing any results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection.

108.  In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Magomed-Ali Abayev and Anvar Shaipov, in breach of Article 2 in its procedural aspect.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

109.¬†¬†The applicants relied on Article 3 of the Convention, submitting that as a result of their relatives’ disappearance and the State’s failure to investigate it properly they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:

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

A.¬†¬†The parties’ submissions

110.¬†¬†The Government disagreed with these allegations and argued that the authorities’ responses to the applicants’ complaints could not be regarded as inhuman and degrading treatment. They further stated that the applicants had failed to specify in what way the authorities’ responses had caused their mental suffering.

111.  The applicants maintained their submissions.

B.¬†¬†The Court’s assessment

1.  Admissibility

112.  The Court notes that this 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

113.¬†¬†The Court has found on many occasions that in a situation of enforced disappearance close relatives of the victim may themselves be victims of treatment in violation of Article 3. 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 (see Orhan v. Turkey, no.¬†25656/94, ¬ß¬†358, 18 June 2002, and Imakayeva, cited above, ¬ß¬†164).

114.¬†¬†In the present case the Court notes that the applicants are close relatives of the disappeared men. For more than nine years they have not had any news of the missing men. During this period the applicants have made enquiries of various official bodies, both in writing and in person, about their missing relatives. Despite their attempts, the applicants have never received any plausible explanation or information about what became of them following their arrest. The responses they received mostly denied State responsibility for their relatives’ arrest or simply informed them that the investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.

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

V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

116.  The applicants further stated that Magomed-Ali Abayev and Anvar Shaipov had been detained in violation of the guarantees contained in 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

117.  The Government asserted that no evidence had been obtained by the investigators to confirm that Magomed-Ali Abayev and Anvar Shaipov had been deprived of their liberty. They were not listed among the persons kept in detention centres and none of the regional law-enforcement agencies had information about their detention.

118.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

119.  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

120.  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).

121.¬†¬†The Court has found that Magomed-Ali Abayev and Anvar Shaipov were abducted by State servicemen on 13¬†September 2000 and have not been seen since. Their detention was not acknowledged, was not logged in any custody records and there exists no official trace of their subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee, as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, ¬ß¬†371).

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

123.  In view of the foregoing, the Court finds that Magomed-Ali Abayev and Anvar Shaipov were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

VI. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

124.  The applicants complained that the proceedings brought by them against the investigators were unfair. 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

125.¬†¬†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 them within the meaning of the Convention (see Akhmadov and Others v. Russia (dec.), no. 21586/02, 3 May 2007).

126.  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.

VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

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

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

A.¬†¬†The parties’ submissions

128.  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 had an opportunity to challenge the acts or omissions of the investigating authorities in court and had availed themselves of it. They added that participants in criminal proceedings could also claim damages in civil proceedings. In sum, the Government submitted that there had been no violation of Article 13.

129.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

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

2.  Merits

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

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

133. 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, read 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).

VIII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

134.  The applicants complained that they had been discriminated against in the enjoyment of their Convention rights, because the violations of which they complained had taken place because of them being residents in Chechnya and their ethnic background as Chechens. This was contrary to Article 14 of the Convention, which reads as follows:

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

135.  The Court observes that no evidence has been submitted to it that suggests that the applicants were treated differently from persons in an analogous situation without objective and reasonable justification, or that they have ever raised this complaint before the domestic authorities. It thus finds that this complaint has not been substantiated.

136.  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.

IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION

137.  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

138.  The first and the third applicants claimed damages in respect of loss of earnings by their relative Magomed-Ali Abayev after his arrest and subsequent disappearance. The first applicant, as his mother, claimed 5,400 euros (EUR) and the third applicant, as his son, claimed EUR 6,900 under this heading.

139.  They claimed that Magomed-Ali Abayev had been unemployed at the time of his arrest, and that in such cases the calculation should be made on the basis of the subsistence level established by national law. They calculated his earnings for the period, taking into account the subsistence level in Chechnya which existed at the time their just satisfaction claim was lodged with the Court.

140.  The Government regarded these claims as unfounded. They also pointed to the existence of domestic statutory machinery for the provision of a pension for the loss of the family breadwinner.

141.¬†¬†The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. The Court further finds that the loss of earnings applies to dependent children and, in some instances, to elderly parents and that it is reasonable to assume that Magomed-Ali Abayev would eventually have had some earnings from which the applicants would have benefited (see, among other authorities, Imakayeva, cited above, ¬ß¬†213). 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 applicants’ relative and the loss by the first and the third applicants of the financial support which he could have provided. Having regard to the applicants’ submissions and the fact that Magomed-Ali Abayev was not employed at the time of his abduction, the Court awards EUR¬†12,000 to the applicants jointly in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

B. Non-pecuniary damage

142.¬†¬†The applicants stated that they had lost their close relatives and endured stress, frustration and helplessness in relation to their abduction, aggravated by the authorities’ inactivity in the investigation of their kidnapping for several years. They left the determination of the amount of compensation to the Court.

143.¬†¬†The Government submitted that finding a violation of the Convention would be adequate just satisfaction in the applicants’ case.

144.¬†¬†The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants’ relatives. The applicants themselves have been found to have been victims of a violation of Article 3 of the Convention. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards EUR¬†60,000 to the first and the third applicants jointly, and EUR 60,000 to the fourth applicant, plus any tax that may be chargeable thereon.

C.  Costs and expenses

145.¬†¬†The applicants were represented by lawyers from the NGO EHRAC/Memorial Human Rights Centre. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 2,115 or 1,511 pounds sterling (GBP). They submitted the following breakdown of costs:

(a)  EUR 1,260 (GBP 900) for nine hours of research and drafting legal documents submitted to the Court at a rate of GBP 100 per hour;

(b)  EUR 855 (GBP 611) for administrative, postal and translation costs.

146.  The Government did not dispute the details of the calculations submitted by the applicants.

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

148.¬†¬†Having regard to the details of the information in its possession, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives.

149.¬†¬†As to whether the costs and expenses were necessary, the Court notes that this case was rather complex and required a certain amount of research and preparation. The Court also notes that it is its standard practice to rule that awards in relation of to costs and expenses are to be paid directly into the applicants’ representatives’ accounts (see, for example, To√Ņcu, cited above, ¬ß¬†158; Nachova and Others v.¬†Bulgaria [GC], nos.¬†43577/98 and 43579/98, ¬ß¬†175, ECHR 2005-VII; and Imakayeva, cited above).

150.¬†¬†In these circumstances, and having regard to the details of the claims submitted by the applicants, the Court awards EUR 2,115 plus any tax that may be chargeable on that amount to be paid into the representatives’ bank account in the United Kingdom, as identified by the applicants.

D.  Default interest

151.  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 strike out the application in so far as it concerns the complaints of the second applicant (Ms Raminat Zhansayeva);

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

3.  Declares the complaints under Articles 2, 3, 5 and 13 of the Convention admissible and the remainder of the application inadmissible;

4.  Holds that there has been a substantive violation of Article 2 of the Convention in respect of Magomed-Ali Abayev and Anvar Shaipov;

5.  Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Magomed-Ali Abayev and Anvar Shaipov disappeared;

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

7.  Holds that there has been a violation of Article 5 of the Convention in respect of Magomed-Ali Abayev and Anvar Shaipov;

8.  Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Article 2 of the Convention;

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

10.  Holds

(a)  that the respondent State is to pay, within three months of 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 date of settlement, save in the case of 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 first and third applicants jointly;

(ii) EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the first and the third applicants jointly;

(iii) EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the fourth applicant;

(iv) EUR¬†2,115 (two thousand one hundred and fifteen euros), plus any tax that may be chargeable to the applicants, to be converted into British pounds sterling, at the rate applicable at the date of settlement in respect of costs and expenses, to be paid into the representatives’ bank account in the UK;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 8 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S√łren Nielsen¬†Christos Rozakis
Registrar President

*****

CASE OF ABDURASHIDOVA v. RUSSIA

(Application no. 32968/05)

JUDGMENT

STRASBOURG

8 April 2010

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 Abdurashidova 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, judges,
and S√łren Nielsen, Section Registrar,

Having deliberated in private on 18 March 2010,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 32968/05) 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, Ms Zulpa Abdurashidova (‚Äúthe applicant‚ÄĚ), on 22 July 2005.

2.¬†¬†The applicant was represented before the Court by lawyers of the International Protection Centre, an NGO registered in Moscow. The Russian Government (‚Äúthe Government‚ÄĚ) were represented by Mrs V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their new Representative, Mr¬†G.¬†Matyushkin.

3.  On 22 April 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).

4.¬†¬†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

5.  The applicant was born in 1978. She lived in the village of Solnechnoye in the Khasavyurt district of Dagestan, Russian Federation. Currently she lives abroad after seeking asylum. The applicant is the mother of Summaya (also spelled Sumaya) Abdurashidova, born in 1998.

A.  The events of 14 March 2005

1.¬†¬†The applicant’s account

6.¬†¬†At about 5.30 a.m. on 14 March 2005 approximately fifty men in two APCs (armoured personnel carriers) and a white VAZ 2121 Niva car with the registration plate 008 26 arrived at the applicant’s house in Solnechnoye.

7.¬†¬†The men were armed and equipped with portable radio sets. They neither introduced themselves nor produced any documents. The applicant thought that they were State servicemen. It appears that the servicemen arrived to apprehend the applicant’s husband and two men who were staying in the house that night. The men broke into the applicant’s house and opened gunfire. The applicant’s husband shouted to the servicemen: ‚ÄúDo not shoot! There are children in the house.‚ÄĚ In spite of the warning the servicemen continued shooting. They took the applicant’s husband outside; the applicant’s three children remained in their rooms and the applicant was in the corridor.

8.¬†¬†During the shooting the applicant’s two sons Bilal (born in 1997) and Ilyas (born in 2002) ran out from their bedrooms into the corridor. At some point Bilal ran out of his sister’s bedroom, screaming that Summaya had been wounded and was bleeding. It appears that Summaya Abdurashidova had been hit by a fragment of a rifle grenade.

9.¬†¬†The applicant tried to go into her daughter’s room, but the servicemen pushed her outside the house into the yard. When the applicant asked them to let her go inside, the servicemen forbade her under gun point. She was made to lie down on the ground with her hands behind her head.

10.  When the shooting was over, their neighbour Mr I.I. went into the house and carried out the body of Summaya Abdurashidova.

11.¬†¬†As a result of the shooting the two men who were staying in the applicant’s house were killed, and the applicant’s husband was taken to the Department of the Interior of the Khasavyurt district (‚Äúthe Khasavyurt ROVD‚ÄĚ).

12.¬†¬†After the shooting the applicant saw that her house, as well as her family possessions in it, had been damaged by the gunfire. In addition, the family’s identity documents, including passports and birth certificates, had been taken away by the servicemen.

13.¬†¬†The applicant submitted that after the shooting, the servicemen had taken away two plastic bags with the applicant’s family documents and valuables, including the applicant’s golden bracelet and two rings.

14.¬†¬†The applicant’s description of the events of 14 March 2005 is based on several undated accounts provided by her to her representatives and on the letters which the applicant sent to the authorities. The applicant also submitted articles published in the newspaper ‚ÄúDruzhba‚ÄĚ (–Ē—Ä—É–∂–Ī–į) on 8¬†April 2005 and on 15 April 2005 and an article published in the newspaper ‚ÄúNiyso-Dagestan‚ÄĚ (–Ě–ł–Ļ—Ā–ĺ-–Ē–į–≥–Ķ—Ā—ā–į–Ĺ) on 14 April 2005.

2.  Information submitted by the Government

15.¬†¬†The Government submitted, with reference to the documents from the criminal investigation file (see below), that the two men who had been at the applicant’s house on the night of 14 March 2005 had been suspected of the armed robbery of a woman and of an attack on a serviceman of the traffic police, Mr M.M., who had later died. The crimes had been committed by three persons on 31 December 2004, and on 1 January 2005 the Khasavyurt district prosecutor’s office (the district prosecutor’s office) opened a criminal investigation into the incident. The investigation was assigned file number 5111. It has been established that during the attack the criminals took hold of M.M.’s police identity document and his PM service pistol with a known serial number.

16.¬†¬†The police obtained information that two suspects, Mr S.Ya. and Mr¬†R.Yu., had found refuge at the applicant’s house and that they had stored weapons and armaments there, including the PM pistol. On 14 March 2005 the investigator of the district prosecutor’s office decided to carry out an urgent search at the applicant’s house with the aim of finding the two suspects and the weapons. Since the suspects could have been armed, the prosecutor had been assisted by servicemen of the Khasavyurt ROVD and of the special police force of Dagestan.

17.¬†¬†Upon arrival at the applicant’s house, police officers Mr P.A. and Mr¬†S.O. informed the applicant and her husband about the aim of their visit and suggested that they evacuate the building for their own safety. The applicant, her husband and their two sons Bilal and Ilyas came out of the house. Then the applicant informed the policemen that her daughter Summaya had remained in the house. Mr P.A. and Mr S.O. returned to the house in order to take the child out, but Mr S.Ya. and Mr R.Yu., who had taken refuge in the house, threw hand grenades at them. Both policemen were injured. Their colleagues, in order to cover them, opened gunfire and killed both suspects.

18.¬†¬†After the skirmish was over, the site was inspected by the investigator of the district prosecutor’s office and by forensic and medical experts, in the presence of two attesting witnesses. They discovered the bodies of Mr S.Ya. and Mr R.Yu. and of the applicant’s daughter, Summaya Abdurashidova. In the room where the two fugitives had been hiding, they also found safety pins from hand grenades and a PM hand pistol with the serial number corresponding to the one stolen from M.M.

B. Reaction of the authorities to the events of 14 March 2005

1. The applicant’s correspondence with the State authorities concerning the death of Summaya Abdurashidova

19.  Shortly after the shooting had ended, experts from the Khasavyurt ROVD took pictures of Summaya Abdurashidova and wanted to take her body to the morgue for an autopsy. The applicant and her relatives refused to give their permission and wrote down an official statement of refusal.

20.¬†¬†From the beginning of her correspondence with the authorities the applicant was assisted by Mr B., head of the local human rights organisation Romashka (–†–ĺ–ľ–į—ą–ļ–į). The applicant and Mr B. contacted various official bodies, including the Russian President, the Dagestan Government, the Khasavyurt district administration, the mass media and prosecutors’ offices at different levels, describing the circumstances of Summaya Abdurashidova’s killing and requesting an investigation into the crime. The applicant retained copies of a number of their letters and submitted them to the Court. The relevant information is summarised below.

21.¬†¬†On 16 March 2005 the applicant wrote to a number of the State authorities, including the district prosecutor’s office, the Dagestan prosecutor’s office and the Prosecutor General. She described the events of 14 March 2005 and requested an investigation into the death of her daughter and prosecution of the culprits. The applicant also complained that her property had been unlawfully destroyed during the special operation and requested compensation for the pecuniary and non-pecuniary damage caused by the actions of the servicemen.

22.¬†¬†In March or April 2005 the applicant informed the Dagestan prosecutor’s office that servicemen of the Khasavyurt ROVD had participated in the special operation on 14 March 2005.

23.¬†¬†On 20 April 2005 the Dagestan prosecutor’s office informed the applicant that her complaint about unlawful actions of servicemen of the Khasavyurt ROVD during her husband’s apprehension had been forwarded to the district prosecutor’s office for examination.

24.¬†¬†On 26 April 2005 the district State registry office (–ó–ź–ď–°) issued a statement confirming the death of Summaya Abdurashidova on 14 March 2005.

25.  On 26 April 2005 the Solnechnoye village administration issued a death certificate for Summaya Abdurashidova.

26.¬†¬†On 28 April 2005 the applicant again wrote to the authorities, including the district prosecutor’s office, the Dagestan prosecutor’s office and the Prosecutor General. In her letter she pointed out that on 16 March 2005 she had already complained about her daughter’s killing, but the authorities had failed to initiate a criminal investigation into the death. She requested explanations concerning the reasons for the failure to initiate the investigation and to prosecute the perpetrators.

27.¬†¬†On 17 May and 30 June 2005 the Dagestan prosecutor’s office informed the applicant that her complaint about the death of Summaya Abdurashidova had been forwarded to the district prosecutor’s office for examination.

28.¬†¬†On 25 May 2005 the Khasavyurt District Court sentenced the applicant’s husband to three months’ imprisonment for harbouring two criminals. In its judgment the court stated, inter alia, that his ‚Äúminor daughter Summaya had been killed in the course of a special operation aimed at apprehending the criminals who had been hiding in the house‚ÄĚ. The applicant’s husband accepted his guilt and did not appeal against the sentence.

29.  It appears that Mr B., who had assisted the applicant in the preparation of her complaints to the domestic authorities, was arrested in November 2005 on suspicion of illegal possession of weapons. Following allegations of torture and ensuing public pressure, he was released and acquitted. He left Russia in 2006 and sought asylum in another country.

2. The destruction of the applicant’s property

30.¬†¬†On 15 March 2005 a commission of the administration of Solnechnoye, including the head of the administration, the chief accountant and the applicant’s two neighbours, visited the applicant’s house. They examined the scene and drew up the following report on damage:

‚ÄúDuring the special operation on 14 March 2005 the house … was practically destroyed; as a result of gunfire and explosions the windows and doors were blown out, the roof was damaged by shots, a powerful blast resulted in cracks in the walls and in the ceiling; the furniture in the living room and in the kitchen, the refrigerator and the TV set were rendered unusable.‚ÄĚ

According to the report, the applicant’s house was uninhabitable and required major repairs. The report further estimated the cost of repairs at between 650,000 and 800,000 Russian roubles (RUB), without specifying additional details.

3.  Information submitted by the Government

31.  In response to a specific request from the Court, the Government submitted 26 pages of documents from the criminal investigation files mentioned above. Although this was not marked on many documents, it appears that the Government submitted copies of the decisions to open the criminal proceedings in the cases assigned file numbers 5111, 51151 and 51153.

32.¬†¬†The Government submitted that on 14 March 2005 the district prosecutor’s office had opened criminal investigation no.¬†51151 into the attack on the police officers and the unlawful purchase and storage of arms and ammunition. The investigation was opened in view of the wounding of two policemen, Mr P.A. and Mr S.O. The decision did not mention the suspects’ and the applicant’s daughter’s deaths. The investigation obtained information that Mr S.Ya. and Mr R.Yu. had been involved with illegal armed groups and had fought against the authorities in Chechnya. Thus, on 14 March 2005, the district prosecutor’s office opened a new investigation file concerning participation in illegal armed groups, which was assigned number 51153.

33.¬†¬†On 14 March 2005 the investigator of the district prosecutor’s office, assisted by medical and forensic experts, in the presence of two witnesses, examined the body of Summaya Abdurashidova. They noted two large open wounds: one measuring 10 cm by 8 cm to the head and one measuring 10¬†cm by 6 cm to the upper part of the torso. The Government submitted a copy of the expert report. The experts also took photographs; however, as follows from subsequent documents and the Government’s submissions, the photographs could not be developed because the film was defective.

34.¬†¬†On 21 March 2005 criminal investigation files nos.¬†51151 and 51153 were joined and assigned number 51151. The decision did not refer to the death of the applicant’s daughter or to the deaths of the suspects.

35.¬†¬†No separate criminal investigation was opened into the applicant’s daughter’s death. The Government submitted that in the course of the investigation of file no.¬†51151 the authorities had established that Summaya Abdurashidova had died of splinter wounds caused by hand-grenade explosions. The police officers had not used grenades and had only employed hand guns. The forensic reports on the bodies of Mr¬†S.Ya. and Mr¬†R.Yu. concluded that they had died as a result of bullet wounds. Seeing that no autopsy had been carried out on the body of Summaya Abdurshidova owing to her relatives’ refusal to submit it for such an examination, the investigation relied on the description of her body, which referred to splinter wounds. It concluded that her death had resulted from the explosion of hand grenades thrown by the suspected criminals.

36.  On 2 April 2005 the criminal proceedings against Mr S.Ya. and Mr R.Yu. were terminated on account of their deaths. The investigation of criminal case no. 5111 continued.

37.¬†¬†On 26 April 2005 the district prosecutor’s office took statements from two investigators, medical and forensic experts who had examined the child’s body and two attesting witnesses. The Government submitted copies of their testimonies, except for the medical expert’s statement and one witness’s statement. The forensic expert explained that he had taken photographs of the house, of two male bodies in the courtyard and of the girl’s body in the neighbouring house. Once the film was developed, some photographs were spoiled because the film was defective. Thus, no photographs of the girl’s body came out.

38.¬†¬†According to the Government, the medical expert stated that he had examined the girl’s body in the neighbouring house and noted two large open wounds to the head and upper part of the torso. These wounds could have been caused by splinters from an explosive device. The body had then been transferred to the relatives, who had refused to submit it for an autopsy.

39.¬†¬†The investigator submitted that late at night on 14 March 2005 he had been alerted that the suspects in the murder of Inspector M.M. were hiding in the house of the imam of Solnechnoye. Early in the morning he went to the scene, accompanied by servicemen of the Khasavyurt ROVD and of the special police unit of Dagestan. They also invited two witnesses residing in Khasavyurt, Timur E. and Murat. Once at the house, the servicemen surrounded the house. After that the police ordered everyone to leave the house. A woman, a man and two children came out into the entry hall and the police led them outside the house. The woman said that another child remained in the house. Two servicemen of the special police unit entered the house and immediately afterwards there came the sound of explosions. Several policemen ran to the house and started to shoot in order to cover up their colleagues. The persons taking refuge in the house fired back and threw hand grenades, some of which exploded outside the house, and some inside the house. As soon as the two policemen were led out of the building, other servicemen shot at the doors and windows of the house with machine guns and automatic rifles. When the shooting from inside the house subsided, the policemen went in and brought out two male bodies. They said that there was a child’s body in the house. A neighbour walked in and carried the body to the nearby house. Then the body was examined by the officials from the prosecutor’s office, in the presence of two witnesses. They noted two large open splinter wounds ‚Äď one to the front of the head and another near the shoulder blade. The investigator added that the police had not used hand grenades; they had fired from machine guns and automatic rifles. The investigator also answered a number of questions concerning the missing property and identity documents and the damage caused to the applicant’s house. He stated that they had collected and seized two yellow rings and the applicant’s passport. No other documents or valuables had been found or seized. As to the state of the house, the investigator specified that the window glazing, furniture and parts of the roof had been damaged. The walls had not been damaged. Some parts of the house were in any event unfinished and were not inhabitable. The state of the house could be ascertained from the photographs taken immediately after the attack.

40.¬†¬†Another investigator, a member of the team working on M.M.’s murder, stated that he had arrived at the applicant’s house at about 9 a.m. on 14 March 2005. There he was instructed to examine the child’s body, together with the criminal and forensic experts. They noted two large wounds, caused by splinters from an explosive device. The mother of the child refused to submit the body for an autopsy and signed a document to that effect. After the body was examined, the relatives took it for burial. The criminal expert later informed the investigator that the film had been defective and no photographs could be developed.

41.¬†¬†The witness Marat G. stated that he and his friend Timur E. had been doing their morning jogging when the police asked them to be witnesses to a search in Solnechnoye. When the two men arrived at the house, it was surrounded by police. They saw a man, a woman and two children come out, accompanied by servicemen. The woman said that another child remained in the house. Two police officers went in and there followed several explosions. Then several more policemen ran to the house and the witnesses were taken away to a safe distance, from where they could not see the house. They could hear shots being fired and explosions. Once the shooting was over, the witnesses were invited by the investigator to be present during the search. In front of the house there were two male bodies. Someone brought out a child’s body, which was taken to the neighbouring house. The investigator found and seized two yellow rings and a woman’s passport. The investigator also noted and seized a number of safety pins from hand grenades and empty cartridges, as well as a hand pistol. The rooms were first inspected by a bomb expert and then by the investigators and witnesses. The house was partially damaged, but the load-bearing walls and the roof were intact. Some rooms were unfinished. The Government submitted a copy of Marat G.’s testimony and stated that Timur E. had made similar statements.

42.¬†¬†In their observations the Government extensively cited an undated statement by Mr A.A., the head of the criminal investigation department of the Khasavyurt ROVD, no copy of which has been submitted. According to the Government, Mr A.A. stated that the department had been tipped off about the location of the suspects in M.M.’s murder. Early in the morning on 14 March 2005 he had arrived at the applicant’s house, accompanied by servicemen of the special police force. The servicemen surrounded the house. One serviceman of the special police force walked up to the house and knocked on the door. He was let inside. About one minute later he came out of the house, together with a man, a woman and two children. The woman said that a third child remained in the house. She wanted to return to the house, but was not allowed to. Two servicemen of the special police force went to the house in order to retrieve the child. As soon as they had gone in, there came the sounds of explosions. Several more servicemen ran to the house to help their colleagues. They were shot at from inside the house and more grenades were thrown. The two wounded policemen were assisted in leaving the house, and the servicemen shot at the windows and doors of the house. The policemen were not equipped with grenades. When the shooting from inside the house subsided, several policemen went into the house. They found the bodies of two men and a girl. The male bodies were taken into the courtyard. A local resident took out the child’s body and took it to the neighbouring house. Mr A.A. was told by his colleagues that the body had two large splinter wounds. An expert in explosives examined the house, following which an investigator conducted a search in the presence of two witnesses. Mr A.A. also stated that he had seen the seized pistol with the serial number corresponding to that taken from M.M. and a number of empty cartridges. The investigators put them in bags and sealed off the courtyard of the house.

43.¬†¬†The Government submitted a note dated 14 March 2005, in which Mrs Raisa Ya. stated that the family had refused to submit the body of Summaya Abdurashidova for an autopsy with the aim of establishing the cause of her death. The note stated that the family knew the cause of the child’s death and that they wanted to proceed with the burial in accordance with religious rites.

44.¬†¬†The Government submitted an undated note signed by the applicant to the effect that she had received from the investigator of the district prosecutor’s office two golden rings and her passport, which had been seized at her house on 14 March 2005.

45.¬†¬†The Government also submitted a number of letters sent by the district prosecutor’s office to the applicant. On 4 April 2005 the investigator informed the applicant that the investigation had established that her daughter had died as a result of grenade explosions caused by S.Ya. and R.Yu. The criminal proceedings against the two men had been terminated on account of their deaths. Two rings had been returned to the applicant. She could seek compensation for other damage through the Khasavyurt District Court. The decisions of the investigators could be appealed against to a higher-ranking prosecutor or to a court.

46.  From the documents submitted it does not appear that the investigators attempted to take statements from the applicant, her husband or their neighbours.

47.  The Government stated that the investigation of criminal case file no. 5111 was in progress and that disclosure of other 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 the witnesses or other participants in the criminal proceedings.

C.  Court proceedings brought by the applicant

48.¬†¬†On 14 June 2005 the applicant complained to the Khasavyurt District Court of Dagestan (‚Äúthe district court‚ÄĚ) about the destruction of her property during the special operation conducted on 14 March 2005 and the failure of the authorities to initiate criminal proceedings into the death of Summaya Abdurashidova. She sought a ruling obliging the district prosecutor’s office to initiate an investigation into the crime and to prosecute the perpetrators.

49.¬†¬†On 2 August 2005 the district court refused to examine her complaint. It stated that the applicant was entitled to appeal against actions of the district prosecutor’s office only within the course of an ongoing criminal investigation or that she could appeal against the authorities’ refusal to initiate criminal proceedings. The court pointed out that she had failed to submit any evidence of an ongoing criminal investigation or of the authorities’ refusal to initiate criminal proceedings.

50.  The applicant did not appeal against that decision.

II.  RELEVANT DOMESTIC LAW

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

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

52.  The applicant alleged that the authorities had breached both their negative and positive obligations under Article 2 in respect of her daughter. She also complained that no proper investigation had taken place. 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.  Admissibility

1.¬†¬†The parties’ submissions

53.¬†¬†The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They argued that the applicant had not used the normal recourse provided for by the domestic legislation. She had failed to appeal to a prosecutor’s office or to a court against the decision to terminate the criminal proceedings against S.Ya. and R.Yu. In August 2005 her complaint to the district court had been left unexamined since she had failed to refer to the contested decision. They further argued that it had been open to the applicant to pursue civil proceedings.

54.¬†¬†The applicant contested that objection. She stated that the criminal investigation had proved to be ineffective and that her complaints to that end, including an application to the district court, had been futile. The applicant stressed that she had not been accorded any procedural status in the investigation allegedly relating to her daughter’s death. The district prosecutor’s office had not informed her of any procedural decisions and the district court had found the information contained in the letter of 4 April 2005 insufficient to review her complaint in substance. With reference to the Court’s practice, she argued that she was not obliged to apply to civil courts in order to exhaust domestic remedies. Finally, she referred to the threats to herself and the alleged persecution of her lawyer B., as a result of which they had both left Russia and sought asylum abroad.

2.¬†¬†The Court’s assessment

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

56.¬†¬†As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct 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 (see Khashiyev and Akayeva v.¬†Russia, nos.¬†57942/00 and 57945/00, ¬ß¬ß¬†119-121, 24 February 2005, and Estamirov and Others v. Russia, no. 60272/00, ¬ß 77, 12 October 2006). In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed.

