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Home » ECHR Cases

Shakhabova – Suleymanova v. Russia

Submitted by on Wednesday, 12 May 2010.    941 views No Comment
Shakhabova – Suleymanova v. Russia

The ECHR cases of Shakhabova v. Russia (application no. 39685/06) and Suleymanova v. Russia (application no. 9191/06).

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EUROPEAN COURT OF HUMAN RIGHTS

384

12.05.2010

Press release issued by the Registrar

Two Chamber judgments against Russia concerning Chechnya

The European Court of Human Rights has today notified in writing two Chamber judgments concerning Russia, neither of which is final. Both cases concerned the applicants’ allegations that their close relatives had been killed by Russian servicemen in Chechnya. They further complained that the domestic authorities had failed to carry out an effective investigation into their allegations. They relied in particular on Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment).

1.  Shakhabova v. Russia (application no. 39685/06):

The applicant, Rayshat Shakhabova, is a Russian national who lives in the town of Urus-Martan (Chechnya). She alleged that her 24-year old son, Adam Khurayev, staying at his aunt’s house in Urus-Martan, was abducted on 23 November 2002 by a group of over 15 armed masked men in camouflage uniforms equipped with portable radios. The men conducted a search of the house and then left. After the men left, the applicant’s relatives realised that Adam, who had been in the courtyard, had disappeared. Both the aunt and a neighbour attested to the fact that they had heard and/or seen heavy military vehicles at the time of the abduction. There has been no news of Adam since, despite the applicant’s repeated enquiries, both in writing and in person, to various official bodies. The criminal investigation into the disappearance, so far having lasted more than five years, has produced no tangible results.

Violation of Article 2 (right to life) in respect of Adam Khurayev

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) on account of the applicant’s mental suffering

Violation of Article 5 (unacknowledged detention) in respect of Adam Khurayev

Violation of Article 13 (right to an effective remedy) in respect of the alleged violations of Article 2

The Court awarded the applicant 2,000 euros (EUR) in respect of pecuniary damage, EUR 60,000 in respect of non-pecuniary damage and EUR 4,000 for costs and expenses.

2.  Suleymanova v. Russia (application no. 9191/06):

The applicant, Zura Suleymanova, is a Russian national and lives in Gekhi, Chechnya. She alleged that Russian servicemen opened fire on the lorry in which her son, Ramzan¬†Suleymanov, his pregnant wife, Petimat Aydamirova, child, Ibragim Suleymanov, and brother-in-law, Aslanbek Aydamirov, were travelling from Gekhi to Roshni-Chu in the early evening of 16 May 2000. Residents of Gekhi stated that, immediately after the incident, they had heard Petimat and Ibragim screaming for help, which then stopped following gunshots. About half an hour later the servicemen launched a grenade at the lorry ‚Äď setting it on fire ‚Äďand then drove away. The following day, along with local residents, the applicant went to the scene of the incident and found brain tissue as well as her grandson‚Äôs cap around bullet holes in the ground, indicating that four people had been made to lie down and shot in the head. She also saw that the left side of the lorry cab was riddled with bullet holes. The bodies of her relatives, however, had gone. On 19 May the bodies of Ramzan and Aslanbek were discovered, as well as the remains of Petimat and Ibragim, within the 100m radius of a shell hole; the applicant submitted that the servicemen had attempted to eliminate the evidence by blowing up the corpses. She further complained that the ensuing investigation into the deaths of her relatives had been pending for almost ten years, having been repeatedly suspended and resumed, and had produced no tangible results.

The Government, on the other hand, claimed that the applicants’ relatives had been killed in the course of a counter-terrorist operation to eliminate illegal armed groups who, according to information obtained by the military forces, had been using the road between Gekhi and Roshni-Chu as a supply route. The applicants’ relatives had been driving in the dark during curfew hours with their lights out and, having disobeyed an order to stop, the servicemen had taken them for members of an illegal armed group and opened fire. The use of lethal force against them had therefore been no more than what had been absolutely necessary.

Violation of Article 2 (right to life) in respect of Ramzan Suleymanov, Petimat Aydamirova, Ibragim Suleymanov and Aslanbek Aydamirov

Violation of Article 2 (right to life) for failure to conduct an effective investigation into the circumstances in which they had been killed

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

The Court awarded the applicant EUR 2,900 in respect of pecuniary damage, EUR 150,000 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

Both during the domestic and Strasbourg proceedings, the Court considered that Adam Khurayev‚Äôs mother, as well as his aunt ‚Äď an eye-witness ‚Äď had presented a consistent account of the abduction. The fact that a group of armed men in uniform in military vehicles and equipped with portable radios had been able to move freely through Urus-Martan, under curfew with manned checkpoints at the time, and had carried out identity checks and apprehended people in their home strongly supported the allegation that the men had been Russian servicemen conducting a security operation. Further drawing inferences from the Russian Government‚Äôs failure to submit documents ‚Äď despite specific requests from the Court ‚Äď to which it exclusively had access and the fact that it had not provided any other plausible explanation for the events in question, the Court considered that the applicant‚Äôs son had to be presumed dead following his unacknowledged detention by Russian servicemen. Accordingly, there had been a violation of Article 2 in respect of Adam Khurayev.

In the case of Suleymanova the Court considered that the Government had not properly accounted for the use of lethal force against the applicants’ relatives. Firstly, it had not provided the Court with any legal act or regulation for securing the safety of the civilian population, including those concerning the use of lethal force. There was therefore no way of assessing whether an appropriate legal framework on the use of force and firearms by the military had been in place and, if so, whether it had contained clear safeguards against arbitrary deprivation of life. Furthermore, the Government had not explained whether the servicemen involved had, or could be seen to have been, at risk due to the conduct of the applicant’s relatives. Nor indeed had there been any explanation for the applicant’s allegation that Petimat and Ibragim had survived the attack on the lorry but had been shot afterwards or that the servicemen had then tried to get rid of the corpses by blowing them up. Lastly, it was not clear why the authorities had not finished the investigation into the killings, the proceedings having already been pending for almost ten years. The Court was therefore not persuaded that the killing of the applicant’s relatives had been no more than absolutely necessary, in violation of Article 2.

In both cases the Court further held that there had been further violations 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 or been killed.

The Court also found that the applicant in the case of Shakhabova had suffered distress and anguish as a result of the disappearance of her son and her inability to find out what had happened him. The manner in which her complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment in violation of Article 3. Furthermore her son 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 disappearance and killings of the applicants’ relatives had been ineffective and the effectiveness of any other remedy that might have existed 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 both cases.

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CASE OF SHAKHABOVA v. RUSSIA

(Application no. 39685/06)

JUDGMENT

STRASBOURG

12 May 2010

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

In the case of Shakhabova 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,
Giorgio Malinverni, judges,
and S√łren Nielsen, Section Registrar,

Having deliberated in private on 22 April 2010,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 39685/06) 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 a Russian national, Ms Rayshat Shakhabova, on 20¬†September 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 10 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 1942 and lives in the town of Urus-Martan, in the Chechen Republic. She is the mother of Mr Adam Khurayev, born in 1978.

A.  Disappearance of Adam Khurayev

1.¬†¬†The applicant’s account

6.¬†¬†The applicant’s house in Urus-Martan was destroyed during the military campaign in the Chechen Republic in the autumn of 1999. The applicant’s family had to move temporarily to Ingushetia, where they lived at the material time. Adam Khurayev frequently visited his aunt, Ms M.M., who lived in Urus-Martan, and stayed at her house no. 14, Lomonosova Lane (the street name and the house number were later changed to 74, Kutuzova Street).

7.¬†¬†In the summer of 2002 Adam Khurayev and his twin brother Arbi Khurayev submitted their documents to the Urus-Martan District Department of the Interior (the ROVD) to exchange their old Soviet passports for new Russian ones. On 22 November 2002 Adam and Arbi¬†Khurayev went to Urus-Martan to pick up their new passports. The brothers stayed at their aunt’s house at the above address. At the material time the town of Urus-Martan was under curfew. The authorities maintained manned checkpoints at the entry and exit points to the town.

8.¬†¬†At about 10 p.m. on 23 November 2002 the family of M.M. was at home. When Adam Khurayev went outside, to the toilet located in the courtyard, a group of over fifteen armed masked men in camouflage uniforms broke into the house. The intruders neither introduced themselves nor produced any documents. The applicant’s relatives thought that they were Russian servicemen. They dispersed into different rooms, pointed their guns at the family members and ordered everyone to stay in their rooms. M.M.’s daughter, Ms L.M., rushed to the window and heard the intruders order someone in Russian: ‚ÄúLie on the ground!‚ÄĚ She thought that the order must have been given to Adam Khurayev, as he was the only family member in the yard.

9.¬†¬†Without providing any explanations or reasons for their actions, the servicemen conducted a quick but thorough search of M.M.’s house. They did not find anything of interest to them.

10.  After that the servicemen returned to the yard and walked out into the street. Shortly thereafter M.M. and L.M. heard the sound of heavy military vehicles in the street.

11.¬†¬†Ms. A.M., one of M.M.’s neighbours, residing at 47 Lomonosova Street, was woken up at about 10 p.m. on 23 November 2002 by the sound of heavy military vehicles in the street. She looked out of the window and saw an APC (armoured personnel carrier) and two military UAZ vehicles (‚Äú—ā–į–Ī–Ľ–Ķ—ā–ļ–į‚ÄĚ) parked in the street. A.M. did not go outside because of the curfew. According to A.M., at the material time APCs were frequently driven in Urus-Martan at night and servicemen often took young men away. About fifteen minutes later the vehicles started their engines and drove away.

12.¬†¬†After the servicemen had left, the applicant’s relatives realised that Adam Khurayev, who had been in the courtyard, had disappeared.

13.  The applicant has had no news of Adam Khurayev since 23 November 2002.

14.¬†¬†The above account of the events is based on the applicant’s application form and written statements by M.M. and A.M., dated 10 and 11¬†November 2005 respectively.

2.  Information submitted by the Government

15.  The Government submitted that on 23 November 2002 Adam Khurayev had been abducted by unidentified persons.

B.  The search for Adam Khurayev and the investigation

1.¬†¬†The applicant’s account

(a)¬†¬†The applicant’s search for Adam Khurayev

16.¬†¬†In the morning of 24 November 2002 Arbi Khurayev went to Ingushetia to inform the applicant about the disappearance of Adam¬†Khurayev. The applicant immediately went to Urus-Martan and started searching for her son. From 24 November 2002 for almost a month the applicant, who was elderly and illiterate, complained in person about her son’s disappearance to a number of local law-enforcement agencies, including the Urus-Martan district military commander’s office (hereafter ‚Äúthe district military commander’s office‚ÄĚ), the ROVD, and the Urus-Martan district prosecutor’s office (‚Äúthe district prosecutor’s office‚ÄĚ). The authorities denied any involvement on the part of their officials in the abduction of Adam¬†Khurayev.

