WaYNaKH Online » ECHR Cases http://www.waynakh.com/eng Chechen Republic Ichkeria Thu, 09 Feb 2012 21:08:07 +0000 en hourly 1 http://wordpress.org/?v=3.1 Tashukhadzhiyev v. Russia http://www.waynakh.com/eng/2011/10/tashukhadzhiyev-v-russia/ http://www.waynakh.com/eng/2011/10/tashukhadzhiyev-v-russia/#comments Tue, 25 Oct 2011 15:03:38 +0000 admin http://www.waynakh.com/eng/?p=8847 The ECHR case of Tashukhadzhiyev v. Russia (applications no. 33251/04).

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CASE OF TASHUKHADZHIYEV v. RUSSIA

(Application no. 33251/04)

JUDGMENT

STRASBOURG

25 October 2011

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 Tashukhadzhiyev v. Russia,

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

Nina Vajić, President,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 4 October 2011,

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

PROCEDURE

1.  The case originated in an application (no. 33251/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Abdulbek (also referred to as Imali) Tashukhadzhiyev, on 5 August 2004.

2.  The applicant was represented by Mr M. Shidayev, a lawyer practising in Grozny. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3.  The applicant alleged that his son “disappeared” after being detained by Russian military servicemen in February 1996 in Chechnya. He referred to Articles 2, 5, 6, 13 and 14 of the Convention.

4.  On 9 March 2009 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 former Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1936. He is the father of Elbek Tashukhadzhiyev, who was born in 1970. At the material time the applicant lived in Berkat-Yurt, Chechnya. He currently lives in Shali, Chechnya.

A.  Disappearance of Elbek Tashukhadzhiyev

1.  Information submitted by the applicant

(a)  Detention of the applicant’s son

6.  At the material time, during the first counterterrorist campaign in Chechnya, Elbek Tashukhadzhiyev worked as a driver of a URAL petrol tanker. On 9 February 1996 (in the documents submitted the date was also referred to as 11 February 1996) he was driving his lorry on the outskirts of Berkat-Yurt, Chechnya. Next to the village, in the vicinity of a Russian military checkpoint, he was stopped by a group of military intelligence officers under the command of Major A.Z. The group belonged to military unit no. 74614 of the 205th brigade of the Internal Troops of the Russian Ministry of the Interior. After that, the applicant’s son disappeared.

(b)  The search for the applicant’s son

7.  On 10 February 1996 the applicant started a search for his son. On 12 February 1996 he found out that his son had been detained by the military servicemen. The applicant went to the base of an air force squadron stationed in the area, together with the head of the Berkat-Yurt village administration. There they spoke to the squadron commander and showed him a photograph of Elbek Tashukhadzhiyev. They told the commander that on 9 February 1996 Elbek had been detained by the military servicemen. The commander informed them that on 9 February 1996 a group of military intelligence officers, under the command of a Major, had arrived at their base with a detainee. They had introduced themselves as representatives of the 205th brigade of the Internal Troops and explained that they had arrived to provide medical assistance to two soldiers who had been blown up by a landmine. This intelligence group had arrived with a detainee, and the detainee had been Elbek Tashukhadzhiyev: the commander recognised him from the photograph. Upon providing medical assistance to the wounded soldiers, the intelligence officers had placed the applicant’s son either in an armoured personnel carrier or an infantry battle vehicle (“IBV”) and left for Khankala, Chechnya. Elbek Tashukhadzhiyev’s lorry had been driven away by a soldier.

8.  After that, the applicant and the head of administration went to see the commander of the 205th brigade, General Na. Upon their request, the General ordered that the applicant, together with a group of military servicemen on three IBVs and under the command of a Captain, would drive to where the 56th brigade (56-я бригада) were stationed. At that location, the commander of the 56th brigade confirmed that Elbek Tashukhadzhiyev had been detained by the intelligence officers.

9.  The applicant subsequently requested information about his missing son and his lorry from General Na. The commander refused to admit that the 205th brigade had detained Elbek Tashukhadzhiyev and that his lorry had been parked at their premises.

10.  Sometime later the applicant together with representatives of the military prosecutor’s office visited the premises of the brigade, where they found Elbek Tashukhadzhiyev’s lorry. The vehicle’s registration numbers had been removed and it was being used by the brigade’s servicemen.

11.  In support of his application, the applicant submitted his statement and copies of correspondence received from the authorities.

2.  Information submitted by the Government

12.  The Government did not challenge most of the facts as presented by the applicant. With reference to the contents of the criminal investigation file, but without providing copies of the relevant documents, the Government submitted the following:

“In the morning of 9 February 1996 Elbek Tashukhadzhiyev was driving a URAL lorry with registration number 74-83 ЧИЛ from Grozny to Shali, Chechnya. In the vicinity of the villages Petropavlovskaya and Berkat-Yurt, on a cart road, he was detained by a military intelligence group from military unit no. 74814 under the command of Major A.Z. The reason for the detention was the discovery of a grenade launcher RPG-26 in Elbek Tashukhadzhiyev’s vehicle and his deviation from the route indicated in his waybill.”

B.  The search for Elbek Tashukhadzhiyev and the investigation

1.  Information submitted by the applicant

(a)  Background information

13.  On 15 March 1996 the military prosecutor’s office of military unit no. 44662 instituted an investigation into the disappearance of Elbek Tashukhadzhiyev.

14.  The investigator in charge of the criminal case, Mr Az., informed the applicant that Major A.Z. had given himself up and confessed to detaining Elbek Tashukhadzhiyev. According to the Major, he and his servicemen had allegedly seized a grenade launcher from the applicant’s son and had taken him to Khankala, Chechnya. In Khankala the servicemen had been ordered to transfer Elbek Tashukhadzhiyev to the Group Directorate of the Operational Headquarters (Группа Управления Оперативного Штаба (ГУОШ)) in Grozny, Chechnya. On the way there Elbek Tashukhadzhiyev had jumped out of the car and ran towards the forest. He had been shot, covered with leaves and soil and left in the forest.

15.  It appears that on an unspecified date the military prosecutor’s office searched for Elbek Tashukhadzhiyev’s body in the forest, but to no avail.

16.  About two months after providing the initial statement concerning the shooting of Elbek Tashukhadzhiyev, Major A.Z. changed his statement and told the investigation that on the way to Grozny Elbek Tashukhadzhiyev had run away into the forest and had never been seen since.

(b)  The official investigation into the disappearance

17.  On 15 March 1996 the military prosecutor’s office of military unit no. 44662 instituted an investigation into the case of Elbek Tashukhadzhiyev under Article 103 of the Criminal Code (murder). The case was opened against Major A.Z. of military unit no. 74814. The criminal case file was given the number 14/27/0148-98.

18.  On 15 September 1996 the criminal case concerning the murder of the applicant’s son was terminated for a lack of corpus delicti. The applicant was informed about it on 17 October 1996. On an unspecified date the applicant appealed against the decision and on 30 April 1998 the proceedings were reopened (see paragraph 45 below). The applicant was not informed about the reopening of the proceedings.

19.  On 4 August 1997 the military prosecutor’s office of the Northern Caucasus Military Circuit replied to a complaint made by the applicant’s wife and stated, inter alia, the following:

“… the investigation established that on 9 February 1996 your son had been detained by a military intelligence group of military unit no. 74814 … He had fled from the servicemen on the way to the military commander’s office and had been shot at. However, it is unclear whether he was killed, as nobody saw him [again]-dead or alive. The military prosecutor’s office examined the relevant part of the forest and did not find any graves …

On the basis of the above, the criminal investigation was terminated on 15 September 1996 … It is impossible to establish your son’s whereabouts …”

20.  On 6 January 1998 the military prosecutor’s office of military unit no. 44662 forwarded the criminal case file to the military prosecutor’s office of the Northern Caucasus Military Circuit.

21.  On an unspecified date the military prosecutor’s office of the Northern Caucasus Military Circuit forwarded the criminal case file to the military prosecutor’s office of military unit no. 74814 in the Budennovsk military garrison.

22.  On 5 July 2002 the Chechnya prosecutor’s office forwarded the applicant’s complaint about his son’s disappearance to the Grozny district prosecutor’s office.

23.  On 14 July 2002 the Department of Coordination of Counterterrorist Operations of the Federal Security Service (the FSB) informed the applicant that his son Elbek Tashukhadzhiyev was not listed as a detainee of the Russian federal forces in Chechnya.

24.  On 21 January 2003 the Chief Military Prosecutor’s office forwarded the applicant’s request for assistance in the search for his son to the military prosecutor’s office of the United Group Alignment (“the UGA”).

25.  On 12 September 2003 the Bureau of the Special Representative of the Russian President in Chechnya for rights and freedoms (“the Bureau”) complained to the Grozny district prosecutor’s office about the lack of information concerning the criminal investigation.

