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Home » ECHR Cases

Khatuyeva – Mutayeva – Tupchiyeva v. Russia

Submitted by on Thursday, 22 April 2010.    1,062 views No Comment
Khatuyeva – Mutayeva – Tupchiyeva v. Russia

The ECHR cases of Khatuyeva v. Russia (application no. 12463/05), Mutayeva v. Russia (application no. 43418/06), and Tupchiyeva v. Russia (application no. 37461/05).

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EUROPEAN COURT OF HUMAN RIGHTS

334

22.04.2010

Press release issued by the Registrar

Three Chamber judgments against Russia concerning disappearances in Chechnya

The European Court of Human Rights has today notified in writing three Chamber judgments concerning Russia, neither of which is final. The applicants in all three cases alleged that their close relatives were killed by Russian agents of the State in Chechnya, notably after detention and disappearance. They complained that the domestic authorities failed to carry out an effective investigation into their allegations. They relied in particular on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security) and 13 (right to an effective remedy) of the European Convention on Human Rights.

1.  Khatuyeva v. Russia (application no. 12463/05)

The applicant is a Russian national who is a native of Chechnya and currently lives in another country. She is the wife of Sultan Khatuyev.

Sultan Khatuyev was detained by security forces during an operation on the morning of 2 August 2004 in the settlement for internally displaced persons from Chechnya in Ingushetia where he was living with the applicant and their children. According to the applicant’s submissions, which were supported by witnesses’ statements and are uncontested by the Government, he was taken to the district department of the interior and from there to the local office of the Federal Security Service (FSB). No formal charges were brought against him and he has not been seen since that day.

The applicant repeatedly applied to various public bodies, complaining of the abduction of her husband. On 20 August 2004, the district prosecutor opened a criminal investigation into the events. The applicant was granted victim status a few days later. Between August 2004 and February 2008, the investigation was suspended and resumed on several occasions and has so far failed to establish what happened to Sultan Khatuyev and to charge anyone in connection with his disappearance. Despite specific requests by the Court the Government did not disclose any of the documents of the criminal investigation. The Government submitted that as the investigation was in progress, disclosure of the documents would be in violation of domestic criminal procedural legislation since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.

Violation of Article 2 (right to life) in respect of Sultan Khatuyev

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

Violation of Article 3 (inhuman and degrading treatment) in respect of the applicant

Violation of Article 5 (unacknowledged detention) in respect of Sultan Khatuyev

Violation of Article13 (right to an effective remedy) in respect of the alleged violation of Article 2

The Court awarded the applicant 10,000 euros (EUR) in respect of pecuniary damage, EUR 60,000 in respect of non-pecuniary damage and EUR 2,165 for costs and expenses.

2.  Mutayeva v. Russia (application no. 43418/06)

The applicant is a Russian national and lives in Chechnya. She is the mother of Luiza Mutayeva, who was born in 1984.

Luiza Mutayeva was abducted from her family’s house at about 2.30 a.m. on 19 January 2004 by a group of armed men; she has not been seen or heard of since. According to the applicant, fifteen to twenty armed men in camouflage uniforms without insignia, most of them in masks, entered their house, announcing they would conduct a passport check. As they spoke unaccented Russian the applicant inferred they were Russian servicemen. The armed men took Luiza to their vehicles parked around the house, which had no number plates, saying she would only be questioned, but subsequently put her in handcuffs and took her away. Several witnesses confirmed Luiza Mutayeva had been taken away by armed men wearing camouflage uniforms and masks.

The Government submitted that on 19 January 2004 Luiza Mutayeva had been abducted by unidentified persons. They denied that the abductors were servicemen, referring to the absence of conclusions from the ensuing investigation.

The applicant repeatedly complained about her daughter’s abduction to a number of state agencies in person and in writing. On 27 April 2004 the district prosecutor opened a criminal investigation into the abduction and the applicant was subsequently granted victim status. The investigation was suspended several times for failure to identify the perpetrators and is still pending.

The applicant’s representative complained to the prosecutors on a number of occasions of the lack of information about the investigation, but was given only unspecific information about its status. Despite requests by the Court for a copy of the investigation file, the Government refused to produce most of the documents from the case file, referring to domestic criminal procedural legislation, which would be violated by such a disclosure since the file contained information on personal data concerning witnesses and other participants in the criminal proceedings.

Violation of Article 2 (right to life) in respect of Luiza Mutayeva

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

Violation of Article 3 (inhuman and degrading treatment) in respect of the applicant

Violation of Article 5 (unacknowledged detention) in respect of Luiza Mutayeva

Violation of Article13 (right to an effective remedy) in respect of the alleged violation of Article 2

The Court awarded the applicant EUR 50,000 in respect of non-pecuniary damage and EUR 4,000 (four thousand euros) for costs and expenses.

3.  Tupchiyeva v. Russia (application no. 37461/05)

The applicant is a Russian national who lives in Shali, Chechnya. She is the mother of Vakhit Dzhabrailov, who was born in 1976.

Vakhit Dzhabrailov was abducted from his family’s house on 3 January 2003 at about 5.30 a.m. by a group of fifteen to twenty armed men wearing camouflage uniforms. The applicant has not had any news of her son since that day. According to her submissions, the armed men arrived with vehicles without registration numbers and spoke unaccented Russian. The applicant and her family therefore assumed they were Russian servicemen. They did not answer the applicant’s question where they were taking her son. The abduction was witnessed by several of the applicant’s relatives and neighbours.

The applicant and her relatives contacted various state bodies, reporting in detail Vakhit Dzhabrailov’s abduction and asking for help in establishing his whereabouts. Two days after the events, the district administration forwarded the applicant’s complaint to the department of the interior. On 27 January 2003, the district prosecutor’s office opened a criminal investigation into the disappearance. The applicant was not informed of the investigation until July 2004, after repeated enquiries by her representative, in a letter which also stated that she had been granted victim status. After further requests for information, the district prosecutor informed the applicant that the investigation had been suspended and that it had not established the involvement of Russian military servicemen in the abduction.

Despite specific requests by the Court, the Government did not disclose any of the documents of the criminal investigation. The Government referred to domestic criminal procedural legislation and stated that a copy of the investigation file could not be submitted in the absence of any guarantees of non disclosure of the secret data contained in it.

Violation of Article 2 (right to life) in respect of Vakhit Dzhabrailov

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

Violation of Article 3 (inhuman and degrading treatment) in respect of the applicant

Violation of Article 5 (unacknowledged detention) in respect of Vakhit Dzhabrailov

Violation of Article13 (right to an effective remedy) in conjunction with Article 2

The Court awarded the applicant EUR 10,000 in respect of pecuniary damage, EUR 60,000 in respect of non-pecuniary damage and EUR 5,500 for costs and expenses.

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Additional information concerning the Court’s findings in these cases

In all three cases the Court noted that despite its requests for a copy of the investigation file into the abduction and disappearance of the applicants’ relatives, the Government produced no documents from the case file, or only a very limited number of them in the case of Mutayeva v. Russia, referring to the incompatibility of such disclosure with domestic legislation. The Court observed that in previous cases it had already found that explanation insufficient to justify the withholding of key information it had requested.

The Court found that it could draw the inference from the Government’s conduct in all three cases that the applicants’ allegations were well founded. According to the uncontested evidence submitted by the parties, Sultan Khatuyev, Luiza Mutayeva and Vakhit Dzhabrailov had not been seen or heard of after their abduction. Having regard to previous cases before it concerning disappearances in Chechnya and in Ingushetia, the Court found that in the context of the situation in the region, the detention of a person by unidentified servicemen without any subsequent acknowledgment of the detention could be regarded as life-threatening. In the absence of the applicants’ relatives or of any news about them for several years, and given the failure of the Government to justify their disappearance, the Court found that the all three persons had to be presumed dead following their unacknowledged detention by state servicemen and that their death could be attributed to the State. There had accordingly been a violation of Article 2 in respect of all three persons.

In all three cases the Court further held that there had been a violation of Article 2 on account of the authorities failure to carry out an effective investigation into the circumstances in which the applicants’ relatives had disappeared.

The Court also found that the applicants in all three cases had suffered distress and anguish as a result of the disappearance of their relatives and their inability to find out 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.

The Court found that in the three 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 had been ineffective in the three cases and the effectiveness of any other remedy that may have existed, including civil remedies as suggested by the Government, had consequently been undermined, the State had failed in its obligation under Article 13 of the Convention. Consequently there had been a violation of Article 13 in conjunction with Article 2 in all three cases.

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CASE OF KHATUYEVA v. RUSSIA

(Application no. 12463/05)

JUDGMENT

STRASBOURG

22 April 2010

In the case of Khatuyeva 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 25 March 2010,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 12463/05) 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 Luiza Khatuyeva (‚Äúthe applicant‚ÄĚ), on 28 March 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 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 15 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 applicant was born in 1969. A native of Chechnya, from 1996 she lived in the settlement for internally displaced persons from Chechnya in the village of Ordzhonikidzevskaya (also known as Sleptsovskaya), in the Ingush Republic of the Russian Federation (Ingushetia). The applicant later left Russia with her children and sought asylum in another country, where she now resides. She is the wife of Sultan Khatuyev, who allegedly disappeared in 2004 following his arrest by the security forces.

A.  Disappearance of Sultan Khatuyev

6.  On 2 August 2004 at about 8.00 a.m. an operation was carried out in the Ordzhonikidzevskaya settlement by the security forces with a view to finding members of illegal armed groups. More than one hundred servicemen and numerous vehicles were involved in the operation.

7.¬†¬†The applicant stated that her home had been searched during this operation by two servicemen who neither introduced themselves nor produced any document. They checked Sultan Khatuyev’s passport and ordered him to follow them to their car. In response to the applicant’s questions, the servicemen told her that her husband would be taken along with some of their neighbours to the Sunzhensky district department of the Interior (ROVD) for an identity check. Six other persons were apprehended and taken to the Sunzhensky ROVD during the same operation. They were all neighbours and knew each other.

8.  As soon as the operation was over the applicant went by car to the Sunzhensky ROVD together with R.A., a relative of another apprehended person. They saw the seven apprehended men being taken from the yard into the ROVD building.

9.  Three of these men were released at approximately midnight. Two of them later stated that they had initially been detained for several hours in a wing on the ground floor and then taken to the second floor for questioning.

10.  On 3 August 2004 at approximately 1 a.m. a ROVD officer informed the applicant and the three men who had just been released that the other detainees, including Sultan Khatuyev, would be released in the morning.

11.¬†¬†Around 8.00 a.m. on 3 August the applicant went back to the ROVD with relatives of the other detainees. They were told that the four remaining detainees had been taken to the Federal Security Service (FSB) office in Magas. The applicant and the other detainees’ relatives immediately went there. While they were not allowed to enter the premises, an officer confirmed that the four people, including Sultan Khatuyev, were being detained at that office.

12.¬†¬†In response to the applicant’s repeated requests an officer came out of the building at 4.00 p.m. and released two more persons. He also told the applicant that the other two persons, Sultan Khatuyev and U.I., had already been released. According to U.I.’s relatives, he had indeed been released in an extremely poor condition by FSB officers between 1.00 and 2.00 p.m. and left alone at a rubbish dump. The applicant went to the rubbish dump to look for her husband but did not find him or any of his personal belongings.

13.¬†¬†U.I. later told the applicant that he and Sultan Khatuyev had been detained in two neighbouring cells on the FSB premises and that he had heard Sultan Khatuyev groaning. He told her that he had been beaten by the FSB officers and that, given the sounds coming from the other cell, Sultan Khatuyev had been beaten as well. The lawyer representing the applicant submitted a written statement about his conversation with U.I. to that effect; however, he noted in the same statement that U.I. had feared reprisals and refused to sign any testimonies about his detention. According to the lawyer’s submissions, U.I. and Sultan Khatuyev had been taken in the same car from the Sunzhenskiy ROVD to the FSB office in Magas. U.I. had had a plastic bag over his head but he had heard the voice of the applicant’s husband, whom he had known well as they had been neighbours. He also told the lawyer that the car had not stopped anywhere on the way to Magas and that at one point he had heard Sultan Khatuyev screaming in the building.

14.  The applicant has had no news of Sultan Khatuyev since 2 August 2004.

15.  In support of her own statements, the applicant submitted statements by her relatives and a statement by one of the persons who had been detained on 2 August 2004 at the Sunzhenskiy ROVD together with Sultan Khatuyev.

16.¬†¬†The Government did not dispute the circumstances of the applicant’s husband’s detention on 2 August 2004.