17.¬†¬†The applicant’s relatives assisted her in the search for Adam Khurayev. They contacted, both in person and in writing, various official bodies, such as the President of the Russian Federation, the Envoy of the President of the Russian Federation for Ensuring Human Rights and Freedoms in the Chechen Republic, the Chechen administration, departments of the interior and prosecutors’ offices at different levels, asking for help in establishing the whereabouts of Adam Khurayev. The applicant retained copies of a number of those complaints and submitted them to the Court. An official investigation was opened by the district prosecutor’s office. The relevant information is summarised below.

(b)  The official investigation into the abduction of Adam Khurayev

18.¬†¬†On 23 December 2002 the applicant complained in writing about her son’s disappearance to a number of State authorities, including the district military commander’s office, the district prosecutor’s office and the ROVD. She stated that on 22 November 2002 she and her sons Arbi and Adam had gone to Urus-Martan to obtain her sons’ identity documents. At about 10¬†p.m. on that day armed and masked members of law-enforcement authorities, wearing camouflage uniforms, had broken into the house at no.¬†14 Lomonosova Street and had abducted Adam Khurayev. The intruders had used an APC and two UAZ vehicles. She stressed that prior to his abduction her son had undergone stomach surgery.

19.¬†¬†On 20 January 2003 the prosecutor’s office of the Chechen Republic (‚Äúthe republican prosecutor’s office‚ÄĚ) forwarded the applicant’s complaint about her son’s abduction to the district prosecutor’s office for examination.

20.¬†¬†On 14 February 2003 the district prosecutor’s office instituted an investigation into the abduction of Adam Khurayev under Article 126 ¬ß 2 of the Criminal Code (aggravated kidnapping). The criminal case file was given number 34022.

21.¬†¬†On 15 March 2003 the district prosecutor’s office granted the applicant the status of a victim in criminal case no. 34022.

22.¬†¬†On 24 April 2003 the applicant wrote to a number of State authorities, including the prosecutor and the military prosecutor of the Chechen Republic. She stated that her son had been abducted by servicemen from the law-enforcement agencies of the Urus-Martan district who had arrived in two UAZ vehicles and an APC. The applicant pointed out that her numerous complaints to various State bodies had failed to produce any results and that, apart from instituting an investigation into the abduction, the district prosecutor’s office had failed to take any other measures aimed at establishing her son’s whereabouts. She stressed that her son’s abductors must have been representatives of the State as only they could have moved freely in the town during the curfew and used military vehicles.

23.¬†¬†On 22 May 2003 the republican prosecutor’s office informed the applicant that on 14 February 2003 the district prosecutor’s office had opened criminal case no.¬†34022 into the abduction of her son; that on 14¬†April 2003 the investigation had been suspended owing to the failure to establish the perpetrators and that unspecified operational and search measures aimed at solving the crime were under way.

24.¬†¬†On 9 June 2003 the military prosecutor’s office of the United Group Alignment (‚Äúthe UGA military prosecutor’s office‚ÄĚ) forwarded the applicant’s complaint about her son’s abduction to the military prosecutor’s office of military unit no. 20102 for examination.

25.¬†¬†On 17 June 2003 the republican prosecutor’s office forwarded the applicant’s request for assistance in the search for her son to the district prosecutor’s office and instructed the latter to inform the applicant of any developments in the investigation.

26.¬†¬†On 30 June and 2 July 2003 the military prosecutor’s office of military unit no. 20102 informed the applicant that the examination of her complaints had failed to establish any involvement of Russian servicemen in the abduction of Adam Khurayev.

27.  On 11 December 2003 the applicant complained to the minister of the interior of the Chechen Republic, submitting that her son had been abducted by a group of armed men in camouflage uniforms who had arrived in two UAZ cars and an APC without number plates. She stressed that the abductors must have been State servicemen as only they could have moved freely in the town during the curfew and used military vehicles. The applicant pointed out that her numerous complaints to various State bodies had failed to produce any effect and that the criminal investigation had been suspended and reopened and had failed to produce any results.

28.¬†¬†On 17 December 2003 the applicant complained to the prosecutor of the Chechen Republic, stating that her son had been abducted by a group of armed men in camouflage uniforms who had arrived in two UAZ vehicles and an APC. She averred that her son’s abductors must have been representatives of the State as only they could have moved freely in the town during the curfew and used military vehicles. The applicant pointed out that her numerous complaints to various State bodies had failed to produce any effect and that the criminal investigation into her son’s abduction had failed to produce any results and had been suspended and reopened on a number of occasions. She emphasised that her previous complaint to the prosecutor about the inactivity of the district prosecutor’s office had not produced any results. Lastly, she requested the prosecutor to oblige the district prosecutor’s office to solve the crime.

29.¬†¬†On 13 January 2004 the republican prosecutor’s office forwarded the applicant’s complaint to the district prosecutor’s office. The latter was to provide the applicant with detailed information on the investigation and its results.

30.  On 23 January 2004 the head of the ROVD informed the applicant that they had opened an operational-search file for the search for her son and that they had sent an unspecified number of requests for information to law-enforcement agencies in the Urus-Martan District and various regions of the Russian Federation.

31.¬†¬†Following a complaint by the applicant to the republican prosecutor’s office, on 28 January 2004 the district prosecutor’s office informed her that on 28 January 2004 it had resumed the investigation in criminal case no. 34022 and that the case file had been entrusted to another investigator.

32.¬†¬†On 1 March 2004 the republican prosecutor’s office forwarded the applicant’s complaint about her son’s abduction to the district prosecutor’s office for inclusion into the criminal case file and instructed the latter to inform the applicant of any developments in the case. The letter also stated that the investigation in case no.¬†34022 had been reopened.

33.¬†¬† On 24 March 2004 the district prosecutor’s office informed the applicant that on 28 February 2004 they had suspended the investigation in criminal case no. 34022.

34.  On 27 March 2004 the ROVD informed the applicant that their numerous requests for information to various law-enforcement agencies in Chechnya and other regions had failed to produce any results.

35.¬†¬†On 7 May 2004 the Prosecutor General’s office in the Southern Federal Circuit informed the applicant that they had forwarded her complaint about the abduction of Adam Khurayev to the republican prosecutor’s office.

36.¬†¬†On 31 May 2004 the district prosecutor’s office informed the applicant that on 31 May 2004 they had resumed the investigation in criminal case no. 34022.

37.¬†¬†On 17 June 2004 the republican prosecutor’s office informed the applicant that all information concerning the investigation into her son’s abduction was to be obtained from the district prosecutor’s office.

38.¬†¬†On 29 July 2004 the applicant wrote to a number of State authorities, including the Urus-Martan district prosecutor and the head of the ROVD. In her letter she described the circumstances of her son’s abduction and pointed out that her numerous complaints to various State bodies had failed to produce any results. In particular, the criminal investigation into her son’s abduction had been conducted in a superficial manner and had not produced any results. All her complaints about the ineffectiveness of the investigation, addressed to the supervisory bodies, had been forwarded to the district prosecutor’s office. Although the latter body had replied to the complaints, none of those replies contained any information concerning investigative measures undertaken in the course of the criminal proceedings. Finally, the applicant submitted that her son’s abductors must have been representatives of the State as only they could have moved freely in the town during the curfew, gone through existing checkpoints and used military vehicles.

39.¬†¬†On 4 August 2004 the district prosecutor’s office replied to the applicant, stating that the investigation in criminal case no. 34022 had been carried out in compliance with the law. The district prosecutor’s office had taken all the investigative measures which could be carried out in the absence of those to be charged with the crime. They had sent numerous requests for information to various law-enforcement agencies and hospitals. The republican prosecutor’s office’s (unspecified) instructions concerning the investigation had been complied with. The theory that Russian military servicemen had been involved in the abduction of Adam Khurayev had been examined but had not been confirmed. The latest decision to suspend the investigation owing to the failure to identify the perpetrators was dated 30¬†June 2004.

40.¬†¬†On 23 August 2004 the republican prosecutor’s office informed the applicant that on an unspecified date the investigation in criminal case no.¬†34022 had been suspended, but operational-search measures aimed at solving the crime were under way.

41.¬†¬†On 2 September 2004 the district prosecutor’s office informed the applicant that her complaint of 1 September 2004 had been included in the case file of criminal case no. 34022.

42.¬†¬†On 30 September 2004 the ROVD forwarded the applicant’s complaint about her son’s abduction to the district prosecutor’s office for examination.

43.¬†¬†On 15 May 2005 the applicant wrote to the Urus-Martan district prosecutor, describing in detail the circumstances of her son’s apprehension and pointing out that her son had been abducted by representatives of the State. The applicant complained that the investigation into Adam¬†Khurayev’s abduction had been too lengthy, that basic investigative measures had not been taken and that she had no information about its progress. The applicant requested the authorities to resume the investigation, to provide her with access to the criminal case-file materials and with copies of basic investigative documents to which she was entitled by law.

44.¬†¬†On 24 June 2005 the district prosecutor’s office informed the applicant that on 6 June 2005 they had resumed the investigation in criminal case no. 34022 and that she could obtain a copy of the decision to grant her victim status and certain other documents from their office.

45.¬†¬†On 30 July 2005 the military prosecutor’s office of military unit no.¬†20102 informed the applicant that the examination of her complaint about her son’s abduction had failed to confirm any involvement of Russian servicemen in the abduction of her son.

46.¬†¬†On 11 November 2005 the applicant wrote to the Urus-Martan district prosecutor. She described in detail the circumstances of her son’s apprehension and pointed out that her son had been abducted by representatives of the State. The applicant submitted that the investigation into Adam Khurayev’s abduction had been ineffective and that it had failed to produce any results for more than three years. She complained about the lack of information about the investigation, requested the authorities to grant her victim status in the criminal case, to resume the investigation and provide her with access to the criminal case-file materials.

47.¬†¬†By a letter of 14 November 2005 the republican prosecutor’s office forwarded the applicant’s complaint about her son’s abduction to the district prosecutor’s office for examination.

48.¬†¬†On 18 November 2005 the district prosecutor’s office informed the applicant that her complaint of 11 November 2005 had been granted only in part. The letter did not specify in which part, but stated that the applicant’s request concerning access to the criminal case-file materials had been rejected pursuant to Article 42 of the Criminal Procedure Code.