26.  On 14 January 2004 the Bureau requested that the UGA military prosecutor’s office provide information about the progress of the investigation into the disappearance of the applicant’s son. The letter stated, amongst other things, the following:

“… [The applicant] complained that his son Elbek Tashukhadzhiyev together with the URAL petrol tanker … had been detained by a military intelligence unit of the 205th brigade on 9 February 1996 … Elbek Tashukhadzhiyev’s lorry had been found on the brigade’s premises sometime later.

On 15 March 1996 a criminal case was opened in connection with the above matter. The arguments concerning the detainee’s escape, as well as the witnesses’ statements concerning the place of his burial, are not convincing, as the witnesses have been changing their statements at every interrogation.

The applicant complained that the investigators were reluctant to establish the true circumstances surrounding the events …”

27.  On 27 January 2004 the UGA military prosecutor’s office replied to the Bureau as follows:

“… The case concerning the circumstances of Elbek Tashukhadzhiyev’s detention was investigated by the military prosecutor’s office of military unit no. 44662 within the framework of the criminal case opened against Major A.Z. of military unit no. 74614. In connection with this, in accordance with the rules of jurisdiction, the applicant’s complaint was forwarded to the military prosecutor of military unit no. 44662 in Buynaks, Dagestan …”

28.  On 26 February 2004 the military prosecutor’s office of military unit no. 44662 forwarded the applicant’s complaint to the military prosecutor’s office of the Budennovsk military garrison. The letter stated, amongst other things, the following:

“… the investigation established that on 15 March 1996 the military prosecutor’s office of military unit no. 44662 had opened an investigation under Article 103 of the Criminal Code in respect of officer Major A.Z. of military unit no. 74814. Circumstances of the case: on 11 February 1996, in Chechnya, Major A.Z. committed the murder of Elbek Tashukhadzhiyev.

On 15 September 1996 the criminal case against Major A.Z. was terminated … for a lack of corpus delicti.

On 6 January 1998 the criminal case file was transferred from the military prosecutor’s office of military unit no. 44662 … to the military prosecutor’s office of the Budennovsk military garrison (the station of military unit no. 74814) …”

29.  On 18 March 2004 the military prosecutor’s office of military unit no. 20102 informed the applicant that “in March 1996 one of the military prosecutor’s offices in the Northern Caucasus investigated a criminal case concerning the disappearance of Elbek Tashukhadzhiyev …” but that it had not been their office which investigated the crime.

30.  On 24 March 2004 the UGA military prosecutor’s office provided the applicant with similar information and stated that they had not investigated the case either.

31.  On 27 March 2004 the UGA military prosecutor’s office forwarded the applicant’s complaint about his son’s disappearance to the military prosecutor’s office of military unit no. 20116.

32.  On 30 April 2004 the military prosecutor’s office of military unit no. 44662 informed the applicant, amongst other things, of the following:

“… it has been impossible to verify the arguments provided in [the applicant’s] complaint about the murder of Elbek Tashukhadzhiyev … for the following reasons:

In 1996 the military prosecutor’s office of military unit no. 44662 was transferred from Grozny to its current station in Buynaks, Dagestan …

Military unit no. 74814, where Major A.Z. was serving and in respect of whom the military prosecutor’s office of military unit no. 44662 had opened a criminal case under Article 103 of the Criminal Code (in connection with the murder of Elbek Tashukhadzhiyev) on 15 March 1996, was stationed in Budennovsk in the Stavropol Region along with the servicemen who had witnessed the events in question …

Taking into account that in 1998 due to well known reasons the investigation of the criminal case was impossible, it was decided to transfer the criminal case against Major A.Z. … to the military prosecutor’s office of the Budennovsk military garrison, where the suspect and the witnesses were stationed at the time …”

33.  On 13 May 2004 the military prosecutor’s office of the Northern Caucasus Military Circuit informed the applicant that on an unspecified date they had requested that the military prosecutor’s office of the Budennovsk military garrison provide them with the investigation file of criminal case no. 14/27/0148-98 opened against Major A.Z. of military unit no. 74814. The case file had been requested in order to examine the applicant’s complaints.

34.  On 15 June 2004 the military prosecutor’s office of the Northern Caucasus Military Circuit informed the applicant, amongst other things, of the following:

“… the military prosecutor’s office of the Budennovsk military garrison investigated the criminal case against Major A.Z. of military unit no. 74814, who was suspected of murdering Elbek Tashukhadzhiyev. It was impossible to establish Elbek Tashukhadzhiyev’s whereabouts or his corpse. The criminal investigation was terminated on 10 January 2000 …”

The letter provided neither the reasons for the termination of the criminal proceedings, nor contained a copy of the relevant decision.

35.  On 3 September 2004 the Chechnya Committee for the Defence of Constitutional Rights wrote on behalf of the applicant to the Chief Military Prosecutor’s Office and the UGA military prosecutor’s office. The letter stated, amongst other things, the following:

“ … this document (the letter of 15 June 2004 from the military prosecutor’s office of the Northern Caucasus Military Circuit) and other information received from the prosecutors’ offices directly point to the involvement of Major A.Z. in the detention of Elbek Tashukhadzhiyev, who disappeared following the detention …

… we have already complained to the UGA military prosecutor’s office about the investigators’ reluctance to establish the true circumstances of the case and the investigation’s unconvincing arguments to this end …

… It is irrefutable that the murder and the detention at the checkpoint took place … that there was no possibility for the detained [Elbek Tashukhadzhiyev] to use any physical force against [those who detained him], in particular, against the armed men … [Therefore] the arguments concerning the detainee’s attempts to escape are ridiculous …”

36.  On 30 November 2004 the UGA military prosecutor’s office, without enclosing a copy of the relevant decision, informed the applicant of the following:

“… on 10 January 2000 the military prosecutor’s office of the Budennovsk military garrison terminated criminal case no. 14/27/0148-98 under Article 208 § 2 of the Criminal Procedure Code [for a lack of evidence] …”

37.  On 24 December 2004 and 21 January 2005 the military prosecutor’s office of the Northern Caucasus Military Circuit replied to the applicant’s complaints about his son’s disappearance, stating that they were in the process of the examination of the contents of criminal case file no. 14/27/0148-98 and that he would be informed of the results.

38.  According to the applicant, he was not granted victim status in the criminal case concerning his son’s disappearance and the investigative authorities consistently failed to provide him with information on the progress of the criminal case.

2.  Information submitted by the Government

39.  On 4 March 1996 Major A.Z. gave himself up and confessed to the killing of Elbek Tashukhadzhiyev. He and other witnesses showed investigators the place where they had buried the body.

40.  At some later stage, Major A.Z. backtracked and stated that he had only confessed to killing Elbek Tashukhadzhiyev to improve his image before the command, as he had been responsible for Elbek Tashukhadzhiyev’s escape from the servicemen.

41.  On an unspecified date the investigators searched the burial site identified by the Major and the other witnesses, but Elbek Tashukhadzhiyev’s body was not found.

42.  On 8 March 1996 the investigators examined Elbek Tashukhadzhiyev’s lorry and forwarded it to the Grozny Refinery for storage.

43.  On 15 March 1996 the investigators opened a criminal case against Major A.Z. under Article 103 of the Criminal Code (murder).

44.  On 15 September 1996 the investigation of the criminal case was terminated for a lack of corpus delicti in the actions of Major A.Z.

45.  On 30 April 1998 the investigation of the criminal case was reopened.

46.  On 29 May 1998 and 5 January 1999 the investigation was suspended for failure to identify the perpetrators.

47.  On 30 June 1998 and 18 March 1999 the investigation was resumed.

48.  On 18 April 1999 the investigation of the criminal case was again terminated on account of a lack of corpus delicti in the actions of Major A.Z.

49.  On 10 December 1999 the investigation of the criminal case was reopened.

50.  On 10 January 2000 the investigation of the criminal case was terminated for failure to prove the charges against Major A.Z.

51.  On 30 April 2009 the decision to terminate the criminal proceedings was overruled and the investigation was resumed.

52.  On an unspecified date the investigators questioned the applicant and his wife, who stated that in 1998 they had learnt from a Mr A.Kh., who had been released from a detention centre, that their son Elbek Tashukhadzhiyev had been detained in the Lefortovo remand prison in Moscow. According to the Government, the investigation did not obtain information confirming the applicant’s son’s detention in that prison.

53.  The Government further submitted that, although the investigation had failed to establish the whereabouts of Elbek Tashukhadzhiyev, it was still in progress and all measures provided for in domestic law were being taken to solve the crime. The applicant had been duly informed of all decisions taken during the investigation.

54.  Despite specific requests by the Court, the Government did not disclose any documents from the investigation file of criminal case no. 14/27/0148-98. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of their confidentiality, since the file contained secret information.

II.  RELEVANT DOMESTIC LAW

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

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

56.  The applicant complained under Article 2 of the Convention that his son has been deprived of his life by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the disappearance of his son Elbek Tashukhadzhiyev. Article 2 reads:

“1.  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.”