B.  The search for Sultan Khatuyev and the investigation

1.¬†¬†The applicant’s account

17.¬†¬†Since 3¬†August 2004 the applicant has repeatedly applied in person and in writing to various public bodies. She has been supported in her efforts by NGO Memorial. In her letters to the authorities the applicant referred to her husband’s detention 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 applicant’s requests have been forwarded to various prosecutors’ offices. The applicant submitted some of the letters to the authorities and the replies to the Court, which are summarised below.

18.  On 3 August 2004 the applicant lodged a written complaint with the Sunzhensky ROVD about the abduction of her husband. She was informed by the ROVD officers that they were not aware of his fate after he had been taken to the FSB office in Magas.

19.¬†¬†On 4 August 2004 the applicant again went with her relatives to the ROVD office to inquire about her husband and talked to officer A.B., whom she had seen take part in the operation at issue. He gave them no information, but insulted the applicant and her sister-in-law using obscene language. The incident was interrupted by another officer, A.G., who had also taken part in the operation. The latter informed the applicant, after a telephone call to the FSB office in Magas, that Sultan Khatuyev was still being detained there. A.G. promised to find out the reasons for his detention, but failed to provide any further information in response to the applicant’s subsequent telephone calls.

20.¬†¬†On 6 August and 9 August 2004 the applicant complained to the Sunzhensky District Prosecutor’s Office (hereafter ‚Äúthe district prosecutor’s office‚ÄĚ) about the abduction of her husband and demanding an investigation into the matter.

21.¬†¬†By a letter of 9 August 2004 the FSB office of Ingushetia informed the applicant that they had no information about Sultan Khatuyev’s apprehension and whereabouts.

22.  On 12 August 2004 the applicant requested the Minister of the Interior of Ingushetia to identify the servicemen involved in the abduction of her husband.

23.¬†¬†On 19 August 2004 the applicant wrote to the district prosecutor’s office and submitted additional details of her husband’s disappearance.

24.¬†¬†On 20 August 2004 the District Prosecutor’s Office opened a criminal investigation (case file no.¬†04600054) into Sultan Khatuyev’s kidnapping under Article 126, part 1, of the Criminal Code. The applicant was informed thereof by letters of 31 August and 8 September 2004.

25.¬†¬†In September 2004 the applicant received a reply from the acting Minister of the Interior of Ingushetia. The letter stated that on 2 August 2004 eight persons, including Sultan Khatuyev, had been apprehended during an operation carried out jointly by the FSB Department for Ingushetia and the special forces of the Ingush Ministry of the Interior (OMON) with a view to identifying and arresting persons involved in illegal armed groups. The Minister also confirmed that four of those persons had been released, while four others, including Sultan Khatuyev, had been relocated pursuant to the orders of the head of the FSB group Mr M.Ye. The Minister indicated that the investigation to find out Sultan Khatuyev’s whereabouts was under way.

26.¬†¬†On various dates in October 2004 the applicant again wrote to the district prosecutor’s office. She inquired about the progress of the criminal proceedings, requested to be granted victim status and access to the case file and to question the six witnesses who had been apprehended together with her husband. The prosecutor’s office replied on 1 November 2004 and confirmed that four persons including Sultan Khatuyev had been taken to the ROVD and subsequently transferred to the FSB office in Magas and that Sultan Khatuyev’s whereabouts were still not known.

27.  On 4 November 2004 the applicant asked the district prosecutor to bring criminal charges against the persons involved in the abduction of her husband. She again requested access to the criminal case file. She also asked specifically for the other men who had been apprehended on the same day and the officials involved, including the ROVD officers who had arrested her husband and the FSB officer M.Ye., who had ordered his transfer to the Magas FSB Department, to be questioned.

28.¬†¬†The applicant received no response to these requests. In reply to her subsequent requests the prosecutor’s office indicated, by letter of 19¬†February 2005, that the investigation concerning criminal file no.¬†04600054 was still ongoing.

29.  On 20 February 2005 the investigation was discontinued given the failure to identify the persons against whom the charges were to be brought (Article 208, part 1, paragraph 1 of the Code of Criminal Procedure) and the applicant was informed thereof by letter of 5 March 2005.

30.¬†¬†On 5 May 2005 the applicant lodged a complaint with the Sunzhensky District Court (‚Äúthe district court‚ÄĚ) under Article 125 of the Code of Criminal Procedure. She requested the court to declare the inaction of the prosecutor’s office unlawful, to quash the prosecutor’s decision adjourning the investigation and to order a thorough and effective investigation into Sultan Khatuyev’s abduction.

31.¬†¬†On 24 May 2005 the district court dismissed the applicant’s complaint. The court noted in particular that the investigation authorities had questioned certain officers of the Sunzhensky ROVD, including A.G., and complied with the plan of investigation measures. The court also noted that the necessary measures had been taken to secure the questioning of FSB officer M.Ye., but the latter had failed to appear due to circumstances beyond the investigator’s control.

32.¬†¬†On 4 June 2005 the Supreme Court of Ingushetia reviewed the applicant’s cassation appeal against this decision. The court quashed and remitted the decision of 24 May 2005, with an instruction to the investigation authorities to question Mr M.Ye.

33.¬†¬†The applicant received no further information about the proceedings in the case concerning her husband’s abduction. In 2008 she informed the Court that she had been threatened by unnamed representatives of the security forces, who had allegedly told her to stop complaining. They threatened to plant drugs or arms on her teenaged sons or accuse them of being involved with illegal armed groups. The applicant and her family left Russia and sought asylum in another country.

34.  The applicant submitted that her health had deteriorated significantly since the events of 2 August 2004 and the disappearance of Sultan Khatuyev. Without presenting any documents, she claimed that in 2008 she had been diagnosed with a benign tumour, which she thought was a result of the endured stress.

2.  Information submitted by the Government

35.¬†¬†With reference to the information provided by the Prosecutor General’s Office, the Government submitted that the investigation of the abduction of Sultan Khatuyev had commenced on 20 August 2004.

36.¬†¬†On unspecified dates the investigation questioned the applicant and Sultan Khatuyev’s parents. The applicant was granted victim status on 25¬†August 2004.

37.¬†¬†The Government stated that two servicemen of the Sunzhenskiy ROVD had been questioned in the course of the investigation. They testified that on 2 August 2004 their office had assisted the FSB and the criminal police of Ingushetia in the security operation in Ordzhonikidzevskaya. One serviceman had taken part in this operation, while the other one had not. The aim of the operation had been to identify members of illegal armed groups and to check that the inhabitants of the settlement of internal migrants from Chechnya were complying with residence rules. The participating serviceman had been aware of the detention of four men, the identities and the reasons for detention of whom he had not known. The other serviceman (presumably, this was A.G., questioned on 3 September 2004 ‚Äď see paragraph 31 above) had learnt of Sultan Khatuyev’s detention from the latter’s relatives. The witnesses had no other information about Sultan Khatuyev.

38.¬†¬†It also appears from Government’s observations that on an unspecified date the investigators questioned U.I., who refused to submit any complaints about the alleged ill-treatment. As it appears, no other witnesses were identified or questioned.

39.  The Government further cited the report of the border security regiment of the Ministry of the Interior of Ingushetia of 8 November 2004. According to them, 60 servicemen of the regiment had participated in the joint operation on 2 August 2004 aimed at identifying the persons who had taken part in a terrorist attack on 22 June 2004. Several persons had been delivered to the Sunzhenskiy ROVD.

40.¬†¬†The Government also referred to a report from the Ingushetia Department of the FSB of 15 September 2004, according to which Sultan Khatuyev had been questioned in the service car in order to establish his identity. The FSB officers thus found out that in fact they had been looking for a relative of his, A.B. Khatuyev. In view of this Sultan Khatuyev had been released from the car at the gas station situated at the exit from Ordzhonikidzevskaya, before the road police block ‚ÄúVolga-20‚ÄĚ. Sultan Khatuyev had rejected the servicemen’s offer of a lift home.

41.  The Government submitted that in November 2004 the investigating authorities had sent a number of queries to various State bodies. On an unspecified date the Ingushetia department of the FSB stated that their office had not detained Sultan Khatuyev and had no information about his whereabouts. The Ministry of the Interior of Chechnya also replied, on 7 September 2004, that their agents had not detained Sultan. Also on unspecified dates the remand centres in the Northern Caucasus informed the investigation that the missing man had never been detained there.

42.¬†¬†As far as the applicant’s attempts to obtain judicial review of the prosecutor’s decisions are concerned, the Government added that on 28 July 2005 the district court had granted the applicant’s action against the prosecutor’s office and had obliged the latter to carry out a complete and effective investigation into the circumstances of her husband’s abduction.

43.¬†¬†The investigation failed to establish the whereabouts of Sultan Khatuyev. The law enforcement authorities of Chechnya had never arrested or detained Sultan Khatuyev on criminal or administrative charges and had not carried out a criminal investigation in his respect. The Government insisted that the incident should be qualified not as detention, but as ‚Äúapprehension with the aim of identifying personal identity‚ÄĚ (‚Äú–∑–į–ī–Ķ—Ä–∂–į–Ĺ –ī–Ľ—Ź —É—ā–ĺ—á–Ĺ–Ķ–Ĺ–ł—Ź –Ľ–ł—á–Ĺ–ĺ—Ā—ā–ł¬Ľ) and that as soon as his identity had been established, he had been released.

44.  According to the information submitted by the Government, between 20 August 2004 and 4 February 2008 the investigation was suspended and resumed on several occasions, and has so far failed to identify those guilty. The latest decision to resume the investigation was dated 4 February 2008.

45.¬†¬†Despite specific requests by the Court the Government did not disclose any of the documents of criminal case no.¬†04600054. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.

II  RELEVANT DOMESTIC LAW

46.  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

47.  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 Sultan Khatuyev had not yet been completed. They also noted that the applicant had applied to the Court before the domestic authorities had had a chance to review her complaints.

48.  The applicant contested that objection. She stated that the criminal investigation had proved to be ineffective from an early stage and that her complaints to that effect, including the application to the district court, had been futile. The directions issued by the domestic courts had not been complied with.

49.¬†¬†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

50.¬†¬†The applicant maintained that it was beyond reasonable doubt that Sultan Khatuyev had been detained on 2 August 2004 by State agents and delivered to the office of the Ingushetia department of the FSB in Magas. He was last seen alive in the hands of the State agents and the Government had failed to discharge its burden of proof by submitting any explanation as to what had happened to him afterwards. The applicant also asked the Court to draw inferences from the Government’s failure to present any documents from the investigation file, either to them or to the Court. Since her husband 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.

51.¬†¬†The Government submitted that Sultan Khatuyev had not been detained, but only briefly apprehended in the car and then released as soon as it had been established that the FSB had been looking for another man with the same family name. They further contended that the investigation of the incident was in progress, and that there was no evidence that the applicant’s husband was dead. The Government also raised a number of objections to the applicant’s presentation of the facts. They alleged that her recollections of the conversations she had had with officials after the detention of her husband had been inconsistent. They also alleged that the testimonies given by A.G. and U.I. in the course of the investigation contradicted the applicant’s presentation of their statements. The Government did not submit the witness statements in question to the Court.

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

52.  The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of the 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 ).

53.  The Court notes that despite its requests for a copy of the investigation file into the abduction of Sultan Khatuyev, the Government produced no 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- XIII (extracts)).

54.¬†¬†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 husband can be presumed dead and whether his death can be attributed to the authorities.

55.  It clearly follows from the evidence submitted by the parties and uncontested by them that on 2 August 2004 Sultan Khatuyev was detained in Ordzhonikidzevskaya during a security operation and delivered to the ROVD, from which he was taken away in the direction of the Ingushetia department of the FSB. The documents cited by the Government refer to finding persons suspected of involvement in illegal armed groups and responsible for a terrorist act as the aims of the operation, though no formal charges have been ever brought. It does not appear that any records were drawn up in relation to the detention or any other actions carried out in respect of Sultan Khatuyev. He has not been seen since that day and his family has had no news of him. The investigation failed to establish what had happened to him or to charge anyone in connection with the disappearance.

56.  The Government suggested that certain documents in the criminal investigation file proved that Mr Khatuyev 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 (extracts)).

57.¬†¬†The Government also questioned the credibility of the applicant’s statements in view of certain discrepancies relating to the description of the days immediately following the detention. The Court notes in this respect that no other elements underlying the applicant’s submissions of the 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 applicant’s 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 her statements.

58.¬†¬†Furthermore, a number of serious and unresolved contradictions about the exact circumstances of the arrest and alleged release of Sultan Khatuyev arise in the documents 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 or even to question the persons directly involved in his apprehension.