49.¬†¬†On 15 December 2005 the applicant wrote to the district prosecutor’s office. She pointed out that on 11 November 2005 she had requested the authorities to resume the investigation in criminal case no.¬†34022 and provide her with access to the case-file materials; that on 18¬†November¬†2005 the authorities had partially granted her request but had failed to specify in which part. The lack of clarity in the decision had precluded her from appealing against it. She requested that that matter be clarified.

50.¬†¬†On 23 December 2005 the district prosecutor’s office replied to the applicant that she had been granted victim status on 15 March 2003 and that she was only entitled to access to procedural documents concerning investigative measures she had participated in.

51.¬†¬†On 24 April 2006 the district prosecutor’s office informed the applicant that on an unspecified date they had resumed the investigation in criminal case no. 34022.

2.  Information submitted by the Government

52.¬†¬†On 14 February 2003 the district prosecutor’s office instituted a criminal investigation into the abduction of Adam Khurayev under Article¬†126 ¬ß 2 of the Criminal Code. The case file was attributed number 34022.

(a)  Witnesses interviewed by the investigation

53.¬†¬†Being interviewed as a witness on 18 February 2003, M.M. stated that at 10 p.m. on 23 November 2002 armed persons in masks and camouflage uniforms had broken into her house and had abducted Adam¬†Khurayev. Before coming to her household, the abductors had looked for Adam Khurayev in her brother’s house. Neighbours known as ‚ÄúZulay‚ÄĚ and ‚ÄúTamusa‚ÄĚ, whose family names M.M. did not remember, had seen the abductors use APCs and UAZ vehicles.

54.¬†¬†On 15 March 2003 the applicant was granted victim status and interviewed. She stated that she had learnt from M.M. that at about 10 p.m. on 23¬†November 2002 armed and masked persons had broken into M.M.’s house and had taken Adam Khurayev with them.

55.¬†¬†I.M., questioned on 20 January 2004 as a witness, submitted that on 24 November 2002 he had learnt from M.M. about the abduction of the applicant’s son. M.M. had told him that she had not witnessed the abduction and that two women known as Zulay and Tamusa had told her that the abductors had arrived in an APC and two UAZ vehicles.

56.¬†¬†Zara S., interviewed as a witness on 4 February 2004, stated that in the morning of 24 November 2002 she had learnt from the applicant and other neighbours about the abduction of Adam Khurayev. Zara S. had not seen any vehicles and, apart from herself, there were no other women known as ‚ÄúTamusa‚ÄĚ who lived in the vicinity. Zara S. confirmed her statement while being questioned as a witness on 18 June 2004.

57.¬†¬†M.Ch. was interviewed as a witness on 11 February 2004. She stated that on the night of 23 November 2002 she had been at home with her husband A.Ch., who worked in the local military commander’s office. At about 10 p.m. she had heard noise coming from the neighbouring household of Z.Ch. (see below). M.Ch. and her husband had rushed to Z.Ch.’s house and seen armed men wearing masks there. A.Ch. had asked them why they had broken into Z.Ch.’s house. In response the armed men had forced A.Ch. to the ground. M.Ch. had run back home and had fetched her own and her husband’s identity papers. She had presented them to the armed men, explaining to them that her husband worked at the local military commander’s office. At that moment the armed men had been ordered over a portable radio to leave, which they did quickly. They had left in several vehicles but M.Ch. did not remember what their models were. On the next morning M.Ch. had learnt about the abduction of Adam Khurayev.

58.¬†¬†On 17 February 2004 the investigation questioned A.Ch. as a witness. He stated that on the night of 23 November 2002 he had been at home with his family. One of his family members had alerted him to the fact that something had been going on in Z.Ch.’s (his brother’s) house. A.Ch. had rushed outside and in Z.Ch’s yard he had run into several armed men wearing masks; their clothes had borne no insignia. When A.Ch. had asked what they were doing there, the armed men had forced him to the ground and ordered him to lie down. Several minutes later A.Ch. had overheard somebody order the armed men to leave, which they had done. A.Ch. and his wife had returned home and had learnt on the following day about the abduction of Adam Khurayev.

59.  On 20 February 2004 the investigation interviewed Z.Ch. as a witness. He stated that at about 10 p.m. on 23 November 2002 he had been at home in his house in Urus-Martan. At that moment several armed men in camouflage uniforms had burst into his house and had requested his identity papers. Having carried out a passport check, they had left.

60.¬†¬†M.B., the wife of Z.Ch., was questioned as a witness on an unspecified date in February 2004. She stated that on the night of 23¬†November¬†2002, while she had been at home with her husband, several armed men in camouflage uniforms and masks had burst into their house and had ordered the family members to produce their identity documents for a passport check. Upon checking the documents one of the intruders had apologised, saying that the group had come to the wrong address, and they had left. M.B. had not noticed any insignia and did not remember how many intruders there had been. On the next day she had learnt about the abduction of the applicant’s son.

61.¬†¬†On 9 June 2004 M.M. was again questioned as a witness. She confirmed the previous statement she had given to the investigation and stated also that the intruders had carried out a search in her house; that the applicant’s son had been outside in the toilet when the armed men had burst into her house and that in the morning on 24 November 2002 she had found his slippers at the toilet entry; and that she herself had not seen whether the intruders had come in military vehicles.

62.¬†¬†On 12 June 2004 the investigation questioned R.Kh., the applicant’s daughter. She stated that on an unspecified date she had learnt from the applicant that on 23¬†November 2002 Adam Khurayev had been abducted while he had been at M.M.’s house in Urus-Martan.

63.¬†¬†When questioned again on 15 June 2004 the applicant stated that on 22¬†November 2002 she had arrived in Urus-Martan with her sons, Arbi and Adam Khurayev, to pick up their passports. In the evening of 23¬†November¬†2002 the applicant and Arbi had stayed at Z.Ch.’s place, while Adam Khurayev had gone to stay at M.M.’s place. At about 10 p.m. several armed and masked men had burst into Z.Ch.’s house and had forced Z.Ch. to the ground. One of the intruders had said ‚ÄúI don’t think it’s him‚ÄĚ and another armed man had replied to him ‚ÄúI don’t think so either‚ÄĚ. On the following morning the applicant had learnt from M.M. that armed men in camouflage uniforms had abducted Adam Khurayev on the previous night.

(b)  Further investigative steps

64.  On an unspecified date the investigator inspected the crime scene. No objects were seized during the inspection.

65.¬†¬†With a view to examining the possibility that representatives of the State had been involved in the applicant’s son’s abduction, on unspecified dates the investigating authorities made enquires with various State bodies, including the commander of military unit no.¬†6779, the military commander of the Urus-Martanovskiy District, the ROVD, unspecified remand prisons, detention centres and hospitals in the region as to Adam Khurayev’s whereabouts. From the replies of those State authorities it followed that their officials had not arrested Adam Khurayev, had not instituted criminal proceedings against him and had no information on his whereabouts. According to those replies, he had not been held in detention and had not applied for medical assistance.

66.  On an unspecified date the detention logs of the ROVD and its temporary detention ward were examined. No information concerning Adam Khurayev was found.

67.  On 6 July 2005 the investigation in case no. 34022 was suspended.

68.  On 18 November 2005 the investigation was resumed and the applicant was notified of that decision.

69.  Despite a specific request by the Court, the Government did not disclose most of the contents of the file in criminal case no. 34022, providing only copies of the records of the witness interviews described in paragraphs 5363 above. 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 personal data concerning the witnesses or other participants in the criminal proceedings.

C.  Court proceedings against the investigators

70.¬†¬†On 3 March 2006 the applicant complained to the Urus-Martanovskiy Town Court (‚Äúthe Town Court‚ÄĚ) about the ineffectiveness of the investigation into the abduction of her son. She requested that the investigation be resumed and the necessary investigative measures be taken and also sought access to the case file.

71.¬†¬†By a decision of 30 March 2006 the Town Court allowed the applicant’s complaint in part. In particular, it held that the district prosecutor’s office had unlawfully refused to provide the applicant with information concerning the developments in the investigation, which had prevented her from challenging the investigator’s acts or inaction in court. The court ordered the district prosecutor’s office to provide for the applicant’s access to the case file, subject to the restrictions applicable under the rules of criminal procedure. Lastly, the court declared unlawful and unfounded the decision to suspend the investigation in case no.¬†34022 and ordered the district prosecutor’s office to carry out an effective investigation. The decision, in so far as relevant, reads as follows:

‚Äú… It emerges from the materials of case file no.34022 … that on 23 November 2002 at about 10 p.m. unidentified masked persons carrying submachine guns broke into the household of [M.M.]’s family … and abducted Adam Khurayev.

The investigation took steps aimed at solving the crime and identifying the perpetrators. In particular, M.M., I.M., Z.S., Z.Ch., R.B., M.Ch. and A.Ch. were interviewed as witnesses. …

… The investigation failed to identify the persons who had abducted Adam Khurayev or establish his whereabouts. In that connection it had been suspended … on numerous occasions and then reopened again. The latest decision to suspend the investigation is dated 18 December 2005.

However it transpires from the case file that the investigator failed to take all relevant investigative steps. In particular:

–¬†¬†¬†¬†¬† it was not established which [military] units or power structures on the territory of the Urus-Martanovskiy District were equipped with APCs; where each military vehicle had been located at the time of the abduction, and where and on whose order it had been used [at the time of the abduction]‚ÄĚ;

–¬†¬†¬†¬†¬† the commanders of units equipped with APCs at the time of the abduction and the drivers of the APCs were not interviewed;

–¬†¬†¬†¬†¬† the logbooks of the departments keeping records of the use of military vehicles at the time of the abduction were not examined;

–¬†¬†¬†¬†¬† the heads of the military commander’s office, the district department of the FSB and the district department of the Interior were not questioned with a view to establishing who had been granted authorisation to pass through Urus-Martan on 23¬†November 2002 at night during the curfew;

–¬†¬†¬†¬†¬† the logbooks of detention facilities were not seized and checked and the persons responsible for detainees were not questioned with a view to verifying whether the abducted person was being or had been held in any detention facility.‚ÄĚ

72.  On 5 July 2006 the Supreme Court of the Chechen Republic upheld the decision on appeal.

II.  RELEVANT DOMESTIC LAW

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

THE LAW

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

A.¬†¬†The parties’ submissions

74.  The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the disappearance of Adam Khurayev had not yet been completed. They also pointed out that the applicant had not lodged a claim for compensation of non-pecuniary damage under Articles 1069-70 of the Civil Code.

75.¬†¬†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

76.  The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73-74, 12 October 2006).

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

78.¬†¬†As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v.¬†Russia, nos.¬†57942/00 and 57945/00, ¬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.