A.  Admissibility

57.  In so far as the application concerned the death of the applicant’s son the Government maintained that this complaint should be declared inadmissible as it fell outside of the Court’s jurisdiction ratione temporis. They pointed out that the events took place in February 1996, whereas Russia had ratified the Convention in May 1998. The applicant accepted that the events took place in February 1996 but maintained that the ongoing investigation had not elucidated the circumstances of his son’s death for which reason the ratione temporis ground would not apply.

58.  The Court notes that it is common ground between the parties that the applicant’s son was arrested in February 1996 by the military servicemen under the command of Major A.Z. However, it is unclear what happened to him afterwards. It is not for the Court to seek to establish what occurred in 1996. As the Convention entered into force in respect of Russia only in 1998 such a matter is outside the Court’s temporal jurisdiction. Furthermore, an assessment of what happened to the applicant’s son thereafter would on the basis of the available information be mere speculation.

59.  In the light of this, the Court considers that it has no competence ratione temporis to examine the applicant’s complaint under the substantive limb of Article 2 of the Convention for which reason this part of the application must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.”

60.  As far as the application concerned the alleged ineffectiveness of the investigation into the applicant’s son’s disappearance and death, the Government considered that this part of the application was inadmissible for the applicant’s failure to exhaust domestic remedies. They submitted that the applicant had failed to appeal against the decision of 10 January 2000 to terminate the criminal investigation. In addition, he failed to claim damages in civil proceedings or appeal against the investigators’ other decisions to competent domestic authorities. In the alternative the Government suggested that the complaint was premature since the investigation had been resumed and was pending. Finally, the Government maintained that the applicant had failed to comply with the six-month rule, as the decision to terminate the criminal investigation had been taken in January 2000 whereas the applicant had lodged the application with the Court in August 2004.

61.  The applicant contested the Government’s objections. He stated that he could not have appealed against the decision of 10 January 2000 as he had not been informed about it for several years afterwards and because the authorities had failed to provide him with a copy of it. He further stated that he had not been granted victim status in the criminal case and that throughout the proceedings he had not been informed of their progress. As for a civil claim for damages, the applicant pointed out that such a remedy would not have been effective in his case in the absence of the results of the criminal investigation. He stressed that the remedy relied upon by the Government was ineffective, as he had complained about the actions of the investigative authorities to their supervisory bodies, but his complaints had been forwarded for examination to the very authorities he had complained about. Finally, he submitted that the ongoing investigation into his son’s fate only showed that it was ineffective.

62.  As regards the question of exhaustion of domestic remedies and turning to the Government’s argument that the applicant could have sought compensation through civil proceedings, the Court observes that it has already considered this issue in a number of similar cases. It has found that, taken alone, a civil action to obtain redress for damage sustained through the allegedly illegal acts or unlawful conduct of State agents cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others v. Russia, no. 60272/00, § 77, 12 October 2006). In the light of the above, the Court confirms that the applicant was not obliged to pursue a civil damages claim. The Government’s objection in this regard is thus dismissed.

63.  Secondly, the Government argued that the applicant had failed to appeal against the decision to terminate the criminal investigation and to appeal the investigators’ other decisions to the competent domestic authorities. The applicant insisted that he had not been duly notified of the impugned decision or of any other decisions taken by the investigators in the criminal case, and therefore that he could not have been expected to appeal against them.

64.  The Court has previously held that in the Russian legal system the power of a court to reverse a decision not to institute criminal proceedings is a substantial safeguard against the arbitrary exercise of powers by the investigating authorities and therefore a remedy that must be exhausted (see Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003). However, an applicant does not need to exercise a remedy which, although theoretically of a nature as to constitute a remedy, does not in reality offer any chance of redressing the alleged breach (see Gündem v. Turkey, 22275/93, Commission decision of 9 January 1995). If the remedy chosen was adequate in theory, but, over the course of time, proved to be ineffective, the applicant is no longer obliged to exhaust it (see Tepe v. Turkey, 27244/95, Commission decision of 25 November 1996; see also Mikheyev v. Russia (dec.), no. 77617/01, 7 October 2004).

65.  As to the effectiveness of the criminal remedies referred to by the Government, the Court notes that it is not clear whether the applicant had been indeed granted victim status in the criminal proceedings. However, setting aside the issue, the Court notes that, in any case, the applicant had not been duly and timely informed of the decision of 10 January 2000 (see paragraphs 34 and 36 above) or of any other procedural decision taken by the investigators. From the documents submitted it does not appear that the authorities took any steps to provide the applicant with any meaningful information about the progress of the criminal proceedings and copies of the relevant decisions. It is highly doubtful that the applicant had a realistic possibility of challenging any decisions of the investigative authorities without having such essential information.

66.  In such circumstances, the Court dismisses the Government’s objection in so far as it concerns the applicant’s failure to appeal against the actions and decisions of the investigative authorities and, in particular, against the decision of 10 January 2000.

67.  Finally, in relation to the Government’s argument concerning the effectiveness of the ongoing criminal investigation, the Court considers that this objection should be joined to the merits and falls to be examined below under the substantive provision of the Convention.

68.  As regards the question of applying the six-month rule, the Court has already stated that the six-month time-limit does not apply as such to continuing situations (see, for example, Agrotexim Hellas S.A. and Others v. Greece, no. 14807/89, Commission decision of 12 February 1992, DR 71, p. 148, and Cone v. Romania, no. 35935/02, § 22, 24 June 2008). The reason for this is that if there is a situation of ongoing breach, the time-limit in effect starts afresh each day and it is only once the situation ceases that the final period of six months will run to its end.

69.  In the present case the impugned decision concerning the termination of the criminal investigation was taken on 10 January 2000. From the documents submitted it can be seen that the applicant was informed about this fact only on 15 June 2004 (see paragraph 34). He lodged his application with the Court on 5 August 2004. Furthermore, the Court notes from the information submitted by the Government that on 30 April 2009 the decision to terminate the criminal proceedings was overruled and the investigation was resumed (see paragraph 51 above).

70.  In such circumstances, the Court rejects the Government’s objection concerning the applicant’s failure to comply with the six-month rule.

71.  Thus, as regards the issue of the admissibility of the applicant’s complaint concerning the alleged ineffectiveness of the criminal investigation under the procedural limb of Article 2, 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.

72.  Therefore, the complaint under the procedural limb of Article 2 of the Convention must be declared admissible, no other reasons for declaring it inadmissible having been established.

B.  The merits

1.  The parties’ submissions

73.  The Government submitted that Elbek Tashukhadzhiyev had been arrested on 9 February 1996 as his vehicle had deviated from the route stated in his waybill and that as a result of a subsequent search a grenade launcher had been discovered in his vehicle. The arrest had been conducted under the President’s Order “On measures concerning the suppression of the activities of illegal armed groups in Chechnya” of 9 December 1994 and the relevant provisions of the Criminal Code. The Government further stated that during the transportation of Elbek Tashukhadzhiyev to the military commander’s office, he had jumped out of the vehicle and had run towards the forest. The military servicemen had shot at him, but neither his corpse, nor he himself had been subsequently found, as he had managed to escape. The Government further contended that the domestic investigation had obtained no evidence to the effect that Elbek Tashukhadzhiyev was dead or that any servicemen had been responsible for his disappearance. The Government claimed that the investigation into the disappearance of the applicant’s son had met the Convention’s requirement of effectiveness.

74.  The applicant maintained that it was beyond reasonable doubt that the servicemen under the command of Major A.Z. had detained his son Elbek Tashukhadzhiyev who had subsequently disappeared. In support of his complaint he referred to the fact that the domestic investigation had confirmed the detention of Elbek Tashukhadzhiyev by the military servicemen (see paragraphs 19, 28, 32 and 34 above) and that all the other information disclosed by the authorities had supported his assertion as to the responsibility of the State agents for the disappearance of Elbek Tashukhadzhiyev. The applicant further argued that the authorities had failed to conduct an effective and thorough investigation into the fate of his missing son who had disappeared in life-threatening circumstances.

2.  The Court’s assessment

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

76.  The Court would emphasise that the procedural obligation under Article 2 operates independently of the substantive obligation. A disappearance is a distinct phenomenon, characterised by an ongoing situation of uncertainty and unaccountability and is very often drawn out over time, prolonging the torment of the victim’s relatives and giving rise to a continuing situation (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §§ 147 and 148, 18 September 2009). Thus, the procedural obligation will, potentially, persist as long as the fate of the person is unaccounted for; the ongoing failure to provide the requisite investigation will be regarded as a continuing violation. This is so, even where death may, eventually, be presumed and even if this death had occurred prior to the ratification of the Convention by the respondent state (see Varnava, cited above, § 194).