59.¬†¬†Having regard to the previous cases concerning disappearances in Chechnya and in Ingushetia 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; Alikhadzhiyeva v. Russia, no.¬†68007/01, 5¬†July 2007; Medova v. Russia, no. 25385/04, ECHR 2009-… (extracts)), the Court finds that in the context of the situation in the region, 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 Sultan Khatuyev or of any news of him for over five years supports this assumption.

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

III.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

61.  The applicant complained under Article 2 of the Convention that her husband had been killed by State agents and that the 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

62.  The Government first argued that the complaint was manifestly ill-founded and should be dismissed as such. They further contended that the domestic investigation had obtained no evidence to the effect that Sultan Khatuyev 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 met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible.

63.¬†¬†The applicant argued that Sultan Khatuyev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for many 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. The investigation into Sultan Khatuyev’s kidnapping had been opened 18 days after the events and then had been suspended and resumed a number of times ‚Äď thus delaying the taking of the most basic steps. 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. 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

64.¬†¬†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. 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 Sultan Khatuyev

65.¬†¬†The Court has already found that the applicant’s husband must be presumed dead following unacknowledged detention and that the death can be attributed to the State. In the absence of any justification in respect of the use of lethal force by State agents, the Court finds that there has been a violation of Article 2 in respect of Sultan Khatuyev.

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

66.¬†¬†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).

67.  In the present case, the kidnapping of Sultan Khatuyev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

68.  The Court notes at the outset that the Government disclosed no documents from the investigation. It therefore has to assess its effectiveness on the basis of the few documents submitted by the applicant and the information about its progress presented by the Government.

69.¬†¬†The Court notes that the authorities were immediately made aware of the disappearance by the applicant. The investigation in case no.¬†04600054 was instituted on 20 August 2004, that is, 18 days after Sultan Khatuyev’s abduction. Such a postponement per se is 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 also appears that within the following days the applicant, some of her relatives and two ROVD officials were questioned. The applicant was granted victim status in August 2004. However, it appears that after that a number of crucial steps were delayed, or not taken at all. 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).

70.¬†¬†A number of essential steps were never taken. Most notably, the Court finds it striking that by 4 June 2005 the investigators had yet failed to question the servicemen who had been directly involved in Mr Khatuyev’s apprehension and alleged release (see paragraph 32 above). No documents were sought or obtained about the alleged apprehension and questioning of Mr Khatuyev. It does not appear that, apart from Mr U.I., his fellow detainees were questioned. In fact, the presentation of the events in the Government’s observations seems to leave more questions than answers.

71.¬†¬†The Court also notes that even though the applicant was granted victim status in the investigation, she was only informed of the suspension and resumption of the proceedings, and not of any other significant developments. Thus, she learnt about her husband’s alleged release from the FSB vehicle in Ordzhinikzevskaya from the Government observations submitted to the Court. Other essential information, including the dates of adjournments and suspensions of the investigation, has not been communicated to her. 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.

72.¬†¬†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 district prosecutor’s office when no proceedings were pending. The district court criticised deficiencies in the proceedings and ordered remedial measures, but it does not appear that its instructions were complied with.

73.¬†¬†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 ongoing, the Court notes that the investigation, having being repeatedly suspended and resumed and plagued by inexplicable delays, has been open 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. The Government argued that the applicant 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 applicant 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 necessary and urgent investigative measures. Moreover, the district court’s instructions to the district prosecutor’s office to investigate the crime effectively did not bring any tangible results for the applicant. 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 applicant 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 applicant’s failure to exhaust domestic remedies within the context of the criminal investigation.

74.  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 Sultan Khatuyev, in breach of Article 2 in its procedural aspect.

IV.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

75.¬†¬†The applicant relied on Article 3 of the Convention, submitting that Sultan Khatuyev had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention and that as a result of her husband’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

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

77.  The applicant maintained her submissions.

B.¬†¬†The Court’s assessment

1.  Admissibility

(a)  The complaint concerning Sultan Khatuyev

78.¬†¬†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).

79.¬†¬†The Court has found it established that Sultan Khatuyev was detained on 2 August 2004 by federal forces and that no reliable news of him has been received since. It has also found that, in view of all the known circumstances, he can be presumed dead and that the responsibility for his death lies with the State authorities. However, the questions of the exact way in which he died and whether he was subjected to ill-treatment while in detention have not been elucidated. The Court considers that the applicant’s reference to her conversation with Mr U.I. does not enable it to find beyond all reasonable doubt that Mr Khatuyev was ill-treated in detention. It thus finds that this part of the complaint has not been substantiated.

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

(b)¬†¬†The complaint concerning the applicant’s psychological suffering

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

2.  Merits

82.¬†¬†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).

83.¬†¬†In the present case the Court notes that the applicant is the wife of the disappeared person and witnessed his abduction. For more than five years she has not had any news of him. During this period the applicant has made numerous enquiries to various official bodies, both in writing and in person. Despite her attempts, the applicant has never received any plausible explanation or information about what became of Mr Khatuyev following his detention. The responses she received mostly denied State responsibility for the 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.

84.  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

85.  The applicant further stated that Sultan Khatuyev 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

86.¬†¬†The Government stressed that Sultan Khatuyev had not been detained, but only briefly apprehended in the car and then released as soon as his identity had been established. He was not listed among the persons kept in detention centres and none of the regional law-enforcement agencies had information about his detention. In their additional observations the Government stated that Mr Khatuyev’s detention had in fact been recorded at the Sunzhenskiy ROVD, but submitted no copies of the relevant documents or any other details.

87.  The applicant reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

88.  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

89.  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).

90.¬†¬†The Court has found that Sultan Khatuyev was apprehended by State servicemen on 2¬†August 2004. The information submitted by the parties shows that on the same day he had been delivered to the Sunzhenskiy ROVD and than transferred to the representatives of the FSB who put him in a car and went towards the FSB office in Magas. His detention was not acknowledged in a meaningful manner, was not duly 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). In fact, the Government’s argument points to the heart of the problem, because even though the evidence amply demonstrates that Mr Khatuyev had been deprived of his liberty by State agents, none of the safeguards against arbitrary detention contained in the domestic legal order had been employed.

91.¬†¬†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 husband 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.

92.  In view of the foregoing, the Court finds that Sultan Khatuyev 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 8 OF THE CONVENTION

93.  The applicant alleged that the search carried out at her house on 2 August 2004 was illegal and constituted a violation of her right to respect for her home. It thus disclosed a violation of Article 8 of the Convention, which provides:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

‚Äú2.¬†¬†There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.‚ÄĚ

94.  The Court notes that there is no evidence that the applicant properly raised her complaints alleging a breach of her right to respect for her home before the domestic authorities. But even assuming that in the circumstances of the present case no remedies were available, the events complained of took place on 2 August 2004, whereas the application was lodged on 28 March 2005. The Court thus concludes that this part of the application was lodged outside the six-month limit (see Hazar and Others v. Turkey (dec.), no. 62566/00 et seq., 10 January 2002, and Musayeva and Others v. Russia (dec.), no. 74239/01, 1 June 2006).

95.  It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

VII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

96.  The applicant complained that she had been deprived of effective remedies in respect of the violation of Article 2, 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

97.¬†¬†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 and referred to cases where victims in criminal proceedings had been awarded damages from state bodies and, in one instance, the prosecutor’s office. In sum, the Government submitted that there had been no violation of Article 13.

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 it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

100.  The Court reiterates that in circumstances where, as here, a criminal investigation into a 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).

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

VIII.  ALLEGED VIOLATIONS OF ARTICLES 34 AND 38 OF THE CONVENTION

102.¬†¬†The applicant submitted that she was subjected to threats in relation to her complaint to the Court, as a result of which she was forced to seek asylum abroad. She also 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 issues 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

A. Threats to the applicant

103.¬†¬†The Court reiterates that it is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, ‚Äúpressure‚ÄĚ includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy. The issue of whether or not contacts between the authorities and an applicant amount to unacceptable practices from the standpoint of Article¬†34 must be determined in the light of the particular circumstances of the case. In the context of the questioning of applicants about their applications under the Convention by authorities exercising a domestic investigative function, this will depend on whether the procedures adopted have involved a form of illicit and unacceptable pressure which may be regarded as hindering the exercise of the right of individual application (see, for example, AydńĪn v. Turkey, 25¬†September 1997, ¬ß¬ß¬†115-117, Reports of Judgments and Decisions 1997-VI, and Salman v. Turkey [GC], no.¬†21986/93, ¬ß¬†130, ECHR 2000-VII).

104.¬†¬†Turning to the present case, the Court notes that the applicant has not submitted any details about the alleged pressure put on her by State representatives in relation to her complaint. She failed to indicate the dates and circumstances of such incidents or to specify who had been threatening her. Her statements are extremely vague and unspecific. While the Court sympathises with the applicant, who had been subjected to prolonged stress on account of her husband’s disappearance and exasperated by the authorities’ failure to provide an adequate response to her grievances, on the basis of her allegations it is unable to come to the conclusion that there has been a breach of Article 34 in the present case.

B. The failure to disclose documents from the criminal investigation file

105.¬†¬†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. In view of the main objective of Article 34 of the Convention, which is to ensure the effective operation of the right of individual petition, the Court does not find that its provisions have been breached in the present case.

IX.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

106.  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

107.¬†¬†The applicant claimed compensation for pecuniary damage sustained as a result of her husband’s disappearance. On behalf of herself and her two sons, born in 1988 and 1990, the applicant alleged that Mr¬†Khatuyev had been the family’s sole breadwinner. He worked as a day labourer on construction sites, and even though no official records of his earnings existed, the applicant submitted that his monthly pay had averaged between 600 and 800 United States dollars (USD). The applicant relied on the Law on Minimal Living Costs and the subsequent decrees by the Russian Government which had established the minimum living costs per person at different periods of time. The claim as to her loss of future earnings was based on the Ogden actuarial tables and on the assumption that she and her minor sons would have continued to benefit from her husband’s salary.

108.  Under this heading the applicant claimed a total of 919,347 Russian roubles (RUB) (20,992 euros (EUR)).

109.  The Government regarded these claims as based on suppositions and unfounded. They noted that the applicant had not made use of the domestic avenues for obtaining compensation for the loss of a breadwinner.

110.¬†¬†The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its conclusions above, it finds that there is a direct causal link between the violation of Article 2 in respect of the applicant’s husband and her loss of the financial support which he could have provided.

111.¬†¬†Having regard to the applicant’s submissions and the absence of any conclusive data about Mr Khatuyev’s earnings at the time of his apprehension, the Court awards EUR 10,000 to the applicant in respect of pecuniary damage plus any tax that may be chargeable to her.

B.  Non-pecuniary damage

112.   As regards non-pecuniary damage, the applicant claimed EUR 100,000 for the suffering she had endured as a result of the loss of her husband and the indifference shown by the authorities towards her.

113.  The Government considered the amount claimed to be exaggerated.

114.¬†¬†The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicant’s relative. The applicant herself has been found to have been the victim of a violation of Article 3 of the Convention. The Court thus accepts that she has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicant EUR¬†60,000, plus any tax that may be chargeable thereon.

C.  Request for investigation

115.¬†¬†The applicant also requested, referring to Article 41 of the Convention, that ‚Äúan independent investigation which would comply with the requirements of the Convention be conducted into her husband’s abduction‚ÄĚ. She relied in this connection on the case of Assanidze¬†v.¬†Georgia ([GC], no.¬†71503/01, ¬ß¬ß 202-203, ECHR 2004-II).

116.  The Government argued that the investigation into the abduction of Mr Khatuyev had been carried out in full compliance with domestic law.

117.  Having regard to its previous practice in similar cases, the Court finds it most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention (see Kukayev v. Russia, no. 29361/02, § 134, 15 November 2007).

D.  Costs and expenses

118.¬†¬†The applicant was represented by lawyers from the NGO EHRAC/Memorial Human Rights Centre. The aggregate claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR¬†2,165 (2,019 pounds sterling (GBP)). They submitted the following breakdown of costs:

(a)  GBP 817 for eight hours and ten minutes of legal work by United Kingdom-based lawyers at a rate of GBP 100 per hour;

(b)  GBP 1,027 for translation costs, as certified by invoices; and

(c)  GBP 175 for administrative and postal expenses.

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

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

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

122.¬†¬†Having regard to the details of the claims submitted by the applicant, the Court awards her the amount claimed of EUR¬†2,165, 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.