79.  As regards criminal-law remedies provided for by the Russian legal system, the Court observes that the applicant complained to the law-enforcement authorities shortly after the kidnapping of Adam Khurayev and that an investigation has been ongoing since 14 February 2003. The applicant and the Government dispute the effectiveness of the investigation of the kidnapping.

80.¬†¬†The Court considers that this limb of 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 under the substantive provisions of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

81.  The applicant complained under Article 2 of the Convention that her son had disappeared after being detained by State agents and that the investigation into his disappearance had not been effective. 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.  Submissions by the parties

82.¬†¬†The Government submitted that the investigation was pending and that it had obtained no evidence that Adam Khurayev had been abducted by State agents or that any State authorities had conducted a special operation in Urus-Martan on the night of his abduction. Furthermore, there was no evidence that Adam Khurayev was dead. The investigation had failed to identify any eyewitnesses to the abduction. In particular, whilst the applicant had named M.M. as a witness, the latter had confirmed to the investigators that she had not witnessed the abduction. None of the persons interviewed by the investigators had seen the APC or UAZ vehicles mentioned by the applicant in her application form; they had only heard about them from neighbours. When interviewed by the investigators, M.M. had failed to give the addresses of her neighbours ‚ÄúZulay‚ÄĚ and ‚ÄúTamusa‚ÄĚ, who had allegedly seen the military vehicles. Furthermore, Zara¬†S., who was allegedly known as ‚ÄúTamusa‚ÄĚ, stated that she had not seen any military vehicles. Only M.Ch. claimed to have seen several vehicles, but she had been unable to provide any particular details. Although A.M. claimed to have seen an APC and two UAZ vehicles, she had not witnessed the abduction of the applicant’s son. Furthermore, there were inconsistencies in the applicant’s and M.M.’s submissions concerning the abduction. In particular, whilst in the application form the applicant stated that she had learnt about the abduction from her son Arbi while she was in Nazran, she had told the investigators that she had been in Urus-Martan on the night of the abduction. In a statement appended to the application form M.M. submitted that she had been in Urus-Martan on 23 November 2002. At the same time, when interviewed by the investigators, she submitted that she had come to Urus-Martan together with Adam Khurayev.

83.¬†¬†The Government further argued that the investigation into the abduction of the applicant’s son met the Convention requirement of effectiveness. It was being conducted by an independent authority, which had examined various theories of the abduction, had sent requests for information to numerous State bodies and had checked several detention centres. The investigators had interviewed numerous witnesses, inspected the crime scene and examined detention logs of the ROVD. The applicant had been duly notified of the progress in the investigation. Although the investigation had been suspended and resumed on numerous occasions, this fact did not detract from its effectiveness.

84.¬†¬†The applicant submitted that there existed a bulk of evidence proving beyond reasonable doubt that her son had been abducted by State agents and was to be presumed dead following his abduction. She considered that she had laid down a prima facie case that Adam Khurayev had been abducted by State agents. The applicant’s son had been detained by a large group of armed individuals wearing camouflage uniforms, acting under one command and using military equipment, such as portable radios. Those individuals had driven military vehicles freely through the town at night, during curfew hours. The fact of the use of military vehicles had been proved by the statements of M.Ch., who had seen the abductors drive away, M.M.’s reference to the noise of military vehicles, A.M.’s statement that she had seen an APC and two military UAZ vehicles and the Town Court’s findings concerning the APCs. It transpired from the Government’s submissions that the theory of Adam Khurayev’s abduction by State servicemen had been the only possibility examined by the domestic investigating authorities and the former had failed to provide any other explanation for what had happened to him. The applicant also invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file.

85.¬†¬†The applicant disputed the Government’s argument that the investigation into the abduction of her son had met the effectiveness and adequacy requirements laid down by the Court’s case-law. In particular, the authorities had failed to promptly open a criminal case into Adam¬†Khurayev’s abduction. Only two witnesses had been interviewed in 2003. The majority of witnesses had been questioned in 2004 and their interviews had been superficial. Although the abduction had occurred in a densely populated area, no attempts had been made to identify other witnesses who might have provided information on the vehicles and the direction they had taken. Despite the Town Court’s guidelines, the investigation had failed to take the investigative steps enumerated in its decision. The investigation had been ongoing for more than five years and had failed to produce any results.

B.¬†¬†The Court’s assessment

1.  Admissibility

86.¬†¬†The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 80 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

2.  Merits

(a)  The alleged violation of the right to life of Adam Khurayev

(i) General principles

87.¬†¬†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

88.  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).

89.¬†¬†The applicant alleged that on the night of 23 November 2002 her son, Adam Khurayev, had been abducted by Russian servicemen and had then disappeared. She did not witness her son’s abduction but enclosed statements by witnesses collected after his apprehension. She also 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.

90.  The Government conceded that Adam Khurayev had been abducted by unknown armed men on the night of 23 November 2002. However, they denied that the abductors had been State servicemen, referring to the absence of evidence to that effect from the ongoing investigation.

91.  The Court notes that despite its request for a copy of the investigation file into the abduction of Adam Khurayev, the Government refused to produce most of the documents from the case file, providing only copies of several interview records (see paragraph 69 above). They relied on 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)).

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

93.¬†¬†It is undisputed by the parties that at the material time Urus-Martan was under curfew and that the authorities maintained manned checkpoints at the entry and exit points to the town (see also the Town Court’s findings described in paragraph 71 above). It further emerges from the copies of witness testimonies furnished by the Government that on the night of 23¬†November 2002 a group of armed men in camouflage uniforms, equipped with portable radios and driving several vehicles, proceeded to check identity documents in several households in Urus-Martan (see paragraphs¬†57-60 above).

94.¬†¬†The Government did not dispute the veracity of the statement by M.M.’s neighbour A.M., who claimed to have seen an APC and two UAZ vehicles in the vicinity of M.M.’s house on the night of the abduction. Furthermore, from M.M.’s statements it follows that, although she had not seen the intruders’ vehicles, she had heard the noise of military vehicles immediately after the intrusion. Lastly and more importantly, it transpires from the decision of 30 March 2006 that the Town Court, which had had access to case file no.¬†34022, did not doubt the presence of military vehicles and, in particular, an APC, at the crime scene (see paragraph 71 above).

95.¬†¬†In the Court’s view, the fact that a group of armed men in uniform in several military vehicles and equipped with portable radios was able to pass freely through checkpoints during curfew hours and proceeded to check identity documents in several households in a manner similar to that of State agents strongly supports the applicant’s allegation that those were State servicemen and that they were conducting a special operation in Urus-Martan on the night of Adam Khurayev’s abduction.

96.¬†¬†Contrary to the Government’s assertion, the Court has not found any major inconsistencies in the applicant’s and M.M.’s accounts of events in the course of both the domestic and Strasbourg proceedings. As to their submission that there had been no witnesses to the abduction, it is noted that the Government did not dispute that Adam Khurayev was present in M.M.’s household when a group of armed men had burst into her household at about 10 p.m. on 23 November 2002. Having regard to the materials available to it, the Court considers that the applicant and M.M. had reasonable grounds to assume that the armed men who had broken into M.M.’s house had taken away Adam Khurayev and had driven away in the vehicles whose noise M.M. had heard and which had been described to her by A.M. as an APC and two UAZ vehicles (see, mutatis mutandis, Abdurzakova and Abdurzakov v. Russia, no. 35080/04, ¬ß¬†91, 15¬†January¬†2009). In any event, the Government offered no explanation whatsoever as to what had happened to Adam Khurayev after the armed men had broken into M.M.’s house.

97.  The Court also notes that in her applications to the authorities the applicant consistently maintained that Adam Khurayev had been detained by unidentified servicemen, and requested the investigating authorities to look into that possibility. It further notes that after more than five years the domestic investigation has produced no tangible results.

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

99.¬†¬†Taking into account the above elements, the Court is satisfied that the applicant has made out a prima facie case that her son was detained by State servicemen. The Government’s statement that the investigation did not find any evidence to support the theory that the special forces were involved in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide a plausible explanation of the events in question, the Court finds it established that Adam Khurayev was abducted on 23 November 2002 at M.M.’s home in Urus-Martan by State servicemen during an unacknowledged security operation.

100.  The Court further notes that there has been no reliable news of Adam Khurayev since November 2002. His name has not been found in the official records of any detention facilities. Finally, the Government have not submitted any explanation as to what happened to him after his abduction.

101.  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 Adam Khurayev or of any news of him for over five years supports this assumption.

102.  Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Adam Khurayev was abducted on 23 November 2002 by State servicemen and that he must be presumed dead following his unacknowledged detention.

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

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

104.¬†¬†The Court has already found it established that the applicant’s son 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 his presumed death is attributable to the respondent Government.

105.  Accordingly, the Court finds that there has been a violation of Article 2 in respect of Adam Khurayev.

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

106.¬†¬†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 of Judgments and Decisions 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).

107.  The Court notes at the outset that very few documents from the investigation file 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 the few documents available to the applicant, which she provided to the Court.

108.¬†¬†Turning to the facts of the present case, the Court observes that, according to the applicant, on 24 November 2002 she notified a number of law-enforcement agencies in Urus-Martan, including the ROVD and the district prosecutor’s office, about the abduction of Adam Khurayev. The Government did not dispute that assertion. They also failed to produce any documents from the case file, such as a copy of the applicant’s stamped complaint to the authorities or the decision to launch the investigation, which could have cast doubt on it. The investigation was launched on 14¬†February 2003. Bearing this in mind, the Court cannot but conclude that the two-month delay in opening the investigation was attributable to the domestic authorities. Such a postponement per se was liable to affect the investigation of a kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event.

109.¬†¬†The Court also has to assess the scope of the investigative measures taken. In this connection it is noted that the Government submitted only copies of several records of witness interviews. It emerges from those documents that the investigating authority interviewed M.M. and the applicant in February and March 2003, while the remaining witnesses were questioned only a year later. In the Court’s view, this delay in questioning witnesses, for which no explanation has been offered by the Government, must have had a negative effect on the ability of the investigation to establish the relevant facts since, with the passage of time, important details concerning the events of 23¬†November 2002 might have faded from the witness’ memories. As regards the other investigative measures enumerated by the Government, in the absence of the related documents the Court is unable not only to assess how promptly those steps were taken but whether they were taken at all.

110.¬†¬†Furthermore, it appears that a number of crucial steps were never taken. It follows from the Town Court’s decision that the investigation did not make any attempts to identify the owners of the APC, examine the relevant logbooks or detention logs and interview persons who could have provided information as to who had been permitted to pass through the town during curfew hours (see paragraph 71 above). In fact, there is no indication that the Town Court’s instruction has been ever complied with.