57.¬†¬†As regards criminal-law remedies, the Court observes that under Russian law, parties to proceedings may challenge the progress of the criminal investigation before a supervising prosecutor or a judge. It is undisputed that the authorities were immediately aware of the applicant’s daughter’s death and took some steps to investigate it. However, the applicant and members of her family were excluded from these proceedings. Contrary to the usual practice under national law, the deceased’s family members were not granted the official status of victims in the criminal proceedings, a procedural role which would have entitled them to intervene during the course of the investigation. In March and April 2005 the applicant submitted a number of complaints to various authorities, including the prosecutor’s office, but this did not prompt the investigators to correct the situation and to accord a procedural status to the applicant. The Government’s memorandum does not contain any explanation of this omission. Thus, it is unclear how the applicant could have made use of these provisions.

58.¬†¬†Proof of the ineffectiveness of the domestic legal mechanisms in the present case is provided by the fact that on 2 August 2005 the district court refused to consider on the merits the applicant’s complaint about the investigation, referring, in essence, to the absence of any procedural decisions taken upon her complaint. The Court is thus not persuaded that any further appeals by the applicant would have made any difference. The applicant must therefore be regarded as having complied with the requirement to exhaust the relevant criminal-law remedies.

59.¬†¬†Accordingly, the Court dismisses the Government’s preliminary objection in respect of the complaints under Article 2.

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

B.  Merits

1. The parties’ submissions

61.¬†¬†The applicant maintained that her daughter had been killed by the agents of the State who had carried out a security operation at her home. She referred to her own statements describing the operation. She insisted that the armed police officers had stormed her house without a warning and fired shots in the rooms, as a result of which her daughter had been killed. The documents from the domestic investigation were inconclusive and did not rule out her version of the events. She further maintained that the positive obligation to protect the right to life had been violated, since the special operation had been planned and executed without proper consideration for the safety of the inhabitants of the house. Finally, the applicant insisted that no proper investigation into the death had taken place, since the only proceedings instituted by the district prosecutor’s office had been aimed at solving the crimes allegedly committed by S.Ya. and R.Yu.

62.¬†¬†The Government denied all those allegations. Citing the documents of the domestic investigation, they argued that the death of Summaya Abdurashidova had been caused by splinters from explosive devices used by the two criminal suspects. The applicant and her family had refused to submit the girl’s body for an autopsy which could have provided conclusive results as to the cause of death. As to their positive obligation, the Government emphasised that the applicant’s husband had knowingly harboured two armed criminal suspects in his family home. He had later been found guilty of this crime. Two police officers had been wounded when they had tried to enter the house and take the girl out. The State servicemen had thus done everything possible to prevent any harm to the applicant and her family. Faced with violent resistance from the two men and in order to save the lives of the two officers who had entered the house, the police had been forced to open fire, as a result of which both suspects had been killed. As to the investigation, the Government contended that it had been in line with domestic law and the Convention requirements.

2.¬†¬†The Court’s assessment

(a) As to the responsibility of the respondent State for the death of Summaya Abdurashidova in the light of the substantive aspect of Article 2 of the Convention

63.¬†¬†It was not disputed by the parties that the applicant’s daughter had been killed during a security operation aimed at the apprehension of two armed criminal suspects at the applicant’s house. It was further recognised that both the police and the two suspects had employed lethal force; as a result of the operation, both suspects were killed and two police officers were wounded. The question to decide in the present case is whether the State authorities were directly responsible for the death of the applicant’s daughter, as the applicant alleged.

64.¬†¬†The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances in which deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In its extensive jurisprudence the Court has developed a number of general principles relating to the scope of the obligations under this provision, as well as to the establishment of facts in dispute, when confronted with allegations under Article 2 (for a summary of these, see Bazorkina v. Russia, no. 69481/01, ¬ß¬ß¬†103-109, 27 July 2006, and AkpńĪnar and Altun v. Turkey, no. 56760/00, ¬ß¬ß 47-52, ECHR 2007-III). 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).

65.¬†¬†The Court reiterates that the evidentiary standard of proof required for the purposes of the Convention is proof ‚Äúbeyond reasonable doubt‚ÄĚ, and that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. The Court has also noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. Where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Tońücu v. Turkey, no. 27601/95, ¬ß¬†95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, ¬ß¬†211, ECHR 2005-II).

66.¬†¬†The Court notes that despite its requests for the entire investigation file concerning the death of the applicant’s daughter, the Government produced only part of the documents. The Government referred to Article¬†161 of the Code of Criminal Procedure. In previous cases the Court has already found this explanation insufficient to justify the withholding of key information requested by it (see Imakayeva v. Russia, no. 7615/02, ¬ß¬†123, ECHR 2006-XIII).

67.¬†¬†The Court notes, however, that the investigation in the present case focused primarily on the actions of the two criminal suspects. From the outset of the proceedings the authorities considered that the girl’s death had resulted from the explosions caused by the two men while they had resisted the police. It does not appear that any elements in the investigation conducted by the district prosecutor’s office contained information which could have warranted different conclusions. Therefore, the main problem in the present case is not the Government’s failure to disclose certain documents, but rather the quality of the investigation itself, which will be addressed below.

68.¬†¬†The Court notes that the applicant’s allegation that the State servicemen were responsible for the death of Summaya Abdurashidova is based exclusively on her own statement. No other statements or evidence to support this assertion have been provided by the applicant to the Court or to the domestic investigation.

69.¬†¬†The description of the body drawn up on 14 March 2005 by a forensic expert and the statements collected on 26 April 2005 from two investigators, one attesting witness and the criminal expert who had examined the body indicated that the death had been caused by splinters from an explosive device (see paragraphs 33, 37 and 39-41 above). These documents and statements appear coherent and the Court does not discern any reasons to question their credibility. The investigation found that the two criminal suspects had used hand grenades against the police officers; safety pins from grenades were found in the house. The police had used firearms and the two suspects’ deaths had been caused by bullet wounds (see paragraph 39 above). There is no mention in any of the descriptions of the events that the security forces used explosive devices against the two suspects. The applicant did not allege this either. Thus, the domestic investigation concluded that the child’s death had resulted from the actions of the two criminal suspects who had been killed during the operation. Although many aspects of the domestic investigation are open to criticism (see below), the Court cannot find its conclusions to be so faulty as to reject them altogether as ‚Äúdefying logic‚ÄĚ or improbable (contrast Beker v. Turkey, no.¬†27866/03, ¬ß¬ß¬†51-52, 24 March 2009).

70.¬†¬†The Court further notes that pursuant to the decision taken by the applicant and her family, no autopsy of the body was conducted. In the note signed by the applicant’s sister-in-law on 14 March 2005 the decision not to conduct an autopsy was justified by the fact that there was no need to establish the cause of death since the family was aware of it (see paragraph¬†43 above); therefore, it appears that the family accepted the forensic expert’s conclusion that the death had resulted from splinter wounds. While fully appreciating that this choice was made under the influence of a shock following tragic and traumatic events, the Court notes that it resulted in the absence of a document which could have provided a complete and accurate record of injuries and an objective analysis of clinical findings, including the cause of death (see Salman v. Turkey [GC], no.¬†21986/93, ¬ß106, ECHR 2000-VII).

71.¬†¬†In such circumstances the Court finds that it has not been established to the required standard of proof ‚Äúbeyond reasonable doubt‚ÄĚ that the security forces were directly responsible for the death of Summaya Abdurashidova.

72.  Accordingly, the Court finds no direct State responsibility, and thus no violation of Article 2 of the Convention in this respect.

(b)  The alleged failure to safeguard the right to life of Summaya Abdurashidova

73.¬†¬†The Court has not found it established that State agents were responsible for the death of the applicant’s daughter. However, this does not necessarily preclude the responsibility of the Government under Article 2 of the Convention (see Osmanońülu v. Turkey, no. 48804/99, ¬ß 71, 24 January 2008). According to the established case-law of the Court, the first sentence of Article 2 ¬ß 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v.¬†the United Kingdom, 9¬†June 1998, ¬ß 36, Reports of Judgments and Decisions 1998-III). The State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. Article 2 of the Convention may also imply a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v.¬†the¬†United Kingdom, 28¬†October 1998, ¬ß¬†115, Reports 1998-VIII).

74.  In this connection the Court reiterates that, in the light of the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life, therefore, can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman, cited above, § 116).

75.¬†¬†In the light of the foregoing, the Court will have to determine whether the way in which the police operation was conducted showed that the police officers had taken appropriate care to ensure that any risk to the life of the applicant’s daughter was kept to a minimum. In carrying out its assessment of the planning and control phase of the operation from the standpoint of Article 2 of the Convention, the Court must have particular regard to the context in which the incident occurred as well as to the way in which the situation developed (see Andronicou and Constantinou v. Cyprus, 9 October 1997, ¬ß 182, Reports 1997-VI).

76.¬†¬†Turning to the circumstances of the present case, the Court notes that its ability to evaluate the operation has been seriously hampered by the absence of any meaningful investigation into the police’s conduct. Nevertheless, the Court will assess the organisation of the operation on the basis of the material available to it, in particular by relying on the relevant evidence submitted by the Government, which is not disputed by the applicant.

77.¬†¬†First of all, the Court notes that the operation was not spontaneous and the police had time to gather and bring to the applicant’s house a significant number of well-equipped and trained servicemen. They arrived in the early hours of the morning and surrounded the house, without encountering any difficulties or resistance from the suspected criminals (see paragraphs 39 and 42 above). The prosecutor’s office and the police conducting the operation were aware of the danger posed by the two criminal suspects, as is demonstrated by the impressive scope of the security arrangements. They also had sufficient time and personnel for the adequate planning and execution of the search and apprehension, while bearing in mind the need to ensure the safety of the inhabitants of the house, including three small children. However, there is nothing in the documents reviewed by the Court to suggest that any serious consideration was devoted to this issue at the planning stage of the operation.

78.¬†¬†It further appears that once the operation had commenced, the police took steps to remove the applicant’s family from the house. According to the Government, as the head of the criminal investigations department of the district police office stated, one member of the special police force was allowed into the house and was able to walk away unharmed with the applicant, her husband and their two children (see paragraph 42 above). Nevertheless, it remains entirely unclear why at that moment it was impossible to evacuate the applicant’s daughter. In the absence of any explanations from the authorities, this has to be seen as a major failure of the operation, which subjected the child to an impermissibly high risk of injury or death.

79.¬†¬†The police officers should have been aware of the extreme vulnerability of a six-year-old girl, who would undoubtedly have been frightened and disoriented by the events. Once it became apparent that she had been left behind, ensuring her safety should have been the primary concern for the law-enforcement personnel. However, from the documents submitted by the Government, it does not appear that any precautions were taken with a view to safeguard the child’s life. Instead, it appears that an exchange of fire was provoked by the sending of two officers of the special police force to enter the house by the main door. This led to the wounding of the two officers and the deaths of both suspects and Summaya Abdurashidova. While bearing in mind the limitations on the scope of its review as mentioned above, the Court finds that such conduct by the police could hardly be found to be compatible with the requirement to minimise the risk to life of persons in need of protection.

80.  Finally, the Court is surprised by the lack of diligence displayed in the immediate aftermath of the skirmish. Thus, it is impossible to understand why a local resident was allowed on to the site before the investigators and emergency services. The Court will discuss the deficiencies of the investigation below; however, the control over security arrangements whereby a civilian was able to penetrate the police lines can be best described as seriously flawed.

81.¬†¬†In the light of the foregoing, and in so far as conclusions may be drawn from the material before it, the Court finds that the actions of the authorities in respect of the planning, control and execution of the operation were not sufficient to safeguard the life of Summaya Abdurashidova. The authorities failed to take the reasonable measures available to them in order to prevent a real and immediate risk to the life of the applicant’s daughter.

82.  There has accordingly been a violation of the positive obligations arising under Article 2.

(c)  The alleged inadequacy of the investigation of the kidnapping

83.¬†¬†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).

84.¬†¬†In the present case the investigation took some steps to establish the circumstances of Summaya Abdurashidova’s death. The investigator and forensic and criminal experts drew up a description of the body and took photographs of it. Their statements were collected in April 2005. These measures were taken in the course of the proceedings conducted by the district prosecutor’s office against the two men suspected of the murder of a police inspector and involvement in illegal armed groups.

85.¬†¬†However, no separate inquiry was initiated for the purpose of ascertaining the details of the applicant’s daughter’s death. Consequently, other important investigative steps have not been taken, such as questioning the other witnesses and ordering additional expert reports.

86.¬†¬†The Court is appalled by the fact that as a result of this failure the applicant was never accorded any procedural status, and was thus entirely excluded from the investigation concerning her daughter’s death. The investigators in the present case blatantly ignored the requirements to safeguard the interests of the next of kin in the proceedings and to allow public scrutiny. What is even more disturbing is that this situation was not corrected when the applicant attempted to bring this failure to the attention of the district court, whose role in principle should be to act as a safeguard against the arbitrary exercise of powers by the investigating authorities (see, mutatis mutandis, Trubnikov v. Russia (dec.), no.¬†49790/99, 14¬†October 2003).

87.¬†¬†These factors resulted in the investigation’s failure to examine all the circumstances of the girl’s death, including the aspects of the police operation, as the positive obligations under Article 2 require.

88.  In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the death of Summaya Abdurashidova, in breach of Article 2 in its procedural aspect.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

89.¬†¬†The applicant relied on Article 3 of the Convention, submitting that as a result of her daughter’s death and the State’s failure to investigate it 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

A.¬†¬†The parties’ submissions

90.¬†¬†The Government disagreed with these allegations and argued that it had not been established that the applicant’s daughter’s death had been caused by State agents. They also denied that there had been any deficiencies in the investigation.

91.  The applicant maintained her submissions.

B.¬†¬†The Court’s assessment

92.¬†¬†The Court would refer to its practice by which the application of Article 3 is usually not extended to the relatives of persons who have been killed by the authorities in violation of Article 2 (see Yasin AteŇü v. Turkey, no. 30949/96, ¬ß¬†135, 31 May 2005) or to cases of unjustified use of lethal force by State agents (see Isayeva and Others v. Russia, nos.¬†57947/00, 57948/00 and 57949/00, ¬ß¬†229, 24 February 2005), as opposed to the relatives of the victims of enforced disappearances. In such cases the Court would normally limit its findings to Article 2. In the present case the Court did not find that the applicant’s daughter had been killed by State agents and considers that the grievances expressed by the applicant are covered by its above findings under the substantive and procedural headings of Article 2.

93.  It therefore concludes that, even if this complaint were to be declared admissible, there is no need to examine it separately.

III.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

94.  The applicant further stated that her house and property had been damaged during the security operation on 14 March 2005. She invoked Article 1 of Protocol No. 1, which reads, in so far as relevant:

‚ÄúEvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. …‚ÄĚ

A.¬†¬†The parties’ submissions

95.  First, the Government stressed that the applicant had failed to seek damages from the State or from third parties through civil proceedings, and therefore had failed to exhaust domestic remedies. The Government then contended that the damage to the house had been partly caused by the explosions of hand grenades employed by the two criminal suspects and that the State could therefore not be held responsible for it. They further argued that the documents obtained during the investigation demonstrated that some parts of the house had been unfinished and uninhabitable and that the load-bearing walls and roof had not suffered any significant damage. Furthermore, the valuables collected by the investigator during the search on 14 March 2005 had been returned to the applicant after she had signed for them. No other valuables or documents had been collected.

96.  The applicant reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

97.  The Government argued that the applicant had failed to exhaust domestic remedies. As regards criminal-law remedies, the Court observes that the applicant alleged that the damage had been caused to her property during the security operation of 14 March 2005. The applicant raised the question of the damage to her property in her formal complaints to the authorities (paragraph 21). However, for the same reasons as noted above in respect of her complaint under Article 2, not only was no investigation conducted into this allegation, but the applicant was not accorded any procedural status. This deprived her of any possibility of participating in the proceedings or even of appealing effectively against their outcome. The Court refers to its conclusions in paragraph 58 above, and finds that the applicant exhausted domestic remedies in this respect.

98.¬†¬†Furthermore, in the absence of any domestic findings concerning the responsibility for the damage caused to the applicant’s property, the Court is not persuaded that the court remedy referred to by the Government was accessible to the applicant and would have had any prospects of success (see Betayev and Betayeva v. Russia, no. 37315/03, ¬ß 112, 29 May 2008). The Government’s objection concerning non-exhaustion of domestic remedies must therefore be dismissed.

99.  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

100.¬†¬†The Court notes that the Government did not deny that the applicant’s property had been damaged during the security operation on 14¬†March 2005. They disagreed about the extent to which the State authorities had been responsible for the losses and the amount of damage caused.

101.¬†¬†The Court observes that the applicant brought her complaint about the property to the attention of both the prosecutor’s service and the district court. She also took steps to record her losses with the assistance of the local administration (paragraph 30 above). Unfortunately, as noted above, no steps were taken to verify these complaints and to establish the exact circumstances of the events. The Government did not disclose any documents from the domestic investigation which could shed light on the events either; and the witnesses’ statements simply confirmed that the house and household items had been damaged. It also follows from these statements that the damage had been at least partly caused by the State agents who had stormed the house. Accordingly, the Court finds that there was an interference with the applicant’s right to the protection of her property.

102.¬†¬†In the absence of any arguments from the Government as to the lawfulness and proportionality of this interference, the Court finds that there has been a violation of the applicant’s right to protection of property guaranteed by Article 1 of Protocol No.¬†1 to the Convention.

IV.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

103.  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

A.¬†¬†The parties’ submissions

104.  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. The applicant had had an opportunity to challenge the acts or omissions of the investigating authorities in court pursuant to Article 125 of the Code of Criminal Procedure and had availed herself of it. They added that participants in criminal proceedings could also claim damages in civil proceedings. In sum, the Government submitted that there had been no violation of Article 13.

105.  The applicant reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

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

2.  Merits

107.¬†¬†The Court reiterates that in circumstances where, as here, a criminal investigation into the circumstances of a violent death has been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article¬†13 of the Convention (see Khashiyev and Akayeva, cited above, ¬ß¬†183, and Medova v.¬†Russia, no. 25385/04, ¬ß 130, ECHR 2009-…(extracts)).

108.¬†¬†As to the applicants’ complaint under Article 13 in conjunction with Article 1 of Protocol No. 1, the Court considers that in a situation where the authorities denied involvement in the alleged damage to the applicant’s belongings and where the domestic investigation completely failed to examine the matter, the applicant did not have any effective domestic remedies in respect of the alleged violations of her property rights. Accordingly, there has been a violation on that account (see Karimov and Others v. Russia, no. 29851/05, ¬ß 150, 16 July 2009).

109.  Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention and Article 1 of Protocol No. 1.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

110.  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

111.¬†¬†Referring to the note of 15 March 2005 about the damage to the house (see paragraph 30 above), the applicant claimed 800,000 Russian roubles (RUB ‚Äď 18,800 euros (EUR)) under this heading.

112.  The Government disputed that the State bore responsibility for the damage caused and regarded these claims as unfounded.

113.¬†¬†The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant 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.

114.  The Court notes that the applicant submitted one report drawn up on 15 March 2005, confirming that her house and household items had suffered significant damage. However, in the absence of a more detailed breakdown of costs and of any other additional evidence concerning the value of the lost and damaged items, the Court is sceptical about accepting it as final evidence of the amount claimed. The Court nevertheless agrees that the applicant must have borne some costs in relation to the lost property, and that there is a clear causal connection between these and the violation of Article 1 of Protocol No. 1 found above, since the damage was at least partly caused by State agents.

115.  In the light of the above considerations, the Court finds it appropriate to awards an amount of EUR 8,000 to the applicant as compensation for the pecuniary losses sustained, plus any tax that may be chargeable on that amount.

B.  Non-pecuniary damage

116.  The applicant claimed EUR 300,000 in respect of non-pecuniary damage for the suffering she had endured as a result of the loss of her daughter and the failure to investigate it properly.

117.  The Government found the amount claimed exaggerated.

118.¬†¬†The Court has found a violation of the positive obligation to protect the right to life of the applicant’s daughter and a violation of the right to the peaceful enjoyment of property under Articles 2 and 13 of the Convention and Article 1 of Protocol No. 1. The Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards her EUR¬†60,000, plus any tax that may be chargeable on that amount.

C.  Costs and expenses

119.  The applicant was represented by two lawyers from the International Protection Centre. They submitted a breakdown of costs borne by them, which included fifty-six hours of research and drafting legal documents at a rate of EUR 60 per hour and EUR 120 of postal and stationary expenses. The aggregate claim in respect of costs and expenses related to legal representation amounted to EUR 3,480.

120.  The Government did not dispute the reasonableness of and justification for the amounts claimed under this heading.

121.¬†¬†The Court has to establish first whether the costs and expenses indicated by the applicant’s representatives were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, ¬ß 220, Series A no. 324).

122.¬†¬†Having regard to the information submitted by the applicant, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicant’s representatives.

123.  As to whether the costs and expenses incurred for legal representation were necessary, the Court notes that this case was relatively complex and required a certain amount of research and preparation.

124.  Having regard to the details of the claims submitted by the applicant, the Court awards her the amount of EUR 3,480 as claimed, together with any value-added tax that may be chargeable to her.

D.  Default interest

125.  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 objections as to non-exhaustion of domestic remedies in respect of the complaints under Article 2 of the Convention and Article 1 of Protocol No.¬†1;

2.  Declares the complaints under Articles 2, 3 and 13 of the Convention and Article 1 of Protocol No. 1 admissible;

3.  Holds that there has been no substantive violation of Article 2 of the Convention in respect of Summaya Abdurashidova;

4.¬†¬†Holds that there has been a violation of Article¬†2 of the Convention on account of the State’s failure to comply with its positive obligation to protect the life of Summaya Abdurashidova;

5.  Holds that there has been a violation of Article 2 of the Convention on account of the failure to conduct an effective investigation into the circumstances in which Summaya Abdurashidova died;

6.   Holds that no separate issues arise under Article 3 of the Convention;

7.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

8.  Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Article 2 of the Convention and of Article 1 of Protocol No. 1;

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 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the applicant;

(ii)  EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant;

(iii)  EUR 3,480 (three thousand four hundred and eighty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Russian roubles at the date of settlement;

(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.

Done in English, and notified in writing on 8 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S√łren Nielsen¬†Christos Rozakis
Registrar President

****

CASE OF MUDAYEVY v. RUSSIA

(Application no. 33105/05)

JUDGMENT

STRASBOURG

8 April 2010

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 Mudayevy 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,
Giorgio Malinverni,
George Nicolaou, judges,
and S√łren Nielsen, Section Registrar,

Having deliberated in private on 18 March 2010,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 33105/05) 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 two Russian nationals, Mr Lomali (also spelled as Lom-Ali) Mudayev and Ms Malkan Mudayeva (‚Äúthe applicants‚ÄĚ), on 25¬†July 2005.

2.¬†¬†The applicants, who were granted legal aid, were represented by lawyers of the Centre of Assistance to International Protection, an NGO based in Moscow. The Russian Government (‚Äúthe Government‚ÄĚ) were represented by the First Deputy Minister of Justice Mr A. Savenkov and subsequently by the Representative of the Russian Federation at the European Court of Human Rights Mr G. Matyushkin.

3.  On 1 April 2008 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. On 2 April 2008 it decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application.

4.¬†¬†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

5.  The applicants were born in 1950 and 1948 respectively. They live in Raduzhnoye, in the Grozny district, Chechnya. The applicants are the father and aunt of Aslan Mudayev, who was born in 1985, and Mokhmad Mudayev, who was born in 1982. The first applicant had a third son, Mr Akhmad Mudayev, who was killed in July 2003.

A.  Disappearance of Aslan and Mokhmad Mudayev

1.¬†¬†The applicants’ account

a. The abduction of Aslan and Mokhmad Mudayev

6.¬†¬†On 29 January 2003 Russian military servicemen conducted a special operation in the village of Raduzhnoye in the Grozny district of Chechnya. More than twenty persons were apprehended as a result of the operation, including Aslan and Mokhmad Mudayev and another of the applicants’ relatives, Mr Islam A. At the material time the village was under the full control of the federal forces.

7.  At about 8 a.m. on 29 January 2003 the first applicant and his sons Aslan and Mokhmad Mudayev and other relatives, including Mr Israil M. and Mr Islam A., were in their family home situated in Raduzhnoye. The first applicant heard noise coming from the street and looked out of the window. He saw a group of armed men in camouflage uniforms and masks running into his yard. The men entered the house and ordered everyone to lie face down on the floor. They neither introduced themselves nor produced any documents.

8.¬†¬†The intruders ordered the first applicant to hand over his family members’ passports and the family photographs. Upon receiving the documents and the photographs, the men took Aslan Mudayev, Mokhmad Mudayev and the first applicant’s nephew Mr Islam A. outside.

9.¬†¬†The first applicant attempted to follow his relatives, but the armed men in the yard threatened to kill him. Meanwhile, the applicant’s sons and nephew were put in a grey UAZ car (‚Äú—ā–į–Ī–Ľ–Ķ—ā–ļ–į‚ÄĚ).

10.  Sometime later the first applicant managed to go outside and saw a convoy of ten to twelve vehicles, including a grey UAZ car, two or three khaki coloured UAZ-469 cars and an APC (armoured personnel carrier) driving away in the direction of Grozny.

11.  On the following day of 30 January 2003 all persons detained during the special operation, except for Aslan and Mokhmad Mudayev, were released.

b. The subsequent events

12.  Immediately after the apprehension of Aslan and Mokhmad Mudayev the applicants and their relatives started searching for them.

13. The applicants’ relative, Mr Israil M., who was at the first applicant’s house during the abduction, immediately followed the convoy of military vehicles in his VAZ car with two female relatives. On the way to Grozny the abductors’ vehicles split into two groups. One of them, comprised of the APC and several UAZ cars, drove in the direction of the nearby village of Znamenskoye in the Nadterechniy district, while the other proceeded in the direction of Grozny.

14.¬†¬†When the group arrived at Znamenskoye, the vehicles drove to the building of the Nadterechniy district department of the Federal Security Service (‚Äúthe Nadterechniy district department of the FSB‚ÄĚ) and the Nadterechniy district department of the interior (‚Äúthe Nadterechniy ROVD‚ÄĚ). Some of the vehicles drove onto the agencies’ premises.

15.¬†¬†Mr Israil M. and relatives of other men apprehended during the operation in Raduzhnoye decided to wait at the entrance to the FSB building. Several hours later Mr Israil M. managed to talk to the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh. (also known as Mairbek Kh.; in the documents submitted he was also referred to as Mr¬†M. Kh.) The latter told him that he would not release his relatives until two prosecution officials who had been abducted several days ago had been returned. He told Mr Israil M. that he knew about the involvement of the first applicant’s other son, Akhmad Mudayev, in the abduction of the two officials. The officer threatened that if within the next two days Mr Israil M. did not return the two prosecutors or bring Akhmad Mudayev to their office, he would hand over Mr Israil’s apprehended relatives to military servicemen in Khankala, the main base of the Russian federal forces in Chechnya.

16.¬†¬†Subsequently the applicants and their relatives spoke with Akhmad Mudayev, who told them that he had not participated in the prosecutors’ abduction and refused to go to the district department of the FSB.

17.  Within the next five or six months Mr Israil M. had regular meetings with Mr Mayrbek Kh. The latter insisted on his demands.

18.¬†¬†On 3 July 2003 the first applicant’s elder son Akhmad Mudayev was killed in a skirmish. After that Mr Mayrbek Kh. told the first applicant that at some point Russian military forces had taken Aslan and Mokhmad Mudayev from his department under false identities and that he did not have any information concerning the brothers’ whereabouts.

c. Information obtained by the applicants about the detention of Aslan and Mokhmad Mudayev

19.¬†¬†The first applicant’s nephew, Mr Islam A., who had been apprehended with Aslan and Mokhmad Mudayev, was released on 30¬†January 2003. Mr Islam A. told the applicants that he had been put in one cell with Aslan and Mokhmad Mudayev. In the evening of 29 January 2003 he had been questioned by Mr Mayrbek Kh., the head of the Nadterechniy district department of the FSB.

20.  In February 2003 Mr Mayrbek Kh. arrived at the mosque of the Raduzhnoye village. He told a number of local residents gathered there that Aslan and Mokhmad Mudayev had been detained in the FSB building. One of the local residents, Mr Arsanuka M., asked him whether any criminal charges had been brought against the brothers. In response the officer told him that he would release Aslan and Mokhmad Mudayev only if their elder brother Akhmad surrendered to the authorities.

21.  Mr Aslan A., who had been detained for some time with the Mudayev brothers in the FSB building and released, told the applicants that during the detention, Aslan and Mokhmad Mudayev had been beaten and questioned separately from each other.

22.  On 10 May 2003 (in the documents submitted the date 12 May 2003 was also given) an explosion occurred in the building of the Nadterechniy district department of the FSB and partially destroyed it. In the evening of 10 May 2003 Aslan and Mokhmad Mudayev were taken from the building to an unknown destination. There has been no news about the brothers ever since.

23.  In support of their statements the applicants submitted: an account by the first applicant (undated); an account by Mr Israil M. dated 12 November 2003; an account by Mr Islam A. dated 14 November 2003; an account by Mr Khavashi K. (undated); an account by Mr Arsanuka M. (undated); an account by Mr Amin K. (undated) and copies of documents received from the authorities.