77.  In the present case, the fate of Elbek Tashukhadzhiyev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

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

79.  In addition, the Court observes that the Government failed to provide detailed information on the actual investigative steps taken by the authorities. However, from the scarce information in its possession, the Court notes the following. The investigation into Elbek Tashukhadzhiyev’s disappearance was opened more than a month after the incident and it was subsequently terminated on several occasions – 15 September 1996, 18 April 1999 and 10 January 2000 – and reopened on 30 April 1998, 10 December 1999 and 30 April 2009 (see paragraphs 43-45 and 48-51 above). Taking into account the Government’s reluctance to provide information concerning the grounds for the various decisions to reopen the proceedings, the Court infers that the decisions to terminate the criminal investigation were overruled as unsubstantiated. This factor in itself – and the overall fourteen year timeframe of the currently ongoing criminal proceedings – demonstrates the ineffectiveness of the investigation into Elbek Tashukhadzhiyev’s disappearance.

80.  The Court also notes that even though it is not clear from the documents submitted whether the applicant was granted victim status in the criminal case, it is clear from the copies of the letters received by him from the authorities that he was deprived of any meaningful information concerning the progress of the investigation. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.

81.  In the light of the foregoing, the Court rejects the Government’s objection as to the exhaustion of domestic remedies due to the pending investigation and holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Elbek Tashukhadzhiyev, in breach of the procedural aspect of Article 2.

II.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

82.  The applicant stated that Elbek Tashukhadzhiyev had been detained in violation of the guarantees contained in Article 5 of the Convention, which reads, in so far as relevant:

“1.  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.”

A.  Admissibility

83.  The Government did not make a separate submission under this head. However, they stated in general terms that Elbek Tashukhadzhiyev had been arrested on the suspicion of unlawful possession of firearms and that his arrest had complied with domestic legislation (see paragraph 73 above).

84.  The applicant reiterated the complaint.

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

B.  Merits

86.  The Court reiterates that it is not in dispute that the applicant’s son was arrested by military servicemen and subsequently disappeared. The authorities acknowledged his arrest, but they have not provided any documentary evidence giving official trace of his whereabouts afterwards. The Court notes the obvious disregard of the procedural safeguards applicable to the detention of persons. While there is no evidence that Elbek Tashukhadzhiyev was still in detention in the period under the Court’s consideration, it remains incumbent on the domestic authorities to show that they have since carried out an effective investigation into the arguable claim that he had been taken into custody and not seen subsequently (see, amongst many authorities, Kurt v. Turkey, 25 May 1998, § 124, Reports of Judgments and Decisions 1998-III and Varnava, cited above, § 208). The Court’s findings above in relation to Article 2 leave no doubt that the authorities have also failed to conduct the requisite investigation in that regard. This discloses a continuing violation of Article 5.

III.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

87.  The applicant complained that under national law he had been barred from filing a civil claim to obtain compensation for his son’s unlawful detention or death pending the outcome of the criminal investigation. He relied on Article 6 § 1 of the Convention, the relevant parts of which provide:

“In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by [a] … tribunal …”

A.  Admissibility

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

B.  Merits

89.  The Court finds that the applicant’s complaint under Article 6 concerns essentially the same issues as those discussed above in relation to the procedural aspect of Article 2 and below in relation to Article 13. It should also be noted that the applicant submitted no information which would prove his stated intention to apply to a domestic court with a claim for compensation. In such circumstances, it finds that no separate issues arise under Article 6 of the Convention (for a similar situation see Bazorkina, cited above, § 153).

IV.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLES 2 AND 5 OF THE CONVENTION

90.  The applicant complained that he had been deprived of an effective remedy in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:

“Everyone 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.”

A.  Admissibility

91.  The Government contended that the applicant had had effective remedies at his disposal as required by Article 13 of the Convention and that the authorities had not prevented him from using them. They stated that the applicant had had the opportunity to challenge the acts or omissions of the investigating authorities in court and to lodge civil claims for damages.

92.  The applicant reiterated the complaint.

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

B.  Merits

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

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

96.  As regards the applicant’s reference to Article 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention (see Kukayev v. Russia, no. 29361/02, § 119, 15 November 2007, and Aziyevy v. Russia, no. 77626/01, § 118, 20 March 2008).

V.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

97.  The applicant complained that he had been discriminated against in the enjoyment of his Convention rights because the violations of which he complained had taken place because he was resident in Chechnya and because of his ethnic background as a Chechen. This was contrary to Article 14 of the Convention, which reads as follows:

“The 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.”

98.  The Court finds that no evidence has been submitted to it that suggests that the applicant was treated differently due to his ethnic background or place of residence.

99.  It follows that this part of the application should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

100.  Article 41 of the Convention provides:

“If 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.”

A.  Pecuniary damage

101.  The applicant claimed damages in respect of expenses incurred by him and his family in connection with the search for his disappeared son. The applicant claimed a total of 900,000 Russian roubles (RUB) under this heading (about 22,500 euros (EUR)), stating that the amount was approximate as his religious beliefs and traditions precluded him from keeping a record of the expenses.

102.  The Government stated that this claim should be rejected as completely unsubstantiated.

103.  In the absence of any documents substantiating the applicant’s claim for pecuniary damage, the Court does not make any award under this head.

B.  Non-pecuniary damage

104.  As for non-pecuniary damage, the applicant left the determination of any amount for the Court.

105.  The Government stated that the finding of a violation would be adequate just satisfaction in the applicant’s case.

106.  The Court has found a violation of Articles 2, 5 and 13 of the Convention. The Court thus accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by finding violations. It awards to the applicant EUR 30,000, plus any tax that may be chargeable to him thereon.

C.  Costs and expenses

107.  The applicant did not submit any claims under this head.

D.  Default interest

108.  The Court considers it appropriate that 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

1.  Decides unanimously to join to the merits the Government’s objection as to non-exhaustion of domestic remedies due to the pending investigation and rejects it;

2.  Declares by a majority the complaints under the procedural aspect of Article 2 of the Convention, as well as the complaints under Articles 5, 6 and 13 of the Convention admissible and the remainder of the application inadmissible;

3.  Holds unanimously 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 Elbek Tashukhadzhiyev disappeared;

4.  Holds by 6 votes to 1 that there has been a violation of Article 5 of the Convention in respect of Elbek Tashukhadzhiyev;

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

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

7.  Holds unanimously that no separate issues arise under Article 13 of the Convention in conjunction with Article 5 of the Convention;

8.  Holds unanimously

(a)  that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 30,000 (thirty thousand euros), in respect of non-pecuniary damage, to be converted into Russian roubles at the date of settlement plus any tax that may be chargeable to the applicant,;

(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;

9.  Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Nina Vajić Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Kovler is annexed to this judgmen

PARTLY DISSENTING OPINION OF JUDGE KOVLER

I cannot share the conclusions of the Court as regards the admissibility of the complaint under Article 5 of the Convention and the violation of that provision in this case.

Taking into account the Court’s findings concerning the substantive limb of Article 2 of the Convention in respect of the presumed death of Elbek Tashukhadzhiyev prior to the ratification of the Convention by the respondent State (5 May 1998), I conclude that his detention for a number of hours in February 1996 before his presumed death also falls outside the Court’s competence ratione temporis. I cannot accept the finding of  “a continuing violation” of Article 5 (see paragraph 86 of the judgment), founded on a formalistic interpretation of the Varnava test. It follows for me that the Court is not competent to examine whether the applicant had an “arguable claim” of a breach of a substantive Convention right (see, among other authorities, Voroshilov v. Russia (dec.), no. 21501/02, 8 December 2005, and Meriakri v. Moldova (dec.), no. 53487/99, 16 January 2001).

]]> http://www.waynakh.com/eng/2011/10/tashukhadzhiyev-v-russia/feed/ 0 Beksultanova v. Russia http://www.waynakh.com/eng/2011/09/beksultanova-v-russia/ http://www.waynakh.com/eng/2011/09/beksultanova-v-russia/#comments Tue, 27 Sep 2011 22:15:34 +0000 admin http://www.waynakh.com/eng/?p=8760 The ECHR case of Beksultanova v. Russia (applications no. 31564/07).

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CASE OF BEKSULTANOVA v. RUSSIA

(Application no. 31564/07)

JUDGMENT

STRASBOURG

27 September 2011

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 Beksultanova v. Russia,

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

Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 6 September 2011,

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

PROCEDURE

1.  The case originated in an application (no. 31564/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Aminat Beksultanova, on 16 July 2007.

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

3.  On 20 May 2009 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 the former Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

4.  The Government objected to the joint examination of the admissibility and merits of the application 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 1959 and resides in the village of Achkhoy-Martan in the Chechen Republic. She is the mother of Mr Timur Beksultanov, born in 1980.

A.  Disappearance of Timur Beksultanov

1.  The applicant’s account

(a)  The background to the events of 2 October 2004

6.  In the applicant’s submission her family members, including Timur Beksultanov, were victims of continuing persecution on the part of the domestic authorities. In July 2003 Timur Beksultanov even had to quit his job as a coach in the Achkhoy-Martan local sports centre. Furthermore, on several occasions (the applicant did not furnish the exact dates) servicemen of the federal forces allegedly burst into the applicant’s house, searched it and intimidated the applicant and members of her family.