111.¬†¬†It is obvious that, if they were to produce any meaningful results, those 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 a serious matter (see √ĖneryńĪldńĪz v. Turkey [GC], no. 48939/99, ¬ß 94, ECHR 2004-XII).

112.¬†¬†The Court also notes that even though the applicant was granted victim status in the investigation concerning the abduction of her son, she hardly received any meaningful information about the developments in the investigation, a fact which appears to be confirmed by the Town Court’s findings (see paragraph 71 above). Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.

113.  Lastly, it transpires that the investigation was adjourned and resumed on numerous occasions. It also appears that there were lengthy periods of inactivity on the part of the prosecuting authorities when no investigative measures were being taken.

114.¬†¬†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 open for many years with no tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection.

115.  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 Adam Khurayev, in breach of Article 2 in its procedural aspect.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

116.¬†¬†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

117.  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.

118.  The applicant maintained her submissions.

B.¬†¬†The Court’s assessment

1.  Admissibility

119.  The Court notes that 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

120.¬†¬†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).

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

122.  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

123.  The applicant further stated that Adam Khurayev 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

124.  The Government asserted that no evidence had been obtained by the investigators to confirm that Adam Khurayev had been deprived of his liberty.

125.  The applicant maintained her complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

126.  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

127.  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).

128.¬†¬†The Court has found that Adam Khurayev was apprehended by State servicemen on 23¬†November 2002 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, ¬ß¬†371).

129.¬†¬†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.

130.  In view of the foregoing, the Court finds that Adam Khurayev 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

131.  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

132.¬†¬†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.

133.  The applicant reiterated the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

134.  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

135.  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).

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

137.¬†¬†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.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

138.  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 as a result of her being resident in Chechnya and 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

139.  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 they have ever raised this complaint before the domestic authorities. It thus finds that this complaint has not been substantiated.

140.  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.

VII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

141.  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

142.¬†¬†The applicant claimed that she had sustained damage in respect of the loss of her son’s earnings following his apprehension and disappearance. She claimed a total of 429,553.36 Russian roubles (RUB) (approximately 11,928 euros (EUR)) under this head.

143.¬†¬†The applicant submitted that Adam Khurayev had been unemployed at the time of his arrest, and that in such cases the calculation should be made on the basis of the subsistence level established by national law. 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 (the so-called ‚ÄúOgden tables‚ÄĚ). The applicant assumed that she would have benefitted from her son’s financial support equal to 30% of his earnings.

144.¬†¬†The Government argued that the applicant’s claims were unsubstantiated and that she had not made use of the domestic avenues for obtaining compensation for the loss of her breadwinner.

145.¬†¬†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. It has held that the loss of earnings also applies to dependant children and, in some instances, to elderly parents (see, among other authorities, Imakayeva, cited above, ¬ß 213). 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 son and the loss to her of the financial support which he could have provided.

146.¬†¬†Having regard to the applicant’s submissions and the fact that Adam Khurayev was not employed at the time of his apprehension, the Court awards EUR 2,000 to the applicant in respect of pecuniary damage plus any tax that may be chargeable on that amount.

B.  Non-pecuniary damage

147.  The applicant claimed EUR 100,000 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.

148.  The Government found the amounts claimed exaggerated.

149.¬†¬†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 to the applicant EUR¬†60,000, plus any tax that may be chargeable thereon.

C.  Costs and expenses

150.¬†¬†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, 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¬†5,634.67, to be paid into the representatives’ account in the Netherlands.

151.  The Government pointed out that the applicant should be entitled to the reimbursement of her costs and expenses only in so far as it had been shown that they had actually been incurred and were reasonable as to quantum (see Skorobogatova v. Russia, no. 33914/02, § 61, 1 December 2005).

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

153.¬†¬†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.

154.¬†¬†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 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. Furthermore, the case involved little documentary evidence, in view of the Government’s refusal to submit most of the case file. Hence, it is also doubtful whether research was necessary to the extent claimed by the representatives. 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, Tońücu, cited above, ¬ß¬†158; Nachova and Others v. Bulgaria [GC], nos.¬†43577/98 and 43579/98, ¬ß¬†175, ECHR 2005-VII; and Imakayeva, cited above).

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

D.  Default interest

156.  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 Adam Khurayev;

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 Adam Khurayev disappeared;

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

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

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 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 2,000 (two 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¬†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 12 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S√łren Nielsen¬†Christos Rozakis
Registrar President

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

CASE OF SULEYMANOVA v. RUSSIA

(Application no. 9191/06)

JUDGMENT

STRASBOURG

12 May 2010

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

In the case of Suleymanova 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,
Giorgio Malinverni, judges,
and S√łren Nielsen, Section Registrar,

Having deliberated in private on 22 April 2010,

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

PROCEDURE

1.¬†¬†The case originated in an application (no. 9191/06) 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 a Russian national, Ms Zura Suleymanova (‚Äúthe applicant‚ÄĚ), on 6 March 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.  The applicant complained of the killing of four of her relatives by military servicemen in May 2000 in Chechnya and of the absence of an adequate investigation into the events. She invoked Articles 2, 13 and 14 of the Convention.

4.  On 20 May 2008 the Court decided to apply Rule 41 of the Rules of Court, 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.

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

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1944 and lives in Gekhi, Chechnya. She is the mother of Ramzan Suleymanov, who was born in 1965 and the mother-in-law of Petimat Aydamirova, who was born in 1972. The applicant also is the grandmother of Ibragim Suleymanov, who was born in 1991 and a relative of Aslanbek Aydamirov, who was born in 1970.

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

A.  The events of 16-19 May 2000

1.  Information submitted by the applicant

a. Killing of the applicant’s relatives

8.¬†¬†At the material time the applicant’s son Ramzan Suleymanov lived in the village of Gekhi in the Urus-Martan district of Chechnya with his wife Petimat Aydamirova, who was pregnant, and their son Ibragim Suleymanov. Ramzan Suleymanov worked as a driver of a KAMAZ lorry, transporting goods in the area. The vehicle belonged to his neighbour, Mr¬†R.¬†Dz. At the time Gekhi and the surrounding area were under curfew.

9.¬†¬†On 16 May 2000 Petimat Aydamirova’s brother, Aslanbek Aydamirov, came to Gekhi to visit his sister. He told her that their mother, who lived in the village of Roshni-Chu, in the Urus-Martan district, was ill. The family decided to visit her on the same day. Ramzan Suleymanov obtained the permission of Mr R. Dz. to use the KAMAZ lorry to get to Roshni-Chu. At about 7 p.m. he, Petimat Aydamirova, Ibragim Suleymanov and Aslanbek Aydamirov left Gekhi and drove in the lorry in the direction of Roshni-Chu.

10.  At about 2 a.m. on the night between 16 and 17 May 2000 a resident of Gekhi Mr R. S. came to the house of Mr R. Dz. and told him that his KAMAZ lorry was burning about 500 metres away from the outskirts of Gekhi. Mr R. Dz. immediately got in the car and drove to the outskirts of the village. There he left his car next to the house of the head of the Gekhi village administration, Mr S.-S. A., and continued on foot towards Roshni-Chu.

11.  When Mr R. Dz. approached the burning lorry he saw the naked body of Petimat Aydamirova next to the right side of the vehicle. Mr R. Dz. immediately returned to the village and woke up Mr S.-S. A. The latter was already aware of the events as he had heard Petimat Aydamirova screaming. According to him, in the evening of 16 May 2000 the KAMAZ lorry had been driving from Gekhi in the direction of Roshni-Chu. When the vehicle had been about 500 metres away from the outskirts of the village, Russian military servicemen in an APC (armoured personnel carrier) had approached it through the wheat field and opened gunfire. After the shooting a woman had started screaming; her screams had been heard by residents of Gekhi, including Mr S.-S. A. Then the residents had heard gunfire and the screaming had stopped. About half an hour later the servicemen had shot at the lorry from a grenade launcher, setting it on fire, before driving away.

12.¬†¬†Mr S.-S.A. told Mr R. Dz. that due to the curfew they had to leave immediately and return in the morning. Upon returning home Mr R. Dz. informed the applicant’s nephew, whose house was nearby, about the events. The men agreed to return to the lorry in the morning on 17¬†May 2000. The applicant’s nephew informed the applicant about the events on the same night.

b. Information provided by local residents about the events of the night between 16 and 17 May 2000

13.  Early in the morning of 17 May 2000 the applicant went to the KAMAZ lorry with her relatives, Mr R. Dz., the head of the administration and a number of local residents.

14.¬†¬†According to the witnesses, next to the vehicle they saw numerous bullet holes in the ground whose positioning indicated that four people had been put down on the ground and shot in the head. The applicant’s other son, Mr A., found a piece of human brain; Ibragim Suleymanov’s cap was also discovered at the scene. There were many bullet casings around the lorry; the cab was covered with bullet holes, especially on the driver’s side. The passenger’s side, where Petimat Aydamirova had been sitting, remained intact.

15.¬†¬†In the wheat fields around the lorry the residents discovered numerous APC tyre tracks, which were clearly visible on the ground. The bodies of the applicant’s relatives were gone, including the body of Petimat Aydamirova. It appeared that the servicemen had returned to the scene at some point after the shooting and had taken the corpses away.

16.¬†¬†On the same date, 17 May 2000, two unidentified residents of Gekhi told the applicant that the day before, in the evening of 16 May 2000, Russian military servicemen in two APCs and a military Ural lorry had been driving around the village in the wheat fields. At some point they had opened fire on the lorry with the applicant’s relatives in it. The two men had heard Petimat Aydamirova and her son screaming, then the sounds of gunshots and the screaming had stopped. About thirty minutes later the servicemen had fired at the lorry from their grenade launcher and it had caught fire. After that they had left the scene. However, late at night the servicemen had briefly returned to the lorry.

17.¬†¬†On 18 May 2000 one of Mr R. Dz.’s acquaintances told him that he had heard in the news broadcasted by the ‚ÄúChechnya svobodnaya‚ÄĚ (‚Äú–ß–Ķ—á–Ĺ—Ź —Ā–≤–ĺ–Ī–ĺ–ī–Ĺ–į—Ź‚ÄĚ) radio station that close to Gekhi the Russian military forces had ‚Äúeliminated‚ÄĚ a KAMAZ lorry carrying members of illegal armed groups. No other KAMAZ lorries, other than the one the applicant’s relatives had been driving in, had been ‚Äúeliminated‚ÄĚ by military servicemen in the area around that time.

c. Discovery of the bodies of the applicant’s relatives

18.¬†¬†On 19 May 2000 the corpses of the applicant’s relatives were discovered by a shepherd in the vicinity of Roshni-Chu. According to him, about 1. 5 km. away from the base of a Russian military unit he had found a pile of empty ammunition boxes. He noticed that the cows had been afraid to approach it and behaved ‚Äústrangely‚ÄĚ; he had concluded that human corpses must have been underneath it.