2.  Information submitted by the Government

24.¬†¬†The Government did not challenge most of the facts as presented by the applicants. According to their submission of 25 July 2008 ‚Äú… on 29¬†September 2003 an investigator of the Grozny district prosecutor’s office initiated an investigation of criminal case no.¬†42172 opened in connection with the abduction of Aslan and Mokhmad Mudayev under Article 126¬†¬ß¬†2 of the Criminal Code …‚ÄĚ.

25.  In the same submission, referring to the contents of criminal case no. 42172, the Government further stated:

‚Äú… on 29 January 2003 in the village of Raduzhnoye in the Nadterechniy district of Chechnya officers of the Nadterechniy district department of the FSB conducted a special operation. The goal of the operation was the identification of persons who had abducted employees of the Chechnya prosecutor’s office. In the course of the criminal investigation [of the Mudayev brothers’ abduction] the head of the Nadterechniy district department of the FSB, Mr M. Kh., who was in charge of the operation, was questioned by the investigators.

[According to his statement] during the operation Aslan and Mokhmad Mudayev had been brought to the Nadterechniy district department of the FSB in connection with the abduction of the officials from the Chechnya prosecutor’s office. As a result of the questioning it had been established that Aslan and Mokhmad Mudayev had not been involved in the abduction of the prosecution officials. After that Aslan and Mokhmad Mudayev had been released.‚ÄĚ

26.  The Government also submitted:

‚Äú… on 12 May 2003 a terrorist act was committed in the village of Znamenskoye in the Nadterechniy district. As a result, the building of the Nadterechniy district department of the FSB was partially destroyed. Procedural documents, explanations and statements by Aslan and Mokhmad Mudayev were [also] destroyed.‚ÄĚ

B.  The search for Aslan and Mokhmad Mudayev and the investigation

1.  Information submitted by the applicants

a. The official investigation into the abduction

27. The applicants and their relatives also contacted, both in person and in writing, various official bodies, such as the Chechen administration, military commanders’ offices, departments of the interior and prosecutors’ offices at different levels, asking for help in establishing the whereabouts of Aslan and Mokhmad Mudayev. The applicants retained copies of a number of those complaints and submitted them to the Court. An official investigation was opened by the local prosecutor’s office. The relevant information is summarised below.

28.¬†¬†According to the applicants, from January 2003 to August 2003, on a number of occasions, they complained in person to the Nadterechniy district prosecutor’s office about the abduction of their relatives.

29.¬†¬†On 22 September 2003 a local human rights organisation complained on behalf of the applicants and their relatives to the Grozny district prosecutor’s office about the abduction of Aslan and Mokhmad Mudayev.

30.¬†¬†On 29 September 2003 the Chechnya prosecutor’s office forwarded the applicants’ complaint about the abduction of their relatives to the Grozny district prosecutor’s office.

31.¬†¬†On 15 January 2004 the applicants’ representatives wrote to the Chechnya prosecutor’s office. They described in detail the circumstances of the Mudayev brothers’ abduction during the special operation conducted by the Nadterechniy district department of the FSB on 29 January 2003. The letter stated that the brothers had been taken to the detention centre of the district department of the FSB; they had been detained there until 10 May 2003, when they had been taken away in an unknown direction. According to the information obtained by the applicants from the persons who had been detained together with Aslan and Mokhmad Mudayev from January to May 2003, the conditions of their detention had been inhuman; the brothers had been beaten, had marks of ill-treatment on their bodies and fallen ill. After May 2003, according to some witnesses, the conditions of their detention in another place had also been inhuman; the brothers had been severely beaten and bound by adhesive tape. According to the letter, the applicants and their relatives had spoken with the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh. who had told them that the release of the two Mudayev brothers would be possible only in exchange for their elder brother Akhmad. The letter further stated that the applicants had complained about the arrest and detention of Aslan and Mokhmad Mudayev to a number of authorities, including the Nadterechniy district prosecutor’s office, the Nadterechniy district department of the FSB, the Grozny district prosecutor’s office and the Chechnya prosecutor’s office. Referring to the European Convention on Human Rights the applicants requested the following information: on what grounds the Mudayev brothers had been arrested; whether any criminal charges had been brought against them and if so, what stage the criminal investigation was at; which authorities had issued the warrant for their arrest and where exactly the brothers had been detained. Finally, the applicants requested the authorities to ensure their safety and the safety of the witnesses to the abduction of Aslan and Mokhmad Mudayev.

32.¬†¬†On 11 February and 16 September 2004 the Chechnya prosecutor’s office informed the applicants that on 29 September 2003 the Grozny district prosecutor’s office had initiated an investigation into the abduction of Aslan and Mokhmad Mudayev.

33.¬†¬†On 28 April 2004 the Chechnya Department of Human Rights and Freedoms wrote to the Chechnya prosecutor’s office. The letter stated that Aslan and Mokhmad Mudayev had been abducted on 29 January 2003 during an identity check.

34.¬†¬†On 22 May 2004 the Grozny district prosecutor’s office granted the second applicant victim status in criminal case no.¬†42172 instituted in connection with the abduction of Aslan and Mokhmad Mudayev.

35.¬†¬†On 10 August and 28 October 2004 the military prosecutor’s office of the United Group Alignment (the military prosecutor’s office of the UGA) forwarded the applicants’ complaints about the abduction to the Chechnya prosecutor’s office for examination.

36.¬†¬†On 10 September 2004 the Grozny district prosecutor’s office informed the applicants that the investigation in the criminal case had been suspended for failure to establish the identities of the perpetrators.

37.¬†¬†On 25 October 2004 the Grozny district prosecutor’s office informed the Chechnya prosecutor’s office that on 21 June 2004 the investigation in the criminal case had been suspended and that the investigators had been instructed to take investigating measures and that upon their completion the case would be transferred to the Nadterechniy district prosecutor’s office for further investigation.

38.¬†¬†On 18 February 2005 the Grozny prosecutor’s office informed the applicants that on that date they had resumed the investigation in the criminal case.

39.¬†¬†On 18 March 2005 the Grozny prosecutor’s office informed the applicants that on that date they had suspended the investigation in the criminal case for failure to establish the identities of the perpetrators.

40.¬†¬†On 19 April 2005 the second applicant requested the Grozny district prosecutor’s office to inform her about the results of the criminal investigation of the abduction and provide her with access to the investigation file.

41.¬†¬†On 5 May 2005 the first applicant complained to the Chechnya prosecutor’s office. He stated that his two sons, Aslan and Mokhmad Mudayev, had been abducted on 29 January 2003 by representatives of the Nadterechniy district department of the FSB under the command of officer Mayrbek Kh., and that the investigation opened by the Grozny prosecutor’s office had been ineffective. In particular, the applicant pointed out that the investigators had failed to comply with the court’s decision of 30 December 2004 concerning the reopening of the suspended investigation and questioning of all persons involved in the abduction; that the investigation had been suspended several times in spite of the authorities’ failure to establish the circumstances of the abduction. The applicant requested the Chechnya prosecutor’s office to take over the investigation and to comply with the court’s decision of 30 December 2004.

42.¬†¬†On 13 May 2005 the Chechnya prosecutor’s office informed the first applicant that the investigation in the criminal case had been resumed.

b. Proceedings against law-enforcement officials

43.¬†¬†In November 2004 the applicants lodged a complaint with the Grozny district court of Chechnya (the district court). They complained of unlawful suspensions of the investigation in the criminal case and a failure on the part of the authorities to take basic investigative measures. The applicants sought a ruling obliging the prosecutor’s office to resume the investigation and question the witnesses of their relatives’ abduction.

44.  On 30 December 2004 the district court allowed the complaint. The court stated, inter alia, the following:

‚Äú… the court established that:

… from [the date of the opening of the criminal case] 29 September 2003 up to the present the investigation in criminal case no.¬†42172 was suspended three times and resumed twice owing to the applicants’ numerous complaints.

On 30 November 2004 the investigator Zh. U. took the last decision to suspend the investigation for failure to establish the identities of the perpetrators; this decision was taken by him after 25 November 2004, that is, [shortly] after the applicants had lodged their court complaint about his actions.

Given the kind of approach the investigator has taken to the execution of his work duties, it is possible that the perpetrators [of the abduction] will not be established any time soon […]the investigator did not carry out the written orders issued by the deputy district prosecutor on 25 October 2004 … even though such orders were compulsory …

In the course of the preliminary investigation it had been unequivocally established by whom and when the Mudayev brothers had been arrested and where they had been detained. From this it follows that the investigator and the supervising prosecutor must concentrate their attention on the identification of those who detained the brothers, on the examination of the lawfulness and the grounds for their detention, [and] the establishment of the actual place of their detention, which was carried out without lawful grounds …

The court decided:

1.      To recognise as unlawful the actions of the investigator Zh.U. concerning the suspension of the investigation in criminal case no. 42182 under Article 208 § 1 of the Criminal Procedure Code [for failure to establish the identities of the perpetrators];

2.¬†¬†¬†¬†¬† To oblige the investigator to carry out in full the written orders issued by the [supervising] prosecutor …;

3.      To question all persons involved in the arrest of the Mudayev brothers in violation of Articles 91 and 92 of the Criminal Procedure Code [grounds and procedure for detention];

4.¬†¬†¬†¬†¬† To examine the lawfulness and the grounds for the Mudayev brothers’ detention without a court order, [which took place] in violation of Article 108 of the Criminal Procedure Code [arrest procedure] …‚ÄĚ

45.¬†¬†On 11 May 2005 the second applicant complained to the district court that the investigation into the abduction had been ineffective. She described in detail the circumstances of the abduction and pointed out that Aslan and Mokhmad Mudayev had been unlawfully detained as hostages in the Nadterechniy district department of the FSB. The applicant stated that the investigation into the abduction had been suspended several times and that the last suspension had taken place on 13 May 2005. The applicant sought a ruling obliging the prosecutor’s office to resume the investigation and transfer it to the Chechnya prosecutor’s office.

46.¬†¬†On 8 June 2005 the district court rejected the applicant’s complaint. On 16 August 2005 this decision was upheld on appeal by the Chechnya Supreme Court.

2.  Information submitted by the Government

47. The Government submitted that the investigation of the abduction of the applicants’ relatives had commenced on 29 September 2003 upon receipt on 22 September 2003 of a complaint by the applicants’ relative Mr¬†I.M. about the abduction of Aslan and Mokhmad Mudayev on 29¬†January 2003.

48.¬†¬†On 27 September 2003 the investigators conducted a crime scene examination at the first applicant’s house. Nothing was collected from the scene.

49.¬† On 29 September 2003 the first applicant was granted victim status in the criminal case and questioned. According to a copy of his witness statement submitted to the Court, the applicant stated that at about 8.15 a.m. on 29 January 2003 a group of fifteen masked men in military uniforms armed with automatic weapons had broken into his house. The men had put everyone up against the wall, and then ordered everyone to lie on the floor face down. After that they had demanded everyone’s passports and checked them. The men had returned all the documents, expect for the passports of his sons Aslan and Mokhmad Mudayev. Immediately after the men had taken the applicant’s two sons outside, put them in a light-coloured UAZ vehicle (‘tabletka’) and taken them to the settlement of Znamenskoye in the Nadterechniy district of Chechnya. When the applicant had asked the men about the reasons for the arrest of his sons, the men had not explained anything. They had told him and his relatives to stay inside, threatening to shoot if anyone went outside. According to the applicant, the abductors had arrived at his house in a light-coloured UAZ vehicle and two grey GAZ vehicles; the cars did not have registration numbers. At some point later the applicant had asked the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh. about his sons. The latter had told him that Aslan and Mokhmad Mudayev had been detained on the premises of his department. The applicant had not received any other information about his sons’ whereabouts.

50.  On 22 May 2004 the investigators granted the second applicant victim status in the criminal case.

51.  According to the Government, the investigators also questioned a number of witnesses. Without providing any of the relevant witness statements and the dates, the Government summarised their testimonies as follows.

52.¬†¬†On an unspecified date the investigators questioned the applicants’ relative, Mr I.B., who stated that on 29 January 2003 he had been in the first applicant’s house with his relatives. In the morning a group of armed masked men had broken into the house, checked identity documents and taken him, Aslan and Mokhmad Mudayev in a UAZ car to the village of Znamenskoye in the Nadterechniy district. There they had been placed in one cell. In the evening of the same day the witness had been interrogated twice. The first questioning had been conducted by Mr M.Kh. who had asked him about Akhmed Mudayev. The second interrogation was conducted by a man who had spoken unaccented Russian, in the presence of a Chechen man. In the evening of 30 January 2003 the witness had been released, whereas Aslan and Mokhmad Mudayev remained in detention.

53.  On an unspecified date the investigators questioned the second applicant. She stated that on 29 February 2003 a special operation had been conducted in Raduzhnoye by the local FSB office and that Mr Mayrbek Kh. had been in charge of it. As a result of this operation more than twenty young men had been arrested in the settlement, including her nephews Aslan and Mokhmad Mudayev and Mr I.A. Many of the detainees had been released in the evening on the same day. On 30 January 2003 her nephew Mr I.A. had also returned home. He had told her that he had been detained with Aslan and Mokhmad Mudayev in the FSB office.

54.  On unspecified dates the investigators also questioned twelve other witnesses, including the first applicant, Mr A.M., Mr I.M., Mr Yu.V., Mr A.D., Mr S.B., Mr Sh.A., Ms A.B., Ms B.O., Mr T.A., Ms T.M., Mr A.K. and Mr S.Z., who provided statements similar to the one given by the second applicant.

55.¬†¬†On an unspecified date the investigators questioned the applicants’ neighbour, Ms Kh. D., who stated that at about 9 a.m. on 29 January 2003 three grey UAZ vehicles without registration numbers had arrived at the first applicant’s house. A group of armed men in camouflage uniforms and masks had gotten out of the cars. The men had taken the first applicant’s two sons and driven them away in the direction of the Nadterechniy district.

56.  On an unspecified date the investigators also questioned Mr I.M., who provided a statement similar to the one given by Ms Kh.D.

57.  On an unspecified date the investigators questioned Ms T.M. who stated that at about 9 a.m. on 29 January 2003 she had been driving with her relatives through the area situated next to the bridge in the village of Pobedinskoye. There she had seen several UAZ cars and APCs which were driving in the direction of the village of Znamenskoye in the Nadterechniy district. After the witness had arrived at Pobedinskoye, she had learnt from the local residents that earlier in the morning a group of armed men in camouflage uniforms under the command of the head of the Nadterechniy district department of the FSB, Mr M. Kh., had taken Aslan and Mokhmad Mudayev away; that the relatives of the abducted men had followed the abductors in cars and that they had seen that the two brothers had been taken to the premises of the Nadterechniy district department of the FSB.

58.  On unspecified dates the investigators also questioned three other witnesses, including Ms M.Yu., Ms. Z.K. and Ms L.A., who provided statements similar to the one given by Ms T.M.

59.  On an unspecified date the investigators questioned Mr Z.B., who stated that he had known Aslan and Mokhmad Mudayev since childhood. On 29 January 2003 he had learnt that the two brothers had been arrested as a result of the operation conducted under the command of the head of the Nadterechniy district department of the FSB, Mr M. Kh. According to the witness, the elder brother of the arrested men, Akhmed, had been a member of illegal armed groups but Aslan and Mokhmad had not been involved in illegal activities. At some point Akhmed Mudayev had been killed by the OMON (special task force) police officers during a skirmish in the village of Dolinskoye.

60.¬†¬†On an unspecified date the investigators questioned the applicants’ relative Mr E.M., who stated that his nephews Aslan and Mokhmad Mudayev had been arrested on 29 January 2003 by representatives of the Nadterechniy district department of the FSB in the presence of its head, Mr¬†Mayrbek Kh. On the following day many of those who had been detained were released. However, Aslan and Mokhmad Mudayev did not return home.

61.  On an unspecified date the investigators questioned a police officer, N.M., who stated that in the spring of 2003 he had worked as the district police officer in the settlement of Podebinskoye in the Grozny district. About two months prior to that, in the winter of 2003, Aslan and Mokhmad Mudayev had been brought to the Nadterechniy district department of the FSB.

62.  On unspecified dates the investigators also questioned Mr G.R. and Mr B.S., who had provided statements similar to the above statement by Mr N.M.

63.¬†¬†On an unspecified date the investigators questioned Mr E.A. who stated that about two or three weeks after the apprehension of Aslan and Mokhmad Mudayev he had been detained on the premises of the FSB office in the Nadterechniy district and that at the time he had not seen the applicants’ relatives there.

64.¬†¬†On an unspecified date the investigators questioned Mr S.Z., who stated that in January 2003 about twenty of his fellow villagers, including Aslan and Mokhmad Mudayev, had been detained by representatives of the FSB in the villages of Raduzhnoye and Dolinskoye. On 26 April 2003 he had been arrested by representatives of the Nadterechniy district department of the FSB and was released some time later. During his detention at the FSB office he had not seen the applicants’ relatives.

65.¬†¬†On an unspecified date the investigators questioned the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh., who stated that after two staff members of the Chechnya prosecutor’s office had been kidnapped their department had taken operational search measures aimed at establishing the identity of the perpetrators. As a result, Aslan and Mokhmad Mudayev had been brought over to the FSB office and questioned. After it had been established that the two brothers had not been involved in the abduction, Aslan and Mokhmad Mudayev had been released. The witness did not know why the brothers had not returned home. The officer further stated that Aslan and Mokhmad Mudayev had signed papers to the effect that they had nothing against the officers of the FSB; however, these documents had been later destroyed. Relatives of Aslan and Mokhmad Mudayev had contacted the witness on a number of occasions asking for assistance in establishing the brothers’ whereabouts. According to the witness, he had had information concerning the possible absconding of Aslan and Mokhmad Mudayev from Chechnya to Ingushetia, where their brother Akhmed, an active member of illegal armed groups, had been hiding. In the summer of 2003 Akhmed Mudayev had been killed in a shoot-out. The witness had no information concerning the whereabouts of Aslan and Mokhmad Mudayev.

66.  The investigators requested information from the Nadterechniy district court concerning arrest orders issued by the court as of 29 January 2003 in respect of Aslan and Mokhmad Mudayev. According to the district court, no such orders had been issued by it.

67.  The investigators also requested information from the head of the Nadterechniy district administration concerning the list of persons who had suffered as a result of the terrorist attack committed on 12 May 2003 in Znamenskoye. The list of victims did not contain the names of Aslan and Mokhmad Mudayev.

68.   According to the Government, the investigation failed to establish the whereabouts of Aslan and Mokhmad Mudayev; their corpses were not found. No evidence demonstrating the involvement of federal forces in their disappearance was found.

69.  According to the documents submitted by the Government, between 29 September 2003 and 25 July 2008 the investigation was suspended and resumed on at least three occasions, that is, on 21 June 2004, 8 June 2005 and 11 February 2008, and it has so far failed to establish the identities of the perpetrators.

70.¬†¬†From the Government’s submission it follows that on 16 July 2008 the head of the Investigations Department of the Investigations Committee at the Office of the Russian Prosecutor General decided that the investigation of the abduction of the applicants’ relatives should be carried out by a joint group of investigators from the prosecutor’s office and the military investigations department.

71.  The Government further submitted that all the measures envisaged under the domestic law were being taken by the investigators and that the applicants had been duly informed of all decisions taken during the proceedings.

72.  Despite specific requests by the Court the Government did not disclose most of the contents of criminal case file no. 42172, providing only copies of several notifications to the applicants of the suspension and reopening of the proceedings and a copy of the witness statement given by the first applicant on 29 September 2003. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained data concerning the witnesses or other participants in the criminal proceedings.

II. RELEVANT DOMESTIC LAW

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

THE LAW

I.¬†¬†THE GOVERNMENT’S OBJECTION REGARDING NON-EXHAUSTION OF DOMESTIC REMEDIES

A.¬†¬†The parties’ submissions

74.  The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies, submitting that the investigation into the disappearance of Aslan and Mokhmad Mudayev had not yet been completed. They further argued that it had been open to the applicants to challenge in court any acts or omissions of the investigating or other law-enforcement authorities, and that the applicants had availed themselves of that remedy. Finally, they argued that it had been open to the applicants to pursue civil complaints but that they had failed to do so.

75.¬†¬†The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective. With reference to the Court’s practice, they argued that they were not obliged to claim damages through civil proceedings in order to exhaust domestic remedies.

B.¬†¬†The Court’s assessment

76.  The Court will 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).

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

78.  As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct 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 (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.

79.  As regards criminal law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law enforcement authorities about the kidnapping of Aslan and Mokhmad Mudayev and that an investigation has been ongoing since 29 September 2003. The applicants and the Government dispute the effectiveness of the investigation of the kidnapping.

80.¬†¬†The Court considers that 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.¬†THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS

A.¬†¬†The parties’ arguments

81.¬†¬†The applicants maintained that it was beyond reasonable doubt that the men who had taken away Aslan and Mokhmad Mudayev had been State agents. In support of their complaint they referred to the following facts. The Government had confirmed to the Court that the local law-enforcement authorities had conducted a special operation on 29 January 2003, as a result of which Aslan and Mokhmad Mudayev had been taken to the Nadterechniy district department of the FSB along with other residents of Raduzhnoye. However, the applicants’ relatives had not been released on the following day, unlike the other detainees, and had never returned home. The Government’s allegations that the two brothers had been released shortly after their apprehension were completely unsubstantiated and refuted by witness statements collected by the applicants and the official investigation. All the information disclosed by the Government about the criminal investigation supported the applicants’ assertion as to the involvement of State agents in the abduction of their relatives. Since Aslan and Mokhmad Mudayev had been missing for a very lengthy period, they could be presumed dead. That presumption was further supported by the circumstances in which they had been arrested, which should be recognised as life-threatening.

82.¬†¬†The Government submitted that on 29 January 2003 the Nadterechniy district department of the FSB, under the command of its head officer M.Kh., had conducted a special operation to identify the perpetrators of the abduction of two prosecution officials which had taken place prior to the events in question. As a result of the operation, Aslan and Mokhmad Mudayev had been taken to the Nadterechniy district department of the FSB for questioning. Their non-participation in the abduction of the officials had been established and the two brothers had been released. The Government further stated that the brothers might have absconded from the authorities. They further contended that the investigation into the incident was ongoing and that there was no evidence that State representatives might be responsible for the disappearance of the Mudayev brothers. The Government further argued that there was no convincing evidence that the applicants’ relatives were dead as their corpses had not been found. Referring to the witness statements obtained by the investigation, the Government pointed out that Mr E.A. and Mr S.Z. had stated that during their detention in the Nadterechniy district department of the FSB in February 2003 and after 26 April 2003 accordingly, they had not seen the Mudayev brothers either on the premises of the FSB office or during the transportation of the office’s detainees in May 2003 after the partial destruction of the building as a result of the terrorist attack. The Government did not submit these witness statements to the Court.

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

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

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

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

86.¬†¬†The applicants alleged that the persons who had taken Aslan and Mokhmad Mudayev away on 29¬†January 2003 and then killed them had been State agents. The Government did not dispute any of the main factual elements underlying the application. They acknowledged that the applicants’ relatives had been detained by State agents, but suggested that they had been released some time later.

87.¬†¬†The Government submitted that the applicants’ relatives had been detained on 29 January 2003 by representatives of the local law-enforcement agencies under the command of the head of the Nadterechniy district department of the FSB officer M. Kh. and taken to the FSB office for questioning and that they had been released shortly afterwards (see paragraph 25 above). In support of their position the Government referred to the summary of the witness statement given by officer M.Kh. to the investigators (see paragraph 65 above), which the Government did not submit to the Court. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see √áelikbilek v. Turkey, no.¬†27693/95, ¬ß¬†71, 31¬†May 2005).

88.¬†¬†The Court notes that the applicants’ allegation is supported by the witness statements collected by the applicants and by the investigation. In particular, the Court notes that a number of witnesses pointed out that Aslan and Mokhmad Mudayev had not been released from detention in the FSB office unlike the other men who had been apprehended as a result of the special operation (see paragraphs 20, 21, 52 and 60 above). It further observes that the Government’s allegation that the applicants’ relatives were released after questioning was not substantiated by any documents. In their application to the authorities the applicants consistently maintained that Aslan and Mokhmad Mudayev had been arrested by servicemen under the command of officer M. Kh. and subsequently detained in the FSB office and requested the investigation to examine that possibility (see paragraphs 31, 41, 45, 49 and 53 above). The domestic investigation also accepted factual assumptions as presented by the applicants and questioned officer M. Kh. However, it does not appear that any serious steps were taken to verify his statement concerning the release of the applicants’ relatives.

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

90.¬†¬†Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relatives were apprehended by State servicemen. The Court observes that the Government submitted no evidence, such as records of detention and release, to corroborate their contention that the applicants’ relatives had been set free. As to the Government’s contention that the records were destroyed as a result of the fire (see paragraph 26 above), they failed to submit any evidence confirming that the impugned documents had been indeed destroyed as a result of it. No documents in the case file indeed refer to the destruction of the documents as a result of the incident. The Court is struck by the fact that the source of this assertion is none other than the officer most closely implicated in the detention of the Mudayev brothers. In such circumstances and taking into account the absence of any evidence to the contrary, the Court finds that Aslan and Mokhmad Mudayev remained under the control of the authorities after being apprehended during the special operation.

91.¬†¬†The Court further notes that no documents relating to the applicants’ relatives’ apprehension and subsequent detention have been made available to it.¬†¬†There has been no reliable news of the Aslan and Mokhmad Mudayev since the date of the kidnapping. Their names have not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to them after their arrest.

92.¬†¬†Having regard to the previous cases concerning disappearances in Chechnya which have come before it (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, cited above; and Alikhadzhiyeva v. Russia, no.¬†68007/01, 5¬†July 2007), the Court finds that in the context of the conflict in the Republic, when a person is detained by servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Aslan and Mokhmad Mudayev or of any news of them for many years supports this assumption. Furthermore, the Government have failed to provide any explanation as to the disappearance of the applicants’ relatives after their arrest, and the official investigation into their abduction, which has lasted for more than six years, has produced no tangible results.

93.¬†¬†The Court further notes that, regrettably, it has been unable to benefit from the results of the domestic investigation owing to the Government’s failure to disclose most of the documents from the file (see paragraph 72 above). Nevertheless, it is clear that the investigation did not identify the perpetrators of the kidnapping.

94.  Accordingly, the Court finds that the evidence available permits it to establish that Aslan and Mokhmad Mudayev must be presumed dead following their unacknowledged detention by State servicemen.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

95.  The applicants complained under Article 2 of the Convention that their relatives had been deprived of their lives by State agents 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 parties’ submissions

96.¬†¬†The Government contended that the domestic investigation had obtained no evidence to the effect that Aslan and Mokhmad Mudayev were dead or that any servicemen of the federal law-enforcement agencies had been involved in their kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants’ relatives met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible.

97.¬†¬†The applicants argued that Aslan and Mokhmad Mudayev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of them for years. The applicants also argued that the investigation had not met the effectiveness and adequacy requirements laid down by the Court’s case-law. The applicants pointed out that by January 2005 the district prosecutor’s office had not taken certain crucial investigative steps. The investigation into Aslan and Mokhmad Mudayev’s kidnapping had been opened several months after the events and then had been suspended and resumed a number of times ‚Äď thus delaying the taking of the most basic steps ‚Äď and that the relatives had not been properly informed of the most important investigative measures. The fact that the investigation had been ongoing for such a long period of time without producing any known results was further proof of its ineffectiveness. They also invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to them or to the Court.

B.¬†¬†The Court’s assessment

1.  Admissibility

98.¬†¬†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. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 80 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 Aslan and Mokhmad Mudayev

99.¬†¬†The Court has already found that the applicants’ relatives must be presumed dead following unacknowledged detention by State servicemen. In the absence of any justification put forward by the Government, the Court finds that their deaths can be attributed to the State and that there has been a violation of Article 2 in respect of Aslan and Mokhmad Mudayev.

(b)  The alleged inadequacy of the investigation of the kidnapping

100.¬†¬†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).

101.  In the present case, the kidnapping of Aslan and Mokhmad Mudayev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

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

103.¬†¬†The Court notes that the authorities were made aware of the crime by the applicants’ written submission on 22 September 2003. The investigation in case no. 42172 was instituted on 29 September 2003. Taking into account that the Government failed to furnish the Court with any information as to the dates of the investigative measures taken by the prosecutor’s office, it is nonetheless clear that after the opening of the criminal case the investigators did not take even the most basic steps. For instance, the Court notes that, as can be seen from the decision of the district court of 30 December 2004, by that date the investigators had not questioned any of the persons involved in the arrest of the Mudayev brothers even though ‚Äú… in the course of the preliminary investigation it had been unequivocally established by whom and when the Mudayev brothers had been arrested and where they had been detained …‚ÄĚ (see paragraph 44 above). It is obvious that if they were to produce any meaningful results such investigative measures should have been taken immediately after the investigation obtained the relevant information. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious matter (see √ĖneryńĪldńĪz v. Turkey [GC], no. 48939/99, ¬ß¬†94, ECHR 2004-XII). Further, it does not appear that the investigation tried to identify and question any of the servicemen who had worked in the Nadterechniy district department of the FSB, other than officer M.Kh., in order to establish whether Aslan and Mokhmad Mudayev had been detained there after 29 January 2003, or that the investigators tried to identify and question the more than twenty other residents of Raduzhnoye who had been arrested in the course of the same special operation.

104.  The Court also notes that even though the applicants were granted victim status in the criminal case concerning the abduction of their relatives, they were only informed of the suspension and resumption 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, and to safeguard the interests of the next of kin in the proceedings.