7.  On 7 July 2003 the prosecutor’s office of the Achkhoy-Martan District (“the district prosecutor’s office”) opened a criminal case against Timur Beksultanov under Articles 205 § 2 (terrorism), 208 § 2 (participation in an illegal armed group), 222 § 2 (aggravated possession of weapons) and 317 (assault on a law-enforcement officer) of the Criminal Code (“CC”). The case file was assigned the number 44050. It appears that Timur Beksultanov was put on a list of wanted persons in connection with those proceedings.

8.  According to the applicant, Timur Beksultanov denied the charges against him and intended to appear at the district prosecutor’s office.

(b)  Disappearance of Timur Beksultanov

9.  On 2 October 2004 Mr I.M., an officer of the police special-purpose squad (“OMON”), came to the applicant’s house and asked Timur Beksultanov to follow him to an unidentified destination “to explain that [Timur Beksultanov] was not implicated in any terrorist activities”. The two men got into I.M.’s vehicle, a VAZ-2107, and drove off. The applicant memorised only a sequence of three figures from the car number plate, namely “940”.

10.  The following account of the events is based on the information allegedly obtained by the applicant from two persons, one of them being identified by her as “a shepherd” and another as “a villager of Achkhoy-Martan”. The applicant did not indicate the names of those witnesses or furnish copies of their statements. In her submission, the witnesses did not wish to give their names because they feared reprisals.

11.  According to the applicant, one of the witnesses told her that at about 11 a.m. on 2 October 2004 he had seen a convoy of several armoured personnel carriers (“APCs”) and UAZ vehicles stationed at a crossroads between three villages, where one of the roads led to Shaami-Yurt. There had been numerous servicemen near the vehicles. A VAZ-2107 vehicle had approached the convoy. Timur Beksultanov and I.M. had got out of the vehicle and the servicemen had requested their identity papers. Having checked them, the servicemen had twisted Timur Beksultanov’s arms and had started beating him up. When he had fallen on the ground, the witness had heard several shots and had seen that Timur Beksultanov was wounded in his thigh. Immediately thereafter an officer had approached Timur Beksultanov and had shot him in the shoulder. After that the servicemen had put Timur Beksultanov in an APC and had driven off to an unknown destination. The servicemen had not done anything to I.M., who had got back inside his vehicle and had driven away. According to the applicant, the witness had not been able to hear everything which had occurred at the crossroads but had clearly seen what had been going on there.

12.  On 2 October 2004, several hours after her son’s abduction, the vehicle in which he had been placed by his abductors, was stationed at the Achkhoy-Martan Department of the Interior (“the ROVD”).

13.  The applicant learnt about the apprehension of Timur Beksultanov from the relatives of I.M. on 3 October 2004.

14.  According to written statements by Zh.E., M.G., Z.M. and R.B., dated 20 December 2004 and furnished by the applicant, those persons submitted that on 2 October 2004 they had seen Timur Beksultanov get inside a vehicle together with a man who introduced himself as I.M., an OMON officer. I.M. had picked up Timur Beksultanov at the applicant’s house to accompany him to the law-enforcement authorities because the former wished to surrender in connection with the criminal charges against him. Zh.E., M.G., Z.M. and R.B. stated that on the following days they had learnt that I.M. had taken the applicant’s son into an ambush to deliver him to the authorities.

15.  The applicant has had no news of Timur Beksultanov since 2 October 2004.

2.  Information submitted by the Government

16.  The Government submitted that the domestic proceedings had obtained no evidence that Timur Beksultanov had been abducted by State agents.

B.  The search for Timur Beksultanov and the related proceedings

1.  The applicant’s account

17.  On 8 October 2004 the applicant complained in writing about the abduction of Timur Beksultanov to various State bodies, including the President of the Commission for Prisoners and Missing Persons with the President of the Russian Federation, the military prosecutor’s office of the North Caucasus Military Circuit, the military prosecutor’s office of the United Group Alignment (UGA), the Prosecutor of the Chechen Republic and the district prosecutor’s office. In those complaints she submitted that, at about noon on 2 October 2004, armed men who had been wearing camouflage uniforms and had arrived in several APCs, military UAZ vehicles and a private vehicle, had stopped I.M.’s vehicle with plate no. “940” and had taken away Timur Beksultanov. The abduction had occurred at the crossroads between three villages, where one of the roads led to Shaami-Yurt. In her complaints the applicant also claimed that, according to I.M., as of 6 October 2004 her son was still alive and was held in Khankala.

18.  On 25 October 2004 the prosecutor’s office of the Chechen Republic (“the republican prosecutor’s office) forwarded the applicant’s complaint about the abduction of Timur Beksultanov for examination to the district prosecutor’s office.

19.  On 5 November 2004 the Office of the Ombudsman of the Russian Federation forwarded the applicant’s complaint about “the abduction of T. Beksultanov by officers of the special-purpose Department of the Sunzhenskiy Department of the Interior” to the Prosecutor General’s Office.

20.  On 9 November 2004 the applicant re-submitted her complaint of 8 October 2004 to the same State authorities.

21.  On 1 December 2004 the republican prosecutor’s office replied to the applicant that her complaint about the abduction of Timur Beksultanov had been appended to case file no. 44050 opened against him in July 2003. She was also notified that Timur Beksultanov had been put on a federal list of wanted persons and that measures aimed at establishing his whereabouts were under way.

22.  On 3 December 2004 the military prosecutor’s office of the North Caucasus Circuit forwarded the applicant’s complaint about the abduction of her son to the UGA military prosecutor’s office and advised the applicant that she was to address all her queries to that body.

23.  On 21 December 2004 the Ministry of the Interior of the Chechen Republic notified the applicant that they had forwarded her complaint about the abduction of her son to the district prosecutor’s office.

24.  On 10 February 2005 the prosecutor’s office of military unit 20102 informed the applicant that they were verifying the information contained in her complaint about the abduction of her son and that they would notify her about their decision in due course.

25.  On 12 February 2005 the Chechen Department of the Federal Security Service (“the Chechen Department of the FSB”) informed the applicant that they had forwarded her complaint about the abduction of Timur Beksultanov to the district prosecutor’s office for examination.

26.  On 16 February 2005 the Chechen Department of the FSB replied to the applicant’s repeated complaint that on 2 October 2004 they had not carried out any special operations in the Achkhoy-Martanovskiy District. The letter also stated that the department officials had not arrested Timur Beksultanov.

27.  By a letter of 4 March 2005 the prosecutor’s office of military unit no. 20102 notified the applicant that their inquiry had not established the implication of servicemen of the federal forces in the abduction of Timur Beksultanov. The letter also pointed out that the applicant’s complaint about the apprehension of Timur Beksultanov had been appended to case file no. 44050 opened against him on 7 July 2003 and in connection with which he had been put on the list of wanted persons. On 19 February 2005 the preliminary investigation in case no. 44050 had been adjourned owing to the fact that the whereabouts of Timur Beksultanov remained unknown. The district prosecutor’s office was taking investigative steps to establish his whereabouts with a view to prosecuting him for the crimes of which he was suspected.

28.  On 17 May 2005 the applicant’s representatives wrote to the prosecutor of the Achkhoy-Martan District, enquiring, among other things, whether the district prosecutor’s office had launched an investigation into the abduction of Timur Beksultanov and what steps it had taken to establish his whereabouts. They also requested that the applicant be provided access to the relevant documents.

29.  On 29 December 2005 the applicant’s representatives complained to the republican prosecutor’s office that they had not received a reply to their letter of 17 May 2005. It appears that their repeated query was also left without reply.

30.  On 23 January 2007 the applicant’s representatives wrote to the prosecutor of the Achkhoy-Martan District and the republican prosecutor’s office, reiterating the questions raised in their letters dated 17 May and 29 December 2005.

31.  On 7 February 2007 the republican prosecutor’s office replied to the applicant’s representatives that Timur Beksultanov had been put on the federal list of wanted persons in connection with criminal case no. 44050. The investigators of that criminal case had verified the applicant’s version that her son had been abducted by unidentified persons on 2 October 2004. However, apart from the applicant’s own statement, no objective evidence had been obtained to the effect that her son had, indeed, been abducted. At the same time, the investigators had sufficient reasons to believe that the applicant was deliberately complaining about the abduction of Timur Beksultanov in order to shield him from the criminal responsibility for the crimes he had committed.

32.  On 25 May 2009 the applicant wrote to the head of the investigating department of the investigating committee with the Prosecutor’s Office in the Chechen Republic. She reiterated the circumstances of her son’s disappearance and requested to be informed whether the authorities had opened an investigation into his disappearance and what steps they had taken to elucidate it.