E.  Default interest

123.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

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

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

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

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 Sultan Khatuyev disappeared;

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

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

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

8.  Holds that there has been no breach of the provisions of Article 34 of the Convention;

9.  Holds

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

(i)  EUR 10,000 (ten 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¬†2,165 (two thousand one hundred and sixty-five 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;

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

Done in English, and notified in writing on 22 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S√łren Nielsen¬†Christos Rozakis
Registrar President

***************************

CASE OF MUTAYEVA v. RUSSIA

(Application no. 43418/06)

JUDGMENT

STRASBOURG

22 April 2010

In the case of Mutayeva 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 25 March 2010,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 43418/06) 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 Ms Savdat Mutayeva, a Russian national, (‚Äúthe¬†applicant‚ÄĚ), on 18 October 2006.

2.¬†¬†The applicant was represented by lawyers of the Stichting Russian Justice Initiative (‚ÄúSRJI‚ÄĚ), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (‚Äúthe¬†Government‚ÄĚ) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3.¬†¬†On 19 June 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 and to the application of Rule 41 of the Rules of Court. Having considered the Government’s objection, the Court dismissed it.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1948. She lives in the village of Assinovskaya, in the Chechen Republic. The applicant is the mother of Luiza Mutayeva, born in 1984.

A.  Disappearance of Luiza Mutayeva

1.¬†¬†The applicant’s account

6.  The applicant, with her husband and two daughters, Luiza and Madina, lived at 60 Bershchanskaya Street in the village of Assinovskaya, in the Achkhoy-Martanovskiy district (in the submitted documents the district is also referred to as Sunzhenskiy district), in the Chechen Republic. Their house was located near a local hospital. At the material time the village was under the firm control of the federal forces, which maintained manned checkpoints at the entry and exit points to and from the village.

7.  In the night of 19 January 2004 (in the submitted documents the date is also referred to as 9 January 2004) the family was sleeping in their house at the above address.

8.¬†¬†At about 2.30 a.m. on 19 January 2004 the applicant and her family members were woken up by someone knocking at the entrance door. The applicant approached the door and asked in Chechen: ‚ÄúWho is it?‚ÄĚ The answer was given in Russian: ‚ÄúPassport check‚ÄĚ. When the applicant wondered why the passport check was being conducted so late at night, she was told: ‚ÄúYou better open the door; we have an order!‚ÄĚ The applicant opened the door and fifteen to twenty armed men in camouflage uniforms without insignia entered the house. All but five or six of the intruders were wearing masks. The applicant and her relatives noticed that the men without masks were of Slavic appearance. The intruders spoke unaccented Russian. The applicant inferred that they were Russian servicemen.

9.¬†¬†The servicemen asked the applicant whether there were any men in the house. The only man in the household was the applicant’s husband, a disabled person with one leg. The servicemen checked the family’s passports and returned them to the applicant. Then the unmasked servicemen said to their colleagues that they should leave the applicant’s house as no men were to be found there. However, one of the masked servicemen told them that they should search the house. The servicemen searched the house, turning everything upside down. It appears that they did not find anything of interest to them other than a few video cassettes which they took away.

10.¬†¬†Having searched the house, the servicemen ordered the applicant’s daughters, Luiza and Madina, to put on warm clothing as they were being taken to the vehicles for questioning. The applicant’s younger daughter, fifteen-year old Madina, started crying. One of the masked servicemen told her: ‚ÄúDo not be afraid; we will just question you and will let you go. I promise that nothing will happen to you.‚ÄĚ Before leaving the house, Luiza¬†Mutayeva insisted that she should be the only one to go for questioning. The servicemen let Madina stay in the house; they took Luiza¬†outside to the vehicles.

11.¬†¬†The applicant managed to run outside and saw that Luiza Mutayeva was handcuffed and was standing next to a white GAZ minivan. Beside the minivan the applicant saw a white VAZ-2107, two grey UAZ vehicles, two military all-terrain UAZ vehicles (‚Äú—ā–į–Ī–Ľ–Ķ—ā–ļ–į‚ÄĚ) and a grey VAZ-2109 vehicle, which were all parked around the applicant’s house. The vehicles did not have number plates. According to the applicant, further vehicles belonging to the intruders were parked near her house but she was unable to recall their models or their colour. The applicant shouted at the servicemen and asked them to take her for questioning with her daughter. In response they pushed her away. Luiza Mutayeva was put into the GAZ minivan and the intruders drove away.

12.¬†¬†A number of people witnessed the abduction of Luiza Mutayeva. In particular, M.K., who was a patient in the hospital across the street, was woken up by shouting coming from the applicant’s courtyard and rushed outside. She saw that the applicant’s house was surrounded by armed men in masks and camouflage uniforms. The men did not allow her to approach and pushed her back into the hospital. While they were doing so, she saw them take Luiza Mutayeva away.

13.¬†¬†At about 3 a.m. on 19 January 2004 the applicant’s neighbours, B.M. and S.B., were woken up by the noise of armoured vehicles and the applicant’s shouting and saw armoured and other vehicles stationed at the street. B.M. and S.B. were afraid to approach the persons in camouflage uniforms and masks because they were armed. Another neighbour, Yu.D., who was woken up by a woman’s shouting at about 3 a.m. on 19¬†January¬†2004, got outside and saw armoured and other vehicles parked on the street at the applicant’s house; women at the entry gate to the applicant’s house were shouting at several men wearing camouflage uniforms and masks. Afraid of the camouflaged men because of their weapons, Yu.D. returned home. When it was quiet he went to see the applicant and learnt from her that Luiza Mutayeva had been kidnapped.

14.  The applicant has had no news of Luiza Mutayeva since 19 January 2004.

15.¬†¬†The description of the events above is based on the applicant’s application form and written statements by M.K., B.M., S.B. and Yu.D., made on 19 October 2005.

2.  Information submitted by the Government

16.  The Government submitted that on 19 January 2004 Luiza Mutayeva had been abducted by unidentified persons.

B.  The search for Luiza Mutayeva and the investigation

1.¬†¬†The applicant’s account

(a)¬†¬†The applicant’s search for Luiza Mutayeva

17.¬†¬†On the morning of 19 January 2004 the applicant complained about her daughter’s abduction to a number of law-enforcement agencies in Achkhoy-Martan. In particular, she complained to the Achkhoy-Martan District Department of the Interior (the ROVD), to a local department of the Federal Security Service (the FSB) and the security service of the Chechen President. The authorities denied having any information about the whereabouts of the applicant’s daughter. However, unspecified officers from the security service of the Chechen President suggested to the applicant that her daughter had most likely been abducted by officers of the FSB Special Forces from Khankala, Chechnya.

18.  The applicant also complained about the abduction of Luiza Mutayeva to T., head of the local administration. The latter also suggested that her daughter had been probably taken to Khankala.

19.¬†¬†Every day between 19 and 26 January 2004 the applicant went in person to a number of State authorities in Achkhoy-Martan, trying to obtain information concerning her daughter’s whereabouts. It appears that her attempts produced no results.

20.¬†¬†The applicant also contacted, both in person and in writing, various official bodies, such as the Chechen administration, military commanders’ offices and prosecutors’ offices at different levels, describing in detail the circumstances of Luiza Mutayeva’s abduction and asking for help in establishing her whereabouts. The applicant retained copies of a number of those letters and submitted them to the Court. An official investigation was opened by the local prosecutor’s office. The relevant information is summarised below.

(b)  The official investigation into the abduction of Luiza Mutayeva

21.¬†¬†On 27 April 2004 the prosecutor’s office of the Achkhoy-Martanovskiy district (‚Äúthe district prosecutor’s office‚ÄĚ) instituted an investigation into the abduction of Luiza Mutayeva under Article 126 ¬ß 2 of the Criminal Code (aggravated kidnapping). The case file was given number 49516. It does not appear that the applicant was informed about the decision.

22.¬†¬†By a decision of 28 April 2004 the district prosecutor’s office granted the applicant victim status in connection with criminal case no.¬†49516. The decision stated, among other things, that at about 2.30 a.m. on 19 January 2004 about fifteen unidentified armed men in camouflage uniforms and masks had arrived at the applicant’s home at 60¬†Bershchanskaya Street in a GAZ minivan, a UAZ vehicle, two military all-terrain UAZ vehicles (‚Äú—ā–į–Ī–Ľ–Ķ—ā–ļ–į‚ÄĚ), a VAZ-2109 and a VAZ-2107 and had taken Luiza Mutayeva to an unknown destination. The applicant was accordingly provided with a copy of the decision.

23.¬†¬†On 27 August 2004 the district prosecutor’s office informed the applicant that on that date the investigation in criminal case no.¬†49516 had been suspended for failure to identify the perpetrators; the operational and search measures aimed at solving the crime were under way.

24.¬†¬†On 14 May 2005 the applicant’s representatives from SRJI wrote to the district prosecutor’s office, complaining about the lack of information concerning the investigation. They requested to be informed about its progress; the specific actions taken to solve the crime since the opening of the criminal case and during the eight months after the decision to suspend the investigation; the reasons for the suspension of the investigation, and the reasons for Luiza Mutayeva’s arrest. They further requested to be informed whether the investigating authority had interviewed the witnesses of the abduction and had requested information from various remand centres on Luiza Mutayeva’s eventual detention. Lastly, they submitted that the applicant had not been provided with the decision to open the investigation and requested that she be provided with a copy.

25.¬†¬†On 21 June 2005 the prosecutor’s office of the Chechen Republic (‚Äúthe republican prosecutor’s office‚ÄĚ) replied to the applicant’s representatives that the district prosecutor’s office had instituted an investigation into the abduction of Luiza Mutayeva and the applicant had been granted victim status in the criminal proceedings; the operational and search measures aimed at solving the crime were under way. The letter also stated that pursuant to Article 161 of the Code of Criminal Procedure any information about the investigation was confidential and was not to be disclosed.

26.¬†¬†On 20 July 2005 the applicant’s representatives wrote to the republican prosecutor’s office and to the Prosecutor General’s office. Referring to the case-law of the European Court of Human Rights, they pointed out that the authorities’ letter of 21 June 2005 had failed to provide the requested information or any plausible explanations for the authorities’ failure to provide the applicant with copies of basic investigative decisions. The applicant’s representatives repeated their request for information about the progress of the investigation and copies of those decisions.

27.¬†¬†On 17 August 2005 the Prosecutor General’s office informed the applicant’s representatives that their request of 20 July 2005 had been forwarded to the republican prosecutor’s office for examination.

28.¬†¬†On 27 October 2005 the applicant wrote to the district prosecutor’s office. In her letter she described the circumstances of her daughter’s abduction by armed persons in camouflage uniforms and masks, who had arrived in ‚Äúordinary‚ÄĚ and armoured vehicles and complained that she had had no information concerning the investigation. She pointed out that her numerous requests to various State authorities had failed to produce any results and requested, among other things, to be provided with the following information: the number of the criminal case opened in connection with the abduction of Luiza Mutayeva; the prosecutor’s office and the name of the person in charge of the investigation; the investigative measures taken by the authorities; whether witnesses to the abduction had been questioned by the investigation; whether the investigation had been suspended; whether the investigation had established how a convoy of military and civil vehicles with the abducted Luiza Mutayeva had managed to drive through the numerous Russian federal forces checkpoints located in the Achkhoy-Martanovskiy district and, in particular, on the road to and from the village of Assinovskaya; whether the investigation had examined the theory of possible implication of Russian servicemen or representatives of Russian special forces in the abduction of Luiza Mutayeva and whether the authorities had obtained information from various detention centres in Chechnya concerning her eventual detention. Lastly, she requested to be provided with the decision to suspend the investigation, which the authorities had not sent to her.

29.¬†¬†On 28 October 2005 the district prosecutor’s office replied to the applicant. The letter stated that on 27 April 2004 the district prosecutor’s office had opened criminal case no.¬†49516 into the abduction of Luiza¬†Mutayeva and that the investigation had undertaken the following measures: examination of the crime scene; the applicant had been granted victim status; an unspecified number of the applicant’s relatives, acquaintances and neighbours had been interviewed; unspecified investigative measures had been undertaken in collaboration with a number of other law-enforcement agencies; instructions had been given to the ROVD to conduct operational and search measures; the district prosecutor had issued instructions aimed at solving the crime. According to the letter, the investigation had been examining the thesis of possible involvement of servicemen or members of special forces in the crime. In addition, the investigation was examining the theory that Luiza Mutayeva had been kidnapped for ransom. Finally, the letter stated that the above measures had failed to produce any results and on 27 August 2004 the investigation in criminal case no. 49516 had been suspended for failure to establish the identity of the perpetrators.