105.¬†¬†Finally, the Court notes that the investigation was adjourned and resumed on numerous occasions and that there were lengthy periods of inactivity on the part of the prosecutor’s office when the proceedings were suspended. The district court criticised the deficiencies in the proceedings and ordered remedial measures (see paragraph 44 above). It appears that its instructions were not complied with.

106.¬†¬†The Government argued that the applicants could have sought further judicial review of the decisions of the investigating authorities in the context of the exhaustion of domestic remedies. The Court observes that the applicants did, in fact, make use of that remedy, which eventually led to the resumption of the investigation. Nevertheless, the effectiveness of the investigation had already been undermined in its early stages by the authorities’ failure to take essential investigative measures. Moreover, the district court’s instructions to the prosecutor’s office to investigate the crime effectively did not bring any tangible results for the applicants. The investigation was repeatedly suspended and resumed, but it appears that no significant investigative measures were taken to identify those responsible for the kidnapping. In such circumstances, the Court considers that the applicants could not be required to challenge in court every single decision of the district prosecutor’s office. Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation.

107.  In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Aslan and Mokhmad Mudayev, in breach of Article 2 in its procedural aspect.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

108.¬†¬†The applicants relied on Article 3 of the Convention, submitting that after their arrest Aslan and Mokhmad Mudayev had been subjected to inhuman and degrading treatment and that the State had failed to investigate the applicants’ allegations about it in breach of Article 3 of the Convention. Article 3 reads:

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

A.¬†¬†The parties’ submissions

109.  The Government disagreed with these allegations and argued that the investigation had not established that Aslan and Mokhmad Mudayev had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.

110.  The applicants maintained their submissions.

B.¬†¬†The Court’s assessment

1.  Admissibility

Ill-treatment of the applicants’ relatives

111.¬†¬†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 ‚Äú beyond 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).

112.¬†¬†The Court has already found that Aslan and Mokhmad Mudayev were detained on 29 January 2003 by 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 death lies with the State authorities (see paragraph 99 above). However, the questions of the exact way in which they died and whether they were subjected to ill-treatment while in detention have not been elucidated. The Court considers that the applicants’ reference to the statement of Mr Aslan A. (see paragraph 21 above) does not enable it to find beyond all reasonable doubt that Aslan and Mokhmad Mudayev were ill-treated in detention. It thus finds that this part of the complaint has not been substantiated.

113.  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.

2. Merits

Alleged ineffectiveness of the investigation of the ill-treatment

114.¬†¬†The Court reiterates that ‚Äúwhere an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention, requires by implication that there should be an effective official investigation‚ÄĚ (see Labita v. Italy [GC], no.¬†26772/95, ¬ß¬†131, ECHR 2000-IV).

115.¬†¬†The Court notes that the applicants raised in detail their complaints about the ill-treatment of Aslan and Mokhmad Mudayev with the investigating authorities (see paragraph 31 above). However, it does not appear that their complaints were properly examined by the prosecutor’s office.

116.¬†¬†For the reasons stated above in paragraphs 103 ‚Äď 107 in relation to the procedural obligation under Article 2 of the Convention, the Court concludes that the Government has failed to conduct an effective investigation into the ill-treatment of Aslan and Mokhmad Mudayev.

117.  Accordingly, there has been a violation of Article 3 in this respect.

V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

118.  The applicants stated that Aslan and Mokhmad Mudayev had been detained in violation of the guarantees contained in Article 5 of the Convention. Article 5 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

119.¬†¬†The Government asserted that no evidence had been obtained by the investigators to confirm that Aslan and Mokhmad Mudayev had been deprived of their liberty. The brothers had been brought to the Nadterechniy district department of the FSB for questioning and had been released shortly afterwards. The applicants’ relatives were not listed among the persons kept in detention centres and none of the local law-enforcement agencies had information about their detention.

120.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

121.  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

122.  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).

123.¬†¬†The Court has found that Aslan and Mokhmad Mudayev were apprehended by State servicemen on 29¬†January 2003 and have not been seen since. Their detention was not acknowledged, was not logged in any custody records and there exists no official trace of their subsequent whereabouts or fate (see paragraph 90 above). 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).

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

125.  In view of the foregoing, the Court finds that Aslan and Mokhmad Mudayev were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

VI. ALLEGED VIOLATION OF ARTICLE 18 IN CONJUNCTION WITH ARTICLE 5 § 1 (c) OF THE CONVENTION

126.  The applicants further alleged that the detention of their relatives was carried out for a purpose other than those envisaged by Article 5 § 1 (c), contrary to Article 18 of the Convention. Article 18 reads:

‚ÄúThe restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.‚ÄĚ

127.  As for the alleged violation of Article 18 in conjunction with Article 5 of the Convention, the Court reiterates that Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention (Gusinskiy v. Russia, no. 70276/01, § 73, ECHR 2004-IV).

128.¬†¬†The Court has already found in paragraphs 123-125 above that the applicants’ relatives were deprived of their liberty without any of the safeguards contained in Article 5, and not ‚Äúfor the purpose of bringing [a person] before the competent legal authority on reasonable suspicion of having committed an offence‚ÄĚ as stipulated in Article 5 ¬ß 1 (c). In these circumstances, since that issue has already been addressed by the Court, there is no need to examine these facts again under Article 18 in conjunction with Article 5 of the Convention.

VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

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

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

A.¬†¬†The parties’ submissions

130.  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 had an opportunity to challenge the acts or omissions of the investigating authorities in court and had availed themselves of it. They added that participants in criminal proceedings could also claim damages in civil proceedings. In sum, the Government submitted that there had been no violation of Article 13.

131.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

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

2.  Merits

133.  The Court reiterates that in circumstances where, as here, a criminal investigation into a disappearance has been ineffective (see paragraph 107 above) and the effectiveness of any other remedy that might have existed, including civil remedies, as suggested by the Government in the present case, has consequently been undermined the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183).

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

135.¬†¬†As regards the applicants’ reference to Articles 3 and 5 of the Convention, the Court considers that, in the circumstances, no separate issues arise 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).

VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

136.  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

137.  The first applicant, as the father of Aslan and Mokhmad Mudayev, claimed damages in respect of loss of earnings by his sons after their arrests and subsequent disappearances. Referring to the method of calculation used in the case of Isayeva v. Russia (no. 57950/00, §§ 232-236, 24 February 2005), he claimed a total of 21,600 euros (EUR) under this heading.

138.  The Government regarded these claims as unsubstantiated. They also pointed to the existence of domestic statutory machinery for the provision of a pension for the loss of a family breadwinner.

139.¬†¬†The Court reiterates that there must be a clear causal connection between the damage claimed by an applicant and the violation of the Convention at issue, and that this may, in an appropriate case, include compensation in respect of loss of earnings. The Court further finds that loss of earnings also applies to elderly parents and that it is reasonable to assume that Aslan and Mokhmad Mudayev would eventually have had some earnings from which the first applicant would have benefited (see, among other authorities, Imakayeva, cited above, ¬ß¬†213). Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article¬†2 in respect of the first applicant’s sons and the loss by the first applicant of the financial support which they could have provided. Having regard to the applicants’ submissions and the fact that Aslan and Mokhmad Mudayev were not employed at the time of their apprehension, the Court awards EUR¬†20,000 to the first applicant in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

B. Non-pecuniary damage

140.  The first applicant, as the father of the disappeared Aslan and Mokhmad Mudayev, claimed EUR 200,000 in respect of non-pecuniary damage for the suffering he had endured as a result of the loss of his family members, the indifference shown by the authorities towards him and the failure to provide any information about the fate of his sons. The second applicant, as the aunt of the disappeared men, claimed 50,000 EUR under this head.

141.  The Government found the amounts claimed exaggerated.

142.¬†¬†The Court has found a violation of Articles 2, 3, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants’ relatives. The Court thus accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards 100,000 EUR¬†to the first applicant and 20,000 EUR to the second applicant plus any tax that may be chargeable on these amounts.

C.  Costs and expenses

143.  The applicants were represented by lawyers of the Centre of Assistance to International Protection, Ms K. Moskalenko and Ms S. Davydova. The applicants submitted that the aggregate claim in respect of costs and expenses related to their legal representation amounted to EUR 4,500.

144.  The Government indicated that the applicants had not shown that the expenses claimed for legal representation had actually been incurred.

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

146.¬†¬†Having regard to the details of the information in its possession, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives.

147.  As to whether the costs and expenses were necessary, the Court notes that this case was rather complex and required a certain amount of research and preparation.

148.  Having regard to the details of the claims submitted by the applicants, the Court awards them the amount of EUR 4,000 less EUR 850 received by way of legal aid from the Council of Europe, together with any value-added tax that may be chargeable thereon.

D.  Default interest

149.  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. Declares the complaints under Articles 2, 3 (in respect of the authorities’ failure to investigate the alleged ill-treatment), 5 and 13 admissible and the remainder of the application inadmissible;

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

3.  Holds that there has been a substantive violation of Article 2 of the Convention in respect of Aslan and Mokhmad Mudayev;

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 Aslan and Mokhmad Mudayev disappeared;

5.  Holds that there has been a violation of Article 3 of the Convention in respect of the failure to conduct an effective investigation into the allegations of ill-treatment of Aslan and Mokhmad Mudayev;

6.  Holds that there has been a violation of Article 5 of the Convention in respect of Aslan and Mokhmad Mudayev;

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 respect of the alleged violations of Articles 3 and 5;

9.¬†¬† Holds that there is no need to examine the applicants’ complaint under Article 18 in conjunction with Article 5¬†¬ß¬†1 (c);

10.  Holds

(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the date of settlement, save in the case of the payment in respect of costs and expenses:

(i)  EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the first applicant;

(ii)  EUR 100,000 (hundred thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the first applicant;

(iii)  EUR 20,000 (twenty thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage to the second applicant;

(iv) EUR 3,150 (three thousand one hundred and fifty euros) plus any tax that may be chargeable, in respect of costs and expenses to the applicants;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 8 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S√łren Nielsen¬†Christos Rozakis
Registrar President

****

CASE OF SADULAYEVA v. RUSSIA

(Application no. 38570/05)

JUDGMENT

STRASBOURG

8 April 2010

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 Sadulayeva 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 18 March 2010,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 38570/05) 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, Ms Chovka (also known as Aymani) Sadulayeva, on 16 September 2005.

2.¬†¬†The applicant was represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government (‚Äúthe Government‚ÄĚ) were represented by their Agent, Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3.¬†¬†On 22 April 2008 the Court decided to apply Rule¬†41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. Under the provisions of Article 29 ¬ß 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 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 the Rules of Court).

4.¬†¬†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

5.  The applicant was born in 1947. She lives in the village of Martan-Chu, in the Urus-Martan district of Chechnya.

A.  Disappearance of Aslan Sadulayev and subsequent events

1.¬†¬†The applicant’s account

a. The abduction of the applicant’s son

6.¬†¬†At the material time the applicant’s son Aslan Sadulayev lived in a village in the Naurskiy district of Chechnya while the applicant and his other relatives lived in the Urus-Martan district of Chechnya.

7.  On 9 December 2002 Aslan Sadulayev went to Urus-Martan to celebrate a holiday with his relatives. There he met an acquaintance, Mr M.M., who gave him a lift in his purple VAZ-2109 car to the nearby village of Alkhazurovo. In the early afternoon of 9 December 2002, on their way back from the village to Urus-Martan, Mr M.M. also agreed to give a lift to his acquaintance Ms T. S. and a young man.

8.  The car with Mr M.M., Aslan Sadulayev, Ms. T.S. and the young man was stopped by Russian military servicemen at the intersection of the roads to Komsomolskoye village, Alkhazurovo and Urus-Martan. That day a mobile checkpoint of Russian military forces on two APCs (armoured personnel carriers) was conducting identity checks at the intersection. The servicemen let Ms T. S. go; she managed to get a lift in another car and left.

9.  At that time a bus going from Urus-Martan to Alkhazurovo was also stopped at the intersection. The bus had many passengers, including Ms Khamila D., Ms Kaypa A. and Ms Tamara S. The servicemen checked the identity documents of two young men who were on the bus.

10.  Meanwhile, the bus passengers saw from the windows that the servicemen at the intersection were checking the documents of the three men in the purple VAZ car. Ms Tamara S. and Ms Khamila D. recognised one of them as their acquaintance Aslan Sadulayev. They saw that the servicemen were not letting the three men go and that the APCs moved and surrounded the VAZ car. Ms Khamila D. tried to get out of the bus and ask the officers why they were detaining Aslan Sadulayev, but the servicemen ordered her to stay on board.

11.  The three women and other bus passengers saw the VAZ car surrounded by the APCs drove away in the direction of Urus-Martan.

12.  In support of her statements, the applicant submitted: an account of events by her; an account by Ms Kh. E.; an account by Ms Kaypa A.; an account by Ms Khamila D. and an account by Ms Tamara S., all dated 1 August 2006.

b. Subsequent events

13.  On 14 December 2002 a resident of Martan-Chu, known to the applicant under the name of Mr Rizvan (also spelled as Rezvan), visited the applicant. He told her that Mr M. M. had asked him to inform her that her son Aslan Sadulayev had been abducted by Russian military servicemen. Mr Rizvan agreed to take the applicant the next day to his meeting with Mr M.M. in Urus-Martan.

14.¬†¬†In the morning of 15 December 2002 the applicant with Mr Rizvan arrived at Urus-Martan. At about midday they met Mr M.M., who informed the applicant about his car journey with Aslan Sadulayev on 9¬†December 2002. He told her that their car had been stopped at the intersection by Russian military servicemen. The officers had told the men in the car that they would take them to the Urus-Martan district military commander’s office (the district military commander’s office) for questioning and would release them afterwards. At the entrance to the district military commander’s office Mr M.M. had met an acquaintance of his who worked there and who arranged his immediate release. Mr M.M. also told the applicant that the military officers had not returned his purple VAZ car and that he had not seen it since. He further promised to the applicant that he would arrange her son’s release later in the evening and that she should wait for him at 5¬†p.m. at the local market in Urus-Martan.

15.  The applicant waited for Mr M. M. at the agreed place from 5 p.m. to 8 p.m., but he did not turn up. For the next three days the applicant waited there for him, to no avail. The applicant searched for Mr M.M. through Mr Rizvan. The latter introduced her to the sister of Mr M.M., Ms Z.M., who informed the applicant that she had heard about the abduction of Aslan Sadulayev and that she had been unable to find Mr M.M. for several days.

16.  According to the applicant, at some point after 2005 she contacted her acquaintances in the village of Goy-Chu and inquired whether Ms T.S., who had been in the same car with Aslan Sadulayev when it had been stopped at the intersection, lived there and worked in the local school. She had been told that Ms T.S. had indeed worked at the school and lived in the village, but she had got married and changed her maiden name to Ms T.I.

17.¬†¬†The applicant also submitted that she had managed to find out that the serviceman she had known by the name of Mr Rizvan was in fact Mr¬†I.Kh., a resident of Goyskoye village, who had been serving at the district military commander’s office in 2002 and who had been killed in 2004. She further stated that shortly after the commencement of the criminal investigation she had informed the investigators that Mr M.M. had frequently visited Urus-Martan; that he had been married to Ms M.D. from Grozny, that he had had two children, had been registered as a resident of Komsomolskoye village and that he had had a temporary identification document.

2.  Information submitted by the Government

18.¬†¬†The Government did not challenge most of the facts as presented by the applicant. According to their submission, ‚Äú… in connection with the abduction of A.S. Sadulayev which had taken place on 9 December 2002 on the road between Alkhazurovo and Martan-Chu, the Urus-Martan district prosecutor’s office opened criminal case no.¬†34010…‚ÄĚ

B.  The official investigation of the abduction

1.  Information submitted by the applicant

19.¬†¬†Since 9¬†December 2002 the applicant has repeatedly applied in person and in writing to various public bodies. She has been supported in her efforts by the Memorial NGO. In her letters to the authorities the applicant referred to her son’s abduction and asked for assistance and details of the investigation. Most of these enquiries have remained unanswered, or purely formal replies have been given in which the applicant’s requests have been forwarded to various prosecutors’ offices. The applicant submitted some of her letters to the authorities and their replies to the Court. These documents are summarised below.

20.¬†¬†On 18 and 19 December 2002 the applicant complained about her son’s abduction to a number of local law enforcement agencies, including the military commander’s office, the Urus-Martan district prosecutor’s office (the district prosecutor’s office) and the Urus-Martan district department of the interior (the Urus-Martan ROVD). She described the circumstances of her son’s abduction by armed men in military vehicles at the Russian military forces checkpoint and requested assistance in establishing his whereabouts.

21.¬†¬†On 15 January, 3 June and 9 July 2003 the Chechnya prosecutor’s office forwarded the applicant’s complaints about her son’s abduction by armed servicemen in camouflage uniforms to the district prosecutor’s office for examination.

22.¬†¬†On 31 January 2003 the district prosecutor’s office instituted an investigation into the disappearance of Aslan Sadulayev under Article¬†126¬†¬ß¬†2 of the Criminal Code (aggravated kidnapping). The case file was given the number 34010.

23.¬†¬†On 31 March 2003 the district prosecutor’s office granted the applicant victim status in the criminal case.

24.¬†¬†On 31 March, 5 June 2003 and 27 April 2004 the district prosecutor’s office informed the applicant that the investigation in criminal case no. 34010 had been suspended for failure to establish the identities of the perpetrators.

25.¬†¬†On 5 April 2003 the military prosecutor’s office of military unit no.¬†20102 forwarded the applicant’s request for assistance in the search for her son to the district military commander’s office.

26.  On 30 April 2003 and 27 October 2004 the investigators resumed the investigation in the criminal case and informed the applicant about it.

27.¬†¬†On 23 July 2003 the military prosecutor’s office of the United Group Alignment (the military prosecutor’s office of the UGA) forwarded the applicant’s request for assistance in the search for her son to the military prosecutor’s office of military unit no.¬†20102.

28.¬†¬†On 31 May 2004 the applicant wrote to the district prosecutor’s office asking them to grant her civil plaintiff status in the criminal case. On 9 June 2004 the district prosecutor’s office granted the request and informed the applicant about it.

29.¬†¬†At some point in the autumn of 2007 the investigation of the criminal case was transferred to the Achkhoy-Martan district prosecutor’s office. The applicant was neither informed about it nor about any of the subsequent steps taken by the investigators.

2.  Information submitted by the Government

30.¬†¬†On 18 December 2002 the applicant complained about her son’s abduction to a number of local law-enforcement authorities, including the district prosecutor’s office, the military commander’s office and the Urus-Martan ROVD. She stated that at about 3 p.m. on 9 December 2002 her son Aslan Sadulayev had been abducted at a mobile checkpoint of the Russian military forces by servicemen of an unidentified power structure. According to her complaint, after the purple VAZ car with her son and Mr¬†M.M. had been stopped at the checkpoint, the car and the men inside it had been driven away in an unknown direction under the guard of military vehicles. The car’s driver, Mr M.M., had been kicked out of the car on the road between Urus-Martan and Goyty village, whereas Aslan Sadulayev had been taken to an unknown destination. The applicant further stated that she had learnt about her son’s abduction from Mr M.M. only on 12 December 2002.

31.  On 28 January 2003 an officer of the Urus-Martan ROVD questioned the father of Aslan Sadulayev, Mr S.S., who stated that on 12 December 2002 he had leant that on 9 December 2002 his son had been detained at the checkpoint of the Russian federal forces located at the crossroads between the settlements of Komsomolskoye and Alkhazurovo. Aslan Sadulayev had been a passenger in a dark-blue VAZ-2109 car, which had been stopped by military servicemen, who had taken him and another man away. The servicemen had kicked the third man, Mr M., out of the car.

32.  On 28 January 2003 an officer of the Urus-Martan ROVD questioned the applicant, who stated that on 9 December 2002 her son Aslan Sadulayev had been on his way from Alkhazurovo to Urus-Martan, when the dark-blue VAZ-2109 car he was in had been stopped by military servicemen at the intersection. The servicemen had driven away the car along with its passengers, but one of the passengers, Mr M., had been kicked out of the vehicle by the servicemen at some point later.

33.¬†¬†On 18 February 2003 the investigators from the district prosecutor’s office questioned the applicant, who stated that at about 3 p.m. on 9¬†December 2002 her son Aslan Sadulayev had been detained by unknown men at a federal forces mobile checkpoint located at the junction near Komsomolskoye village. According to the applicant, her son had been riding with Mr. M.M. and another man in a purple VAZ-2109 car when their car was stopped at the checkpoint. After that Aslan Sadulayev and Mr¬†M.M. had been taken away, but the latter had been released at some point later. A few days later Mr M.M. had told the applicant about her son’s arrest and promised to help her to get Aslan Sadulayev released. However, her son had not been released and she had not had any news of him ever since. The applicant further provided Mr M.M.’s description and stated that she had spoken with his sister, Ms Z.M., who had told her that her other brother, Mr Mu.M., had witnessed the detention of Aslan Sadulayev and Mr¬†M.M. at the checkpoint, when he had also been stopped there for an identity check.

34.  On 18 February 2003 military unit no. 6779 informed the investigators that they had not detained Aslan Sadulayev on 9 December 2002.

35.  On an unspecified date in February-March 2003 the Chechnya Ministry of the Interior (the MVD) informed the investigators that they had neither opened criminal proceedings against Aslan Sadulayev nor detained him.

36.  On 9 March 2003 the Chechnya Department of the Federal Security Service (the FSB) informed the investigators that they had neither detained Aslan Sadulayev nor opened criminal proceedings against him.

37.¬†¬†On 12 March 2003 the Chechnya Address Bureau informed the investigators that they did not have any information concerning Mr M.M.’s permanent address.

38.  On 17, 20 and 22 March, 1 and 2 April, 24 June 2003 the Argun town department of the interior (the Argun OVD), the Naurskiy ROVD, the Nozhay-Yurt ROVD, the Shali ROVD, the Kurchaloy ROVD, the Shelkovskoy ROVD and the Shatoy ROVD informed the investigators that they did not have any information concerning the possible detention of Aslan Sadulayev in local remand prisons or discovery of his corpse in their districts.

39.¬†¬†On 18 and 25 March, 17 April 2003 the Nadterechniy district prosecutor’s office, the Achkhoy-Martan district prosecutor’s office and the Gudermes district prosecutor’s office informed the investigators that they did not have any information concerning the whereabouts of Aslan Sadulayev.

40.¬†On 30 April 2003 the investigators questioned Ms Z.M., who stated that she was Mr M.M.’s sister. According to her, Mr M.M., Aslan Sadulayev, Ms T.S. and another man had been driving to Urus-Martan in a dark-blue VAZ-2109 car when at a junction between Alkhazurovo and Urus-Martan they had been stopped at a mobile checkpoint by men in military uniforms. The men had fired several shots to stop the car. After that they had taken everyone out of the vehicle and searched it. Next they had stopped a passing car and sent Ms T.S. in it to Urus-Martan. After that they had taken away the three men from the VAZ car. Mr M.M. had been released at some point later; he had been on his knees in the yard of military unit no.¬†6779 when a certain Mr Rizvan had recognised him and somehow expedited his release. According to the witness, Ms T.S. had worked as a teacher in Goy-Chu village and Mr Rizvan had lived in Goyskoye village.

41.  On 10 June 2003 an operational and search officer of the Urus-Martan ROVD informed the investigators that he had been unable to establish the whereabouts and the address of Ms T.S.

42.¬†¬†On 31 May 2004 the applicant wrote to the district prosecutor’s office complaining that her son had been detained by servicemen at the mobile checkpoint of the federal forces and that local power structures had denied involvement in the incident.

43.  On 9 June 2004 the investigators granted the applicant civil plaintiff status in the criminal case.

44.¬†¬†On an unspecified date the Urus-Martan ROVD and the district military commander’s office informed the investigators that they had been unable to identify the serviceman named Rizvan. He was not listed as their employee and his whereabouts could not be established.

45.¬†¬†On unspecified dates the investigators forwarded a number of requests to various authorities, such as the Tangi-Chu military commander’s office, the district military commander, the Chechnya FSB, and various detention centres in Chechnya and other regions in the northern Caucasus, asking for information concerning the possible detention of Aslan Sadulayev by these agencies or if any criminal proceedings had been opened against him. According to the agencies’ replies, they had not arrested or detained the applicant’s son, no criminal proceedings were pending against him, and his corpse had not been found.

46.¬†¬†The investigation failed to establish the whereabouts of Aslan Sadulayev. The investigating authorities sent requests for information to the relevant State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of the federal forces in the incident. The law-enforcement authorities of Chechnya had never arrested or detained Aslan Sadulayev on criminal or administrative charges and had not carried out a criminal investigation in his respect. No special operations had been carried out in respect of the applicant’s son.

47.  According to the Government, the applicant had been duly informed of all decisions taken during the investigation.

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

49.  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 participants in criminal proceedings. They also cited, by way of comparison, the Rome Statute of the International Criminal Court of 17 July 1998 (Articles 70 and 72) and the Statute of the International Criminal Tribunal for the former Yugoslavia (Articles 15 and 22) and argued that these instruments provided for personal responsibility for a breach of the rules of confidentiality.

C. Proceedings against law-enforcement officials

50.¬†¬†On an unspecified date in 2004 the applicant complained to the Urus-Martan town court (the town court). She sought a ruling obliging the district prosecutor’s office to conduct an effective investigation of Aslan Sadulayev’s abduction and to provide her with access to the investigation file.

51.¬†¬†On 14 May 2004 the town court allowed her complaint in part. The court instructed the district prosecutor’s office to conduct an effective and thorough investigation in the criminal case and to question witnesses Ms¬†T.S. and Mr M.M. The remainder of the applicant’s complaint was rejected.

52.¬†¬†On 3 March 2005 the applicant again complained to the town court. She sought a ruling obliging the district prosecutor’s office to conduct an effective investigation in the criminal case. In her complaint the applicant pointed out that the authorities had failed to comply with the court’s decision of 14¬†March 2004.

53.  On 22 March 2005 the town court rejected her complaint. The court stated that the investigation had taken all measures possible in the absence of those to be charged with the crime. On 15 June 2005 this decision was upheld on appeal.

II. RELEVANT DOMESTIC LAW

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

THE LAW

I.¬†¬†THE GOVERNMENT’S OBJECTION REGARDING NON-EXHAUSTION OF DOMESTIC REMEDIES

A.¬†¬†The parties’ submissions

55.  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 Aslan Sadulayev had not yet been completed. They further argued that it had been open to the applicant to challenge in court any acts or omissions of the investigating authorities and that she could have pursued civil complaints but she had failed to do so.

56.  The applicant contested that objection. She stated that the criminal investigation had proved ineffective and that her complaints to that effect, including her applications to the local court, had been futile. Referring to the other cases concerning similar incidents which had been reviewed by the Court, she also alleged that the existence of an administrative practice of non-investigation of crimes committed by State servicemen in Chechnya rendered any potentially effective remedies inadequate and illusory in her case.

B.¬†¬†The Court’s assessment

57.  The Court will 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).

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

59.¬†¬†As regards a civil action to obtain redress for damage sustained through alleged illegal acts or unlawful conduct 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 (see Khashiyev and Akayeva v.¬†Russia, nos.¬†57942/00 and 57945/00, ¬ß¬ß¬†119-121, 24 February 2005, and Estamirov and Others, cited above, ¬ß¬†77). In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed.

60.  As regards criminal law remedies, the Court observes that the applicant complained to the law-enforcement authorities after the abduction of Aslan Sadulayev and that an investigation has been pending since 31 January 2003. The applicant and the Government dispute the effectiveness of the investigation of the kidnapping.

61.¬†¬†The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicant’s 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.¬†THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS

A.¬†¬†The parties’ arguments

62.¬†¬†The applicant maintained that it was beyond reasonable doubt that the men who had taken away Aslan Sadulayev were State agents. In support of her complaint she referred to the following facts. The armed men who had abducted Aslan Sadulayev had acted at the checkpoint of the Russian military forces; they drove around in military APCs, they were armed and wearing military uniform. All the information disclosed from the criminal investigation file supported the applicant’s assertion as to the involvement of State agents in the abduction. She further pointed out that the Government had failed to provide any plausible explanation to the events in question. Since Aslan Sadulayev had been missing for a very lengthy period, he could be presumed dead. That presumption was further supported by the circumstances in which he had been arrested, which should be recognised as life-threatening.

63.¬†¬†The Government submitted that unidentified armed men, possibly members of illegal armed groups or criminals pursuing a blood feud, had kidnapped Aslan Sadulayev. They further contended that the investigation of the incident was pending, that there was no evidence that the men were State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicant’s rights. They further argued that there was no convincing evidence that the applicant’s son was dead. The Government further stated that the fact that the perpetrators of the abduction were wearing camouflage uniforms did not mean that these men could not have been members of illegal armed groups. They also contended that the applicant’s description of the circumstances surrounding the abduction was inconsistent. In particular, the applicant had failed to inform the investigators about the three women who had witnessed the incident, that is Ms Khamila D., Ms Kaypa A. and Ms Tamara S.; it was not clear whether one of the abducted men had been either kicked out from the abducted VAZ vehicle or he had been taken to the military commander’s office; and that taking into account that the investigation had failed to establish the identities of Mr M.M. and Ms T.S., their information allegedly given to the applicant about the circumstances of the abduction could not be considered trustworthy.