33.  On 24 September 2009 the Chief Military Prosecutor’s Office replied to the applicant that they had forwarded her complaint about the abduction of her son to the military prosecutor’s office of the United Group Alignment (“the UGS prosecutor’s office”).

34.  By a letter of 6 October 2009 the district prosecutor’s office informed the applicant’s husband that they had received the complaint about the abduction of his son. The letter stated that Timur Beksultanov was being searched for on suspicion of having committed a number of serious crimes, in connection with which criminal proceedings had been instituted against him. The authorities were carrying out unspecified measures to examine the submissions concerning Timur Beksultanov’s allegedly unlawful arrest.

2.  Information submitted by the Government

35.  The Government submitted that the domestic authorities had not opened a separate investigation into the disappearance of Timur Beksultanov because he had been placed on a wanted list in connection with the criminal proceedings in case no. 44050 instituted against him. All the applicant’s submissions concerning his alleged abduction had been examined within the framework of the criminal proceedings in case no. 44050. The Government refused to provide the Court with a full copy of criminal case file no. 44050, without providing an explanation. The information provided by the Government and contained in the documents submitted by them may be summarised as follows.

(a)  Information concerning criminal case no. 44050

36.  On 6 July 2003 the district prosecutor’s office instituted criminal proceedings against a number of persons, including Timur Beksultanov, on suspicion of participation in illegal armed groups, assault on officers of law-enforcement authorities and possession of arms (Articles 317, 208 § 2 and 222 § 2 of the CC). The decision stated, in particular, that on 5 July 2003 officers of the Achkhoy-Martan police department had carried out an operation aimed at arresting members of illegal armed groups. In the course of the operation they had stopped a vehicle with Timur Beksultanov, R.K. and U.S. inside. R.K. had opened fire on the police officers, had wounded one of them and had been killed in the ensuing skirmish. The police officers had arrested U.S., whilst Timur Beksultanov had managed to escape. The case file was assigned the number 44050.

37.  On 8 July 2003 a further criminal case was opened against Timur Beksultanov and R.K. under Article 317 of the CC on suspicion of an armed assault on a police officer, who had been severely wounded. The case file was given the number 44052.

38.  On 21 July 2003 investigators of the district prosecutor’s office searched the applicant’s home in connection with the proceedings in case no. 44050. The related decision stated that there was information that Timur Beksultanov was hiding from investigators at his mother’s home at 23 Budennogo Street in Achkhoy-Martan. According to the search record of the same date, 400 grams of trotyl were discovered at the applicant’s home.

39.  Between 21 July and 20 August 2003 a number of local police departments and other law-enforcement authorities were instructed to search for Timur Beksultanov in connection with the criminal proceedings against him. It transpires that in the same time span a number of expert examinations concerning the weapons seized from the crime scenes and the trotyl found at Timur Beksultanov’s home were conducted. Further expert examinations with a view to establishing the severity of the injuries inflicted on the victims were carried out; the victims and some witnesses to the assaults were interviewed in the same period of time.

40.  On 6 October 2003 criminal cases nos. 44050 and 44052 were joined; the new case file was assigned the number 44050.

41.  On 29 November 2003 Timur Beksultanov’s name was put on a wanted list as a person suspected of a number of crimes; the law-enforcement authorities of the Achkhoy-Martan district were instructed to search for him.

42.  Between 29 November and 3 December 2003 the investigators interviewed a number of witnesses about the circumstances of the crimes imputed to the applicant’s son.

43.  On 5 December 2003 the criminal case against U.S. was severed from the proceedings in case no. 44050.

44.  On 6 December 2003 the investigation in case no. 44050 was suspended.

45.  It appears that between December 2003 and September 2004 the investigators instructed a number of law-enforcement authorities to search for Timur Beksultanov but their requests yielded no results.

46.  On 10 September 2004 the district prosecutor’s office received yet another criminal case file no. 38567 opened against Timur Beksultanov on 19 April 2004 on suspicion of unlawfully selling a pistol to a third person. On 10 September 2004 case file no. 38567 was joined to case file no. 44050; the new case file was assigned the number 44050.

47.  On 15 September 2004 the investigation in case no. 44050 was suspended owing to its failure to locate Timur Beksultanov.

(b)  Investigative steps relating to the applicant’s complaint about the abduction of her son

48.  On 19 January 2005 the investigation in case no. 44050 was resumed. The decision stated, in particular, that on 17 October 2004 the district prosecutor’s office had received the applicant’s complaint that on 2 October 2004 persons in camouflage uniforms had arrested Timur Beksultanov at the “Kavkaz” highway near the Shaami-Yurt woodland and had taken him to an unknown destination. It further stated that the applicant’s submissions were to be examined and that operational and search measures aimed at locating Timur Beksultanov were to be activated.

49.  On 26 January 2005 the district prosecutor’s office instructed its counterparts and departments of the interior in the Chechen Republic and other regions of Russia to inform it whether they had arrested the applicant’s son, held him in detention or otherwise had any information on his whereabouts. They were also requested to ensure that the search for Timur Beksultanov be activated. It appears to follow from the replies of the relevant authorities, dated between February and May 2005, that those measures yielded no results and that no relevant information was obtained following the investigators’ request.

50.  On an unspecified date in January 2005 the investigators interviewed the applicant. Her interview record, in so far as relevant, reads as follows:

“… [Timur Beksultanov] had worked as a coach at the local school before 2003. In 2003 I learnt that he had a pistol. He explained to me that he needed it for self-defence … Some time later our close relative M.B. attempted to kill his sister A.B., who was allegedly leading an immoral life … Subsequently we heard rumours that my son had given the pistol to M.B.

Several days later police officers stopped a car with my son and two other persons inside to arrest them. My son managed to escape but they had seized his passport and pistol. One of the persons in the car had opened fire on the policemen and was shot dead. After that the authorities had started persecuting our family. On several occasions persons in camouflage uniforms and masks burst into our house, looking for [Timur Beksultanov], whose name had by that time been placed on a wanted list.

On several occasions I tried to persuade him to surrender but he was afraid of getting a long prison term or disappearing …

Until autumn 2004 [Timur Beksultanov] had succeeded in hiding from authorities. However, at some point I talked him into surrendering and he promised to do so by 7 October 2004.

At about 11 a.m. on 2 October 2004 [Timur Beksultanov] left home together with I.M., an OMON officer. They went to Grozny in I.M.’s silvery VAZ-2109 vehicle with licence plate containing figures “904” [sic]. [Timur Beksultanov] promised me that he would return … that evening, but he did not return.

On 3 October 2004 an unknown man came to my house and told me that Timur had been arrested. He explained that on 2 October 2004 he had taken his cattle to a river not far from Shaami-Yurt, close to the road between Katyr-Yurt and Shaami-Yurt. There he had seen a number of military vehicles, including several APCs, military UAZ vehicles and a UAZ-469 vehicle. One of the APCs had the licence plate number “E-422”. The vehicles had been stationed at a crossroads. The man had then seen a silvery VAZ-2109 vehicle move in the direction of Shaami-Yurt. When the VAZ-2109 had approached the military vehicles, they encircled it and shots had been fired. One of the men from the VAZ-2109 vehicle, who had been beaten up, had been placed in a UAZ vehicle and the other had been taken by his hands and feet and thrown in an APC, following which the military vehicles had driven off in the direction of Achkhoy-Martan through the village of Katyr-Yurt. The man had heard that the call sign of the servicemen had been “Falcon”. During the events described by him, the man had hidden in the bushes by the road. … He refused to give his name or to testify before any law-enforcement authorities. According to the man, one of the APCs had white colouring, from beneath which green colour could be seen. When the servicemen had taken off, they had left the VAZ-2109 vehicle behind.

Following that we contacted the authorities and started searching for our son on our own on the outskirts of the village of Shaami-Yurt; … the villagers told us that they had seen military vehicles and had heard the shooting but when we asked them to give their names, they refused and stated that they would not testify before any law-enforcement authorities. On the second day of our search I learnt that the vehicle in which my son had gone to Grozny together with I.M. had been brought to the local ROVD by police officer D. on the order of the head of the [Achkhoy-Martan] ROVD. Some time later I learnt that that vehicle had been transferred to the Sunzhenskiy ROVD. I also learnt that after a while I.M. was released and that he started working [in the police] again. I also learnt that during his arrest my son had been wounded in the right side of the chest and in the right thigh. I don’t know if he is alive or not. There were many rumours about my son’s placement in various power structures of the FSB in Khankala; I mentioned all that information in my complaints to the authorities.”

51.  On 1 February 2005 the investigator in charge of case no. 44050 instructed the Achkhoy-Martan police to examine the applicant’s submissions concerning the abduction of her son by, in particular, identifying and interviewing any witnesses to his apprehension (particular attention was to be paid to persons residing in the vicinity of the crossroads between Shaami-Yurt and the “Kavkaz” motorway).

52.  It appears that following the investigator’s instructions the police interviewed five residents of Shaami-Yurt; they all stated that they did not know anything about the abduction of the applicant’s son.