30.¬†¬†On 13 June 2006 the applicant’s representatives wrote to the republican prosecutor’s office. Referring to the case-law of the¬†European¬†Court of Human Rights, they complained about the lack of information concerning the investigation into the abduction of the applicant’s daughter and pointed out that the applicant had not received copies of the decisions to open the criminal case and to grant her the victim status in the criminal proceedings. The letter requested the authorities to provide the applicant with the following information: the status of the criminal investigation; the reasons for Luiza Mutayeva’s abduction; whether witnesses to the abduction had been questioned by the authorities; measures undertaken by the investigation between 21 June 2005 and 13 June 2006 and whether the authorities had carried out an examination of detention centres in the region to establish the whereabouts of the applicant’s daughter. Finally, the letter requested that the applicant be provided with copies of basic investigative decisions, including the one granting the applicant victim status in the criminal case.

31.¬†¬†On 17 June 2006 the republican prosecutor’s office forwarded the request of the applicant’s representatives to the district prosecutor’s office for examination.

32.¬†¬†On 3 July 2006 the republican prosecutor’s office informed the applicant’s representatives that they had examined their request. According to the letter, the investigation had been undertaking measures aimed at solving the crime. Referring to unspecified provisions of Russian legislation the letter stated that copies of basic investigative decisions could not be provided to the applicant’s representatives; under Article 42 ¬ß 13 only the applicant was entitled to receive in person copies of the decisions concerning opening of the criminal proceedings, grant of the victim status and suspension of the investigation.

2.  Information submitted by the Government

33.¬†¬†On 20 April 2004 the district prosecutor’s office received from the NGO Memorial information concerning the abduction of Luiza Mutayeva.

34.¬†¬†On 27 April 2004 the district prosecutor’s office launched an investigation into the abduction of Luiza Mutayeva under Article 126 ¬ß 2 of the Criminal Code (aggravated kidnapping).

35.¬†¬†On 28 April 2004 the district prosecutor’s office requested prosecutor’s offices of various levels, departments of the interior in the Chechen Republic and the Criminal Police of the Temporary Operational Group of Authorities and Departments of the Ministry of the Interior of the Russian Federation in the Caucasus Region (‚Äú–°–Ľ—É–∂–Ī–į –ö—Ä–ł–ľ–ł–Ĺ–į–Ľ—Ć–Ĺ–ĺ–Ļ –ľ–ł–Ľ–ł—Ü–ł–ł –ú–í–Ē –í—Ä–Ķ–ľ–Ķ–Ĺ–Ĺ–ĺ–Ļ –ĺ–Ņ–Ķ—Ä–į—ā–ł–≤–Ĺ–ĺ–Ļ –≥—Ä—É–Ņ–Ņ–ł—Ä–ĺ–≤–ļ–ł –ĺ—Ä–≥–į–Ĺ–ĺ–≤ –ł –Ņ–ĺ–ī—Ä–į–∑–ī–Ķ–Ľ–Ķ–Ĺ–ł–Ļ –ú–í–Ē –≤ –°–Ķ–≤–Ķ—Ä–ĺ-–ö–į–≤–ļ–į–∑—Ā–ļ–ĺ–ľ —Ä–Ķ–≥–ł–ĺ–Ĺ–Ķ‚ÄĚ, ‚Äúthe CP‚ÄĚ) to provide information on whether Luiza Mutayeva had been arrested. From the replies of those State authorities it appeared that the applicant’s daughter was not being held in the ROVDs of the Chechen Republic; she had not applied to medical institutions for assistance; there were no compromising materials (‚Äú–ļ–ĺ–ľ–Ņ—Ä–ĺ–ľ–Ķ—ā–ł—Ä—É—é—Č–ł–Ļ –ľ–į—ā–Ķ—Ä–ł–į–Ľ‚ÄĚ) on her.

36.  According to a reply from the deputy head of CP, that authority had not carried out any special operations in Assinovskaya on 19 January 2004; Luiza Mutayeva had not been taken to any penal institutions in the North Caucasus Region.

37.  On 28 April 2004 the applicant was granted victim status in criminal case no. 49516 and her procedural rights and obligations were explained to her.

38.¬†¬†Being interviewed as a victim on 28 April 2004, the applicant submitted, among other things, that on 19 January 2004 unidentified persons had told her to open the door for an identity check. Subsequently, several armed men in camouflage uniforms and masks burst into the house. They had asked the applicant in Russian where the men were. The applicant had pointed at her husband, explaining that he was the only man in the household. The intruders had checked the family members’ identity papers and told the applicant’s daughters to get dressed. Meanwhile the intruders had turned everything in the house upside down. They had told Luiza¬†Mutayeva to follow them to their vehicle for questioning. When the applicant protested the armed men replied that they would question Luiza¬†Mutayeva and then let her go. The applicant had wanted to follow her daughter outside but had been held in the house. Having nonetheless managed to get outside, she had seen Luiza Mutayeva, handcuffed, near a white GAZ minivan without number plates. The applicant had also seen about six or seven vehicles, including an UAZ vehicle, two UAZ military all-terrain vehicles (‚Äú—ā–į–Ī–Ľ–Ķ—ā–ļ–į‚ÄĚ), a VAZ-2109 and a VAZ-2107 vehicle. Despite the applicant’s attempts to stop them, the abductors had left with her daughter. The applicant also submitted that in December 2003, according to local custom, Luiza Mutayeva had been abducted for marriage by a man from Urus-Martan. She had only stayed with that man for two weeks. When the elders had come to the applicant to pay the bride-price and the family had learnt about Luiza’s whereabouts, they had taken her back home.

39.¬†¬†The applicant’s husband and daughter Madina, questioned on 28¬†April 2004, gave similar descriptions of the circumstances of Luiza¬†Mutayeva’s abduction.

40.¬†¬†B.A., the applicant’s neighbour, interviewed as a witness on 28¬†June¬†2004, submitted that he had learnt from the applicant that at about 3¬†a.m. on 19 January 2004 about fifteen armed men in masks and camouflage uniforms had abducted Luiza Mutayeva from her parents’ house in Assinovskaya. The intruders had arrived in a convoy of vehicles, including a Gazel minivan, several UAZ and VAZ-2107 and VAZ-2109 vehicles.

41.¬†¬†The applicant’s neighbour, L.V., interviewed as a witness on an unspecified date, stated that during the night of 18-19 January 2004 she had heard several vehicles in the street. On 20 January 2004 she had learnt from the applicant about the abduction of Luiza Mutayeva by armed men in camouflage uniforms.

42.¬†¬†Ms L.G., interviewed as a witness on an unspecified date, submitted that she had learnt from fellow residents in Assinovskaya that on¬†19¬†January¬†2004 Luiza Mutayeva had been abducted by armed men in camouflage uniforms, who had arrived in a GAZ minivan and several UAZ and VAZ vehicles without number plates. Similar submissions had been made by the applicant’s neighbours and acquaintances Kh.A., S.M., Kh.G., T.D., Kh.M., A.B., A.M., A.A., I.M., M.M., A.At., D.M., Kh.Yu., P.T., M.Me., L.A., A.Am., R.A., M.Kh., M.S, M.D., Z.B., M.T., B.B., Kh.D., F.D., R.Kh., A.Al., Kh.G., T.K., B.A., S.A., A.S., L.Ts., S.Am., M.T., Sh.A., R.Ts., M.A., B.Ts., who were interviewed as witnesses on unspecified dates.

43.¬†¬†According to replies from the Operational and Search Bureau of the North Caucasus operational department of the Main Directorate of the Ministry of the Interior of the Russian Federation in the South Federal Circuit (‚Äú–ě–Ņ–Ķ—Ä–į—ā–ł–≤–Ĺ–ĺ-–†–ĺ–∑—č—Ā–ļ–Ĺ–ĺ–Ķ –Ď—é—Ä–ĺ –°–Ķ–≤–Ķ—Ä–ĺ-–ö–į–≤–ļ–į–∑—Ā–ļ–ĺ–≥–ĺ —É–Ņ—Ä–į–≤–Ľ–Ķ–Ĺ–ł—Ź –ď–Ľ–į–≤–Ĺ–ĺ–≥–ĺ —É–Ņ—Ä–į–≤–Ľ–Ķ–Ĺ–ł—Ź –ú–í–Ē –†–§ –Ņ–ĺ –ģ–∂–Ĺ–ĺ–ľ—É —Ą–Ķ–ī–Ķ—Ä–į–Ľ—Ć–Ĺ–ĺ–ľ—É –ĺ–ļ—Ä—É–≥—É‚ÄĚ) and the FSB department in the Chechen Republic, those authorities had not arrested Luiza Mutayeva and had no compromising materials on her.

44.¬†¬†On 1 May 2004 the military prosecutor of military unit no.¬†20102 was instructed to verify the following information: whether federal troops had carried out a special operation in Assinovskaya on 19 January 2004; whether they had arrested Luiza Mutayeva, and whether the military units stationed in the Achkhoy-Martan district and the Khankala settlement were equipped with GAZ minivans, UAZ, VAZ-2109 and VAZ-2107 vehicles. According to the military prosecutor’s reply dated 22 June 2004, federal forces had not carried out any special operations in the village of Assinovskaya on 19¬†January 2004 and had not arrested Luiza Mutayeva. The military forces in question were equipped with GAZ minivans, UAZ and VAZ-2107 and VAZ-2109 vehicles. However, in the absence of information about their number plates it was impossible to establish which military unit owned the vehicles mentioned in the district prosecutor’s office’ request for information.

45.  On 1 May 2004 heads of unspecified remand prisons in Stavropol, Nalchik, Chernokozovo, Nazran and Pyatigorsk were requested to provide information as to whether Luiza Mutayeva had been detained in those facilities. No relevant information was provided by those persons.

46.¬†¬†On 3 May 2004 the district prosecutor’s office requested the military commander’s office of the Achkhoy-Martan district, the Ministry of the Interior of the Chechen Republic, the Ministry of the Interior internal troops office in the North Caucasus Circuit, FSB departments in the Chechen Republic, Ingushetiya, North Ossetia-Alania and Dagestan, and the ROVD and police offices of the Dagestan and Kabardino-Balkariya Republics, to find out whether those State authorities had carried out special operations in Assinovskaya on 19 January 2004 and had arrested Luiza Mutayeva. No relevant information had been received from those State bodies.

47.  The investigation in criminal case no. 49516 had been suspended on numerous occasions for failure to identify the culprits and reopened to check the information obtained as a result of operational and search measures.

48.  The investigation in case no. 49516 is pending.

49.  Despite a specific request by the Court the Government did not disclose most of the contents of criminal file no. 49516, providing only copies of the following documents:

–¬†¬†¬†¬†¬† letter of 20 April 2004 by the Achkhoy-Martan deputy prosecutor, addressed to the head of the ROVD and requesting the latter to verify the information on the abduction of Luiza Mutayeva, submitted by the Memorial NGO on an unspecified date;

–¬†¬†¬†¬†¬† a report by a police officer of the ROVD, dated 25 April 2004 to the effect that there were indications that a crime had been committed against Luiza Mutayeva;

–¬†¬†¬†¬†¬† records of interviews with the applicant, her husband and her daughter Madina, dated 28 April 2004 and a record of an interview with B.A., dated 28 June 2004;

–¬†¬†¬†¬†¬† a reply from the military prosecutor’s office of military unit no.¬†20102 dated 22 June 2004;

–¬†¬†¬†¬†¬† replies from various State authorities to the effect they had not carried out special operations in Assinovskaya on 19 January 2004, had not arrested Luiza Mutayeva, had not held her in detention and had no compromising materials on her or information on her whereabouts.

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

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

A.¬†¬†The parties’ submissions

52.¬†¬†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 Luiza Mutayeva 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 or other law-enforcement authorities, but that the applicant had not availed herself of that remedy. In that connection the Government referred to decisions of courts in the Chechen Republic on complaints by A., S. and E., where several district courts granted in part or in full those persons’ complaints concerning the alleged omissions in the investigation. The Government did not furnish copies of those decisions. They also pointed out that the applicants had not lodged a claim for compensation of non-pecuniary damage under Articles¬†1069-70 of the Civil Code.

53.¬†¬†The applicant contested that objection. She stated that the criminal investigation had proved to be ineffective and that her complaints to that effect had been futile. 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.

B.¬†¬†The Court’s assessment

54.  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).

55.   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.

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, 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.

57.  As regards criminal law remedies provided for by the Russian legal system, the Court observes that the applicant complained to the law-enforcement authorities about the kidnapping of Luiza Mutayeva and that an investigation has been pending since 27 April 2004. The applicant and the Government dispute the effectiveness of the investigation of the kidnapping.