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

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

65.¬†¬†The Court notes that despite its requests for a copy of the investigation file into the abduction of Aslan Sadulayev, the Government produced only a part of the documents from the case file. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, ¬ß 123, ECHR 2006- … (extracts)).

66.¬†¬†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.

67.  The applicant alleged that the persons who had taken Aslan Sadulayev away on 9 December 2002 and then killed him were State agents. The Government did not dispute any of the main factual elements underlying the application.

68.  The Government suggested in their submissions that the abductors of Aslan Sadulayev may have been members of paramilitary groups or criminals pursuing a blood feud. However, this allegation was not specific and the Government did not submit any material to support it. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see Çelikbilek v. Turkey, no. 27693/95, § 71, 31 May 2005).

69.¬†¬†The Court notes that the applicant’s allegation is supported by the witness statements collected by the applicant and by the investigation. It finds that the fact that a group of armed men in uniform at the military checkpoint, equipped with military APCs, proceeded to check identity documents and detained several persons strongly supports the applicant’s allegation that these were State servicemen conducting a security operation. In her application to the authorities the applicant and her relatives consistently maintained that Aslan Sadulayev had been detained by unknown servicemen and requested the investigation to look into that possibility (see paragraphs 30-33 and 42 above). The domestic investigation also accepted factual assumptions as presented by the applicant and took steps to check whether State bodies were involved in the abduction by forwarding information requests to various agencies (see paragraphs 34-36, 38-39, 44 above), but it does not appear that any serious steps were taken in that direction.

70.¬†¬†The Government questioned the credibility of the applicant’s statement in view of certain discrepancies relating to the exact circumstances of the arrests and the description of the hours immediately following the detention. The Court notes in this respect that no other elements underlying the applicant’s submissions of facts have been disputed by the Government. The Government provided the Court only with part of the investigation file materials to which they referred in their submissions. In the Court’s view, the fact that over a period of several years the applicant’s recollection of the event differed in rather insignificant details does not in itself suffice to cast doubt on the overall veracity of her statements.

71.¬†¬†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 relevant 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).

72.¬†¬†Taking into account the above elements, the Court is satisfied that the applicant has made a prima facie case that her son had been detained by State servicemen. The Government’s statement that the investigators had not found any evidence to support the involvement of State agents in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties, and drawing inferences from the Government’s failure to submit the remaining documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court finds that Aslan Sadulayev was arrested on 9¬†December 2002 by State servicemen during an unacknowledged security operation.

73.  There has been no reliable news of Aslan Sadulayev since the date of the abduction. His name has not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to him after his arrest.

74.¬†¬†Having regard to the previous cases concerning disappearances in Chechnya which have come before it (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, cited above; and Alikhadzhiyeva v. Russia, no.¬†68007/01, 5¬†July 2007), the Court finds that in the context of the conflict in the Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Aslan Sadulayev and of any news of him for more than seven years supports this assumption.

75.  Accordingly, the Court finds that the evidence available permits it to establish that Aslan Sadulayev must be presumed dead following his unacknowledged detention by State servicemen.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

76.  The applicant complained under Article 2 of the Convention that her son had been deprived of his life 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 parties’ submissions

77.¬†¬†The Government contended that the domestic investigation had obtained no evidence to the effect that Aslan Sadulayev was dead or that any State agents had been involved in his abduction or alleged killing. The Government claimed that the investigation into the kidnapping of the applicant’s son met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible.

78.¬†¬†The applicant argued that Aslan Sadulayev had been detained by State servicemen and should be presumed dead, in the absence of any reliable news of him for several years. The applicant also argued that the investigation had not met the effectiveness and adequacy requirements, laid down by the Court’s case-law. The applicant pointed out that the district prosecutor’s office had not taken some crucial investigative steps, such as identification of the APCs which had been used by the abductors and questioning of their drivers, and detailed questioning of such key witnesses to the abduction as Ms Z.M., Mr M.M. and Mr Rizvan. The investigation had been opened several weeks after she had lodged her official complaint about the abduction and then it had been suspended and resumed a number of times, thus delaying the taking of the most basic steps. The applicant further contended that she had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for more than six years without producing any tangible results was further proof of its ineffectiveness. She also invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to her or to the Court.

B.¬†¬†The Court’s assessment

1.  Admissibility

79.¬†¬†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. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 61 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 Aslan Sadulayev

80.¬†¬†The Court has already found that the applicant’s son must be presumed dead following unacknowledged detention 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 Aslan Sadulayev.

(b)  The alleged inadequacy of the investigation of the kidnapping

81.¬†¬†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).

82.  In the present case, the kidnapping of Aslan Sadulayev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

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

84.¬†The Court notes that on 18 December 2002 the authorities were made aware of the abduction by the applicant’s submissions (see paragraphs 20 and 30 above). The investigation in the criminal case was instituted on 31¬†January 2003, that is one month and thirteen days after the authorities were informed about the incident. Such a postponement per se was liable to affect the investigation of the kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. It appears that after that a number of essential steps were either delayed or not taken at all. For instance, as can be seen from the decision of the town court of 14 May 2004, by that date the investigators had not identified or questioned key witnesses to the abduction (see paragraph 51 above). Further, the investigators had not taken such crucial steps as identifying the APCs used by the abductors and questioning their drivers; they had not questioned any representatives of local military and law-enforcement agencies about possible involvement of their personnel in the abduction; they had failed to take any measures to establish the whereabouts of the purple VAZ car which had been taken away by the abductors and had failed to question any of the local residents to establish the whereabouts of the key witnesses to the abduction. In addition, it does not appear that the investigators attempted to take any steps to identify the driver and the passengers of the bus which had also been stopped at the checkpoint by the military servicemen or any other local residents who had been present at the checkpoint during the incident (see paragraph 9 above) and to question them about the events. It is obvious that these investigative measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see √ĖneryńĪldńĪz v. Turkey [GC], no. 48939/99, ¬ß 94, ECHR 2004-XII).

85.  The Court also notes that even though the applicant was granted victim status in the investigation concerning the abduction of her son, she was only informed of the suspension and resumption 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.

86.¬†¬†Finally, the Court notes that the investigation was suspended and resumed on numerous occasions and that there were lengthy periods of inactivity on the part of the district prosecutor’s office when no proceedings were pending.

87.¬†Having regard to the limb of the Government’s preliminary objection that was joined to the merits of the complaint, inasmuch as it concerns the fact that the domestic investigation is still pending, the Court notes that the investigation, having being repeatedly suspended and resumed and plagued by inexplicable delays, has been pending for many years without producing any tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection.

88.  In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Aslan Sadulayev, in breach of Article 2 in its procedural aspect.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

89.¬†¬†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 it 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

A.¬†¬†The parties’ submissions

90.  The Government disagreed with these allegations and argued that the investigation had not established that the applicant had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.

91.  The applicant maintained her submissions.

B.¬†¬†The Court’s assessment

1.  Admissibility

92.  The Court notes that this 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

93.¬†¬†The Court has found on many occasions that in a situation of enforced disappearance close relatives of the victim may themselves be victims of treatment in violation of Article 3. 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 (see Orhan v. Turkey, no.¬†25656/94, ¬ß¬†358, 18 June 2002, and Imakayeva, cited above, ¬ß¬†164).

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

95.  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

96.  The applicant further stated that Aslan Sadulayev had been detained in violation of the guarantees contained in 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

97.  The Government asserted that no evidence had been obtained by the investigators to confirm that Aslan Sadulayev had been deprived of his liberty. He was not listed among the persons kept in detention centres and none of the regional law-enforcement agencies had information about his detention.

98.  The applicant reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

99.  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

100.  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).

101.¬†¬†The Court has found that Aslan Sadulayev was apprehended by State servicemen on 9¬†December 2002 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).

102.¬†¬†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.

103.  In view of the foregoing, the Court finds that Aslan Sadulayev 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

104.  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

A.¬†¬†The parties’ submissions

105.  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. The applicant had had an opportunity to challenge the acts or omissions of the investigating authorities in court and had availed herself of it. They added that participants in criminal proceedings could also claim damages in civil proceedings. In sum, the Government submitted that there had been no violation of Article 13.

106.  The applicant reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

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

2.  Merits

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

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

110.As regards the applicant’s 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, read 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

111.  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.  Damage

112.¬†¬†The applicant did not claim in respect of pecuniary damage. As to non-pecuniary damage, she stated that she had lost her son and endured stress, frustration and helplessness in relation to her son’s abduction aggravated by the authorities’ inactivity in the investigation for several years. She left the determination of the amount of compensation to the Court.

113.¬†¬†The Government submitted that finding a violation of the Convention would be adequate just satisfaction in the applicant’s case.

114.¬†¬†The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and death 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 60,000 euros (EUR) plus any tax that may be chargeable thereon.

B.  Costs and expenses

115.¬†¬†The applicant was represented by lawyers from the EHRAC/Memorial Human Rights Centre. They submitted that the aggregate claim in respect of costs and expenses related to the applicant’s legal representation amounted to 881 pounds sterling (GBP) (approximately EUR 1,110) with the following breakdown of costs:

(a)  GBP 300 for 3 hours of legal work by a United Kingdom-based lawyer at a rate of GBP 100 per hour;

(b)  GBP 413 for translation costs, as certified by invoices; and

(c)  GBP 175 for administrative costs and expenses.

116.  The Government did not dispute the reasonableness of and justification for the amounts claimed under this heading.

117.¬†¬†The Court has to establish first whether the costs and expenses indicated by the applicant’s representatives were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, ¬ß 220, Series A no. 324).

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

119.  As to 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.

120.¬†¬†Having regard to the details of the claims submitted by the applicant, the Court awards her the amount as claimed of EUR¬†1,110 together with any value-added tax that may be chargeable to the applicant, the net award to be paid into the representatives’ bank account in the UK, as identified by the applicant.

C.  Default interest

121.  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 domestic remedies and rejects it;

2.  Declares the application admissible;

3.  Holds that there has been a substantive violation of Article 2 of the Convention in respect of Aslan Sadulayev;

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 Aslan Sadulayev disappeared;

5.  Holds that there has been a violation of Article 3 of the Convention in respect of the applicant on account of her moral suffering;

6.   Holds that there has been a violation of Article 5 of the Convention in respect of Aslan Sadulayev;

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 respect of the alleged violations of Articles 3 and 5;

9.  Holds

(a)  that the respondent State is to pay, within three months of 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 date of settlement, save in the case of the payment in respect of costs and expenses:

(i)  EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant;

(ii)¬†¬†EUR¬†1,110 (one thousand one hundred and ten 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 UK;

(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;

Done in English, and notified in writing on 8 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S√łren Nielsen¬†Christos Rozakis
Registrar President

****

CASE OF SERIYEVY v. RUSSIA

(Application no. 20201/05)

JUDGMENT

STRASBOURG

8 April 2010

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 Seriyevy 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 18 March 2010,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 20201/05) 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 two Russian nationals, Mr Abdula (also spelled as Abdulla) Seriyev and Ms Maret Seriyeva (‚Äúthe applicants‚ÄĚ), on 2 June 2005.

2.¬†¬†The applicants were 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 G. Matyushkin.

3.¬†¬†On 25 April 2008 the Court decided to apply Rule¬†41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. Under the provisions of Article 29 ¬ß 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 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 the Rules of Court).

4.¬†¬†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

5.  The applicants, who are father and daughter, were born in 1936 and 1975 respectively. They are the husband and the daughter of Bilkis Askhabayeva, who was born in 1942, and the father and sister of Sarali Seriyev, who was born in 1980. At the material time the applicants and their relatives lived in Belgatoy, Chechnya; the applicants currently live in Shali, Chechnya.

A. Events related to the death of Bilkis Askhabayeva as submitted by the applicants

1. The death of Bilkis Askhabayeva

6.¬†¬†On 26 December 2002 a projectile struck the applicants’ house, hit Bilkis Askhabayeva and severely wounded her. She died on the same day from the injuries.

2. The official investigation into the death of Bilkis Askhabayeva

7.¬†¬†On 27 December 2002 the district prosecutor’s office instituted an investigation into the death of Bilkis Askhabayeva under Article 105¬†¬ß¬†2 of the Criminal Code (aggravated murder). The case file was given number¬†59281.

8.¬†¬†On 29 December 2002 the first applicant was granted victim status in the criminal case. On 30 December 2002 the investigative authorities ordered a forensic examination of Bilkis Askhabayeva’s body.

9.¬†¬†At some point between January 2003 and November 2004 the investigation of the criminal case was transferred to the military prosecutor’s office of military unit no.¬†20116 (the military prosecutor’s office), where the case file was given number 34/35/0191-03.

10.¬†¬†On 25 November 2004 the military prosecutor’s office terminated the proceedings in the criminal case. The decision stated that the investigation had established that on 26 December 2002 military unit no.¬†23132 had participated in a special operation against illegal armed groups. At about 8 p.m. an illuminating shell launched by a cannon 2C3 No.¬†221 from the position of the military unit, due to a technical malfunction, had hit the house at 41 Kirova Street in Belgatoy, Chechnya. The death of Bilkis Askhabayeva was a result of an accident and therefore no personal responsibility could be established for it. The decision further stated that the criminal investigation in case no.¬†34/35/0191-03 should be terminated for lack of corpus delicti in the actions of the military servicemen.

11.¬†¬†On 7 December 2004 the military prosecutor’s office informed the first applicant about the decision to terminate the criminal proceedings. The applicants did not appeal this decision.

12.¬†¬†On 13 June 2005 the military prosecutor’s office took another decision to terminate the proceedings in the criminal case on the grounds of lack of corpus delicti and the amnesty act applied to the military officers. The applicants did not appeal this decision either.

3. Civil proceedings initiated by the applicants in connection with the death of Bilkis Askhabayeva

13.¬†¬†On 29 March 2005 the first applicant brought proceedings against military unit no.¬†23132. He demanded compensation for pecuniary and non-pecuniary damage caused by his wife’s death.

14.  On 13 June 2005 the Shali town court partially granted the claim. The court granted the applicant 168,105 Russian roubles (RUB Рabout 5,000 euros (EUR)) in respect of pecuniary damage and RUB 10,000 (about EUR 300) in respect of non-pecuniary damage.

15.  On an unspecified date the first applicant lodged a request with the town court asking for an extension of the time-limits for appeal of the judgment. The applicant submitted that he had not complied with the time-limits for the appellate procedure because of illness.

16.  On 25 August 2005 the Shali town court rejected his request. The court stated that the applicant had failed to provide any evidence, such as a medical certificate, to justify his failure to comply with the statutory time-limits for the appeal.

17.  On an unspecified date the first applicant again brought proceedings against military unit no. 23132 demanding compensation for pecuniary and non-pecuniary damage caused by the actions of the military in December 2002.

18.¬†¬†On 23 June 2008 the Shali town court granted the applicant’s claim and awarded him a total of RUB 532,000 (about EUR 15,200) in damages, of which RUB 232,000 were granted in respect of pecuniary damage and RUB 300,000 in respect of non-pecuniary damage suffered in connection with the death of Bilkis Askhabayeva. The applicant did not appeal against this decision.

19.  On 3 September 2008 the judgement was enforced and the applicant received the amount due.

B. Events related to the disappearance of Sarali Seriyev

1. The applicants’ account

a. Abduction of Sarali Seriyev

20.  In 2000 as a result of an accident Sarali Seriyev (also spelled as Sar-Ali Serbiyev) lost his right hand, three fingers on the left hand and vision in his right eye. At the material time he was wearing a prosthesis.

21.  On 1 June 2004 the applicants, Sarali Seriyev and their relative Imali Seriyev were at home at 41 Kirova Street in Belgatoy, Chechnya.  The area was under the full control of the Russian federal forces; military checkpoints were located on the roads leading to and from the village.

22.¬†¬†At about 5 p.m. eight or nine silver-coloured vehicles, including a van and VAZ cars, arrived at the applicants’ house. Only one of them had a registration number, which was 516 95.

23.  About thirty heavily-armed masked servicemen in uniforms got out of the vehicles. Two or three of them were in helmets. The men neither identified themselves nor produced any documents. They communicated in Russian, although a few spoke Chechen. The applicants thought that the intruders were federal servicemen as the vast majority of them spoke unaccented Russian and just a few spoke Chechen.

24.¬†¬†Upon entering the applicants’ yard, the servicemen demanded that the residents of the house hand their weapons to them and state who had spent the night in the house. After that the men forced the second applicant and her brother Imali into different rooms.

25.¬†¬†The intruders sprayed some kind of thick liquid into the room where the second applicant was placed. Two of the officers entered Imali’s room, where he was forced to stay, beat him and searched the place.

26.¬†¬†Meanwhile other intruders took Sarali out from the house, forced him into the yard and then into one of the cars in the street. As this was happening the first applicant was trying to explain to the servicemen that Sarali was a disabled person and to show them his and Sarali’s identity documents. One of the servicemen took them from the first applicant and told him that they did not need any identity documents.

27.¬†¬†The second applicant and Imali ran after the servicemen in an attempt to prevent them from detaining Sarali, but one of the intruders pushed the applicant and sprayed her with the thick liquid, causing her eyes to burn. They also sprayed Imali in the left eye and he ran to rinse his eye under an outdoor water tap. The first applicant also attempted to prevent the soldiers from taking Sarali away. The applicant threw himself onto one of the cars, but a soldier sprayed a liquid into his eyes. A group of the applicants’ neighbours witnessed the abduction of Sarali Seriyev.

28.¬†¬†The first applicant followed the abductors’ vehicles by car with an officer from a local department of the interior. They drove up to the local military checkpoints; however, the applicant could not obtain any information there about Sarali’s abductors.

29.¬†¬†The description of the circumstances surrounding Sarali Seriyev’s abduction is based on an account by the first applicant dated 20 May 2005, on an account by the second applicant, dated 6 February 2006, and on documents submitted with the application.

b. The search for Sarali Seriyev and the official investigation

30.¬†¬†On 1 June 2004 the applicants started their search for Sarali Seriyev. They contacted, both in person and in writing, various official bodies, such as the Shali administration, the Chechen administration, the Shali district military commander’s office and the prosecutors’ offices at different levels, describing in detail the circumstances of their relative’s abduction and asking for help in establishing his whereabouts. The applicants retained copies of a number of their complaints and the authorities’ replies and submitted them to the Court. An official investigation had been opened by the local prosecutor’s office. The relevant information is summarised below.

31.¬†¬†Immediately after his son’s abduction, in the late afternoon of 1 June 2004, the first applicant invited the investigators of the Shali district prosecutor’s office (the district prosecutor’s office). They arrived at the house about half an hour after the events. In the yard they took down the statements of the applicants, their relatives and neighbours and drew a map of the house. When the second applicant told the investigators about the spray used to disable her, one of them dismissed her statement as irrelevant. The investigators refused to go inside and examine the house for evidence.

32.¬†¬†On 2 July 2004 the district prosecutor’s office instituted an investigation into the abduction of Sarali Seriyev under Article 126¬†¬ß¬†2 of the Criminal Code (aggravated kidnapping). The case file was given the number 36076.

33.¬†¬†On 2 July 2004 the district prosecutor’s office granted the first applicant victim status in the criminal case.

34.¬†¬†On 21 July 2004 the Chechnya prosecutor’s office informed the first applicant that the investigation in the criminal case was taking operational search measures to establish the whereabouts of Sarali Seriyev and identify the perpetrators of his kidnapping.

35.¬†¬†On 21 July 2004 the Chechnya prosecutor’s office forwarded the first applicant’s request for assistance in the search for his son to the district prosecutor’s office for examination.

36.¬†¬†On 17 September 2004 the head of the criminal search division of the Chechnya department of the interior (the Chechnya MVD) informed the first applicant that his son’s abduction was being investigated by the district prosecutor’s office.

37.¬†¬†On 20 September 2004 the first applicant requested the military prosecutor office’s of the United Group Alignment (the military prosecutor’s office of the UGA) to assist in the search for his son.

38.¬†¬†On 15 October 2004 the military prosecutor’s office of the UGA informed the first applicant that information concerning the investigation into his son’s abduction was available either at the district prosecutor office or the Chechnya prosecutor’s office. The letter also stated ‚Äú… it has been established that federal military servicemen were not involved in your son’s abduction‚ÄĚ.

39.¬†¬†On 1 December 2004 the district prosecutor’s office informed the first applicant that his complaint about the abduction had been included into the investigation file.

40.¬†¬†On 2 February 2005 the first applicant addressed the Shali district military commander’s office (the district military commander’s office) with a request for assistance in the search for his son.

41.¬†¬†On 3 February 2005 the district military commander’s office informed the first applicant that they had forwarded information requests concerning Sarali Seriyev’s whereabouts to a number of law enforcement agencies.

42.¬†¬†On 5 February 2005 the Chechnya prosecutor’s office informed the first applicant that the investigation in the criminal case had been resumed on an unspecified date.

43.¬†¬†On 22 February 2005 the military prosecutor’s office of military unit no.¬†20116 informed the first applicant that they had not received his request.

44.¬†¬†On 8 March 2005 the district military commander’s office provided the first applicant with a copy of their information request concerning the search for Sarali Seriyev.

45.¬†¬†On 14 March 2005 the first applicant complained to the district military commander’s office about the lack of information concerning the investigation into his son’s abduction.

46.¬†¬†On 6 June 2005 the applicants’ representatives wrote to the district prosecutor’s office. They asked about the measures taken in the criminal case and the progress of the investigation and requested that the first applicant be provided with copies of documents from the investigation file.

47.¬†¬†On 29 June 2005 the Chechnya prosecutor’s office informed the applicants’ representatives that the investigation into the abduction of Sarali Seriyev had taken all measures to identify the perpetrators; that the first applicant was entitled to familiarise himself with the documents in the investigation file; that he could obtain information on the progress of the investigation and receive copies of the requested documents at the district prosecutor’s office.

48.¬†¬†On 28 July 2005 the Chechnya prosecutor’s office informed the applicants’ representatives that information concerning the investigation in the criminal case was a secret and was not a subject to disclosure.

2.  Information submitted by the Government

49.¬†¬†The Government submitted that ‚Äú… at about 5 p.m. on 1 June 2004 in Kirov Street in Belgatoy, in the Shali district of Chechnya, about fifteen unidentified persons in camouflage uniforms and masks, armed with automatic weapons, abducted Sarali Seriyev and took him away to an unknown destination in a VAZ-21099 vehicle. The whereabouts of S.¬†Seriyev have not been established since‚ÄĚ. In connection with this, the district prosecutor’s office had opened criminal case no.¬†36076 under Article 126 ¬ß¬†2 of the Criminal Code (aggravated kidnapping).

50.  On 10 June 2004 the investigators conducted the crime scene examination at 41 Kirova Street, Belgatoy. Nothing was collected from the scene.

51.  On 2 July 2004 the first applicant was granted victim status in the criminal case. The text of the decision included the following:

‚Äú…the investigation established: on 1 June 2004 unidentified persons in camouflage uniforms, with firearms, had arrived during the daytime in VAZ-21099 cars at the house of S. Seriyev in Kirova Street, Belgatoy and detained him; after that they had taken him away to an unknown destination…‚ÄĚ

52.¬†¬†On the same date, 2 July 2004, the applicant was questioned by the investigators. According to a partial copy of his witness statement furnished by the Government, in the late afternoon of 1 June 2004 he had been at home with his relatives. His son Sarali was in the house while his daughter, the second applicant, was in the yard. At about 5 p.m. a masked man in camouflage uniform armed with an automatic weapon had entered the room where the first applicant was resting. The man asked the applicant in Russian whether any other men were in the house. The applicant responded that his children were on the second floor of the house and then followed the man outside. In the yard he saw a group of about eight masked men in camouflage uniforms, armed with automatic weapons; the second applicant was showing her brother’s documents to them. One of the men sprayed the second applicant’s face with a liquid from a spray can and took Sarali Seriyev to a VAZ-21099 car which was parked in the street. The applicant did not see how many cars were in the street. He further stated that his son had a first-degree disability owing to the amputation of his hand.

53.¬†¬†On 5 July 2004 the investigators questioned the second applicant. According to a partial copy of her witness statement furnished by the Government, she stated that Sarali Seriyev had a disability: he had lost his hand as a result of a mine explosion. On 1 June 2004 she had been at home when she had heard from the hallway an order to put her hands up. She saw a man in camouflage uniform holding a machine gun, and her brother Sarali next to him. The man asked whether anyone else, other than the family members, were in the house. When the applicant responded that only family members were in the house, the man asked what had happened to her brother’s hands. The applicant explained that a mine had exploded in his hands and that there were medical documents certifying it. Several more men entered the house and asked her to fetch the documents. After the applicant returned with the papers, they sprayed her in the eyes with tear gas, pushed her into a room and dragged her brother downstairs. She attempted to follow them, but one of the abductors pointed his gun at her and ordered her to get back in the room. Then the applicant decided to call for help from the window; from there she saw several more armed men in camouflage uniforms in the yard and five or six VAZ-21099 cars. All the vehicles were silver-coloured, except for one, which was white. The intruders put Sarali into one of the cars and drove away.

54.¬†¬†On 5 July 2004 the investigators questioned the applicants’ neighbour, Mr V.S. According to a partial copy of his witness statement furnished by the Government, he stated that on 1 June 2004 he had been at home when he had heard screams coming from the applicants’ house. He went outside and heard the second applicant screaming. Then the witness went to the applicants’ house. On the way there he saw a boy who told him that Sarali Seriyev was being taken away. A silver VAZ-21099 with tinted windows was in the street; its registration number was 516, region 95. Four masked men in camouflage uniforms, armed with 5.45 mm machine guns and APS pistols (‚Äúautomatic Stechkin pistol‚ÄĚ) walked towards the car from the vegetable garden. Judging by the way the men moved, the witness concluded that they were about twenty to twenty-five years old; they were wearing white training shoes. Three men got in the VAZ-21099 car, whereas the fourth one pointed his gun at the witness and said in Russian: ‚ÄúStop or I will shoot‚ÄĚ. After that the man also got into the car, which drove away down the street in the direction of the Rostov-Baku auto route. According to the witness, three more silver VAZ-21099 cars, a white VAZ-2110 car and a white minivan GAZ, all with tinted windows, had been parked next to the Seriyevs’ house; these vehicles followed the VAZ-21099 in the direction of the Rostov-Baku motorway.

55.  On an unspecified date the investigators questioned Mr M.K. who stated that in June 2002 he and other residents of Belgatoy had been on their way back to the village from haymaking. On the road they had seen some objects. Sarali Seriyev picked up one of them. The objected exploded in his hands. He was immediately taken to the nearest military checkpoint and from there to the hospital. As the result of the incident Sarali Seriyev had lost his hand.

56.  On 8 July 2004 the investigators requested that the Road Traffic Department of the Chechnya Ministry of the Interior (the Chechnya GIBDD) informed them about the owners of vehicles which had numbers 516-95 on their registration plates. According to the response from the authorities, four persons, Mr I.B., Mr S.M., Mr L.Yu. and Mr Kh.V., owned cars with the numbers 516-95 on the plates.

57.¬†¬†In response to the investigators’ request, in July 2004 the Shali district department of the Federal Security Service (the FSB) submitted that they had not conducted special operations on 1 June 2004 in Belgatoy and had no information which discredited Sarali Seriyev. A similar response was received in August 2004 from the Security Service of the Chechen President.

58.¬†¬†On 28 July 2004 the investigators forwarded a request to the military prosecutor’s office of the UGA and the Shali district department of the interior (the Shali ROVD) asking whether they had conducted a special operation in Belgatoy on 1 June 2004 and whether Sarali Seriyev had been detained in either the UGA detention centre or the ROVD premises. According to their replies, these authorities had no information either concerning a special operation in Belgatoy on 1 June 2004 or detention of the applicants’ relative.

59.¬†¬†In February 2005 the investigators forwarded requests to the Achkhoy-Martan district prosecutor’s office and the Shelkovskoy district prosecutor’s office asking the authorities to question the owners of the four vehicles. According to their responses, it was impossible to question Mr I.B. as his whereabouts had not been established; a neighbour of Mr Kh.V. had stated that the latter had moved to the Shatoi district of Chechnya and therefore could not be questioned. Mr S.M. stated that for three months in 2002 he had owned a dark red 1976 VAZ-21099 with the registration number X516 AX-95, which he had sold to Mr A. from the Samashki village, Chechnya. As for Mr L.Yu., he stated that in December 2003 he¬†had¬†purchased a silver 2003 VAZ-21099 with the registration number¬†T¬†516¬†PC95. In February 2004 he had sold the car to a man from Dagestan who had been introduced to him by the owner of a local service station, Mr M.

60.  On an unspecified date the head of the criminal search division of the Shelkovskoy ROVD informed the investigators that they could not establish the identity of the new owner of the car which had belonged to Mr L.Yu.

61.¬†¬†The investigators forwarded a number of requests to various detention centres and the district prosecutors’ offices in Chechnya asking whether these authorities had detained Sarali Seriyev and whether they had opened criminal proceedings against him. According to the replies received by the investigation, the applicants’ relative had not been detained and no criminal proceedings had been opened against him.

62.  On an unspecified date the investigation received a letter from the Special Group of the Ministry of the Interior (the MVD) which stated that Sarali Seriyev was listed by the criminal search police as a member of an illegal armed group.