19.  On 20 May 2000 a number of residents of Gekhi and representatives of the local administration and the press went to the scene. However, instead of the pile of boxes they found a shell hole, measuring approximately 2 x 3 metres, and human remains within a radius of about a hundred metres around it. Then the group discovered the body of Ramzan Suleymanov with numerous firearm and shell wounds, and next to it the body of Aslanbek Aydamirov. About 50 metres away they found the body of Ibragim Suleymanov with the head and two limbs missing. The missing limbs were found about 20 metres away from the body. As to Petimat Aydamirova, only some parts of her body were found, namely, her two legs and her head. Her earlobes had been torn and her earrings were missing.

20.¬†¬†The deaths of Ramzan Suleymanov, Ibragim Suleymanov and Petimat Aydamirova were certified by a document issued by the Urus-Martan district prosecutor’s office on an unspecified date. In addition, the death of Petimat Aydamirova was also confirmed by an official medical statement issued by the Gekhi district hospital on 6 June 2000. The document stated that her death had occurred on 19 May 2000 and had been caused by numerous shell wounds to the head and chest. The death of Ramzan Suleymanov was also confirmed by a death certificate issued by the Urus-Martan district civil registry office (‚Äú–ó–ź–ď–°‚ÄĚ) on 19 June 2000, stating that his death had occurred on 19 May 2000 and by an official medical statement issued by the Gekhi district hospital on 6 June 2000, stating that his death had occurred on 19 May 2000 and that it had been caused by numerous shell wounds to the head and chest.

21.¬†¬†In support of her statements, the applicant submitted an account by Mr R. Dz. dated 15 March 2006, an article ‚ÄúNelyud‚ÄĚ (‚Äú–Ě–Ķ–Ľ—é–ī—Ć‚ÄĚ) published in the ‚ÄúMarsho‚ÄĚ (‚Äú–ú–į—Ä—ą–ĺ‚ÄĚ) newspaper on 3 June 2000, the medical statements, dated 6 June 2000 and the death certificates, undated and dated 19 June 2000.

2.  Information submitted by the Government

22.  The Government challenged some of the facts as presented by the applicant and submitted their version of the events. Referring to the findings of the domestic investigation, they submitted the following.

a. The killing of the applicant’s relatives

23.  At the material time, in May 2000, a counter-terrorist operation was taking place in Chechnya. The Russian military forces participated in the operation in order to eliminate illegal armed groups and to prevent them carrying out further criminal activities.

24.  At some point prior to the events, the military forces had obtained information that illegal armed groups were using a road between Gekhi and Roshni-Chu as a supply route. A military intelligence unit was charged with to discovering it and eliminating the members of the illegal armed groups.

25.¬†¬†At about 7.30 p.m. on 16 May 2000 a group of servicemen of the military intelligence group was executing that task in the area of Gekhi in the Urus-Martan district in the framework of a special operation ordered by the commander of the Army Group ‚ÄúWest‚ÄĚ.

26.  According to the Government, the local residents had been informed about the curfew and their obligation, if they happened to be in the area of a special operation, to obey the orders of the military, stop moving, step out of the vehicle if they were driving and wait for the arrival of an inspection group.

27.¬†¬†At about 7.30 p.m. on 16 May 2000 the applicant’s relatives Ramzan Suleymanov, his wife Petimat Aydamirova, their minor son Ibragim Suleymanov and their relative Aslanbek Aydamirov were driving from Gekhi to Roshni-Chu in a KAMAZ lorry with registration number A¬†¬†619¬†AA 20 RUS.

28.  The lorry was moving with its lights off and during the curfew. The intelligence group launched a warning flare and shot a number of warning gunshots. When the lorry then sped up, the chief of the group decided to open gunfire on the vehicle.

29.  As a result of the gunfire, the vehicle caught fire and the people inside died. The group inspected the vehicle. Inside they found two partially burnt male corpses and an AKM-74 (submachine gun) no. 282972. After the inspection the group left the area and returned to the place where it was temporarily stationed.

b. Discovery of the bodies of the applicant’s relatives

30.  At about 9 a.m. on 19 May 2000 on the outskirts of Roshni-Chu a local resident found the bodies of Ramzan Suleymanov and Aslanbek Aydamirov and parts of the bodies of Petimat Aydamirova and Ibragim Suleymanov. All bodies had traces of injuries received as a result of an explosion and were scattered around a shell hole.

31.¬†¬†On the same date, 19 May 2000, the applicant’s relatives were buried.

32.  The Government did not submit any documents to support their version of the events.

B.  The investigation into the killing

33.¬†¬†On 17 May 2000 the applicant’s relatives, Mr R. Dz. and the head of the administration, Mr S.-S.A., complained about the killing to the Urus-Martan district military commander’s office (‚Äúthe district military commander’s office‚ÄĚ). They were assured by the authorities that the culprits would be identified as soon as possible and the corpses of the applicant’s four relatives would be returned on the following day.

34.¬†¬†On 17 May 2000 several employees of the district military commander’s office, including the military commander, went to the crime scene. They towed the burnt lorry to the premises of a military unit stationed in the area.

35.¬†¬†On 19 May 2000 (in the documents submitted the date was also referred to as 8 August 2000) the district prosecutor’s office instituted an investigation into the killing of the applicant’s relatives under Article 105 of the Criminal Code (murder). The case file was given the number 24019.

36.  According to the Government, on 21 May 2000 the applicant was granted victim status in the criminal case. According to the applicant, she was granted it on 21 May 2004.

37.¬†¬†On an unspecified date prior to July 2000 the investigators examined the crime scene. As a result, they found 59 cartridges of 7.62 mm calibre, 10¬†cartridges of 5.45 mm calibre, a green military waterproof cape, a yellow metal woman’s earring and numerous reddish black spots resembling blood. The left side of the KAMAZ lorry had numerous bullet holes in it.

38.¬†¬†The crime scene examination also established that the corpses and remains of the applicants’ relatives had been found on the north-eastern outskirts of Roshni-Chu, about 500 metres from the village, around a shell hole with a diameter of four metres. Pieces of metal were found in the hole and submitted for an expert examination.¬†¬†On 4 July 2000 that examination established that they were splinters of an industrially produced ammunition containing trotyl.

39.¬†¬†On 22 May 2000 the investigators questioned Mr S.-S.A., who stated that at about 7.30 p.m. on 16 May 2000 he had seen a light-coloured KAMAZ lorry which had been driving from Gekhi to Roshni-Chu. He had not seen the driver or the passengers. At about 10 p.m. on the same date he had seen the lorry burning about 500 metres from Gekhi. Several teenagers had told him that at about 10 p.m. they had heard a woman screaming for help, and that a bit later they had heard gunshots. On the following day, 17¬†May 2000, the witness had gone to the scene with police officers, where next to the burnt lorry they had found a child’s cap, a woman’s hairpin and fragments of brain tissue. The left side of the vehicle had had numerous bullet holes in it. A few days later a resident of Roshni-Chu had discovered the corpses of the applicants’ relatives, which were buried on the same day.

40.  On 29 May 2000 the investigators questioned a resident of Roshni-Chu Mr S.I. who stated that in the morning of 19 May 2000 he had been searching for his cow on the north-eastern outskirts of Roshni-Chu. About 500 metres from the village he had found a human hand and informed his fellow villagers about it.

41.  On an unspecified date the investigators questioned Mr R. Dz. who stated that on the night between 16 and 17 May 2000 he had been woken up at about 2 a.m. by Mr R.S. who had told him that on the outskirts of Gekhi military servicemen had opened fire on his KAMAZ lorry with Ramzan Suleymanov in it. The witness had arrived at the scene at about 2.30 a.m. and found the partially burnt lorry with its engine running. On the right side of the vehicle he had seen the body of Petimat Aydamirova; two other human bodies were on the ground not far away from hers. The witness had been afraid and had not looked closely at the other bodies. When he had returned to the scene on the following morning, the bodies had not been there and the lorry had completely burnt out.

42.  On an unspecified date the investigators questioned Mr R.S. whose statement about the events was similar to the one given by Mr R.Dz.

43.  On unspecified dates the investigators questioned three military servicemen, Mr G., Mr U. and Mr O. all of whom provided similar statements concerning the events. According to Mr G., who had been the head of the military intelligence group, on 16 May 2000 his group had been taking search measures in the area next to Gekhi. In the evening, at about 10 or 11 p.m., a KAMAZ lorry with its lights off had appeared on the road. The vehicle had been moving at high speed, the driver had not reacted to the warning shots and automatic gunfire had been opened from the vehicle. The servicemen had thought that members of illegal armed groups were travelling in it; therefore, they had opened fire on the lorry. In the vehicle the intelligence group had found two male corpses and an AKM-74 submachine gun. After that the group had left the scene of the incident.

44.¬†¬†On 18 August 2000 (in the submitted documents the date was also referred to as 8 August 2000), in connection with the possible involvement of military servicemen in the killing of the applicants’ relatives, the investigation in the criminal case was transferred from the district prosecutor’s office to the military prosecutor’s office of the UGA (the United Group Alignment), where the case file was given the number 14/33/0332-01. The applicant was informed about it on 18 November 2004 (see paragraph 52 below).

45.¬†¬†On 17 September, 1 October 2001 and 22 April 2004 the applicant wrote to the military prosecutor’s office of military unit no.¬†20102. She stated that her relatives had been killed by Russian military servicemen in May 2000 and inquired about the progress of the investigation. She asked to be granted victim status in the criminal case.

46.¬†¬†On 17 March and 27 September 2004 the applicant wrote to the district prosecutor’s office requesting information concerning the number of the investigation file and the progress of the investigation. She also requested to be granted victim status in the criminal case.

47.¬†¬†On 18 March 2004 the district prosecutor’s office informed the applicant that criminal case no.¬†24019 had been transferred to a military prosecutor’s office on 8 August 2000. On 27 September 2004 the district prosecutor’s office informed her that on an unspecified date the criminal case had been transferred to the military prosecutor’s office of the North Caucasus Military Circuit.

48.¬†¬†On 2 June 2004 the military prosecutor’s office of military unit no.¬†20102 informed the applicant that on 26 July 2001 they had transferred the investigation of criminal case no.¬†14/33/0332-01 to the military prosecutor’s office of the North Caucasus Military Circuit in Rostov-on-Don.

49.¬†¬†On 29 June 2004 the applicant wrote to the military prosecutor’s office of the North Caucasus Military Circuit and requested to be granted victim status in the criminal case. She also asked why there had been delays in the investigation and what steps had been taken by the investigators.