58.¬†¬†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.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

59.  The applicant complained under Article 2 of the Convention that her daughter had been deprived of her 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

60.¬†¬†The applicant argued that Luiza Mutayeva had been detained by State servicemen and should be presumed dead in the absence of any reliable news of her for several years. She maintained her previous submissions and pointed, among other things, to the Government’s acknowledgement that the village of Assinovskaya was under the control of State authorities, which at the relevant time maintained manned checkpoints at all entry and exit points to it. Furthermore, the military prosecutor confirmed that the vehicles used for her daughter’s abduction were part of the usual equipment of the federal forces stationed in the vicinity but the investigating authorities failed to identify them and their owners. The applicant specified that she and her family members had mistakenly given 2003 as the year of Luiza’s abduction for marriage when they were being interviewed by the investigating authorities in April 2004. In reality, Luiza¬†Mutayeva had been abducted for marriage in December 2002 and had been returned home. She suggested that Luiza Mutayeva’s abduction might have been connected to the alleged involvement of her other daughter, Malizha Mutayeva, in the terrorist attack in Dubrovka, Moscow, in October¬†2002. Lastly, the applicant 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.

61.¬†¬†The applicant further argued that the investigation into Luiza¬†Mutayeva’s abduction had not met the effectiveness and adequacy requirements laid down by the Court’s case-law. In particular, the authorities had waited several months before opening the investigation. Despite credible pieces of evidence of the involvement of servicemen in the abduction and instead of interviewing the servicemen who might have been implicated in it, the investigating authorities limited their activities to sending out written requests to various State bodies. The investigation had been suspended several times but after four years had failed to produce any meaningful results, the applicant being not properly informed of the basic investigative steps and having no access to the investigation documents.

62.¬†¬†The Government contended that the domestic investigation had obtained no evidence that Luiza Mutayeva was dead or that any servicemen had been involved in her kidnapping or alleged killing. The fact that the abductors were armed and wearing camouflage uniforms did not prove that they were State servicemen. Moreover, the applicant did not refer to insignia on their uniforms or submit that they had used specific military language. While several witnesses referred to the presence of armoured vehicles, the applicant herself did not mention those vehicles. Furthermore, in contrast to the application form, before the domestic authorities the applicant stated that the abductors spoke both Russian and Chechen. Whilst not disputing that the area in question was under the control of the authorities, the Government suggested that insurgents might have passed through the checkpoints located in the area, referring to the events in Beslan. Lastly, it could not be excluded that Luiza Mutayeva might have been abducted for marriage again by the persons who had previously abducted her with that aim. In that connection the Government also referred to the inconsistencies in the applicant’s submissions concerning the year of Luiza Mutayeva’s abduction for marriage.

63.¬†¬†The Government further argued that the investigation into the disappearance of Luiza Mutayeva was being carried out by an independent authority, which had launched it as soon as it had received the applicant’s complaint, forwarded to them by the Memorial NGO on 20 April 2004. The investigating authorities checked various versions of the abduction, interviewed more than twenty witnesses, including the immediate family of the missing person, and made numerous requests for information. The applicant was duly notified of the developments in the investigation. Although the investigation was suspended on several occasions, it did not mean that it was ineffective.

B.¬†¬†The Court’s assessment

1.  Admissibility

64.¬†¬†The Court reiterates, 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 criminal remedies should be joined to the merits of the complaint (see paragraph 58 above). The complaint under Article 2 must therefore be declared admissible.

2.  Merits

(a)  The alleged violation of the right to life of Luiza Mutayeva

(i)  General principles

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

(ii)  Establishment of the facts

66.  The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 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 applicant alleged that at about 2.30 a.m. on 19 January 2004 her daughter, Luiza Mutayeva, had been abducted by Russian servicemen and had then disappeared. She invited the Court to draw inferences as to the well-foundedness of her allegations from the Government’s failure to provide the documents requested from them. She submitted that she had witnessed her daughter’s abduction and enclosed statements by four witnesses to support her submissions.

68.  The Government conceded that Luiza Mutayeva had been abducted by unidentified armed men on the night of 19 January 2004. However, they denied that the abductors were servicemen, referring to the absence of conclusions from the ongoing investigation.

69.  The Court notes that despite its requests for a copy of the investigation file into the abduction of Luiza Mutayeva, the Government refused to produce most of the documents from the case file, referring 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-XIII (extracts)).

70.¬†¬†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.

71.¬†¬†The Government submitted that before the domestic authorities the applicant had stated that the abductors had spoken Russian and Chechen. However, no evidence was produced to support that assertion. In the materials available to the Court the applicant consistently stated that her daughter’s abductors had spoken Russian. As to the lack of mention of armoured vehicles in the applicant’s statements, it is observed that, besides enumerating specific vehicles, the applicant also stated that further vehicles had been present at the abduction scene; however she had not been able to memorise their models or their colours (see paragraph 1113 above). Regard being had to the statement by M.K., uncontested by the Government, to the effect that she had seen Luiza Mutayeva being taken away from her parents’ house by armed men in camouflage uniforms in the night of 19¬†January 2004 (see paragraph 12 above), the Court does not accord important weight to the inconsistencies in the applicant’s submissions concerning the year of her daughter’s abduction for marriage. above). In any event, the Government did not challenge the accuracy of the statements by witnesses who submitted that they had seen armoured vehicles at the applicant’s gate on the night of 19¬†January 2004 (see paragraph

72.  In sum, it considers that the applicant presented an overall coherent and convincing picture of the circumstances surrounding the abduction of Luiza Mutayeva on 19 January 2004.

73.¬†¬†In the Court’s view, the fact that a large group of armed men in uniforms, moving in a convoy of several vehicles, including armoured vehicles, was able to pass freely through checkpoints, proceeded to check identity documents in a manner similar to that of State agents and spoke unaccented Russian strongly supports the applicant’s allegation that those persons were State servicemen.

74.  The Court notes that in her applications to the authorities the applicant consistently maintained that Luiza Mutayeva had been detained by unknown servicemen and requested the investigating authorities to look into that possibility. It further notes that after more than five years the investigation has produced no tangible results.

75.¬†¬†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 (extracts)).

76.¬†¬†Taking into account the above elements, the Court is satisfied that the applicant has made a prima facie case that her relative was abducted by State servicemen. The Government’s statement that the investigation had not found any evidence to support the involvement of servicemen in the kidnapping and their vague reference to the possibility that Luiza Mutayeva had been kidnapped for marriage once again, particularly in view of the lack of any indication that this thesis had been examined by the domestic investigation (see paragraph 29 above), is insufficient to discharge them from the above-mentioned burden of proof. 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 Luiza Mutayeva was arrested on 19¬†January 2004 by State servicemen during an unacknowledged security operation.

77.  There has been no reliable news of Luiza Mutayeva since the date of the kidnapping. Her name has not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to her after her arrest.

78.  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 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 Luiza Mutayeva or of any news of her for more than five years supports this assumption.

79.  Accordingly, the Court finds that the evidence available permits it to establish that Luiza Mutayeva must be presumed dead following her unacknowledged detention by State servicemen.

(iii)¬†¬†The State’s compliance with Article 2

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

81.¬†¬†The Court has already found it established that the applicant’s daughter must be presumed dead following unacknowledged detention by State servicemen. Noting that the authorities do not rely on any ground of justification in respect of any use of lethal force by their agents, it follows that liability for her presumed death is attributable to the respondent Government.

82.  Accordingly, the Court finds that there has been a violation of Article 2 in respect of Luiza Mutayeva.

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

83.¬†¬†The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article¬†1 of the Convention to ‚Äúsecure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention‚ÄĚ, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, ¬ß 161, and Kaya v. Turkey, 19 February 1998, ¬ß¬†86, Reports¬†1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family and carried out with reasonable promptness and expedition. It should also be effective in the sense that it is capable of leading to a determination of whether or not the force used in such cases was lawful and justified in the circumstances, and should afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no.¬†24746/94, ¬ß¬ß¬†105-109, 4¬†May¬†2001, and Douglas-Williams v.¬†the¬†United¬†Kingdom (dec.), no.¬†56413/00, 8¬†January 2002).

84.  The Court notes at the outset that very few documents from the investigation were disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of very scarce information submitted by the Government and a few documents available to the applicants that they provided to the Court.

85.¬†¬†Turning to the facts of the present case, the Court observes that, according to the applicant, on the morning of 19 January 2004 she notified a number of law-enforcement agencies in Achkhoy-Martan, including the ROVD, the local FSB department and the security service of the Chechen¬†President, about the abduction of her daughter. According to the Government, the district prosecutor’s office received the applicant’s complaint about the abduction only on 20 April 2004. However, they failed to submit either a dated and stamped copy of the applicant’s complaint or any other documents confirming that it had indeed been obtained by the prosecutor’s office on the above-mentioned date. Bearing in mind its findings concerning the Government’s unjustified refusal to provide the documents from the case file and the fact that it had been incumbent on the law-enforcement bodies to report the information on the abduction to the district prosecutor’s office (see Khalidova and Others v. Russia, no.¬†22877/04, ¬ß¬†93, 2 October 2008), the Court cannot but conclude that the three-month delay in opening the investigation was attributable to the domestic authorities. 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.

86.¬†¬†The Court further has to assess the scope of the investigative measures taken. The Government submitted that the investigating authorities checked various versions of the abduction, interviewed more than twenty witnesses and made numerous requests for information. From the few documents submitted by them it transpires that the district prosecutor’s office attempted to identify the vehicles used by the abductors; enquired of various law-enforcement agencies as to whether they had carried out special operations in Assinovskaya on the night of the applicant’s daughter’s abduction, had arrested her or held her in detention, and interviewed the applicant, her husband and daughter Madina and a certain B.A. As regards the remaining witnesses allegedly questioned by the authorities, the Government failed to produce any related documents and hence it is impossible not only to establish how promptly those measures were taken but whether they were taken at all.

87.¬†¬†Furthermore, it appears that a number of crucial steps were never taken. In particular, it is striking that the district prosecutor’s office made no attempts to interview servicemen from the roadblocks at the entry and exit points to the village or to examine the logbooks kept there with a view to obtaining information on the vehicles used by the abductors and also of their owners. There is no indication that the investigating authority interviewed patients or the personnel from the hospital located near the applicant’s house, who might have had information on the circumstances of Luiza Mutayeva’s abduction (see paragraph 12 above). In the same vein, there is nothing to suggest that the applicant’s neighbours, and in particular those persons whose written statements she had enclosed with the application form, were ever questioned.

88.¬†¬†It is obvious that, if they were to produce any meaningful results, these investigative measures should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. The delays and omissions, 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 serious matter (see √ĖneryńĪldńĪz v. Turkey [GC], no. 48939/99, ¬ß¬†94, ECHR¬†2004-XII).

89.  The Court also notes that even though the applicant was granted victim status in the investigation concerning the abduction of her daughter, it does not appear that she was informed of any significant developments in the investigation. 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.

90.  Finally, it appears that the investigation was adjourned and resumed several times. It also appears that there were lengthy periods of inactivity on the part of the prosecuting authorities, when no investigative measures were being taken.

91.¬†¬†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 with no tangible results. Furthermore, the applicant, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged acts or omissions of investigating authorities before a court. Moreover, owing to the time which 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 prospect of success. Accordingly, the Court finds that the remedies relied on by the Government were ineffective in the circumstances and dismisses their preliminary objection.

92.  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 Luiza Mutayeva, in breach of Article 2 in its procedural aspect.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

93.¬†¬†The applicant relied on Article 3 of the Convention, submitting that as a result of her daughter’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

94.¬†¬†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. Likewise, since it had not been established by the domestic investigation that Luiza Mutayeva had been abducted by State agents, the applicant’s mental suffering could not be imputable to the State.

95.  The applicant maintained her submissions.

B.¬†¬†The Court’s assessment

1.  Admissibility

96.  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

97.¬†¬†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, cited above, ¬ß¬†358, and Imakayeva, cited above, ¬ß¬†164).

98.¬†¬†In the present case the Court notes that the applicant is the mother of the disappeared person who witnessed her abduction. For more than five years she has not had any news of her daughter. During this period of time the applicant has made enquiries of various official bodies, both in writing and in person, about Luiza Mutayeva. Despite her attempts, the applicant has never received any plausible explanation of information about what became of her daughter following her abduction. The responses she received mostly denied State responsibility for his relatives’ 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.

99.  In view of the above, the Court finds that the applicant suffered distress and anguish as a result of the disappearance of Luiza Mutayeva and her inability to find out what had happened to her. The manner in which her complaints were dealt with by the authorities must be considered to constitute inhuman and degrading treatment contrary to Article 3.