53.  On 27 June and 9 July 2005 a number of law-enforcement authorities forwarded to the district prosecutor’s office the applicant’s further complaints about the abduction of her son by camouflaged armed men and instructed the latter body to examine her submissions and to inform her of any decisions taken by 20 July 2005.

54.  On an unspecified date in 2005 the head of the criminal police of the ROVD Mr V.K. issued a certificate (справка), which, in so far as relevant, reads as follows:

“The ROVD has operational information [оперативная информация] to the effect that on 3 October 2004 unidentified officers of security forces stopped on the ‘Rostov-Baku’ motorway a civilian vehicle in which, according to the available sources, Timur Beksultanov, born in 1980, residing at 25 Budennogo Street, Achkhoy-Martan, was found. The ROVD received no complaints from the relatives of [Timur Beksultanov] about his arrest or abduction. The Achkhoy-Martan ROVD has no information on ‘Akhmed’, who had been arrested together with [Timur Beksultanov]. There is information that military armoured vehicles were used during [Timur Beksultanov’s] arrest. There is no information on Beksultanov’s ensuing whereabouts or the persons who had arrested him.”

55.  On 19 February 2005 the district prosecutor’s office suspended the investigation in case no. 44050, owing to its failure to find Timur Beksultanov. By the same decision the district prosecutor’s office instructed the ROVD to continue carrying out operational and search measures aimed at locating Timur Beksultanov.

56.  The investigation in case no. 44050 is still pending.

II.  RELEVANT DOMESTIC LAW

57.  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 ON GROUNDS OF NON-EXHAUSTION OF DOMESTIC REMEDIES

A.  The parties’ submissions

58.  The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation of the case against Timur Beksultanov had not yet been completed. They further stated that the applicant had not complained about any acts or omissions in the investigation instituted against Timur Beksultanov. In particular, it had been open to her to challenge any acts or omissions of the investigators in courts but there was no evidence that she had done so. In the Government’s submission, the applicant had also failed to seek damages in civil proceedings.

59.  The applicant submitted that she had exhausted domestic remedies. In particular, although she had promptly complained about the abduction of her son to the domestic authorities, they had refused to open a criminal investigation into his disappearance and had only made a number of requests to some law-enforcement authorities within the framework of the criminal proceedings in case no. 44050 instituted against him. In any event, the impugned measures had been insufficient. Lastly, she argued, with reference to the Court’s practice, that she had not been obliged to pursue civil remedies.

B.  The Court’s assessment

60.  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).

61.  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.

62.  As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed.

63.  As regards criminal law remedies, the Court observes that the applicant complained about the alleged kidnapping of Timur Beksultanov shortly after it had occurred. It transpires that by the time the applicant lodged her complaint, criminal proceedings against her son had been pending for over a year and that he was already being searched for in connection with a number of criminal charges against him. It also follows from the parties’ submissions and the information available to the Court that the domestic authorities chose not to open a separate criminal case concerning the abduction of Timur Beksultanov but decided to verify the applicant’s allegations within the framework of the criminal proceedings against him. Without dwelling at this stage upon the question whether this constituted an adequate response by the authorities to the applicant’s allegations of disappearance of her son, the Court will proceed with its examination of the exhaustion issue on the premise that the applicant duly notified the authorities of Timur Beksultanov’s disappearance and that her allegations in that respect were investigated within the framework of the criminal proceedings against him. The applicant and the Government dispute the effectiveness of the related investigative measures.

64.  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

65.  The applicant complained under Article 2 of the Convention that her son had been deprived of his life by the servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads:

“1.  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.”

A.  Submissions by the parties

66.  The Government submitted that case file no. 44050 contained no information to confirm that Timur Beksultanov had been summoned to the district prosecutor’s office or any other State authority to be interviewed on 7 October 2004. The investigating authorities had not yet verified whether OMON officer I.M. had accompanied the applicant’s son for an interview on 2 October 2004 but they had been instructed to do so after notice of the application had been given to the Government. There was no information that any special operations aimed at arresting Timur Beksultanov had been carried out on 2 October 2004 or that he had been otherwise arrested or detained by the authorities. Furthermore, neither the applicant nor other witnesses had any reliable information about the persons who had abducted and allegedly killed the applicant’s son. On the contrary, the materials of case file no. 44050 indicated that he had fled justice and that his name had been put on a wanted list in connection with serious crimes committed by him. His body had not been discovered and there was no evidence that he was dead or that he had been killed by State agents. Moreover, the State authorities themselves were looking for him to bring him to justice.

67.  In the Government’s submission, given that Timur Beksultanov was being searched for on suspicion of having committed a number of serious crimes, the authorities had not opened a separate criminal case concerning his disappearance and had verified the applicant’s submissions in that respect within the framework of criminal case no. 44050. The fact that the related investigative steps had produced no results did not mean that the authorities had failed to comply with their obligation to investigate his disappearance.

68.  The applicant maintained that her son had been kidnapped and killed by State agents. She argued that she had furnished several witness statements confirming the fact that Timur Beksultanov had last been seen with OMON officer I.M., who had taken him to the State authorities. Moreover, from the certificate of V.K. it followed that the ROVD had information to the effect that her son had been arrested by members of the security forces. Although the report referred to 3 and not 2 October 2004 as the date of the abduction, it explicitly mentioned Timur Beksultanov’s name and, moreover, coincided with the description of his kidnapping by one of the persons who had contacted her after it had occurred. She also stressed that the Government had failed to produce the entire case file no. 44050 and had furnished only a selection of documents from it.

69.  The applicant further submitted that she had lodged a number of complaints about the abduction of her son shortly after she had learnt about it. However, the investigative steps taken by the authorities were clearly insufficient and cursory. In particular, although, while being interviewed on the circumstances of the disappearance of her son in 2004, she had told the investigators about I.M., they had made no attempts to locate or interview him. Moreover, she had never had access to the case file and thus could not have effectively challenged any acts or omissions of the investigation, even if she wished to do so. In any event, the authorities’ failure to properly react to her complaint in due time made it impossible to take a number of investigative steps.

B.  The Court’s assessment

1.  Admissibility

70.  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 64 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 Timur Beksultanov

(i)  General principles

71.  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, § 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, § 100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV).

(ii)  Establishment of the facts

72.  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).

73.  The applicant alleged that her son had been abducted by State agents on 2 October 2004 and had then disappeared. She did not witness the abduction but referred in support of her submissions to statements of a number of persons who had witnessed his departure from her home on that date and his ensuing arrest. The applicant furnished statements of some of those persons to the Court.

74.  The Government denied that Timur Beksultanov had been abducted by State agents, submitting that the investigative steps taken at the domestic level had not confirmed that fact.

75.  The Court notes that despite its requests for copies of documents related to the investigative steps taken in connection with the disappearance of Timur Beksultanov, the Government produced only some of the documents from criminal case file no. 44050, without providing any further explanations. In particular, they failed to specify the nature of the documents and the grounds on which they could not be disclosed (see Mikheyev v. Russia, no. 77617/01, § 104, 26 January 2006, and Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-XIII (extracts)). Accordingly, the Court considers that it can draw inferences from the Government’s conduct (see Mikheyev, cited above, § 105).

76.  The Court further notes that although the applicant was not an eyewitness to what happened to Timur Beksultanov after he had left home, her statement to the effect that her son was last seen in the company of a State official intending to lead him to the authorities was confirmed by several witness statements she submitted to the Court (see paragraph 14 above) and was not disputed by the Government.

77.  More importantly, the fact of Timur Beksultanov’s arrest by members of the security forces was explicitly confirmed by the certificate of the head of the ROVD – an official document issued by a law-enforcement authority and appended to criminal case file no. 44050. While the Court is mindful of the difference in the date of the arrest of Timur Beksultanov, as referred to in the impugned document and as given by the applicant, it cannot but observe that the circumstances of the abduction of the applicant’s son described in the certificate appear to coincide on all important points with its description by the applicant, such as the place of the arrest, the presence of military vehicles, and the fact that the applicant’s son was driving in a civilian vehicle together with another man (see paragraphs 9-15, 50 and 54 above).

78.  It is also significant for the Court that the Government themselves furnished the impugned document to the Court and that they disputed neither its authenticity nor the accuracy of the information contained therein (see, a contrario, Enzile Özdemir v. Turkey, no. 54169/00, § 46, 8 January 2008).

79.  The Court notes that in her applications to the authorities the applicant consistently maintained that her son had been detained by unknown servicemen and requested the investigating authorities to look into that possibility. It further notes that after more than six years the investigative steps taken by the authorities have produced no tangible results.

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

81.  Taking into account the above elements, the Court is satisfied that the applicant has made a prima facie case that her son was abducted by State agents. The Government’s statement that the investigation had not found any evidence to support the involvement of servicemen in the kidnapping is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the remaining documents, which were in their exclusive possession, or to provide another plausible explanation for the events in question, the Court finds that there are sufficient concrete elements, on the basis of which it may be concluded beyond reasonable doubt that Timur Beksultanov was apprehended by State agents and disappeared thereafter (compare Enzile Özdemir, cited above, § 48).