50.¬†¬†On 29 July 2004 the military prosecutor’s office of the North Caucasus Military Circuit replied to the applicant stating that on 21 May 2004 the district prosecutor’s office had granted her victim status in the criminal case. The letter also mentioned that the investigation had not yet been completed for failure to identify the perpetrators.

51.¬†¬†On 7 October 2004 the applicant wrote to the military prosecutor’s office of the North Caucasus Military Circuit. She stated, inter alia, that according to information she had obtained from unspecified sources, prior to the transfer of the investigation from the district prosecutor’s office to the military prosecutor’s office the authorities had identified and arrested two servicemen of the Russian military forces on suspicion of her relatives’ killing. She also complained about the lack of information concerning the investigation and its excessive length. In particular, she stated that the authorities had completely ignored her requests for information on the progress of the proceedings, her procedural status and the basic steps taken by the investigators. The applicant requested to be provided with copies of the basic procedural decisions taken and access to the investigation file. Finally, she asked that the investigation be resumed and transferred to the military prosecutor’s office of military unit no.¬†20102 in Khankala, Chechnya.

52.¬†¬†On 18 November 2004 the military prosecutor’s office of the North Caucasus Military Circuit replied to the applicant, stating that in October 2002 the investigation of her relatives’ killing had been transferred to the military prosecutor’s office of the UGA.

53.¬†¬†On 23 December 2004 the applicant requested the military prosecutor’s office of the UGA to provide her with copies of the basic decisions taken by the investigators. She also asked for access to the investigation file, resumption of the investigation and requested to be informed about the measures taken by the authorities in respect of the two persons who had been arrested on suspicion of her relatives’ killing.

54.¬†¬†On 10 March 2005 the applicant complained about the ineffectiveness of the investigation to the Russian Prosecutor General. She drew attention to the lack of information concerning the investigation and the failure of the military prosecutor’s office of the UGA to grant her victim status in the criminal case. She asked for copies of the basic procedural decisions, permission to access the investigation file and resumption of the investigation.

55.¬†¬†On 25 March and 8 April 2005 the Chief Military Prosecutor’s office forwarded the applicant’s complaints about her relatives’ killing to the military prosecutor’s office of the UGA and the military prosecutor’s office of the North Caucasus Military Circuit.

56.¬†¬†On 7 April 2005 the military prosecutor’s office of the UGA forwarded the applicant’s complaint to the military prosecutor’s office of military unit no.¬†20102 for examination.

57.¬†¬†On 17 May 2005 the military prosecutor’s office of the North Caucasus Military Circuit replied to the applicant stating that the investigation into her relatives’ killing had been transferred to the military prosecutor’s office of the UGA.

58.¬†¬†On 26 May 2005 the military prosecutor’s office of military unit no.¬†20102 informed the applicant that criminal case no.¬†14/33/0332-01 had not been transferred to their office from the military prosecutor’s office of the UGA.

59.¬†¬†On 4 July 2005 the military prosecutor’s office of the UGA informed the applicant that the criminal case had been forwarded to their office from the military prosecutor’s office of the North Caucasus Military Circuit. The case file was on the way and they were waiting for its arrival to have her complaints examined.

60.¬†¬†On 8 June 2005 the applicant wrote to the military prosecutor’s office of military unit no.¬†20102. She requested to be informed about the progress of the investigation, to be provided with access to the case file and asked for information about the measures taken in respect of the two servicemen who had been suspected of her relatives’ killing. She received no reply.

61.¬†¬†On an unspecified date the district prosecutor’s office issued a document certifying the death of Ramzan Suleymanov, Petimat Aydamirova and Ibragim Suleymanov.

62.¬†¬†According to the applicant, the authorities failed to provide her with information about the progress of the investigation into her relatives’ killing.

63.¬†¬†According to the Government, the investigation of the killing has not been completed to date, but all measures envisaged by national law were being taken to have the crime resolved. In spite of the Court’s request, they refused to furnish the Court with copies of any documents from the investigation file on the ground that the investigation in the criminal case was ongoing.

II. RELEVANT DOMESTIC LAW

64.  For a summary of the relevant domestic law see Khatsiyeva and Others v. Russia (no. 5108/02, §§ 105-107, 17 January 2008).

THE LAW

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

A.¬†¬†The parties’ submissions

65.¬†¬†The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the killing of the applicant’s relatives had not yet been completed. They further argued that it had been open to the applicant to challenge in court any acts or omissions of the investigating authorities, but that she had not availed herself of that remedy. They also argued that it had been open to her to pursue civil complaints but that she had failed to do so.

66.¬†¬†The applicant contested that objection. She stated that the only effective remedy in her case ‚Äď the criminal investigation – had proved to be ineffective. With reference to the Court’s practice, she further argued that she was not obliged to apply to civil courts in order to exhaust domestic remedies.

B.¬†¬†The Court’s assessment

67.  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).

68.   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.

69.¬†¬†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.

70.¬†¬†As regards criminal law remedies, the Court observes that the applicant complained to the law enforcement authorities immediately after her relatives’ killing and that an investigation has been pending since 19¬†May 2000. The applicant and the Government dispute the effectiveness of the investigation of the incident.

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

72.  The applicant complained under Article 2 of the Convention that her relatives had been deprived of their lives by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads:

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

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

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

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

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

A.  Alleged failure to protect the right to life

1.  Submissions by the parties

73.¬†¬†The Government conceded that the applicant’s relatives had been deprived of their lives by State agents. They argued, however, that the applicant’s relatives had been killed in the course of a counter-terrorist operation carried out by the federal forces in the Chechen Republic in order to eliminate illegal armed groups. They further stated that the local residents had been informed about the curfew and the obligation to obey the orders of the military when in the area of a special operation. Taking into account that the applicant’s relatives had been driving in the dark during the curfew and had disobeyed the order to stop the lorry, the servicemen had taken them for members of illegal armed groups and opened destruction fire. The Government thus contended that the use of lethal force in the present case had been no more than absolutely necessary for the purposes of paragraph 2¬†(a) and (b) Article 2 of the Convention, and that the deaths of Ramzan Suleymanov, Petimat Aydamirova, Ibragim Suleymanov and Aslanbek Aydamirov had been the result of their failure to comply with the necessary rules concerning personal safety in an area where State agents were conducting a special operation and to obey the servicemen’s legitimate orders.

74.¬†¬†The applicant insisted that her deceased relatives had been civilians, who had posed no danger to servicemen. She further submitted that her relatives had been driving from Gekhi to Roshni-Chu early in the evening, when it had still been light out; that the left side of the lorry cab had contained numerous bullet holes, which demonstrated that the gunfire had been intense and that it had been opened to kill the driver and the passengers; that after the shooting Petimat Aydamirova and her minor son Ibragim Suleymanov had been alive and screamed for help but had been killed by the servicemen; that the holes in the ground and the remains of the brain tissue had clearly indicated that a final shot had been fired into the applicant’s relatives’ heads; that the servicemen had attempted to eliminate the evidence and get rid of the corpses; and that the fact that the domestic authorities had opened a criminal investigation into the events demonstrated the unlawfulness of the actions of the military. She contended therefore that the use of force by State agents which had led to the loss of her relatives’ lives had been clearly disproportionate in the circumstances of the case and could not be regarded as justified under Article 2 ¬ß 2 of the Convention. The applicant stressed that the Government had not submitted any convincing arguments or documentary evidence to the contrary.

2.¬†¬†The Court’s assessment

a. Admissibility

75.¬†¬†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 criminal domestic remedies should be joined to the merits of the complaint (see paragraph 71 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

b. Merits

76.¬†¬†The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances where deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Article 15. The situations where deprivation of life may be justified are exhaustive and must be narrowly interpreted. The use of force which may result in the deprivation of life must be no more than ‚Äúabsolutely necessary‚ÄĚ for the achievement of one of the purposes set out in Article 2 ¬ß 2 (a), (b) and (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is ‚Äúnecessary in a democratic society‚ÄĚ under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of State agents who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination (see McCann and Others v.¬†the¬†United Kingdom, 27 September 1995, ¬ß¬ß¬†146-50, Series¬†A no.¬†324,; Andronicou and Constantinou v. Cyprus, 9¬†October 1997, pp. 2097-98, ¬ß¬†171, Reports of Judgments and Decisions 1997-VI; and Ońüur¬†v. Turkey [GC], no.¬†21594/93, ¬ß¬†78, ECHR 1999-III).

77.  In addition to setting out the circumstances when deprivation of life may be justified, Article 2 implies a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which law enforcement officials may use force and firearms, in the light of the relevant international standards (see Makaratzis v. Greece [GC], no. 50385/99, §§ 57-59, ECHR 2004-XI, and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 96, ECHR 2005-VII). Furthermore, the national law regulating policing operations must secure a system of adequate and effective safeguards against arbitrariness and abuse of force and even against avoidable accident (see Makaratzis, cited above, § 58).

78.¬†¬†In the present case, it has been acknowledged by the Government that Ramzan Suleymanov, Petimat Aydamirova, Ibragim Suleymanov and Aslanbek Aydamirov were killed by State agents as a result of the intentional use of lethal force against them. The State’s responsibility is therefore engaged, and it is for the State to account for the deaths of the applicant’s relatives. It is notably for the State to demonstrate that the force used against them by the federal servicemen could be said to have been absolutely necessary and therefore strictly proportionate to the achievement of one of the aims set out in paragraph 2 of Article 2.

79.¬†¬†The Court notes that it is faced with conflicting accounts of the incident. The Government claimed that the applicant’s relatives had been driving in the dark during curfew hours and had disobeyed orders to stop. The applicant submitted that her relatives had been driving in daylight and that the military had been able to see that the lorry’s passengers had been civilians.

80.¬†¬†The Court does not consider it necessary to resolve the controversies in the parties’ submissions on the facts, as even assuming that the Government’s version as presented by them is accurate, the Court is not convinced that the Government have properly accounted for the use of lethal force against the applicant’s relatives.

81.  In this connection, the Court notes firstly that it is aware of the difficult situation in the Chechen Republic at the material time, which called for exceptional measures on the part of the State to suppress the illegal armed insurgency (see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 178, 24 February 2005, or Khatsiyeva and Others, cited above, § 134). It also bears in mind the fact that an armed conflict, such as that in Chechnya, may entail developments to which State agents are called upon to react without prior preparation. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the obligation to protect the right to life must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, mutatis mutandis, Makaratzis, cited above, § 69, and Mahmut Kaya v. Turkey, no. 22535/93, § 86, ECHR 2000-III).