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

IV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

101.  The applicant further stated that Luiza Mutayeva 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

102.  The Government asserted that no evidence had been obtained by the investigation to confirm that Luiza Mutayeva had been deprived of liberty by State agents in breach of Article 5.

103.  The applicant reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

104.  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

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

106.¬†¬†The Court has found that Luiza Mutayeva was apprehended by State servicemen on 19¬†January 2004 and has not been seen since. Her detention was not acknowledged, was not logged in any custody records and there exists no official trace of her 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).

107.¬†¬†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 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.

108.  In view of the foregoing, the Court finds that Luiza Mutayeva 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.

V.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

109.  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

110.¬†¬†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. They added that participants in criminal proceedings could also claim damages in civil proceedings and referred to cases where victims in criminal proceedings had been awarded damages from state bodies and, in one instance, the prosecutor’s office. In sum, the Government submitted that there had been no violation of Article 13.

111.  The applicant 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 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).

VI.  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 applicant did not submit any claims for pecuniary damage. As regards non-pecuniary damage, she claimed 50,000 euros (EUR) for the suffering she had endured as a result of the disappearance of her daughter, the indifference shown by the authorities towards her and the latter’s’ failure to provide any information about her fate.

118.  The Government regarded these claims as excessive and unfounded.

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 applicant’s daughter. 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 to the applicant EUR¬†50,000, plus any tax that may be chargeable thereon.

B.  Costs and expenses

120.¬†¬†The applicant was represented by the SRJI. She 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, as well as administrative expenses, translation and courier delivery fees. The aggregate claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR¬†5,697.65, to be paid to the applicant’s representatives’ account in the Netherlands.

121.  The Government pointed out that the applicant should be entitled to the reimbursement of her costs and expenses only in so far as it has been shown that they were actually incurred and are reasonable as to quantum (see Skorobogatova v. Russia, no. 33914/02, § 61, 1 December 2005). They doubted that the amounts claimed by the applicant under this head were reasonable.

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, cited above, § 220).

123.  Having regard to the details of the information and legal representation contracts submitted by the applicants, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred.

124.¬†¬†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. It notes, however, that the case involved little documentary evidence, in view of the Government’s refusal to submit most of the case file. Furthermore, due to the application of Article 29 ¬ß 3 in the present case, the applicant’s representatives submitted their observations on admissibility and merits in one set of documents. The Court thus doubts that the case involved the amount of research claimed by the applicants’ representatives

125.¬†¬†Lastly, the Court notes that it is its standard practice to rule that awards in relation to costs and expenses are to be paid directly into the applicant’s representatives’ accounts (see, for example, Nachova and Others v. Bulgaria [GC], nos.¬†43577/98 and 43579/98, ¬ß¬†175, ECHR 2005-VII, and Imakayeva, cited above).

126.¬†¬†Having regard to the details of the claims submitted by the applicant, the Court awards her EUR¬†4,000, together with any value-added tax that may be chargeable to the applicant; the net award is to be paid into the representatives’ bank account in the Netherlands, as identified by the applicant.

C.  Default interest

127.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

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

2.  Declares the application admissible;

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

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 Luiza Mutayeva disappeared;

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

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

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

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 rate applicable at the date of settlement, save in the case of the payment in respect of costs and expenses:

(i)  EUR 50,000 (fifty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant;

(ii)¬†¬†EUR¬†4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands;

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

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

Done in English, and notified in writing on 22 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S√łren Nielsen¬†Christos Rozakis
Registrar President

*******

CASE OF TUPCHIYEVA v. RUSSIA

(Application no. 37461/05)

JUDGMENT

STRASBOURG

22 April 2010

In the case of Tupchiyeva 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 25 March 2010,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 37461/05) 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 Eru Tupchiyeva (also known as Dzhabrailova) (‚Äúthe applicant‚ÄĚ), on 29 September 2005.

2.¬†¬†The applicant was represented by lawyers of the Stichting Russian Justice Initiative (‚ÄúSRJI‚ÄĚ), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (‚Äúthe Government‚ÄĚ) were represented by the 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 18 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 applicant was born in 1948 and lives in Shali, Chechnya. She is the mother of Vakhit (also known as Akhmed) Dzhabrailov, who was born in 1976.

A.  Disappearance of Vakhit Dzhabrailov

1.¬†¬†The applicant’s account

6.  At the material time the town of Shali was under the full control of Russian federal forces. Military checkpoints were located on the roads leading to and from the town. The area was under curfew.

7.¬†¬†The applicant’s house at 56 Kirova Street, Shali, Chechnya, consisted of three dwellings. One of the applicant’s sons, Vakhit, lived with her in one dwelling; two other sons of the applicant lived with their families in the others.

8.¬†¬†On the night of 2-3 January 2003 the applicant, Vakhit Dzhabrailov and their relatives were at home. At about 5.30 a.m. a group of fifteen to twenty armed men in camouflage uniforms arrived at their house in a white GAZ minivan with tented body (‘–ď–į–∑–Ķ–Ľ—Ć’) and a grey UAZ minivan (‘–Ę–į–Ī–Ľ–Ķ—ā–ļ–į’). The vehicles did not have registration numbers. The men unloaded a ladder and used it to climb over the fence into the applicant’s yard.

9.  The men neither identified themselves nor produced any documents. They had Slavic appearance and spoke Russian without accent. The applicant and her relatives thought that they were Russian military servicemen.

10.¬†¬†The men split into two groups and went into the dwellings. Some of the soldiers remained on the street and ordered the neighbours to get back in their houses. The first group broke into the house where the applicant’s son Mr R. Dzh. lived with his family. They took him outside and put him on the floor of the UAZ minivan. Mr R. Dzh. was shown to a man in the vehicle and then immediately released.

11.  In another house the servicemen detained Vakhit Dzhabrailov and took him outside. They put him face down on the ground. Vakhit Dzhabrailov, who was suffering from tuberculosis, was not allowed to put on warm clothing. The applicant asked the soldiers where they were taking Vakhit, but did not receive any response. After that the soldiers put Vakhit in the UAZ minivan. Immediately afterwards one of the officers contacted someone via a portable radio and reported that they had taken someone. After that the vehicles drove away in the direction of the local mosque and the Shali district department of the interior (the ROVD).

12.¬†¬†The abduction of Vakhit Dzhabrailov was witnessed by a number of the applicant’s relatives and neighbours. The applicant has had no news of Vakhit Dzhabrailov since the day of his abduction.

13.¬†¬†The description of the circumstances surrounding the disappearance of the applicant’s son is based on the following documents: an account by the applicant dated 22 December 2003, an account by the applicant’s neighbour Ms N. U. dated 12 December 2003, an account by the applicant’s son Mr R. Dzh. dated 10 November 2005, accounts by the applicant’s relatives Ms A. Al. and Ms S.T., both dated 10 November 2005, and an account by the applicant’s neighbour Ms A. Ak. dated 17 November 2005.

2.  Information submitted by the Government

14.¬†¬†The Government did not challenge most of the account presented by the applicant. According to their submission ‚Äú… criminal case no.¬†22015 was opened by the Shali district prosecutor’s office after Ms E. Tupchiyeva (Dzhabrailova) had complained that unidentified persons had abducted V.¬†Dzhabrailov from 56 Kirova Street in Shali, Chechnya at about 10 a.m. on 3¬†January 2003…‚ÄĚ

B.  The search for Vakhit Dzhabrailov and the investigation

1.¬†¬†The applicant’s account

15.¬†¬†In the morning of 3 January 2003 the applicant and her relatives started searching for Vakhit Dzhabrailov. They also contacted, both in person and in writing, various official bodies, such as the Russian President, the Envoy of the President of the Russian Federation for Ensuring Human Rights and Freedoms in the Chechen Republic, the Shali district administration, the Chechen administration, military commanders’ offices and prosecutors’ offices at different levels, describing in detail the circumstances of their relative’s abduction and asking for help in establishing his whereabouts. The applicant retained copies of some of those letters and the authorities’ replies and submitted them to the Court.

16.  According to the applicant, at some point after the events one of the servicemen who had been on duty at the ROVD on the night of the abduction told her that on the night of 3 January 2003 the minivan with Vakhit Dzhabrailov had been driven up to the ROVD building and left shortly afterwards.

17.¬†¬†On 5 January 2003 the head of the Shali district administration forwarded the applicant’s complaint about her son’s abduction to the ROVD.

18.¬†¬†On 27 January 2003 the district prosecutor’s office instituted an investigation into the disappearance of Vakhit Dzhabrailov under Article¬†126¬†¬ß¬†2 of the Russian Criminal Code (aggravated kidnapping). The case file was given the number¬†22015. The applicant was informed about it on 1¬†July 2004.

19.¬†¬†On 13 November 2003 the applicant wrote to the Chechnya prosecutor’s office. She described the circumstances of her son’s abduction and stated that her requests to various law-enforcement bodies had not produced any results. She pointed out that the Shali district prosecutor’s office (the district prosecutor’s office) had failed to initiate an investigation into her son’s abduction. She expressed her concerns about her son’s state of health as at the time of his abduction Vakhit Dzhabrailov had been suffering from tuberculosis.

20.¬†¬†On 3 December 2003 the applicant’s representatives requested the district prosecutor’s office to inform them about the following: whether the authorities had initiated a criminal investigation into the abduction of Vakhit Dzhabrailov; whether the applicant had been granted victim status in the criminal case, and what measures had been taken to establish the identity of the perpetrators of the kidnapping and the whereabouts of the applicant’s son. No reply was given to this request.

21.¬†¬†On 1 June 2004 the applicant’s representatives reiterated their request of 3¬†December 2003.

22.¬†¬†On 1 July 2004 the district prosecutor’s office informed the applicant’s representatives that on 27 January 2003 they had instituted an investigation into the disappearance of Vakhit Dzhabrailov and that the case file had been given the number 22015. According to the letter, on an unspecified date the applicant had been granted victim status in the criminal proceedings.

23.¬†¬†On 7 August 2004 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.¬†20116.

24.¬†¬†On 17 February 2005 the Shali district military commander’s office (the district military commander’s office) informed the applicant that they had examined her complaint about the abduction of Vakhit Dzhabrailov and forwarded a number of requests for information to various law-enforcement bodies.

25.¬†¬†On 11 March 2005 the district military commander’s office informed the applicant that in connection with the abduction of her son the ROVD had opened operational search file no.¬†71409 and measures aimed at establishing his whereabouts were under way.

26.¬†¬†On 19 July 2005 the applicant’s representatives requested the district prosecutor’s office to provide information concerning the progress of the investigation in the criminal case, the date of suspension of the criminal proceedings and the results of examination by the investigative authorities of the applicant’s version of the involvement of Russian military forces in the abduction of Vakhit Dzhabrailov. The representatives also requested to be informed whether the applicant could be provided with access to the investigation file. No reply was given to this request.

27.¬†¬†On 5 October 2005 the applicant’s representatives reiterated their request for an update on the criminal investigation.

28.¬†¬†On 12 November and 12 December 2005 the district prosecutor’s office informed the applicant’s representatives that on 8 July 2004 they had suspended the investigation in the criminal case. They also stated that the investigation had not established the involvement of Russian military servicemen in the abduction. The letters further invited the applicant to familiarise herself with those documents from the investigation file ‚Äúwhich concerned her interests as a victim in the criminal case‚ÄĚ.

29.¬†¬†According to the applicant, between January 2003 and December 2005 the investigators from the military prosecutor’s office questioned twelve witnesses from her relatives and neighbours about Vakhit Dzhabrailov.

2.  Information submitted by the Government

30.¬†¬†Without submitting any of the relevant documents or providing the dates of the investigating measures the Government stated that the investigation of the abduction of Vakhit Dzhabrailov had been initiated by the district prosecutor’s office and that the applicant had been granted victim status in the criminal case.

31.¬†¬†On an unspecified date the investigators questioned the applicant, who stated that on 3 January 2003 she had been at home. At about 10 a.m. a group of armed men in camouflage uniforms had broken into her house. At first the men had taken away her son Ramzan; however, they had brought him back soon afterwards and taken her second son, Vakhit Dzhabrailov. The men placed him in a grey UAZ minivan and took him away to an unknown destination. At some point later the investigators again questioned the applicant, who stated that it was one of her sons, Mr V. Dz., who had informed her about the visit of the abductors’ car to the ROVD on the night of the abduction and that he, in his turn, had obtained this information from taxi drivers who had witnessed the vehicle arriving at the ROVD and leaving some time later.