63.¬†¬†According to the Government, the investigation failed to establish the whereabouts of Sarali Seriyev. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of Russian military servicemen in the crime, nor did they find any evidence that the applicants’ relative was dead.

64.  The Government further submitted that the investigation had been suspended and resumed on a number of occasions and that the applicants had been duly informed of all decisions taken during the investigation.

65.¬†¬†Despite specific requests by the Court the Government did not disclose most of the contents of the investigation file in criminal case no.¬†36076. They provided copies of only a few documents, including only partial copies of the applicants’ witness statements to the investigators, and requested the Court to apply Rule 33¬†¬ß¬†3 of the Rules of Court concerning confidentiality of the submitted documents and to restrict public access to the submitted documentation. In their request the Government stated that the criminal investigation was still in progress and that public disclosure of the documents could be detrimental to the interests of participants in the criminal proceedings.

66.  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 participants in criminal proceedings. They also cited, by way of comparison, the Rome Statute of the International Criminal Court of 17 July 1998 (Articles 70 and 72) and the Statute of the International Criminal Tribunal for the former Yugoslavia (Articles 15 and 22) and argued that these instruments provided for personal responsibility for a breach of the rules of confidentiality.

II. RELEVANT DOMESTIC LAW

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

THE LAW

I.¬†¬†¬†THE GOVERNMENT’S OBJECTION REGARDING NON-EXHAUSTION OF DOMESTIC REMEDIES IN RESPECT OF THE ABDUCTION

A.¬†¬†The parties’ submissions

68.  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 Sarali Seriyev had not yet been completed.

69.¬†¬†The applicants contested that objection. They stated that the only effective remedy in respect of their complaints concerning Sarali Seriyev’s abduction was a criminal investigation which had proved to be ineffective.

B.¬†¬†The Court’s assessment

70.  The Court will 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).

71.  As regards criminal law remedies, the Court observes that the applicants complained to the law enforcement authorities immediately after the abduction of Sarali Seriyev and that an investigation has been pending since 2 July 2004. The applicants and the Government dispute the effectiveness of the investigation of the kidnapping.

72.¬†¬†The Court considers that 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.¬†THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS IN RESPECT OF THE ABDUCTION

A.¬†¬†The parties’ arguments

73.  The applicants maintained that it was beyond reasonable doubt that the men who had abducted Sarali Seriyev were State agents. In support of their complaint they referred to the following facts. At the material time Belgatoy had been under the total control of federal troops. There had been Russian military checkpoints on the roads leading to and from the settlement. Most of the armed men who had abducted Sarali Seriyev had spoken Russian without accent, which proved that they were not of Chechen origin and belonged to the federal forces. The men, who were armed and wearing specific camouflage uniforms, had arrived in a convoy of several vehicles during the daytime, which demonstrated that they had been allowed to drive around and pass through the checkpoints. The abductors were a large group and they acted in a manner similar to that of special forces carrying out identity checks. The applicants further submitted that since Sarali Seriyev had been missing for a very long time he could be presumed dead. That presumption was further supported by the circumstances in which he had been arrested, which should be recognised as life-threatening. Finally, the applicants contended that the Government had failed to provide a satisfactory explanation of the circumstances under which their relative had disappeared.

74.¬†¬†The Government submitted that unidentified armed men had kidnapped Sarali Seriyev. They further contended that the investigation of the incident was pending, that there was no evidence that the men were State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants’ rights. They further argued that there was no convincing evidence that the applicants’ relative was dead. The Government raised an objection to the applicants’ presentation of facts alleging that the applicants’ description of the circumstances surrounding the abduction was inconsistent. In particular, they referred to inconsistencies in the applicants’ statements provided to the investigation and to the Court in respect of the precise sequence of events during the abduction and the first applicant’s submission to the Court concerning his attempts to follow the abductors by car. Referring to the applicants’ witness statements given to the investigation, they pointed out that the first applicant had not informed the investigators about his attempt to follow the abductors by car and that both applicants had not mentioned the presence of their relative Imali in the house during the abduction. The Government further submitted that fact that the majority of the abductors spoke unaccented Russian, were wearing camouflage uniforms and drove around in several vehicles did not mean that these men could not have been members of illegal armed groups or criminals pursuing a blood feud. They asserted that the crime could have been attributable to illegal armed groups and pointed out that groups of mercenaries from Ukraine had committed crimes in the Chechen Republic. They further emphasised that members of illegal armed groups could have passed through the checkpoints in the area under the full control of the Russian federal forces.

B.¬†¬†The Court’s evaluation

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

76.  The Court notes that despite its requests for a copy of the investigation file into the abduction of Sarali Seriyev, the Government produced only a few documents from the case file, of which some were only partial copies. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-VIII (extracts)).

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

78.  The applicants alleged that the persons who had taken Sarali Seriyev away on 1 June 2004 and then killed him were State agents.

79.¬†¬† The Government suggested in their submissions that the abductors of Sarali Seriyev may have been members of paramilitary groups or criminals pursuing a blood feud. However, these allegations were not specific, and the Government did not submit any material to support them. The Court takes note of the Government’s allegation that the firearms and camouflage uniforms had probably been stolen by insurgents from Russian arsenals in the 1990s. Nevertheless, it considers it very unlikely that several vehicles with a number of armed men could have moved freely in broad daylight in an area under the full control of the federal forces and could pass through military checkpoints without being unnoticed. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see √áelikbilek v.¬†Turkey, no.¬†27693/95, ¬ß¬†71, 31¬†May 2005).

80.¬†¬†The Court notes that the applicants’ allegation is supported by the witness statements collected by the investigation. It finds that the fact that a large group of armed men in uniforms was able to drive around and move freely through military roadblocks in several vehicles in broad daylight and proceeded to check identity documents and took the applicants’ relative away from his home strongly supports the applicants’ allegation that these were State servicemen conducting a security operation. The domestic investigation also accepted factual assumptions as presented by the applicants (see paragraph 38 above); however, it does not appear that they took any serious steps to check whether any state representatives were involved in the abduction.

81.¬†¬†The Government questioned the credibility of the applicants’ statements in view of certain discrepancies relating to the exact circumstances of the arrests and the description of the hours immediately following the detention. The Court notes in this respect that no other elements underlying the applicants’ submissions of facts have been disputed by the Government. In the Court’s view, the fact that over a period of a few years the applicants’ recollection of an extremely traumatic and stressful event differed in rather insignificant details does not in itself suffice to cast doubt on the overall veracity of their statements.

82.¬†¬†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 relevant documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Tońücu v. Turkey, no.¬†27601/95, ¬ß¬†95, 31 May 2005, and Akkum and Others v. Turkey, no.¬†21894/93, ¬ß¬†211, ECHR 2005-II).

83.¬†¬†Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relative was abducted by State servicemen. The Government’s statement that the investigators had not found any evidence to support the involvement of the federal servicemen in the kidnapping or their general reference to the possibility of the involvement of illegal insurgents or criminals in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties, and drawing inferences from the Government’s failure to submit the remaining documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court finds that Sarali Seriyev was arrested on 1¬†June 2004 by State servicemen during an unacknowledged security operation.

84.  There has been no reliable news of Sarali Seriyev since the date of the kidnapping. His name has not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to him after his arrest.

85.¬†¬†Having regard to the previous cases concerning disappearances in Chechnya which have come before it (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, cited above; and Alikhadzhiyeva v. Russia, no.¬†68007/01, 5¬†July 2007), the Court finds that in the context of the conflict in the Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Sarali Seriyev or of any news of him for more than five years supports this assumption.

86.  Accordingly, the Court finds that the evidence available permits it to establish that Sarali Seriyev must be presumed dead following his unacknowledged detention by State servicemen.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

87.  The applicants complained under Article 2 of the Convention that Bilkis Askhabayeva and Sarali Seriyev had been deprived of their lives by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the incidents. Article 2 reads:

‚Äú1.¬†Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

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

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

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

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

A.¬†¬†The parties’ submissions

88.  The Government contended that the domestic investigation had obtained no evidence to the effect that Sarali Seriyev was dead or that any servicemen of the federal law-enforcement agencies had been involved in his kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of Sarali Seriyev met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible.

89.¬†¬†The applicants argued that Sarali Seriyev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for more than five years. The applicants also argued that the investigation had not met the effectiveness and adequacy requirements, laid down by the Court’s case-law. The applicants pointed out that the district prosecutor’s office had not taken some crucial investigative steps. The investigation into Sarali Seriyev’s kidnapping had been opened a month after the events and then had been suspended and resumed a number of times, thus delaying the taking of the most basic steps, and that the relatives had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for such a long period of time without producing any known results was further proof of its ineffectiveness. They also invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to them or to the Court.

B.¬†¬†The Court’s assessment

1.  Admissibility

(a)  The alleged violation of the right to life of Bilkis Askhabayeva and the alleged inadequacy of the investigation of her death

90.¬†¬†As for the applicants’ allegations concerning the responsibility of State agents for the killing of Bilkis Askhabayeva, the Court observes that the applicants neither challenged the investigators’ decision that her death was a result of an accident (see paragraph 10 above), nor their subsequent decision to terminate the criminal case on the grounds of lack of corpus delicti and the amnesty act which applied to military officers (see paragraph¬†12 above). It should be further noted that the applicants successfully brought civil proceedings against the military unit responsible for her death (see paragraphs 18 and 19 above). The Court finds that in bringing these civil proceedings for damages the applicants have used the local remedies available and that in accepting and receiving compensation the applicants have effectively renounced further use of these remedies. They may no longer in these circumstances claim to be victims of a violation of the Convention within the meaning of Article 34 of the Convention (see Caraher v. UK (dec.), no. 24520/94, ECHR ).

91.¬†¬†As for the procedural limb of the applicants’ complaint that the investigation into the circumstances of Bilkis Askhabayeva’s death was ineffective, the Court observes that the first applicant was granted victim status in the criminal case, which allowed him to participate in the proceedings. However, the applicant did not attempt to take any steps to appeal the authorities’ decision to terminate the criminal investigation (see paragraphs 11 and 12 above). In these circumstances the Court notes that the applicants failed to exhaust domestic remedies available to them (see Yildiz v. Turkey (dec.), no. 34542/03).

92.¬†¬†The Court concludes that the applicants’ complaint under Article 2 of the Convention in respect of the death of Bilkis Askhabayeva must therefore be rejected as manifestly ill-founded, pursuant to Article 35 ¬ß¬ß¬†3¬†and 4 of the Convention.

(b)  The alleged violation of the right to life of Sarali Seriyev and the alleged inadequacy of the investigation of his disappearance

93.¬†¬†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. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 72 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 Sarali Seriyev

94.¬†The Court has already found that the applicants’ relative must be presumed dead following unacknowledged detention 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 Sarali Seriyev.

(b)  The alleged inadequacy of the investigation of the kidnapping

95.¬†¬†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).

96.  In the present case, the kidnapping of Sarali Seriyev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

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

98.¬†¬† The Court notes that the authorities were immediately made aware of the kidnapping by the applicants’ submissions. The investigation in case no. 36076 was instituted on 2 July 2004, that is, a month after Sarali Seriyev’s abduction. Such a postponement per se was liable to affect the investigation of the kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. It appears that after that a number of essential steps were delayed or not taken at all. For instance, the investigators did not question the Russian federal servicemen who had been on duty at the checkpoints on the day of the abduction; they had not questioned the applicants’ neighbours apart from Mr V.S., who could have also witnessed the abduction (for example, see paragraph 54 above) and they had failed to question any of the local law-enforcement or military officers about their possible involvement in the abduction. It is obvious that these investigative measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious matter (see √ĖneryńĪldńĪz v. Turkey [GC], no. 48939/99, ¬ß 94, ECHR 2004-XII).

99.¬†¬†The Court also notes that even though the first applicant was granted victim status in the investigation concerning his son’s abduction, he was only informed of the suspension and resumption 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.

100.¬†¬†Finally, the Court notes that the investigation was adjourned and resumed on several occasions and that there were lengthy periods of inactivity on the part of the district prosecutor’s office when no proceedings were pending

101.¬†¬†The Government argued that the applicants could have sought judicial review of the decisions of the investigating authorities in the context of the exhaustion of domestic remedies. The Court observes that the applicants, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged acts or omissions of investigating authorities before a court. Furthermore, the Court emphasises in this respect that while the suspension or reopening of proceedings is not in itself a sign that the proceedings are ineffective, in the present case the decisions to adjourn were made without the necessary investigative steps being taken, which led to numerous periods of inactivity and thus unnecessary protraction. Moreover, owing to the time that had elapsed since the events complained of, certain investigative¬†measures that ought to have been carried out much earlier could no longer usefully be conducted. Therefore, it is highly doubtful that the remedy relied on would have had any prospects of success. Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation.

102.  In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Sarali Seriyev, in breach of Article 2 in its procedural aspect.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

103.¬†¬†The applicants relied on Article 3 of the Convention, submitting that as a result of the death of Bilkis Askhabayeva and Sarali Seriyev’s disappearance and the State’s failure to investigate these incidents properly they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:

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

A.¬†¬†The parties’ submissions

104.  The Government disagreed with these allegations and argued that the investigation had not established that the applicants had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.

105.  The applicants maintained their submissions.

B.¬†¬†The Court’s assessment

1.  Admissibility

a. The applicants’ complaint in respect of Bilkis Askhabayeva

106.¬†¬†Firstly, the Court notes that this complaint does not raise a separate issue as the Court has consistently refused to extend the application of Article 3 to the relatives of persons who have been killed by the authorities in violation of Article 2, as opposed to the relatives of the victims of forced disappearances (see Yasin AteŇü v. Turkey, no. 30949/96, ¬ß¬†135, 31 May 2005). Secondly, it should be noted that the applicants had already been awarded non-pecuniary damages by domestic courts for the mental and emotional suffering they endured in connection with the death of Bilkis Askhabayeva (see paragraphs 18 and 19 above). In these circumstances, the Court concludes that the applicants’ complaint under Article 3 of the Convention in respect of the death of Bilkis Askhabayeva must be rejected as manifestly ill-founded pursuant to Article 35 ¬ß¬ß 3 and 4 of the Convention.

b. The applicants’ complaint in respect of Sarali Seriyev

107.  The Court notes that this 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

108.¬†¬†The Court has found on many occasions that in a situation of forced disappearance close relatives of the victim may themselves be victims of treatment in violation of Article 3. 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 (see Orhan v. Turkey, no.¬†25656/94, ¬ß¬†358, 18¬†June 2002, and Imakayeva, cited above, ¬ß¬†164).

109.¬†¬†In the present case the Court notes that the applicants are close relatives of the disappeared person, who witnessed his abduction and were involved in searching for him. For several years they have not had any news of the missing man. During this period the applicants have made enquiries of various official bodies, both in writing and in person, about their missing relative. Despite their attempts, the applicants have never received any plausible explanation or information about what became of Sarali Seriyev following his detention. The responses they received mostly denied State responsibility for their relative’s arrest or simply informed them that the investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.

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

V.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

111.  The applicants further stated that Sarali Seriyev had been detained in violation of the guarantees contained in 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

112.  The Government asserted that no evidence had been obtained by the investigators to confirm that Sarali Seriyev had been deprived of his liberty. He was not listed among the persons kept in detention centres and none of the regional law-enforcement agencies had information about his detention.

113.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

114.  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

115.  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).

116.¬†¬†The Court has found that Sarali Seriyev was abducted by State servicemen on 1 June 2004 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 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).

117.¬†¬†The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants’ complaints that their relative 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.

118.  In view of the foregoing, the Court finds that Sarali Seriyev 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 6 OF THE CONVENTION

119.  In their initial submission the applicants complained that the proceedings related to compensation of damages caused by the death of Bilkis Askhabayeva were unfair. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

‚Äú‚ÄĚIn the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by [a] … tribunal… ‚ÄĚ

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

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

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

VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

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

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

A.¬†¬†The parties’ submissions

124.  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 had an opportunity to challenge the acts or omissions of the investigating authorities in court. The Government also stated that participants in criminal proceedings could also claim damages in civil proceedings. They further pointed out that the applicants had successfully applied to domestic courts for compensation for damage caused by the death of Bilkis Askhabayeva. In sum, the Government submitted that there had been no violation of Article 13.

125.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

a. The applicants’ complaint in respect of the death of Bilkis Askhabayeva

126.¬†¬†In so far as the complaint¬†under Article 13 concerns the existence of a domestic remedy in respect of the applicants’ complaints under Articles 2 and 3 raised in connection with the death of Bilkis Askhabayeva,¬†the Court notes that these complaints were found inadmissible in paragraphs¬†92 and 106 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. It follows that this part of the application should be rejected in accordance with Article 35 ¬ß¬ß 3 and 4 of the Convention.

b. The applicants’ complaint in respect of the abduction of Sarali Seriyev

127.¬†¬†As for the applicants’ complaint concerning the lack of effective remedies in respect of the disappearance of Sarali Seriyev, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 ¬ß 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

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

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

130.¬†¬†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, read 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).

VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

131.  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.  Damage

132.  The applicants did not submit any claims in respect of pecuniary damage. As regards non-pecuniary damage, the applicants claimed 100,000 euros (EUR) jointly in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family members Bilkis Askhabayeva and Sarali Seriyev, the indifference shown by the authorities towards them and the failure to provide any information about the fate of Sarali Seriyev.

133.  The Government found the amounts claimed exaggerated.

134.¬†¬†The Court notes that it has found inadmissible the applicants’ complaints concerning the death of Bilkis Askhabayeva and that in respect of their complaints concerning Sarali Seriyev a violation of Articles 2, 5 and¬†13 of the Convention was established. The applicants themselves have been found to have been victims of a violation of Article 3 of the Convention in connection with their relative’s disappearance. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicants jointly EUR¬†60,000 plus any tax that may be chargeable thereon.

B.  Costs and expenses

135.¬†¬†The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia 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 applicants’ legal representation amounted to EUR 9,450.

136.  The Government did not dispute the reasonableness and justification for the amounts claimed under this head.

137.¬†¬†The Court has to establish first whether the costs and expenses indicated by the applicants’ representatives were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, ¬ß 220, Series A no. 324).

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

139.¬†¬†As to, whether the costs and expenses incurred were necessary, the Court notes that this case was rather complex and required a certain amount of research and preparation. It notes at the same time that, due to the application of Article 29 ¬ß 3 in the present case, the applicants’ representatives submitted their observations on the admissibility and merits in one set of documents. The Court thus doubts that legal drafting was necessarily time-consuming to the extent claimed by the representatives.

140.¬†¬†Having regard to the details of the claims submitted by the applicants, the Court awards them EUR¬†6,500 together with any value-added tax that may be chargeable to the applicants, the net award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicants.

C.  Default interest

141.  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 strike the application out of its list of cases in accordance with Article 37 ¬ß 1 (a) of the Convention in so far as it concerns the applicants’ complaint under Article 6 of the Convention;

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

3.¬†¬†Declares the complaints under Articles 2, 3 5 and 13 of the Convention lodged in respect of Sarali Seriyev’s disappearance admissible and remainder of the application inadmissible;

4.  Holds that there has been a substantive violation of Article 2 of the Convention in respect of Sarali Seriyev;

5.  Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Sarali Seriyev disappeared;

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

7.  Holds that there has been a violation of Article 5 of the Convention in respect of Sarali Seriyev;

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

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

10.  Holds

(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the date of settlement, save in the case of the payment in respect of costs and expenses:

(i)  EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicants jointly;

(ii)¬†¬†EUR¬†6,500 (six thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 8 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S√łren Nielsen¬†Christos Rozakis
Registrar President

****

CASE OF TASATAYEVY v. RUSSIA

(Application no. 37541/05)

JUDGMENT

STRASBOURG

8 April 2010

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 Tasatayevy 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, judges,
and S√łren Nielsen, Section Registrar,

Having deliberated in private on 18 March 2010,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 37541/05) 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 two Russian nationals, Ms Khadishat Tasatayeva and Ms Amena (also spelled Amina) Tasatayeva (‚Äúthe applicants‚ÄĚ), on 11¬†August 2005.

2.¬†¬†The applicants were represented by Mr D. Itslayev, a lawyer practising in Nazran, Russia. The Russian Government (‚Äúthe Government‚ÄĚ) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3.  On 5 May 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and 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.

4.¬†¬†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

5.  The applicants were born in 1950 and 1949 respectively. They live in Urus-Martan, Chechnya. The applicants are sisters-in-law; they are married to two brothers. The first applicant is the mother of Aslan Tasatayev, who was born in 1975, and the second applicant is the mother of Aslanbek Tasatayev, who was born in 1979. Aslan Tasatayev and Aslanbek Tasatayev are cousins.

A.  The abduction of Aslan Tasatayev and Aslanbek Tasatayev and the subsequent events

1.¬†¬†The applicants’ account

a. The abduction of the applicants’ relatives

6.¬†¬†At the material time the applicants, their sons Aslan and Aslanbek Tasatayev and other relatives lived in a household situated at 5 Shvernika Street, Urus-Martan, Chechnya. At some point later the number of the house was changed to 7 Shvernika Street. The applicants’ household consisted of several dwellings occupied by eight related families and was located in the town centre, in the vicinity of the local law enforcement agencies. At the time the town of Urus-Martan was under curfew. Military checkpoints were situated on the roads leading to and from the town. In addition, two watch posts set up by local residents were situated in the vicinity of the applicants’ household. One of the posts was a hundred metres from the applicants’ household; the other one was sixty or seventy metres from it.

7.  On the night of 31 May to 1 June 2001 (in the submitted documents the date is also referred to as 31 May and 1 June 2001) the applicants, their sons and other relatives were at home. At about 3 a.m. a group of twenty-five to thirty armed men arrived at their household. They were wearing black masks, were equipped with a portable radio station and had a grey sniffer dog. Some of the men were armed with sniper rifles with telescopic sights. When the men spoke to each other, they did so in unaccented Russian; they mainly communicated by gesturing and behaved like an organised group with a chain of command. The intruders neither identified themselves nor produced any documents. The applicants and their relatives thought they were Russian military servicemen.

8.  The servicemen split into several groups and went into the different dwellings through the windows. They searched the houses and demanded and checked identity documents.

9.¬†¬†In the first applicant’s house one of the men demanded in unaccented Russian that the first applicant hand over her husband’s passport for checking; after that he took the document and went outside, ordering everyone to stay inside and threatening to shoot if anyone disobeyed.

10.¬†¬†The first applicant managed to go onto the porch. In the yard she saw around twenty-five to thirty servicemen who were accompanied by a sniffer dog. At the gates the applicant saw Aslanbek Tasatayev standing with his hands up against the wall. Meanwhile the officers took Aslan Tasatayev out of the house where he lived with his family. The servicemen refused to answer the applicants’ questions about the reasons for their sons’ abduction and referred to an order of their superiors. One of them, who was unmasked and of Slavic appearance, told the second applicant that her son was being arrested ‚Äúby order‚ÄĚ and that Aslan and Aslanbek Tasatayev would be home by the next morning.

11.¬†¬†In the yard one of the officers called someone on his portable radio and requested a car. About ten minutes later a grey UAZ minivan (‘tabletka’) arrived at the gate. Its back windows were covered with plywood instead of glass. Aslan and Aslanbek Tasatayev were placed in the vehicle and taken in the direction of the town centre. The rest of the servicemen followed the car on foot; the group went in the direction of the Urus-Martan district military commander’s office (‚Äúthe district military commander’s office‚ÄĚ). According to local residents, the UAZ car with the applicants’ sons in it drove into the yard of the district military commander’s office.

b. The subsequent events

12.¬†¬†In the morning, immediately after the end of the curfew, the first applicant went with her neighbour Ms L. to the local law-enforcement agencies to find out where Aslan and Aslanbek Tasatayev had been taken. On the way there the women spoke with the men who had stood watch at the guard post located towards the town centre. According to the men, on the night of the abduction the grey UAZ (‘tabletka’) vehicle with the abducted men in it had driven towards the town centre. They also confirmed that those of the servicemen who had left the applicants’ house on foot had also gone in the direction of the town centre.

13.¬†¬†After that the applicants and their relatives went to the district military commander’s office and the Urus-Martan temporary district department of the interior (the Urus-Martan VOVD) and asked about the whereabouts of the abducted men. The agencies denied any involvement in the abduction. After that the applicants with their relatives lodged written complaints about the abduction of Aslan and Aslanbek Tasatayev to the Urus-Martan district prosecutor’s office (‚Äúthe district prosecutor’s office‚ÄĚ) and the Urus-Martan district department of the interior (the Urus-Martan ROVD).

14.  On the same morning the applicants and their relatives learnt from their neighbours that on the night of the abduction groups of military servicemen had also broken into the houses of their neighbours, the families of Kh. and G. In one of the houses, one of the intruders had taken off his mask; he was of Slavic appearance.

15.¬†¬†Later in the morning the applicants and their relatives spoke with the local residents who had manned the residential guard posts the night before. According to the applicants’ neighbours, Mr R.D. and Mr I., who had stood watch at the mosque, on the night of the abduction a group of military servicemen had arrived there and ordered them to stay inside the mosque, threatening to shoot if they went outside. At the other post one of the applicants’ neighbours, Mr U.M., who had been on duty during the abduction, told the applicants that the night before a group of military servicemen had arrived at the post, pulled his and other men’s hats down over their faces and ordered everyone to get down on the ground and not to move. After that the military servicemen had gone away, leaving one soldier to guard the watchmen. According to Mr U.M., he had seen the abductors’ UAZ car driving in the direction of the town centre.

16.¬†¬†On the same day, 1 June 2001, during their visit to the military commander’s office, the second applicant and her son Mr A.T. saw the sniffer dog used by the abductors there.

17.¬†¬†About two or three days after the abduction the applicants spoke with the head of the Urus-Martan town administration, Mr S.G., who informed them that Aslan and Aslanbek Tasatayev were detained in the military commander’s office and that he would try to expedite their release. However, a couple of days later the official told the applicants that he had been mistaken.

18.  The applicants have had no news of Aslan and Aslanbek Tasatayev since the night of the abduction.

19.¬†¬†In support of their statements the applicants submitted: a statement by the first applicant dated 8 September 2008; a statement by the second applicant dated 9 September 2008; a statement by the applicants’ relative Mr A.T. dated 9 September 2008; a statement by the applicants’ relative Ms¬†Z.M. dated 2 September 2008; a statement by the applicants’ neighbour Ms M.G. dated 19 September 2008; a statement by the applicants’ neighbour Ms M. Kh. dated 19 September 2008 and copies of documents received from the authorities.

2.  Information submitted by the Government

20.¬†¬†The Government did not challenge most of the facts as presented by the applicants. According to their submission of 22 August 2008 ‚Äú…the interim prosecutor of the Urus-Martan district opened criminal case no.¬†25088 in connection with the abduction of Aslan and Aslanbek Tasatayev by unidentified men …‚ÄĚ

B.  The search for Aslan and Aslanbek Tasatayev and the investigation

1.  Information submitted by the applicants

21.¬†¬†On 1 or 2 June 2001 the district police officer M.M. visited the applicants’ household with two colleagues. They questioned some of their relatives and a neighbour. The officials did not conduct a crime scene examination during the visit.

22.¬†¬†On 8 July 2001 the district prosecutor’s office instituted an investigation into the abduction of Aslan and Aslanbek Tasatayev under Article 126 ¬ß¬†2 of the Criminal Code (aggravated kidnapping). The case file was given number 25088. The applicants were informed about it in writing by the Chechnya prosecutor’s office on 20 December 2002.

23.  On 8 September 2001 the investigation in criminal case no. 25088 was suspended for failure to establish the identities of the perpetrators. The applicants were not informed about this decision.

24.¬†¬†On 10 October, 9 December 2002 and 20 January 2003 the applicants wrote to a number of the State authorities, including the district military commander, the Chechnya military commander, the Chechnya prosecutor’s office, the district prosecutor’s office and the Urus-Martan ROVD. They stated that their sons had been abducted by a group of twenty-five to thirty masked military servicemen, who had communicated with each other by gesturing and acted as a group with chain of command; that the servicemen had refused to explain the reasons for the arrest of the applicants’ sons and promised to release them on the following morning. According to the applicants, this evidence indicated that their sons had been abducted by servicemen of Russian security services. The applicants further stated that their complaints to various State bodies had failed to produce any results and requested assistance in the search for their abducted sons.

25.¬†¬†On 20 December 2002 the Chechnya prosecutor’s office informed the applicants that the criminal investigation had been suspended on 8¬†September 2001 for failure to establish the identity of the perpetrators.

26.  On 19 April 2003 the second applicant was granted victim status in the criminal case.

27.¬†¬†On 7 May 2003 the Chief Military Prosecutor’s office forwarded the applicants’ complaint about the abduction of their sons by Russian servicemen to the military prosecutor’s office of the United Group Alignment (the military prosecutor’s office of the UGA) for examination.

28.  On 9 April 2003 the investigators suspended the investigation in the criminal case for failure to establish the identities of the perpetrators. The applicants were informed about this decision on 9 May 2003.

29.¬†¬†On 12 May 2003 the department of the Prosecutor General’s office in the Southern Federal Circuit informed the applicants that their complaint, that the investigation in the criminal case had been ineffective, had been forwarded to the Chechnya prosecutor’s office for examination.