82.¬†¬†Turning to the present case, the Court notes, however, that the Government failed to demonstrate that the circumstances of the incident of 16-19 May 2000 rendered the use of lethal force against the applicant’s relatives inevitable. Even assuming that the applicant’s relatives had indeed disobeyed the order to stop the lorry and had tried to drive away from the military, as alleged by the Government, the following crucial elements remain unclear.

83.¬†¬†First of all, the Court notes as a matter of grave concern that, whilst claiming that the federal servicemen involved in the incident of 16-19 May 2000 had acted in full compliance with national legislation and regulations for securing the safety of the civilian population, as well as those relating to the use of lethal force, the respondent Government failed to provide the Court with any such legal act or regulations. This prevented the Court from assessing whether an appropriate legal framework on the use of force and firearms by military personnel was in place and, if so, whether it contained clear safeguards to prevent arbitrary deprivation of life and to satisfy the requirement of protection ‚Äúby law‚ÄĚ of the right to life secured by Article 2 of the Convention.

84.¬†¬†The Court further observes that, despite its specific request, the Government refused, with reference to the ongoing criminal investigation, to provide a copy of the investigation file opened in connection with the killing of the applicant’s relatives.

85.¬†¬†As regards the actions of the servicemen involved in the incident of 16-19 May 2000, the Court observes that the Government gave no explanations as to whether the federal servicemen had been, or could have been regarded as being, at risk from the applicant’s relatives owing to the latter’s conduct. Further, the Government provided no explanation either for the applicant’s contention that Petimat Aydamirova and Ibragim Suleymanov had survived the shooting but had been killed after the attack or for her contention that the servicemen had tried to get rid of the corpses by blowing them up. In addition, it is unclear whether the military servicemen reported the incident to their command and if so, what measures were taken by the latter. Lastly, if according to the Government’s submission the investigation had established who had opened the fire on the applicant’s relatives (see paragraph 43 above), it is unclear why the authorities did not finish the investigation and why the proceedings have been pending for almost ten years. In such circumstances, the Court cannot conclude that the use of lethal force against the applicant’s relatives was based on an honest belief which was perceived, for good reasons, to be valid at the time (see, by contrast, McCann and Others, cited above, ¬ß 200).

86.  The Court finds that in the absence of information on the crucial elements mentioned in the above paragraph, the use of lethal force has not been accounted for in the circumstances of the present case. It is therefore not persuaded that the killing of Ramzan Suleymanov, Petimat Aydamirova, Ibragim Suleymanov and Aslanbek Aydamirov constituted a use of force which was no more than absolutely necessary in pursuit of the aims provided for in paragraph 2 of Article 2 of the Convention.

87.  There has accordingly been a violation of Article 2 of the Convention in this respect.

B.  Alleged inadequacy of the investigation

1.  Submissions by the parties

88.  The applicant also insisted that the investigation into the death of her relatives had clearly been inadequate and had fallen short of the Convention standards. It had been pending for almost ten years, having been repeatedly suspended and resumed, and had produced no tangible results. She also alleged that the authorities had failed to provide her with information concerning the basic steps taken by the investigators.

89.¬†¬†The Government claimed that the investigation had met the Convention requirement of effectiveness, given that the authorities had taken a number of investigative steps. The applicant had been granted victim status in the criminal case and had been informed about the investigators’ decisions.

2.¬†¬†The Court’s assessment

90.¬†¬†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, 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, in particular by agents of the State. The investigation must be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances (see Kaya v. Turkey, 19 February 1998, p.¬†324, ¬ß¬†87, Reports 1998-I,) and to the identification and punishment of those responsible (see Ońüur, cited above, ¬ß¬†88).

91.¬†¬†In particular, the authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see concerning autopsies, for example, Salman v. Turkey [GC], no.¬†21986/93, ¬ß¬†106, ECHR¬†2000-VII; concerning witnesses, for example, TanrńĪkulu v. Turkey [GC], no.¬†23763/94, ECHR 1999-IV, ¬ß 109; and concerning forensic evidence, for example, G√ľl v. Turkey, no. 22676/93, ¬ß 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible may risk falling foul of this standard.

92.¬†¬†Also, there must be an implicit requirement of promptness and reasonable expedition (see YaŇüa, cited above, ¬ß¬ß¬†102-04, and Mahmut Kaya, cited above, ¬ß¬ß¬†106-07). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in maintaining public confidence in the maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.

93.  For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Shanaghan v. the United Kingdom, no. 37715/97, §§ 91-92, 4 May 2001).

94.¬†¬†In the instant case, the Court observes that some degree of investigation was carried out into the killing of the applicants’ relatives. It must assess whether that investigation met the requirements of Article 2 of the Convention. The Court notes in this connection that its knowledge of the criminal proceedings at issue is very limited in view of the respondent Government’s refusal to submit the investigation file (see paragraph 63 above). Drawing inferences from the respondent Government’s conduct when evidence was being obtained (see Ireland v.¬†the United Kingdom, judgment of 18 January 1978, Series A no.¬†25, pp. 64-65, ¬ß 161), the Court will assess the merits of this complaint on the basis of the available information in the light of these inferences.

95.¬†¬†The Court notes that from the report on the investigative actions submitted by the Government it appears that the civilian authorities made attempts to investigate the events of 16-19 May 2000 and to secure evidence concerning the incident. In particular, the investigation was commenced on the date of the discovery of the remains of the applicant’s relatives and a number of important investigative actions, such as the inspection of the scene of the incident, the seizure of fragments of cartridges and other evidence at the crime scene, and the questioning of the local residents, were taken within the first months of the investigation (see paragraphs 35, 37-40 above). However, it appears that after the civilian authorities had established that military servicemen had been implicated in the events and consequently transferred the investigation file to the military prosecutor’s office (see paragraph 44 above) no investigative steps were taken by the latter.

96.¬†¬†The Court further observes that it is unclear when the applicant was granted victim status in the criminal case (see paragraph 36 above), which would have afforded her minimum guarantees in the criminal proceedings. However, it is nonetheless clear from the materials in the Court’s possession that the applicant was informed of the developments in the investigation only fragmentarily and occasionally, and that she was not given a realistic opportunity to have access to the case file despite her numerous requests. The Court considers that the applicant was, in fact, excluded from the criminal proceedings and was unable to have her legitimate interests upheld.

97.¬†¬†Against this background, and having regard to the Government’s argument concerning the applicant’s alleged failure to appeal to a court against the actions or omissions of the investigators, the Court notes that in a situation where the investigation was repeatedly suspended and reopened, where the applicant was unable to consult the case file at any stage and was in fact excluded from the criminal proceedings, and where she was only informed of the conduct of the investigation occasionally, it is highly doubtful that the remedy invoked by the Government would have had any prospect of success. Moreover, the Government have not demonstrated that this remedy would have been capable of providing redress in the applicant’s situation ‚Äď in other words, that it would have rectified the shortcomings in the investigation and would have led to the identification and punishment of those responsible for the deaths of her relatives. The Court thus considers that in the circumstances of the case it has not been established with sufficient certainty that the remedy advanced by the Government would have been effective within the meaning of the Convention. It finds that the applicant was not obliged to pursue that remedy, and that this limb of the Government’s preliminary objection should therefore be dismissed.

98.¬†¬†In the light of the foregoing, and drawing inferences from the Government’s refusal to submit the criminal investigation file, the Court further concludes that the authorities failed to carry out a thorough and effective investigation into the circumstances surrounding the deaths of Ramzan Suleymanov, Petimat Aydamirova, Ibragim Suleymanov and Aslanbek Aydamirov.

99.  The Court accordingly holds that there has been a violation of Article 2 of the Convention under its procedural head.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

100.  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.   Submissions by the parties

101.¬†¬†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, including the prosecutor’s office. In sum, the Government submitted that there had been no violation of Article 13.

102.  The applicant maintained the complaint.

B.¬†¬†The Court’s assessment

1.  Admissibility

103.  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

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

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

IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

106.  The applicant complained under Article 14 that the aforementioned violation of her rights occurred because of her Chechen ethnic origin and residence in Chechnya. The respective Article 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

107.  The Court observes that no evidence has been submitted 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 (see, for example, Musikhanova and Others v. Russia (dec.), no. 27243/03, 10 July 2007).

108.  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.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

109.  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

110.  The applicant claimed damages in respect of loss of earnings by her son Ramzan Suleymanov after his killing, claiming a total of 118,918 Russian roubles (RUB) under this heading (2,900 euros (EUR)).

111.¬†¬†She claimed that her son had been employed as a lorry driver at the time of the incident, but that she was unable to obtain salary statements for him. Therefore, she based her calculations on the basis of the subsistence level established by national law and calculated her son’s 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 (‚Äúthe Ogden tables‚ÄĚ).

112.¬†¬†The Government disputed the applicant’s claims under this head as unsubstantiated.

113.¬†¬†The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention (see, among other authorities, √áakńĪcńĪ v. Turkey [GC], no.¬†23657/94, ¬ß¬†127, ECHR 1999-IV). The Court finds that there is indeed a direct causal link between the violation of Article¬†2 in respect of the applicant’s son Ramzan Suleymanov and the loss by the applicant of the financial support which he could have provided for her. Having regard to the applicant’s submissions, the Court does not consider that the amount sought by her is excessive. It therefore awards EUR 2,900 to the applicant as claimed under this head, plus any tax that may be chargeable on this amount.

B. Non-pecuniary damage

114.  As regards non-pecuniary damage, the applicant claimed that she had suffered severe emotional distress, anxiety and trauma as a result of the killing of her four close relatives and on account of the indifference demonstrated by the Russian authorities during the investigation into these events. The applicant sought the amount of EUR 150,000

115.  The Government found the amount claimed excessive.

116.¬†¬†The Court has found a violation of Articles 2 and 13 of the Convention on account of the killing of the applicant’s relatives. 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¬†150,000 as claimed, plus any tax that may be chargeable thereon.

C.  Costs and expenses

117.¬†¬†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, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff and experts. The aggregate claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR 6,516.

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

119.¬†¬†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, cited above, ¬ß 220).

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

121.¬†¬†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 the case involved little documentary evidence, in view of the Government’s refusal to submit the case file. The Court thus doubts that research was necessary to the extent claimed by the representatives.

122.¬†¬†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 her, the net award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicant.

D.  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 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 Ramzan Suleymanov, Petimat Aydamirova, Ibragim Suleymanov and Aslanbek Aydamirov;

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 the applicant’s relatives had been killed;

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

6.  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 2,900 (two thousand nine hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage to the applicant;

(ii)  EUR 150,000 (one hundred and fifty 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;

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

Done in English, and notified in writing on 12 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S√łren Nielsen¬†Christos Rozakis
Registrar President

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