32.¬†¬†On an unspecified date the investigators questioned the applicant’s neighbour Ms A. Ak., who stated that at about 10 a.m. on 3 January 2003 she had seen from her window a tented GAZ vehicle and a grey UAZ minivan pulling over to the applicant’s gate. A number of men in camouflage uniforms who were armed with automatic weapons had got out of the vehicles and fetched a ladder from the boot of the GAZ car. They had used the ladder to climb over the applicant’s gate; they got into the applicant’s yard and opened the gate from inside. About ten minutes later the armed men brought the applicant’s son Mr R. Dzh. to the vehicles; a few minutes later they took him back to the house. After that the intruders took the applicant’s other son, Vakhit Dzhabrailov, placed him in the grey minivan and drove away. According to the witness, in the UAZ minivan she had noticed a man in camouflage uniform of Caucasian appearance and to whom the applicant’s sons had been shown.

33.¬†¬†On an unspecified date the investigators questioned the applicant’s neighbour Ms N. U. who provided a statement similar to the one given by Ms A. Ak.

34.¬†¬†On an unspecified date the investigators questioned the applicant’s neighbour Mr A.T. who stated that at about 10 a.m. on 3 January 2003 he had heard screams coming from the applicant’s house and the noise of a vehicle driving down the street. He had immediately gone to the applicant’s house where he had been told that armed men had taken away Vakhit Dzhabrailov.

35.  According to the Government, the investigators also questioned witnesses Ms T.M. and Ms Z.D. whose statements had not provided any significant information for the investigation.

36.¬†¬†On an unspecified date the investigators conducted the crime scene examination at the applicant’s house. Nothing was collected from the scene.

37¬†¬†Further, on unspecified dates the investigators forwarded a number of requests to competent authorities, including various district departments of the interior and district prosecutor’s offices in Chechnya, the Shali department of the Federal Security Service (the FSB), the military commander of the United Group Alignment in the Northern Caucasus (the UGA), the military prosecutor of military unit no.¬†20116, the Chechnya Ministry of the Interior (the Chechnya MVD) and the Federal Department of Execution of Punishment in Kabardino-Balkaria. According to the responses received from the agencies, they had not conducted any special operations on 3 January 2003 in Shali and did not have any information about Vakhit Dzhabrailov.

38.  The Government also submitted that on an unspecified date the investigators had forwarded requests to establish the owners of the UAZ minivan used by the abductors. However, the Government did not specify either where the requests had been forwarded or whether any response had been given to them.

39.  The Government stated that the investigation into the abduction of Vakhit Dzhabrailov had not established the involvement of federal forces in the incident.

40.  The Government further submitted that although the investigation had failed to establish either the whereabouts of Vakhit Dzhabrailov or the perpetrators of his abduction, it was still in progress.

41.  Despite specific requests by the Court the Government did not disclose any documents of criminal case no. 22015. The Government stated that a copy of the 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

42.  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

43.  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 Vakhit Dzhabrailov had not yet been completed. They also argued that it had been open to the applicant to pursue civil complaints but that she had failed to do so.

44.  The applicant contested that objection. She stated that the only effective remedy in her case was the criminal investigation, which had proved to be ineffective.

B.¬†¬†The Court’s assessment

45.  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).

46.  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.

47.  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, §§ 119-121, 24 February 2005, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies.

48.  As regards criminal-law remedies, the Court observes that the applicant complained to the law-enforcement authorities shortly after the kidnapping of Vakhit Dzhabrailov and that an investigation has been pending since 27 January 2003. The applicant and the Government dispute the effectiveness of the investigation of the kidnapping.

49.¬†¬†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

50.¬†¬†The applicant maintained that it was beyond reasonable doubt that the men who had taken away Vakhit Dzhabrailov had been State agents. In support of her complaint she referred to the following facts. At the material time Shali had been under total control of federal troops and the area was under strict curfew. There had been Russian military checkpoints on the roads leading to and from Shali. The armed men who had abducted Vakhit Dzhabrailov had Slavic features and spoke Russian without an accent, which proved that they were not of Chechen origin. The men had arrived at the applicant’s house at night, which indicated that they had been able to circulate freely past curfew. The men acted in a manner similar to that of special forces carrying out identity checks. They were wearing specific camouflage uniform, were armed and had portable radios. Since her son 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.

51.¬†¬†The Government submitted that unidentified armed men had kidnapped Vakhit Dzhabrailov. They further contended that the investigation of the incident was pending, that there was no evidence that the men had been State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicant’s rights. They further argued that there was no convincing evidence that the applicant’s son was dead. The Government raised a number of objections to the applicant’s 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 applicant’s description of the circumstances surrounding the abduction was inconsistent. In particular, the applicant had submitted to the domestic investigators that the abductors had arrived at her house around 10 a.m. whereas in her complaint to the Court she had alleged that they had arrived at about 5.30 a.m.; that she had failed to inform the investigators about the officer from the ROVD who had confirmed that the abductors’ vehicles had stopped at the ROVD after the abduction and that the applicant’s neighbour Ms A.Ak. had informed the domestic investigators about the man with Caucasian appearance, but had failed to submit this information to the Court. The Government referred to the witness statements made to the domestic investigation, but did not submit them to the Court.

B.¬†¬†The Court’s evaluation

52.  The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of the truth 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).

53.  The Court notes that despite its requests for a copy of the investigation file into the abduction of Vakhit Dzhabrailov, 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)).

54.¬†¬†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.

55.  The applicant alleged that the persons who had taken Vakhit Dzhabrailov away on 3 January 2003 and then killed him were State agents.

56.   The Government suggested in their submissions that the abductors of Vakhit Dzhabrailov 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).

57.¬†¬†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 large group of armed men in uniform during curfew hours, in the area fully controlled by the authorities, was able to move freely in the area and proceeded to check identity documents and take the applicant’s son away from his home strongly supports the applicant’s allegation that these were State servicemen conducting a security operation. In her application to the authorities the applicant alleged that Vakhit Dzhabrailov had been detained by unknown servicemen and requested the investigation to look into that possibility (see paragraph 26 above). The domestic investigation also accepted factual assumptions as presented by the applicant, and took steps to check whether federal servicemen were involved in the kidnapping (see paragraph 28 above), but it does not appear that any serious steps were taken in that direction.

58.¬†¬†The Government questioned the credibility of the applicant’s 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 her submissions of facts have been disputed by the Government and that the latter did not furnish the Court with the witness statements to which they referred in their submissions. In the Court’s view, the absence of anything to substantiate the Government’s position in this respect and the fact that the Government did not dispute the underlying account of the abduction, those alleged inconsistencies do not in themselves suffice to cast doubt on the overall veracity of the applicant’s statements.

59.¬†¬†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).

60.¬†¬†Taking into account the above elements, the Court is satisfied that the applicant has made a prima facie case that her son was taken away 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 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 applicant, 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 Vakhit Dzhabrailov was arrested on 3¬†January 2003 by State servicemen during an unacknowledged security operation.

61.  There has been no reliable news of Vakhit Dzhabrailov 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.

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 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 Vakhit Dzhabrailov or of any news of him for more than six years supports this assumption.

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

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

64.  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

65.¬†¬†The Government contended that the domestic investigation had obtained no evidence to the effect that Vakhit Dzhabrailov 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 the applicant’s son met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible.

66.¬†¬†The applicant argued that Vakhit Dzhabrailov had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for more than six 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. The investigation into Vakhit Dzhabrailov’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 she 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. The applicant 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

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. 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 49 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 Vakhit Dzhabrailov

68.¬†¬†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 Vakhit Dzhabrailov.

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

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

71.  The Court notes at the outset that none of the documents from the investigation were disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the applicant and the information about its progress presented by the Government.

72.¬†¬†The Court notes that the authorities were made aware of the crime by the applicant’s submission on 5 January 2003 the latest (see paragraph 17 above). The investigation in case no. 22015 was instituted on 27 January 2003, twenty-two days after the authorities had become aware of Vakhit Dzhabrailov’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. Further, it is not possible to assess whether a number of investigating steps had been delayed, in view of the Government’s failure to provide the Court with relevant information (see paragraphs 30 and 41 above), but it is clear that a number of the most crucial investigating measures had not been taken at all. For instance, the investigators did not question the local military commander about those who could have obtained his permission to drive around past curfew; they did not question the servicemen who had been on duty at the ROVD on 3 January 2003; they failed to establish the identity of the owners of the tented GAZ vehicle used by the abductors, and they did not question the applicant’s relatives who had been present during the abduction. Further, it does not appear that the investigators attempted to question the applicant’s son Mr V.D. and the taxi drivers who had seen the abductors’ vehicle driving on the premises of the ROVD shortly after the events (see paragraph 31 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 crime (see √ĖneryńĪldńĪz v. Turkey [GC], no. 48939/99, ¬ß 94, ECHR 2004-XII).]

73.  The Court also notes that even though the applicant was eventually 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.

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

75.¬†¬†Having regard to the limb of the Government’s 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 been repeatedly suspended and resumed and plagued by inexplicable delays, has been pending for many years without producing tangible results. Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicant’s failure to exhaust domestic remedies within the context of the criminal investigation.

76.  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 Vakhit Dzhabrailov, in breach of Article 2 in its procedural aspect.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

77.¬†¬†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

78.  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

79.  The applicant maintained her submissions.

B.¬†¬†The Court’s assessment

1.  Admissibility

80.  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

81.¬†¬†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).

82.¬†¬†In the present case the Court notes that the applicant is the mother of the disappeared person, who witnessed his abduction. For more than six 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.

83.  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

84.  The applicant further stated that Vakhit Dzhabrailov 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

85.  The Government asserted that no evidence had been obtained by the investigators to confirm that Vakhit Dzhabrailov 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.

86.  The applicant reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

87.  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

88.  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).

89.¬†¬†The Court has found that Vakhit Dzhabrailov was taken away by State servicemen on 3¬†January 2003 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).

90.¬†¬†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 to 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.

91.  In view of the foregoing, the Court finds that Vakhit Dzhabrailov 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

92.  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

93.¬†¬†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. They further added that participants in criminal proceedings could also claim damages in civil proceedings and referred to cases where victims in criminal proceedings had been awarded damages from state bodies and in one instance from the prosecutor’s office. In sum, the Government submitted that there had been no violation of Article 13.

94.  The applicant reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

95.  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

96.  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).

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

98. 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. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

99.  The applicant complained that she had been discriminated against in the enjoyment of her Convention rights, because the violations of which she complained had taken place because she was a resident in Chechnya and because of her ethnic background as a Chechen. 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

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

101.  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.

VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

102.  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

103.  The applicant claimed damages in respect of loss of earnings by her son after his arrest and subsequent disappearance. The applicant claimed a total of 482,104 Russian roubles (RUB) under this heading (13,774 euros (EUR)).

104.¬†¬†She claimed that her son had been unemployed at the time of his arrest, and that in that case the calculation should be made on the basis of the subsistence level established by national law. She calculated his earnings for the period, taking into account an average inflation rate of 13.67%. Her calculations were also based on the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary’s Department in 2007 (‚ÄúOgden tables‚ÄĚ).

105.  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 the family breadwinner.

106.¬†¬†The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article¬†2 in respect of the applicant’s son and the loss by the applicant of the financial support which he could have provided. Having regard to the applicant’s submissions and the fact that Vakhit Dzhabrailov was not employed at the time of his abduction, the Court awards EUR¬†10,000 to the applicant in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

B. Non-pecuniary damage

107.  The applicant claimed EUR 70,000 in respect of non-pecuniary damage for the suffering she had endured as a result of the loss of her son, the indifference shown by the authorities towards her and the failure to provide any information about his fate.

108.  The Government found the amounts claimed excessive.

109.¬†¬†The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicant’s son. The applicant herself has been found to have been victim of a violation of Article 3 of the Convention. The Court thus accepts that she has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicant EUR 60,000 plus any tax that may be chargeable thereon.

C.  Costs and expenses

110.¬†¬†The applicant was 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 for the work in the area of exhausting domestic remedies and of EUR 150 per hour for the drafting of submissions to the Court. The aggregate claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR 7,301.

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

112.¬†¬†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).

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

114.¬†¬†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. It notes at the same time, that due to the application of Article 29 ¬ß 3 in the present case, the applicant’s representatives submitted their observations on admissibility and merits in one set of documents. The Court thus doubts that legal drafting was necessarily time-consuming to the extent claimed by the representatives.

115.¬†¬†Having regard to the details of the claims submitted by the applicant, the Court awards her the amount of EUR¬†5,500 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 Netherlands, as identified by the applicant.

D.  Default interest

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

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

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 Vakhit Dzhabrailov disappeared;

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

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

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 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 10,000 (ten 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¬†5,500 (five thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands;

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

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

Done in English, and notified in writing on 22 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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