30.¬†¬†On 24 June 2003 the Chechnya prosecutor’s office informed the applicants that they had examined their complaints about the abduction of Aslan and Aslanbek Tasatayev. The letter stated that on 8 September 2001 the investigation in the criminal case had been suspended; that on two occasions, that is on 9 April and on 21 June 2003, the decisions to suspend the investigation had been overruled by the acting district prosecutor due to the incompleteness of the investigation. The letter further stated that on an unspecified date the investigation had been resumed and that measures aimed at identifying the perpetrators were under way.

31.¬†¬†On 11 July 2003 the military prosecutor’s office of the UGA forwarded the applicants’ complaint about the abduction of their sons to the military prosecutor’s office of military unit no.¬†20102 for examination; the latter was to look into possible involvement of Russian military servicemen in the abduction of Aslan and Aslanbek Tasatayev.

32.  On 23 July 2003 the investigators again suspended the investigation in the criminal case for failure to establish the identities of the perpetrators. The applicants were not informed about this decision.

33.¬†¬†On 4 September 2003 the military prosecutor’s office of military unit no.¬†20102 informed the applicants that the examination of their complaint had established that on 31 May 2001 during special operations conducted in the Urus-Martan district Aslan and Aslanbek Tasatayev had not been abducted by Russian military servicemen.

34.¬†¬†On 3 March 2005 the applicants wrote to the district prosecutor’s office describing the circumstances of their sons’ abduction and pointing out that there was evidence of the involvement of Russian military forces in the incident. The applicants also complained that the investigation in the criminal case was ineffective and that there was no information about it, and requested access to the investigation file.

35.¬†¬†On 11 March 2005 the district prosecutor’s office informed the applicants that their complaint of 3 March 2005 had been rejected.

36.  On 14 March 2005 the investigators resumed the investigation in the criminal case.

37.  On 14 April 2005 the investigators suspended the investigation in the criminal case for failure to establish the identities of the perpetrators. The applicants were not informed about this decision.

2.  Information submitted by the Government

38.  Without providing copies of any relevant documents and dates of the investigating measures, the Government summarised the progress of the investigation in the criminal case as follows.

39.¬†¬†On unspecified dates the investigators requested information about the abducted men from various authorities, including law-enforcement agencies, the military commanders’ offices and medical institutions. No information of interest was received in response to these requests. According to a letter from the Urus-Martan town administration, the disappeared Aslan and Aslanbek Tasatayev were attested positively by the local administration.

40.¬†¬†On an unspecified date the investigators conducted a scene of crime examination in the applicants’ household.

41. The investigators granted three persons, including the second applicant, Ms T.D. and Ms A.U. victim status in the criminal case and questioned them about the circumstances of the abduction.

42.¬†On an unspecified date the investigators questioned the second applicant, who stated that on the night between 31 May and 1 June 2001 she had been woken up by noise in her house. She had got out of bed and seen four unidentified armed masked men in camouflage uniforms without insignia in her room. Without any explanation the men had taken her son Aslanbek Tasatayev’s passport. In the yard she had seen a large group of masked armed men in camouflage uniforms and Aslanbek and Aslan Tasatayev. She had not seen any vehicles in the yard or next to the house in the street. The unidentified men had taken away Aslan and Aslanbek Tasatayev. The men had told the applicant that her relatives would be released in the morning. However, Aslan and Aslanbek never returned home. The applicant did not know who had abducted her relatives and for what reasons. At some point later the second applicant was additionally questioned by the investigators and stated that her abducted relatives did not belong to any illegal armed groups; that the abductors had broken into her house through one of the windows; and that only one of them had exchanged words with her, whereas the rest communicated between themselves and with her relatives only by gestures.

43.¬†On an unspecified date the investigators questioned the applicants’ relative Ms T.D., who stated that on 1 June 2001 she had learnt from her parents about the abduction of Aslan and Aslanbek Tasatayev by unidentified armed men in camouflage uniforms and masks. According to Ms T.D. her parents had not seen any vehicles in the applicants’ yard or next to the house.

44.¬†On an unspecified date the investigators questioned the applicants’ relative Ms A.U., who stated that on the night of 1 June 2001 a group of unidentified armed men in camouflage uniforms without insignia had taken away her husband Aslan Tasatayev and her relative Aslanbek Tasatayev. The intruders also had taken away Aslanbek Tasatayev’s passport. She had not seen any vehicles in the yard or next to the house. She had no idea as to the reasons for her relatives’ abduction.

45.  On unspecified dates the investigators questioned Mr A.T. and the first applicant whose statements were similar to the one given by Ms A.U.

46.  At some point later the investigators further questioned Ms A.T., who stated that the abductors had broken into his house through a window, that they had spoken Russian and that during the abduction he had been in his room.

47.¬†¬†On 17 November 2005 the applicants wrote to the Chechnya prosecutor’s office demanding that an effective investigation of the abduction be conducted to establish the whereabouts of their disappeared sons. According to the reply of the Chechnya prosecutor’s office, the investigation in the criminal case was under way and operational-search measures were being taken to establish the identities of the perpetrators.

48.¬†¬†According to the Government, the investigation failed to establish the whereabouts of Aslan and Aslanbek Tasatayev. However, it found no evidence to support the involvement of federal forces in the crime. The law enforcement authorities of Chechnya had never arrested or detained Aslan and Aslanbek Tasatayev on criminal or administrative charges and had not carried out a criminal investigation in their respect. No special operations had been carried out in respect of the applicants’ relatives. Their corpses had not been found.

49.  The Government further stated that the applicants had been duly informed of all decisions taken during the investigation.

50.  Despite specific requests by the Court the Government did not disclose any documents of criminal case no. 25088. 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 file contained data concerning participants in the criminal proceedings.

C.  Proceedings against law-enforcement officials

51.¬†¬†In March 2003 the applicants lodged a complaint with the Urus-Martan town court (the town court) that the investigation in the criminal case was ineffective. On 11 March 2003 the town court set aside their complaint without examination due to the applicants’ failure to comply with compulsory procedural requirements

52.¬†¬†On 3 April 2003 the applicants lodged another complaint with the town court. They complained that the investigation in the criminal case was ineffective and sought a ruling obliging the prosecutor’s office to conduct an effective investigation into the abduction of their sons. It is unclear whether this complaint was examined by the court.

53.  On an unspecified date in 2004 the applicants lodged another complaint with the town court. They complained that the investigation in the criminal case was ineffective and sought a ruling obliging the authorities to resume the investigation in the criminal case and to conduct it in an effective and thorough manner. On 29 March 2004 the town court rejected their complaint. On an unspecified date in 2004 the applicants lodged a request with the town court asking for reinstatement of the time-limits for the appeal against the decision of 29 March 2004. On 20 October 2004 the court rejected their request and refused to examine the appeal.

54.  On an unspecified date in 2005 the applicants lodged another complaint with the town court. They again complained that the investigation in the criminal case was ineffective and sought a ruling obliging the authorities to conduct an effective investigation and provide them with access to the investigation file.

55.  On 14 May 2005 the town court allowed this complaint in part. The text of the decision included the following:

‚Äú…the court established:

At about 3 a.m. on 31 May 2001 a group of masked servicemen of the Urus-Martan power structures had broken into the house at 5 Shernika Street in Urus-Martan and conducted an unlawful search… among themselves the servicemen had spoken Russian. As a result, the military servicemen had arrested and taken away the applicants’ sons Aslan Tasatayev, who was born in 1975, and Aslanbek Tasatayev, who was born in 1979….

On 8 September 2001 the investigation in the criminal case had been suspended for failure to establish the identities of the perpetrators. The whereabouts of the Tasatayevs had not been established, even though their arrest had been carried out by representatives of power structures. The following facts confirm this:

–¬†¬†¬†¬†¬† the arrest had been carried out by a group of about thirty military servicemen, during curfew… not far away from the town centre of Urus-Martan, in an open manner…;

–¬†¬†¬†¬†¬† the military servicemen who had carried out the arrest… were wearing camouflage uniforms, were well-armed and spoke clear [unaccented] Russian;

–¬†¬†¬†¬†¬† a shepherd dog had been used during the arrest;

–¬†¬†¬†¬†¬† the military servicemen had used a portable radio to call for a UAZ tabletka car, which had arrived ten minutes later;

–¬†¬†¬†¬†¬† the car had taken the arrested men to the town centre, where the VOVD, the ROVD and the FSB were situated;

–¬†¬†¬†¬†¬† not far away from the Tasatayevs’ house were two guard posts set up by local residents, who had been on duty that night. Before cordoning off the Tasatayevs’ household the military servicemen had gone to one of the guard posts where two Chechens were on duty, pulled their hats down over their faces and told them: ‚ÄúYou did not see us. We did not see you‚ÄĚ. At the other guard post, at the mosque, the federal servicemen had locked the Chechen watchmen in the mosque. There are witnesses who saw the car with the arrested men in it going into the yard of the military commander’s office.

The above and other facts had not been investigated by the prosecutor’s office ….

….the investigator’s decision to suspend the investigation in the criminal case cannot be considered as lawful and justified for the following reasons:

the investigation failed to identify and question those residents who had been on duty at the guard posts … the investigation failed to establish the identity of the UAZ tabletka vehicle used during the abduction …; the investigators failed to identify and question the witnesses who saw the car with the arrested men in it driving into the yard of the military commander’s office… the investigators failed to question the supervisor from the military commander’s office and the Urus-Martan temporary district department of the interior, who had been on duty on the date of the abduction…‚ÄĚ

The court instructed the investigators to conduct an effective investigation into the abduction and take all possible measures to solve the crime. The remainder of the complaint was rejected. On 6 June 2005 the town court upheld this decision on appeal.

II. RELEVANT DOMESTIC LAW

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

THE LAW

I.¬†¬†THE GOVERNMENT’S OBJECTION REGARDING NON-EXHAUSTION OF DOMESTIC REMEDIES

A.¬†¬†The parties’ submissions

57.  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 Aslan and Aslanbek Tasatayev had not yet been completed. They also argued that it had been open to the applicants to pursue civil complaints but that they had failed to do so.

58.  The applicants contested that objection. They stated that the only effective remedy in their case, the criminal investigation, had proved to be ineffective and that their complaints to that effect, including their applications to the domestic court, had been futile.

B.¬†¬†The Court’s assessment

59.  The Court will 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).

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

61.¬†¬†As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct 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 (see Khashiyev and Akayeva v.¬†Russia, nos.¬†57942/00 and 57945/00, ¬ß¬ß¬†119-121, 24 February 2005, and Estamirov and Others, cited above, ¬ß¬†77). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed.

62.  As regards criminal law remedies, the Court observes that the applicants complained to the law enforcement authorities immediately after the abduction of Aslan and Aslanbek Tasatayev and that an investigation has been pending since 8 July 2001. The applicants and the Government dispute the effectiveness of the investigation of the kidnapping.

63.¬†¬†The Court considers that 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.¬†THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS

A.¬†¬†The parties’ arguments

64.¬†¬†The applicants maintained that it was beyond reasonable doubt that the men who had abducted Aslan and Aslanbek Tasatayev were State agents. In support of their complaint they referred to the following: at the material time Urus-Martan was under the total control of federal troops. There were Russian military checkpoints on the roads leading to and from the town. The area was under curfew. The abductors arrived as a large group late at night, which indicated that they had been able to circulate freely past curfew. The men interacted by gesturing, had chain of command and acted in a manner similar to that of special forces carrying out an identity check. They were wearing specific camouflage uniforms, were well-armed, and had portable radios and a dog. The men had broken into the applicants’ houses and the houses of the applicants’ neighbours without fear of being heard by law enforcement agencies located in close proximity to the houses. All the information disclosed from the criminal investigation file supported their assertion as to the involvement of State agents in the abduction. Since the applicants’ sons had been missing for a very lengthy period, they could be presumed dead. That presumption was further supported by the circumstances in which they had been arrested, which should be recognised as life-threatening.

65.¬†¬†The Government submitted that unidentified armed men had kidnapped Aslan and Aslanbek Tasatayev. They further contended that the investigation of the incident was pending, that there was no evidence that the men were State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants’ rights. They further argued that there was no convincing evidence that the applicants’ relatives were dead. The Government raised a number of objections to the applicants’ presentation of facts. The fact that the perpetrators of the abduction spoke unaccented Russian and were wearing camouflage uniforms did not mean that these men could not have been members of illegal armed groups. The Government further alleged that the applicants’ description of the circumstances surrounding the abduction was inconsistent. In particular, the applicants had failed to inform the investigators that the abductors had used the UAZ vehicle and a dog, whereas they had submitted this information to the Court. In the Government’s opinion these inconsistencies demonstrated that the applicants’ allegations were unsubstantiated. In this connection they referred to the alleged discrepancies in the applicants’ information provided to the Court and the applicants’ witness statements given to the domestic investigation; however, the Government did not submit these witness statements to the Court. The Government asserted that the crime could have been attributable to illegal armed groups. They pointed out that groups of mercenaries of Slavic origin had committed crimes on the territory of the Chechen Republic and emphasised that the fact that the perpetrators had Slavic features and spoke Russian did not prove that they were attached to the Russian military. They also observed that a considerable number of armaments had been stolen from Russian arsenals by insurgents in the 1990s and that members of illegal armed groups could have possessed camouflage uniforms.

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

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

67.  The Court notes that despite its requests for a copy of the investigation file into the abduction of Aslan and Aslanbek Tasatayev, the Government produced none of the documents from the case file. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-VIII (extracts)).

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

69.  The applicants alleged that the persons who had taken Aslan and Aslanbek Tasatayev away on 31 May 2001 and then killed them had been State agents.

70.   The Government suggested in their submissions that the abductors of Aslan and Aslanbek Tasatayev may have been members of paramilitary groups. However, this allegation was not specific and the Government did not submit any material to support it. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see Çelikbilek v. Turkey, no. 27693/95, § 71, 31 May 2005).

71.¬†¬†The Court notes that the applicants’ allegation is supported by the witness statements collected by the applicants and by the investigation. It finds that the fact that a large group of armed men in uniforms was able to move freely through military roadblocks during curfew hours and proceeded to check identity documents in several households and then took the applicants’ sons away from their home strongly supports the applicants’ allegation that these were State servicemen conducting a security operation. In their application to the authorities the applicants consistently maintained that Aslan and Aslanbek Tasatayev had been detained by unknown servicemen and requested the investigation to look into that possibility (see paragraphs 24, 27, 34 and 55 above).

72.¬† The Government questioned the credibility of the applicants’ statements in view of their alleged failure to inform the domestic investigators about the UAZ vehicle and the dog used by the abductors. However, as it can be seen from the town court’s decision (see paragraph 55 above), the applicants did inform the investigators about these elements. The Court further notes in this respect that no other elements underlying the applicants’ submissions of facts have been disputed by the Government.

73.¬†¬†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 relevant documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Tońücu v. Turkey, no.¬†27601/95, ¬ß¬†95, 31 May 2005, and Akkum and Others v. Turkey, no.¬†21894/93, ¬ß¬†211, ECHR 2005-II).

74.¬†¬†Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relatives were abducted by State servicemen. The Government’s statement that the investigators had not found any evidence to support the involvement of the special forces in the kidnapping or their general reference to the possibility of illegal insurgents’ involvement in the crime is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the applicants, and drawing inferences from the Government’s failure to submit any of the documents which were in their exclusive possession or to provide any plausible explanation for the events in question, the Court finds that Aslan and Aslanbek Tasatayev were arrested on 1 June 2001 by State servicemen during an unacknowledged security operation.

75.  There has been no reliable news of Aslan and Aslanbek Tasatayev since the date of their abduction. Their names have not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to them after their arrest.

76.¬†¬†Having regard to the previous cases concerning disappearances in Chechnya which have come before it (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, cited above; and Alikhadzhiyeva v. Russia, no.¬†68007/01, 5¬†July 2007), the Court finds that in the context of the conflict in the Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Aslan and Aslanbek Tasatayev or of any news of them for more than eight years supports this assumption.

77.  Accordingly, the Court finds that the evidence available permits it to establish that Aslan and Aslanbek Tasatayev must be presumed dead following their unacknowledged detention by State servicemen.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

78.  The applicants complained under Article 2 of the Convention that their relatives had been deprived of their lives 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 parties’ submissions

79.¬†¬†The Government contended that the domestic investigation had obtained no evidence to the effect that Aslan and Aslanbek Tasatayev were dead or that any servicemen of the federal law-enforcement agencies had been involved in their kidnapping or alleged killing. They claimed that the investigation into the kidnapping of the applicants’ relatives met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible. The Government also noted that the decisions to suspend and resume the proceedings did not demonstrate their ineffectiveness, but showed that the authorities in charge were continuing to take steps to solve the crime.

80.¬†¬†The applicants argued that Aslan and Aslanbek Tasatayev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of them for several years. They also argued that the investigation had not met the effectiveness and adequacy requirements laid down by the Court’s case-law. The applicants pointed out that the prosecutor’s office had not taken some crucial investigative steps. The investigation into Aslan and Aslanbek Tasatayev’s kidnapping had been opened several weeks after the events and then had been suspended and resumed a number of times, thus delaying the taking of the most basic steps, and that the relatives had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for such a long period of time without producing any tangible results was further proof of its ineffectiveness. They also invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to them or to the Court.

B.¬†¬†The Court’s assessment

1.  Admissibility

81.¬†¬†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. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 63 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 Aslan and Aslanbek Tasatayev

82.¬†¬†The Court has already found that the applicants’ relatives must be presumed dead following unacknowledged detention by State servicemen. In the absence of any justification put forward by the Government, the Court finds that the deaths can be attributed to the State and that there has been a violation of Article 2 in respect of Aslan and Aslanbek Tasatayev.

(b)  The alleged inadequacy of the investigation of the kidnapping

83.¬†¬†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).

84.  In the present case, the kidnapping of Aslan and Aslanbek Tasatayev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

85.  The Court notes at the outset that none of the documents from the investigation were disclosed by the Government. It therefore has to assess its effectiveness on the basis of the few documents submitted by the applicants and the information about its progress presented by the Government.

86.¬†¬†The Court notes that the authorities were immediately made aware of the abduction by the applicants’ submissions. The investigation in criminal case no. 25088 was instituted on 8 July 2001, which is one month and six days after Aslan and Aslanbek Tasatayev’s abduction. Such a postponement per se was liable to affect the investigation of the kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. It appears that after that a number of essential steps were delayed or not taken at all. For instance, as can be seen from the decision of the domestic court of 14 May 2005, by that date the investigators had not identified or questioned any of the local residents who had stood watch at the guard posts on the night of the abduction and had been threatened by the abductors; they had not established the identity of the owner of the UAZ vehicle which had been moving around Urus-Martan that night; they had not identified and questioned the witnesses who had seen the abductors’ vehicle driving into the yard of the military commander’s office after the abduction and they had not questioned any of the servicemen who had been on duty in the military commander’s office and the ROVD about their possible involvement in the abduction or subsequent detention of the applicants’ sons (see paragraph 55 above). It is obvious that these investigative measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious matter (see √ĖneryńĪldńĪz v. Turkey [GC], no. 48939/99, ¬ß 94, ECHR 2004-XII).

87.  The Court also notes that even though the second applicant was granted victim status in the investigation concerning the abduction of her relatives, she was only informed of the suspension and resumption 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.

88.¬†¬†Finally, the Court notes that the investigation was suspended and resumed on numerous occasions and that there were lengthy periods of inactivity of the district prosecutor’s office when no proceedings were pending. The town court criticised deficiencies in the proceedings and ordered remedial measures (see paragraph 55 above). It appears that its instructions were not complied with.

89.¬†¬†Having regard to the limb of the Government’s preliminary objection that was joined to the merits of the complaint, inasmuch as it concerns the fact that the domestic investigation is still pending, the Court notes that the investigation, having being repeatedly suspended and resumed and plagued by inexplicable delays, has been pending for many years without producing any tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection.

90.  In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Aslan and Aslanbek Tasatayev, in breach of Article 2 in its procedural aspect.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

91.¬†¬†The applicants relied on Article 3 of the Convention, submitting that as a result of their sons’ disappearance and the State’s failure to investigate it properly, they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:

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

A.¬†¬†The parties’ submissions

92.  The Government disagreed with these allegations and argued that the investigation had not established that the applicants had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention

93.   The applicants reiterated their complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

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

2.  Merits

95.¬†¬†The Court has found on many occasions that in a situation of enforced disappearance close relatives of the victim may themselves be victims of treatment in violation of Article 3. 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 (see Orhan v. Turkey, no.¬†25656/94, ¬ß¬†358, 18 June 2002, and Imakayeva, cited above, ¬ß¬†164).

96.¬†¬†In the present case the Court notes that the applicants are mothers of the disappeared persons who witnessed their abduction. For more than eight years they have not had any news of the missing men. During this period the applicants have made enquiries of various official bodies, both in writing and in person, about their missing sons. Despite their attempts, the applicants have never received any plausible explanation or information about what became of them following their detention. The responses they received mostly denied State responsibility for their sons’ arrest or simply informed them that the investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.

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

V.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

98.  The applicants further stated that Aslan and Aslanbek Tasatayev had been detained in violation of the guarantees contained in 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

99.  The Government asserted that no evidence had been obtained by the investigators to confirm that Aslan and Aslanbek Tasatayev had been deprived of their liberty. They were not listed among the persons kept in detention centres and none of the regional law-enforcement agencies had information about their detention.

100.  The applicants reiterated their complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

101.  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

102.  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).

103.¬†¬†The Court has found that Aslan and Aslanbek Tasatayev were abducted by State servicemen on 1 June 2001 and have not been seen since. Their detention was not acknowledged, was not logged in any custody records and there exists no official trace of their subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee, as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, ¬ß¬†371).

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

105.  In view of the foregoing, the Court finds that Aslan and Aslanbek Tasatayev were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

VI. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

106.  The applicants complained that the proceedings brought by them against the investigators were unfair. 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

107.¬†¬†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 them, within the meaning of the Convention (see Akhmadov and Others v. Russia (dec.), no. 21586/02, 3 May 2007).

108.  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.

VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

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

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

A.¬†¬†The parties’ submissions

110.  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 had an opportunity to challenge the acts or omissions of the investigating authorities in court pursuant to Article 125 of the Code of Criminal Procedure and had availed themselves of it. The Government further added that participants in criminal proceedings could also claim damages in civil proceedings. In sum, the Government submitted that there had been no violation of Article 13.

111.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

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

2.  Merits

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

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

115.¬†¬†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, read 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).

VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

116.  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.  Damage

117.¬†¬†The applicants did not submit any claims for pecuniary damage. As regards non-pecuniary damage,¬†the applicants stated that they had lost their sons and endured stress, frustration and helplessness in relation to their sons’ abduction, aggravated by the authorities’ inactivity in the investigation of their kidnapping for several years. They left the determination of the amount of compensation to the Court.

118.¬†¬†The Government submitted that finding a violation of the Convention would be adequate just satisfaction in the applicants’ case.

119.¬†¬†The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants’ sons. 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 each of the applicants 60,000 euros (EUR), plus any tax that may be chargeable thereon.

B.  Costs and expenses

120.¬†¬†The applicants were represented by Mr D. Itslayev, a lawyer practising in Nazran. The applicants submitted a contract with their representative and an itemised schedule of costs and expenses that included legal research and drafting, as well as administrative and translation expenses. The overall claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 5,217. The applicants submitted the following breakdown of costs:

(a) EUR 4,544 for 28.85 hours of interviews and drafting of legal documents submitted to the Court and the domestic authorities, at the rate of EUR 150 per hour;

(b) EUR 145 of administrative expenses;

(c) EUR 528 in translation fees based on the rate of EUR 80 per 1000 words.

121.  The Government did not dispute the reasonableness of the amounts claimed.

122.  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 v. the United Kingdom, 27 September 1995, § 220, Series A no. 324)

123.  Having regard to the details of the information submitted by the applicant, the Court is satisfied that these rates are reasonable. It notes that this case was rather complex and required the amount of research and preparation claimed by the applicants.

124.¬†¬†Having regard to the details of the claims submitted by the applicants, the Court awards them the amount of EUR 5,000 together with any value-added tax that may be chargeable to the applicants, the net award to be paid into the representative’s bank account, as identified by the applicants.

C.  Default interest

125.  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.  Declares the complaints under Articles 2, 3, 5 and 13 admissible and the remainder of the application inadmissible;

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

3.  Holds that there has been a violation of Article 2 of the Convention in respect of Aslan and Aslanbek Tasatayev;

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 Aslan and Aslanbek Tasatayev had disappeared;

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

6.  Holds that there has been a violation of Article 5 of the Convention in respect of Aslan and Aslanbek Tasatayev;

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;

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 date of settlement:

(i)  EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to each of the applicants;

(ii)¬†¬†EUR¬†5,000 (five thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representative’s bank account.

(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.

Done in English, and notified in writing on 8 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S√łren Nielsen¬†Christos Rozakis
Registrar President

****

CASE OF UMALATOV AND OTHERS v. RUSSIA

(Application no. 8345/05)

JUDGMENT

STRASBOURG

8 April 2010

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 Umalatov 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 18 March 2010,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 8345/05) 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 three Russian nationals, Mr Imran Umalatov, Mrs¬†Roza Khamizayeva and Mr Sharan Durdiyev (‚Äúthe applicants‚ÄĚ), on 17¬†February 2005.

2.¬†¬†The applicants, who were granted legal aid, were represented by lawyers of the International Protection Centre, a Russian NGO. The Russian Government (‚Äúthe Government‚ÄĚ) were represented by Mrs V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their new representative, Mr¬†G.¬†Matyushkin.

3.  On 7 January 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and 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.

4.¬†¬†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

5.  The applicants were born in 1940, 1969 and 1943 respectively. They live in the Chechen Republic (Chechnya).

A.  Disappearance of Usman Umalatov and Shamad Durdiyev

1.¬†¬†The applicants’ account

6.  The first applicant is the father of Usman Umalatov, born in 1969. The second applicant is his wife. The third applicant is the father of Shamad Durdiyev, born in 1976.

7.  The applicants stated that on 15 October 2002 at 7.00 a.m. a joint operation of the Federal Security Service (FSB), the Ministry of the Interior and the military took place in the village of Nagornoye situated in the Grozny district of Chechnya.

8.  Usman Umalatov was apprehended in his home in Nagornoye in the presence of his next-of-kin, including the second applicant, and brought to the FSB office for the Nadterechny district in the village of Znamenskoye.

9.¬†¬†Shamad Durdiyev lived in Beno-Yurt and worked as a driver for the Grozny Town Prosecutor’s Office. On 15 October 2002 at about 6 a.m. he left his home village and went towards Grozny in his service car, a black ‚ÄúVolga‚ÄĚ. On the same day he was apprehended during the security operation and brought to the FSB office in Znamenskoye.

10.  Two or three days later nine men apprehended on that day in Nagornoye were released, but Usman Umalatov and Shamad Durdiyev were not among them.

11.  The applicants have had no news of Usman Umalatov and Shamad Durdiyev since 15 October 2002.

12.  In support of their allegations, the applicants submitted the statements of the first and second applicants, as well as an affidavit signed by eight men who had been detained on 15 October 2002 together with Usman Umalatov.

2.¬†¬†The Government’s account

13.  In their observations the Government confirmed that both men had been detained on 15 October 2002 in Nagornoye in the course of a special security operation. Later on the same day they were transferred to the FSB office in Znamenskoye and then released after their identities had been ascertained.

B.  The search for Usman Umalatov and Shamad Durdiyev and the investigation

14.¬†¬†Since 15¬†October 2002 the applicants have repeatedly applied in person and in writing to various public bodies. In their letters to the authorities the applicants and their family members referred to their relatives’ detention and asked for assistance and details of the investigation. These enquiries have mostly remained unanswered, or purely formal replies have been given in which the applicants’ requests have been forwarded to various prosecutors’ offices. The applicants submitted some of the letters to the authorities and the replies to the Court, which are summarised below.

1. Official investigation into Usman Umalatov’s disappearance

15.¬†¬†The first applicant submitted that several days after his son’s disappearance the head of the FSB office for the Nadterechny district had told him in a personal conversation that Usman Umalatov and Shamad Durdiyev had been released on the day of their detention. However, they have not been found since.

16.¬†¬†On 24 October 2002 an investigator of the prosecutor’s office of the Urus-Martan district of Chechnya opened criminal proceedings (case file no.¬†65049) in response to the first applicant’s complaint about his son’s abduction. The investigator noted that the applicant’s son had been taken into custody by unknown masked persons and taken away to an unknown destination. It appears that at some later point the investigation was transferred to the Nadterechny district prosecutor’s office (‚Äúthe district prosecutor’s office‚ÄĚ).

17.  On 25 October 2002 the first applicant was granted victim status in the proceedings.

18.¬†¬†On 29 January 2003 the investigator of the district prosecutor’s office adjourned the criminal proceedings given the failure to identify the persons against whom the charges must be brought (Article 208, part 1, item¬†1 of the Code of Criminal Procedure). The investigator’s decision instructed the Nadterechny district department of the Ministry of the Interior (ROVD) to search for Usman Umalatov and the persons responsible for his disappearance. No new information was communicated to the first applicant following his subsequent complaints and requests to the prosecutor’s office.

19.¬†¬†On 2 March 2004 the first applicant complained of unlawful inaction of the investigation authorities to the Nadterechny district court (‚Äúthe district court‚ÄĚ) under Article 125 of the Code of Criminal Procedure.

20.¬†¬†On 29 March 2004 the district court dismissed the first applicant’s complaint as he had failed to appear before the court. The summons to appear before the court reached the local post office at his place of residence only on 31 March 2004.

21.¬†¬†On 6 April 2004 the first applicant lodged with the district court a new complaint under Article 125 of the Code of Criminal Procedure concerning the lack of an effective investigation into his son’s disappearance. This complaint was dismissed on 13 April 2004 as no breach of procedural requirements had been found.

22.¬†¬†The first applicant allegedly received this judgment on 12 May 2004 and requested the president of the court to restore the ten-day time-limit for lodging a cassation appeal against the judgment. The applicant’s request was dismissed by the district court on 28 June 2004. Following the applicant’s appeal, the Supreme Court of the Chechen Republic upheld the latter decision by the district court.

2. Official investigation into Shamad Durdiyev’s disappearance

23.¬†¬†On an unspecified date, the district prosecutor’s office opened criminal proceedings (case file no.¬†65048) on account of Shamad Durdiyev’s abduction.

24.¬†¬†On 25 October 2002 the third applicant was granted victim status in those proceedings. The investigator’s decision indicated that on 15¬†October 2002 around 6 a.m. Shamad Durdiyev had gone in his own car in the direction of Grozny where he worked as a driver for the Grozny town prosecutor. On his way he was arrested in the village of Nagornoye by the FSB officers and brought to the FSB office for the Nadterechny district in the village of Znamenskoye. According to statements by unnamed FSB officials quoted by the investigator, Shamad Durdiyev was released on the same date.

25.¬†¬†The third applicant alleged that Shamad Durdiyev’s car remained at the office of the FSB in Znamenskoye for several days and was later transferred to the Grozny town prosecutor’s office. He also claimed that the FSB had transferred to the Grozny town prosecutor’s office a request to dismiss Shamad Durdiyev from service, allegedly written by his son on 14¬†October 2002. It does not appear that any investigative steps were taken in this direction.

26.¬†¬†At some point the military prosecutor’s office also conducted an investigation into Shamad Durdiyev’s abduction. On 20 December 2002 the military prosecutor of army unit no.¬†20111 decided to return the relevant criminal file (no.¬†34/34/0117-02d) to the district prosecutor’s office for further investigation. The military prosecutor found it established that Shamad Durdiyev had been apprehended on 15 October 2002 by the authorities during a joint operation by the district military commander’s office, ROVD and FSB, brought to the FSB office in Znamenskoye for questioning and had left the said office in an unknown direction. The military prosecutor concluded that it had not been established that military personnel were responsible for his disappearance.

27.¬†¬†On 24 January 2003 the district prosecutor’s office adjourned the criminal proceedings (case file no. 65048) given the failure to identify the persons against whom the charges must be brought. The investigator’s decision instructed the Nadterechny ROVD to search for Shamad Durdiyev and for the persons responsible for his disappearance.

28.¬†¬†The third applicant’s subsequent complaints and requests to the Chechen prosecutor’s office and to the head of the Presidential Administration of Chechnya in connection with his son’s disappearance remained without effect.

29.  On 29 July 2004 the third applicant complained of unlawful inaction of the investigation authorities before the president of the district court under Article 125 of the Code of Criminal Procedure. On 23 August 2004 the district court dismissed his complaint and found the decision of 24 January 2004 to adjourn the proceedings to be well founded. The applicant did not appeal.

3.  Additional information submitted by the Government

30.¬†¬†With reference to the information provided by the Prosecutor General’s Office, the Government submitted that the investigations of the abduction of Usman Umalatov and Shamad Durdiyev had failed to solve the crimes. In their observations they also submitted additional information about the progress of the investigation and some copies of documents from the files (11 pages). They did not submit copies of any of the witness statements to which they referred.

31.¬†¬†The documents and the observations confirm that both men were detained on 15 October 2002 during a large security operation. The Government submitted copies of three documents relevant to this operation. The order by the military commander of the Nadterechny district of 14¬†October 2002 gave instructions to carry out a joint operation involving about 250 servicemen of the Ministry of the Interior, FSB and the military commander’s office in order to find members of an illegal armed group who had killed three servicemen of the military commander’s office on 1¬†October 2002, and who had apparently been hiding in Nagornoye. As regards the possibility of detaining suspect individuals, the order contained the following indications: ‚Äúupon identification of persons wanted upon suspicion of involvement in crimes committed by illegal armed groups, they should be detained, brought to the filtration point and later delivered to the ROVD for the carrying out of investigative actions; if active resistance is met, measures should be taken to neutralise or destroy them‚ÄĚ.

32.  The order of the Ministry of the Interior for the district, also dated 14 October 2002, contained similar provisions. Finally, on 15 October 2002 the head of the detachments of the Ministry of the Interior based in the district produced a report on the results of the operation. It listed thirteen men who had been detained in Nagornoye on that day on suspicion of being involved with illegal armed groups, and who had been questioned, fingerprinted and delivered to the ROVD. Shamad Durdiyev and Usman Umalatov were listed among the thirteen men.

33.¬†¬†As to Usman Umalatov, the Government submitted that the investigation commenced on 24 October 2002 by the Urus-Martan district prosecutor’s office under Article 126 part 2 of the Criminal Code ‚Äď aggravated kidnapping. The investigation had been triggered by the first applicant’s complaint to the Nadterechny district prosecutor’s office of 21¬†October 2002 about the arrest of his son early in the morning on 15¬†October 2002 by the local FSB.

34.  On 25 October 2002 the authorities questioned the first applicant and granted him the status of a victim in the proceedings. He had stated that his son had been detained at the district department of the FSB, but that the head of the department, Mr Kh.M., had assured him that he had personally let his son out of the building. The first applicant also mentioned that Mr A.K., who had been detained with his son, had returned home on 17 October 2002.

35.  On 4 November 2002 the investigator examined the registration log of the Nadterechny ROVD and noted that Usman Umalatov had been delivered there at 10 a.m. on 15 October 2002 for an identity check and that at the same time he had been transferred to the district department of the FSB for further investigation.

36.¬†¬†It does not appear that any additional steps were taken in the investigation into Usman Umalatov’s disappearance after this point.

37.¬†¬†As to Shamad Durdiyev, criminal investigation file no.¬†65048 was opened on 24 October 2002 in response to the third applicant’s letter of 21¬†October 2002. Within the following days the third applicant was questioned and granted the status of a victim in the criminal case. On 30¬†October 2002 the investigation was forwarded to the military prosecutor of Chechnya and on 15 November 2002 the military prosecutor of military unit no.¬†20111 took charge of the proceedings.

38.  According to the Government, in November 2002 the military prosecutor questioned a number of officials and servicemen of the Nadterechny district who had been in charge of or had participated in the operation. Among them were the deputy military commander of the district and the commander of the platoon who had taken part in the operation, the head of the ROVD and several officials of the district FSB. The Government related the statements of the head of the district department of the FSB Mr Kh.M. in the following manner:

‚ÄúOn 2 October 2002 [we] received information that members of the illegal armed groups which had attacked the Nadterechny district commander’s office were hiding in Nagornoye. As a result of the attack three servicemen of the commander’s office had been killed. On this basis a special operation was planned. Upon agreement with the military commanders of Chechnya and of the Nadterechny district, on 14 October 2002 an order was issued to include in the operation the servicemen of the military commander’s office, of the Ministry of the Interior and of the district department of the FSB. At the northern entrance to the village, on the road between Goragorsk and Grozny, an armoured personnel carrier (APC-80) was positioned in order to block the traffic and to protect the temporary point of gathering of the detainees. A black GAZ 3102 ‚ÄúVolga‚ÄĚ vehicle arrived from Goragorsk at high speed, and having nearly collided with the APC, turned around and tried to leave towards Goragorsk. The police officers who had manned the block gave chase and fired shots in the air, after which the vehicle stopped. The police officers checked the documents of the driver, Shamad Durdiyev, and doubted their authenticity. On the same day at about 1 p.m. Shamad Durdiyev was brought to the district department of the FSB for a complete check. 12 other persons were also detained in the course of the operation, of whom two ‚Äď Usman Umalatov and Mr A.K. ‚Äď were also brought to the FSB department. Usman Umalatov and Mr A.K. produced service badges of the security service of the Administration of Chechnya, the authenticity of which was also questioned.

On the same day, at about 3 p.m., a group of armed persons arrived at the department in three vehicles. They were headed by Mr B.Sh., who had produced the service badge of the deputy head of the Administration of Chechnya. He demanded that Usman Umalatov be transferred to him, since the latter had served under his command. At the same time, Usman Umalatov was not listed among the employees of the Chechnya Administration that had been submitted by Mr B.Sh. to the district department of the FSB in December 2001. Mr B.Sh. was told that he could wait until Usman Umalatov had been questioned and released, but B.Sh. had left. On the same day at about 4 p.m. the prosecutor of the Nadterechny district Mr S.P. phoned the department and asked if Shamad Durdiyev, the driver of the Grozny town prosecutor, had been detained there. He (Kh.M.) himself called the Grozny prosecutor who confirmed that Shamad Durdiyev worked as a driver in that office.

Later on the same day the formalities concerning Shamad Durdiyev and Usman Umalatov were concluded and he (Kh.M.) ordered to them to provide signed forms attesting the return to them of money and valuables collected upon arrest. Shamad Durdiyev and Usman Umalatov left the FSB department on 15 October 2002. Work with A.K. continued.‚ÄĚ

The Government further relayed Kh.M.’s statements about how the relatives of Shamad Durdiyev and Usman Umalatov had come to the department on several occasions after 16 October 2002 and how he had informed them that both men had been released. Kh.M. assured them that his subordinates had nothing to do with the two men’s disappearance and that he had no information about their whereabouts. On 15 October 2002 they had not been delivered to any ‚Äúfiltration point‚ÄĚ, but a simple check through a data base had taken place.

39.¬†¬†The head of the district detachments of the Ministry of the Interior, Mr D.A., who was questioned on 26 November 2002, testified that he had witnessed the detention of Usman Umalatov. As cited in the Government observations, on 15 October 2002 he had taken part in the special operation in Nagornoye at the site of the temporary detention point on the road between Goragorsk and Grozny, along with 23 other servicemen. At about 5.30 p.m. a black Volga car, driving at high speed, approached the roadblock from the direction of Goragorsk. The vehicle was forced to brake abruptly, as a result of which it slid into the roadside ditch. Several servicemen immediately ran to the car and detained the driver. According to Mr D.A.’s knowledge, the driver was later transferred to the ROVD and then to the district FSB. The servicemen under his command were not involved in the detention, but supervised and trained the members of the local police force.

40.  In November 2002 the investigation questioned Mr A.K., the third man who had been detained at the FSB district department. According to the Government, he stated that on 15 October 2002 he had been detained together with Usman Umalatov and a third man, whose name he did not know. First the unknown man was taken from the room for questioning, and then later that day, at about 8 p.m., Mr Umalatov. Mr A.K. was released on the following day at about midday, after questioning and having signed a form stating that he had no complaints about the FSB servicemen.

41.¬†¬†On 19 November 2002 the military prosecutor of military unit no.¬†2011 examined the black ‚ÄúVolga‚ÄĚ car driven by Shamad Durdiyev on the day of his detention. The car was examined on the premises of the Grozny town prosecutor’s office and no damage was noted. The Government submitted a copy of the examination report to the Court.

42.¬†¬†The Government mentioned a number of other documents contained in the investigation file concerning Mr Durdiyev’s disappearance. In February 2000 and in August 2002 the Ministry of the Interior and the Grozny town administration issued papers to confirm the latter’s active involvement with the Chechen counter-insurgent movements and his participation in the storming of Grozny in January 2000.

43.  The Government stated that the case files also contained copies of the forms signed by Usman Umalatov and Shamad Durdiyev on 15 October 2002 confirming their release and absence of complaints about the FSB, but failed to provide them to the Court. The Government also stated that at some point both forms had been submitted for graphology tests which had confirmed their authenticity, but did not submit copies of those reports either.

44.  According to the Government, the military prosecutors examined the registration logs of the Nadterechny district temporary detention ward and of the ROVD. Copies of the relevant documents were contained in the investigation files. They demonstrated that Shamad Durdiyev and Usman Umalatov had been delivered to the ROVD at 10 a.m. on 15 October 2002 for identification and that on the same day at 10 a.m. both had been transferred to the district department of the FSB, without being placed in detention. The Government did not submit copies of these documents to the Court.

45.¬†¬†On 20 December 2002 the military prosecutor of military unit no.¬†20111 concluded that the military servicemen and the servicemen of the FSB had not been implicated in Shamad Durdiyev’s disappearance. On the same day he sent the file for further investigation to the district prosecutor’s office. The prosecutor sent a number of requests for information to local law-enforcement authorities, medical facilities and detention centres, but these brought about no results.

46.  In their additional memorandum submitted in September 2008 the Government, without indicating the dates and without providing copies of the documents, informed the Court that the investigation into both cases was ongoing. The prosecutors had questioned seven local residents who had been detained on 15 October 2002 or their family members. They confirmed that Shamad Durdiyev and Usman Umalatov had been detained at the local FSB department on that day and that all other detainees had been released and returned home.

47.  Despite specific requests by the Court, the Government did not disclose most of the contents of criminal case files nos. 65048 and 65049. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the files contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.

II.  RELEVANT DOMESTIC LAW

48.  For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007) and Akhmadova and Others v. Russia (no. 3026/03, §§ 104-113, 4 December 2008).

THE LAW

I.¬†¬†THE GOVERNMENT’S OBJECTION REGARDING NON- EXHAUSTION OF DOMESTIC REMEDIES

49.  The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that it had been open to the applicants to pursue civil complaints but that they had failed to do so.

50.¬†¬†The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective. With reference to the Court’s practice, they argued that they were not obliged to apply to civil courts in order to exhaust domestic remedies.

51.¬†¬†The Court notes that as regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct 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 (see Khashiyev and Akayeva v.¬†Russia, nos.¬†57942/00 and 57945/00, ¬ß¬ß¬†119-121, 24¬†February 2005, and Estamirov and Others v. Russia, no. 60272/00, ¬ß 77, 12 October 2006¬†). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed.

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

A.¬†¬†The parties’ arguments

52.¬†¬†The applicants maintained that State agents were responsible for the disappearance and death of Usman Umalatov and Shamad Durdiyev. They pointed out that the two men had been detained in the course of a security operation, that they were last seen alive in the hands of State agents and that the Government had failed to discharge its burden of proof by submitting any explanation as to what had happened to them afterwards. The applicants also asked the Court to draw inferences from the Government’s failure to present more than a few relevant documents from the investigation files, either to them or to the Court. Since their relatives had been missing for a very lengthy period, they could be presumed dead.

53.¬†¬†The Government submitted that, even though Usman Umalatov and Shamad Durdiyev had been briefly detained on 15 October 2002, they were released on the same day. The documents contained in the criminal investigation files, including witness statements by the officials and copies of the forms signed by the two men on their release, attested to that. They further contended that the investigation of the disappearances was ongoing and that there was no convincing evidence that the applicants’ relatives were dead. The Government also noted that the applicants had been inconsistent in their descriptions of the exact dates and conversations they had had with various officials in the days following the disappearance of their relatives. The Government referred to the witness statements made to the domestic investigators; but did not submit them to the Court. Finally, the Government drew the Court’s attention to the fact that both men had worked for the State authorities: Shamad Durdiyev had been a driver for the Grozny town prosecutor’s office and Usman Umalatov had been a member of the security service of the head of administration of Chechnya. Their respective employers were happy with them, and it could not be excluded that the illegal groups held a grudge against them.

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

54.  The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). It 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).

55.  The Court notes that despite its requests for a copy of the investigation files into the abduction of Usman Umalatov and Shamad Durdiyev, the Government produced hardly any documents. The Government referred to Article 161 of the Code of Criminal Procedure. In previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-XIII (extracts)).

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

57.  The Government suggested in their submissions that Usman Umalatov and Shamad Durdiyev may have been killed or abducted by members of paramilitary groups. However, this allegation was not specific and the Government did not submit any material to support it. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see Çelikbilek v. Turkey, no. 27693/95, § 71, 31 May 2005).

58.¬†¬†The parties do not dispute that on 15 October 2002 Usman Umalatov and Shamad Durdiyev were detained in Nagornoye during a security operation aimed at finding persons responsible for a terrorist act and delivered to the ROVD, from which they were transferred to the district department of the FSB. The orders of the district commander of the Ministry of the Interior and of the military commander cited ‚Äúsuspicion of involvement in crimes committed by illegal armed groups‚ÄĚ as the possible grounds for detention, though no formal charges have been ever brought. It does not appear that any formal records were drawn up in relation to the detention or any other actions carried out in respect of Usman Umalatov and Shamad Durdiyev, except to note that both men had been transferred to the district department of the FSB from the ROVD premises. They have not been seen since 15 October 2002 and their families have had no news of them. The investigation failed to establish what had happened to them or to charge anyone in relation to their disappearance.

59.   The Government suggested that certain documents in the criminal investigation files proved that the two men had been released. However, since none of these documents have been submitted to the Court, it is reluctant to rely on them in order to absolve the Government from their responsibility to account for the fate of detainees last seen alive within their hands (see Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II).

60.¬†¬†The Government also questioned the credibility of the applicants’ statements in view of certain discrepancies in their descriptions of the days immediately following the detention. The Court notes in this respect that no other elements underlying the applicants’ submissions of facts have been disputed by the Government. The Government did not provide to the Court the witness statements to which they referred in their submissions. In any event, the fact that over a period of several years the applicants’ recollection of an extremely traumatic and stressful event differed in rather insignificant details does not in itself suffice to cast doubt on the overall veracity of their statements.

61.¬†¬†Furthermore, a number of serious and unresolved contradictions about the exact circumstances of the arrest and alleged release of the two men transpire from the statements of witnesses cited in the Government’s observations. While the Court will address these issues in more detail below under the procedural obligation of Article 2, it notes that the official investigation was unable to come up with a coherent picture of these crucial facts. There has been no reliable news of Usman Umalatov and Shamad Durdiyev since the date of the arrest. Their names have not been found in any official detention facility records. The Government have not submitted any explanation as to what happened to them after their arrest.

62.  Having regard to the previous cases concerning disappearances in Chechnya which have come before it (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-XIII (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007), the Court finds that the circumstances in which Usman Umalatov and Shamad Durdiyev were detained can be regarded as life-threatening. The absence of the two men or of any news of them for many years supports this assumption.

63.  Accordingly, the Court finds that the evidence available permits it to establish that Usman Umalatov and Shamad Durdiyev must be presumed dead following their detention by State servicemen.

III.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

64.  The applicants complained under Article 2 of the Convention that their relatives had been deprived of their lives 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 parties’ submissions

65.¬†¬†The Government first argued that the complaint is manifestly ill-founded and should be dismissed as such. They further contended that the domestic investigation had obtained no evidence to the effect that Usman Umalatov and Shamad Durdiyev were dead or that any servicemen of the federal law-enforcement agencies had been involved in their kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants’ relatives met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible.

66.¬†¬†The applicants argued that Usman Umalatov and Shamad Durdiyev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of them for several years. The applicants also argued that the investigation had not met the effectiveness and adequacy requirements laid down by the Court’s case-law. They pointed out that the district prosecutor’s office had not taken certain crucial investigative steps. The investigations into Usman Umalatov and Shamad Durdiyev’s kidnapping had been opened with delays and then the taking of the most basic steps was protracted. The relatives had not been properly informed of the most important investigative measures and had no access to the case files. The fact that the investigation had been pending for such a long period of time without producing any known results was further proof of its ineffectiveness. They also invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to them or to the Court.

B.¬†¬†The Court’s assessment

1.  Admissibility

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

2.  Merits

(a)  The alleged violation of the right to life of Usman Umalatov and Shamad Durdiyev

68.¬†¬†The Court has already found that the applicants’ relatives must be presumed dead following unacknowledged detention by State servicemen and that the deaths can be attributed to the State. In the absence of any justification in respect of any use of lethal force by State agents, the Court finds that there has been a violation of Article 2 in respect of Usman Umalatov and Shamad Durdiyev.

(b)  The alleged inadequacy of the investigation

69.¬†¬†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).

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

71.¬†¬†The Court discerns that the authorities were immediately made aware of the disappearance by the applicants. The investigations were instituted on 24 and 25¬†October 2002, that is, nine and ten days after Usman Umalatov and Shamad Durdiyev’s abduction. Such a postponement per se was liable to affect the investigation of a kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. It appears that within the following days the applicants and a number of key officials were questioned. The applicants were granted victim status. However, it also appears that after December 2002 the investigation failed to make any progress. In particular, the Court is struck by the investigation’s failure to resolve major discrepancies concerning the witnesses’ descriptions of the two men’s arrest and alleged release. It notes, for example, that the head of the district detachment of the Ministry of the Interior, Mr D.A., indicated that Shamad Durdiyev had been detained at about 5.30 p.m. on the road between Goragorsk and Grozny. At the same time, the registration log of the Nadterechny ROVD, as cited in the Government’s observations, indicated that both detainees had been delivered there at 10 a.m. and transferred to the FSB at the same time (see paragraphs 39 and 44 above). The investigation failed to explain why Shamad Durdiyev’s service vehicle, in which he had arrived in Nagornoye, had remained at the local department of the FSB and was eventually transferred to the Grozny town prosecutor’s office intact, where it was examined in November 2002 (see paragraph 41).

72.  The Court also notes that even though the applicants were granted victim status in the investigations concerning the abduction of their relatives, they were only informed of the suspension and resumption of the proceedings, and not of any other significant developments. Accordingly, the investigation failed to receive the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.

73.  In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Usman Umalatov and Shamad Durdiyev, in breach of Article 2 in its procedural aspect.

IV.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

74.¬†¬†The applicants relied on Article 3 of the Convention, submitting that as a result of their relatives’ disappearance and the State’s failure to investigate it properly, they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:

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

A.¬†¬†The parties’ submissions

75.  The Government disagreed with these allegations and argued that the investigation had not established that the applicants had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention. They also pointed out that it has not been established that the State was responsible for the disappearances.

76.  In their observations the applicants reiterated the complaint concerning the mental suffering endured.

B.¬†¬†The Court’s assessment

1.  Admissibility

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

2.  Merits

78.¬†¬†The Court has found on many occasions that in a situation of enforced disappearance close relatives of the victims may themselves be victims of treatment in violation of Article 3. 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 (see Orhan v. Turkey, no.¬†25656/94, ¬ß¬†358, 18 June 2002, and Imakayeva, cited above, ¬ß¬†164).

79.¬†¬†In the present case the Court notes that the applicants are close relatives of the disappeared persons. The first and second applicants themselves witnessed the arrest of Usman Umalatov. For almost seven years they have not had any news of the missing men. During this period the applicants have made enquiries to various official bodies, both in writing and in person, about their missing relatives. Despite their attempts, the applicants have never received any plausible explanation or information about what became of them following their detention. The responses they received mostly denied State responsibility for their relatives’ disappearance or informed them that the investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.

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

V.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

81.  The applicants further stated that Usman Umalatov and Shamad Durdiyev had been detained in violation of the guarantees contained in 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

82.  The Government asserted that no evidence had been obtained by the investigators to confirm that Usman Umalatov and Shamad Durdiyev had been deprived of their liberty. They were not listed among the persons kept in detention centres and none of the regional law-enforcement agencies had authorised their detention either on criminal or on administrative charges. On 15 October 2002 they were simply invited to the Nadterechny ROVD and then to the district department of the FSB in order to ascertain their identities and for a conversation with the FSB officers. This description was confirmed by the statements of the officials of the ROVD and of the FSB and by the documents contained in the investigation files. The actions of the servicemen were lawful in view of the order of the district military commander and, in a wider sense, the Law on the Suppression of Terrorism.

83.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

84.  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

85.  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).

86.¬†¬†The Court has found that Usman Umalatov and Shamad Durdiyev were apprehended by State servicemen on 15¬†October 2002 and have not been seen since. Their detention was not acknowledged in any meaningful and reliable manner, was not logged in any custody records and there exists no official trace of their subsequent whereabouts or fate. According to the Court’s practice, 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). In fact, the Government’s argument points to the heart of the problem, because even though there is overwhelming evidence, not contested by the parties, that the two men were deprived of their liberty by State agents (see paragraphs 31 and 32, for example), none of the safeguards against arbitrary detention contained in the domestic legal order were employed.

87.¬†¬†The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants’ complaints that their relatives had been detained and then disappeared 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 defend them against the risk of disappearance.

88.  In view of the foregoing, the Court finds that Usman Umalatov and Shamad Durdiyev were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

VI.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

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

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

A.¬†¬†The parties’ submissions

90.¬†¬†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 had an opportunity to challenge the acts or omissions of the investigating authorities in court pursuant to Article 125 of the Code of Criminal Procedure and had availed themselves of it. They added that participants in criminal proceedings could also claim damages in civil proceedings and referred to a case where victims in criminal proceedings had been awarded damages from the prosecutor’s office. In sum, the Government submitted that there had been no violation of Article 13.

91.  The applicants reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

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

2.  Merits

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

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

VII.  ALLEGED VIOLATIONS OF ARTICLES 34 AND 38 OF THE CONVENTION

95.¬†¬†The applicants argued that the Government’s failure to submit the documents requested by the Court, namely the entire criminal investigation file, disclosed a failure to comply with their obligations under Articles 34 and 38 ¬ß 1 (a) of the Convention. The Court finds that in the circumstances of the present case the above issue should be examined under Article 34 of the Convention, which provides as follows:

‚ÄúThe Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.‚ÄĚ

96.¬†¬†The Court points out that it has already taken note of the Government’s failure to produce a copy of the investigation file and drawn inferences from it. Nevertheless, it reiterates that the main objective of Article 34 of the Convention is to ensure the effective operation of the right of individual petition. There is no indication in the present case that there has been any hindrance of the applicants’ right of individual petition, either in the form of interference with the communication between the applicants or their representatives and the Court, or in the form of undue pressure placed on the applicants.

97.  It follows that this part of the application should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

VIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

98.  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

99.  The applicants claimed damages in respect of loss of earnings by their relatives after their arrests and subsequent disappearances. They did not provide any calculations or attesting documents, but indicated that the first and third applicants were pensioners and had counted on the financial support of their sons. The second applicant had lost her husband and thus the financial support he could have provided to her. Each applicant claimed 15,000 euros (EUR).

100.  The Government regarded these claims as based on suppositions and unfounded. They also pointed to the existence of domestic statutory machinery for the provision of a pension for the loss of the family breadwinner.

101.¬†¬†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. Since the applicants have failed to produce any calculations or justifications regarding the pecuniary damage claimed, the Court decides to make no award under this head (see Elmurzayev and Others v. Russia, no. 3019/04, ¬ß 156, 12 June 2008).

B.  Non-pecuniary damage

102.  The first and the third applicants claimed EUR 100,000 and the second applicant claimed EUR 150,000 in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family members, the indifference shown by the authorities towards them and the failure to provide any information about the fate of their close relatives.

103.  The Government found these amounts exaggerated.

104.¬†¬†The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants’ relatives. The applicants themselves have been found to have been victims of a violation of Article 3 of the Convention. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards to the first and second applicants jointly EUR¬†60,000 and to the third applicant EUR¬†60,000, plus any tax that may be chargeable thereon.

C.  Costs and expenses

105.  The applicants also claimed EUR 5,600 for the costs and expenses incurred before the Court. They listed four lawyers who had worked in 2004, 2005 and 2008 on this complaint and asked to be reimbursed for the costs of translation.

106.¬†¬†The Government left the issue of costs to the Court’s discretion.

107.¬†¬†The Court may make an award in respect of costs and expenses in so far that they were actually and necessarily incurred and are reasonable as to quantum (see Bottazzi v. Italy [GC], no.¬†34884/97, ¬ß¬†30, ECHR 1999-V and Sawicka v. Poland, no. 37645/97, ¬ß 54, 1 October 2002). In the present case the Court notes that the initial powers of attorney were issued in respect of two lawyers of the International Protection Centre, Mrs¬†Moskalenko and Mrs Arutyunyan, who prepared the initial application form. In February 2005 the first and the third applicants issued powers of attorney for Mrs Mikhaylova and Mr Magomadov. The applicants’ observations were submitted by Mrs Moskalenko and Mrs Mikhaylova. The Court is unable to award any costs allegedly incurred by Mr Magomadov (the claim of EUR¬†2,000) in the absence of any information about his involvement in the preparation of the case. The Court awards to the applicants the global sum of EUR 3,600, less the sum of EUR 850 received in legal aid from the Council of Europe.

D.  Default interest

108.  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.  Declares the complaints under Articles 2, 3, 5 and 13 of the Convention admissible and the remainder inadmissible;

2.  Holds that there has been a substantive violation of Article 2 of the Convention in respect of Usman Umalatov and Shamad Durdiyev;

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 Usman Umalatov and Shamad Durdiyev disappeared;

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

5.  Holds that there has been a violation of Article 5 of the Convention in respect of Usman Umalatov and Shamad Durdiyev;

6.  Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Article 2 of the Convention;

7.  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 date of settlement:

(i)  EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the first and the second applicants jointly;

(ii)  EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the third applicant;

(iii)¬†¬†EUR¬†2,750 (two thousand seven hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account;

(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;

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

Done in English, and notified in writing on 8 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S√łren Nielsen¬†Christos Rozakis
Registrar President

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