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

83.  Having regard to the previous cases concerning disappearances in Chechnya which have come before it (see, among many others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-VIII (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva, cited above; Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007; and Dubayev and Bersnukayeva v. Russia, nos. 30613/05 and 30615/05, 11 February 2010), the Court finds that in the context of the conflict in the Chechen Republic, when a person is detained by unidentified State agents without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Timur Beksultanov or of any news of him for more than six years supports this assumption.

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

(iii)  The State’s compliance with Article 2

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

86.  The Court has already found it established that the applicant’s son must be presumed dead following his unacknowledged detention by State agents. 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.

87.  Accordingly, the Court finds that there has been a violation of Article 2 in respect of Timur Beksultanov.

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

88.  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 “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, § 161, and Kaya v. Turkey, 19 February 1998, § 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, §§ 105 109, 4 May 2001, and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).

89.  The Court would note at the outset that the Government furnished only some of the documents from case file no. 44050. It therefore has to assess the effectiveness of the investigation on the basis of the very sparse information submitted by the Government and the few documents available to the applicant that she provided to the Court.

90.  Turning to the circumstances of the case, it observes that the applicant complained to the authorities about the abduction of Timur Beksultanov several days after it had occurred. As has been observed above, following receipt of her complaint the domestic authorities decided not to open a separate investigation into her son’s disappearance but to examine her submissions within the framework of the criminal case opened against Timur Beksultanov on suspicion of participation in illegal armed groups and a number of other charges (see paragraph 67 above).

91.  Whilst that decision does not appear entirely unreasonable on its face, given that by the time the applicant lodged her complaint the authorities had already been searching for Timur Beksultanov and had put his name on a wanted list in connection with the charges against him, the Court has certain doubts whether the examination of her submissions within the framework of the already opened criminal case against her son could constitute an adequate response to the matter from the standpoint of the requirements of Article 2. Nonetheless, it will not dwell upon this issue and, in examining the applicant’s complaint under the procedural limb of that provision, will concentrate its analysis on specific investigative measures taken by the authorities in response to her complaint within the framework of criminal case no. 44050.

92.  Having said that, the Court notes that the investigating authorities received the applicant’s complaint about the abduction of her son on 17 October 2004. However, the first decision stating that the applicant’s allegations merited an examination was dated 19 January 2005 (see paragraph 48 above), that is more than three months after the disappearance had presumably occurred. This delay in reacting to the applicant’s complaint was liable per se to affect the investigation of the kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. In the Court’s view, it demonstrates a particularly regrettable failure on the part of the authorities to comply with their obligation of promptness implicit in the obligation to conduct an effective investigation under Article 2 of the Convention.

93.  It further observes that the first investigative steps in connection with the disappearance complaint were ordered to be carried out only on 26 January 2005 (see paragraph 49 above), that is more than three months after the investigators had received the applicant’s complaint. Moreover, they interviewed the applicant with the same three-month delay, for which the Government offered no explanation. In the Court’s view, these unexplained delays cannot be considered compatible with the authorities’ obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II).

94.  Furthermore, it transpires that a number of crucial investigative steps were not taken at all. In particular, there is no indication that the investigators made any attempts to interview I.M., an OMON officer, although the applicant explicitly mentioned that person while being interviewed by the investigators (see paragraph 50 above). It also does not appear that the investigating authorities took any steps to identify and interview the man who had told the applicant about her son’s alleged arrest (see ibid). It is equally striking that they did not attempt to identify or interview possible eyewitnesses to the abduction residing in the vicinity of the crossroads between Shaami-Yurt and the Kavkaz motorway, although the need to interview those witnesses was acknowledged by the decision of 1 February 2005 (see paragraph 51 above). Lastly, and most importantly, the Court is struck by the fact that the investigators took no steps to verify the information contained in the certificate issued by the head of the ROVD.

95.  It is obvious that, if they were to produce any meaningful results, these investigative measures should have been taken immediately after the crime was reported to the authorities.

96.  The Court further notes that it emerges from the applicant’s repeated requests for information (see paragraphs 28 – 30 and 32 above) that she was not informed of the developments in the investigation of her complaint about the disappearance of her son. In this respect it does not lose sight of the fact that she could not be granted victim status because of the authorities’ choice not to open a separate criminal case concerning her son’s disappearance but to examine her related complaints within the framework of the criminal proceedings against him. Accordingly, it was for the authorities to safeguard, to the required level, her interests in the proceedings as the next of kin of the disappeared person. However, for the reasons stated above the Court cannot but conclude that they failed to do so.

97.  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 proceedings are still pending, the Court notes that the investigation, having been repeatedly suspended and resumed and plagued by inexplicable delays and omissions, has been pending for many years with no tangible results.

98.  Furthermore, the Court is not persuaded that the applicant, who had no access to the case file and was not kept properly informed of the progress in the investigation, could have effectively challenged any acts or omissions of the investigating authorities before a court. Moreover, owing to the time that had elapsed since the events complained of, certain investigative measures that ought to have been carried out much earlier could no longer usefully be conducted. Therefore, it is highly doubtful that the remedy relied on would have had any prospects of success.

99.  In sum, the Court finds that the remedies relied on by the Government were ineffective in the circumstances and dismisses their preliminary objection.

100.  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 Timur Beksultanov, in breach of Article 2 in its procedural aspect.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

101.  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:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Submissions by the parties

102.  The Government submitted that the authorities’ conduct in carrying out the investigation had not amounted to a breach of the applicant’s right under Article 3.

103.  The applicant maintained her complaint.

B.  The Court’s assessment

1.  Admissibility

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

2.  Merits

105.  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 “disappearance” 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, § 358, and Imakayeva, cited above, § 164).

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

107.  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

108.  The applicant further stated that Timur Beksultanov had been detained in violation of the guarantees contained in Article 5 of the Convention, which reads, in so far as relevant:

“1.  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.”

A.  Submissions by the parties

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

110.  The applicant maintained the complaint.

B.  The Court’s assessment

1.  Admissibility

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

2.  Merits

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

113.  The Court has found that Timur Beksultanov was abducted by State servicemen on 2 October 2004 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there is 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, § 371).

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

115.  In view of the foregoing, the Court finds that Timur Beksultanov 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

116.  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:

“Everyone 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.”

A.  Submissions by the parties

117.  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.

118.  The applicant reiterated the complaint.

B.  The Court’s assessment

1.  Admissibility

119.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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 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).

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

122.  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, § 119, 15 November 2007, and Aziyevy v. Russia, no. 77626/01, § 118, 20 March 2008).

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

123.  Article 41 of the Convention provides:

“If 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.”

A.  Damage

124.  The applicant did not submit any claim for pecuniary damage. She claimed 100,000 euros (EUR) 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 him and the failure to provide any information about his fate.

125.  The Government submitted that the amount claimed by the applicant was excessive.

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

B.  Costs and expenses

127.  The applicant was represented by lawyers from the SRJI. She submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff, as well as administrative expenses, translation costs and courier delivery fees. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 7,463.74, to be paid into the representatives’ bank account in the Netherlands.

128.  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).

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

130.  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.

131.  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, owing to the application of former Article 29 § 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. The Court also notes that the applicant did not submit any documents in support of her claim for administrative costs.

132.  Having regard to the details of the claims submitted by the applicant, the Court awards her the amount of EUR 3,000, together with any value-added tax that may be chargeable to the applicant, the net award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicant.

C.  Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

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

2.  Declares the application admissible;

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

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 Timur Beksultanov disappeared;

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

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

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

8.  Holds that 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 amount:

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

(ii)  EUR 3,000 (three 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 27 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen – Nina Vajić
Registrar – President

]]> http://www.waynakh.com/eng/2011/09/beksultanova-v-russia/feed/ 0 Khashuyeva v. Russia http://www.waynakh.com/eng/2011/07/khashuyeva-v-russia/ http://www.waynakh.com/eng/2011/07/khashuyeva-v-russia/#comments Tue, 19 Jul 2011 09:49:17 +0000 admin http://www.waynakh.com/eng/?p=8506 The ECHR case of Khashuyeva v. Russia (applications no. 25553/07).

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CASE OF KHASHUYEVA v. RUSSIA

(Application no. 25553/07)

JUDGMENT

STRASBOURG

19 July 2011

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 Khashuyeva v. Russia,

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

Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
George Nicolaou,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 28 June 2011,

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

PROCEDURE

1.  The case originated in an application (no. 25553/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Kameta Khashuyeva (“the applicant”), on 17 May 2007.

2.  The applicant was represented by Ms O.A. Sadovskaya, a lawyer with the Committee Against Torture, a non-governmental organisation based in Nizhniy Novgorod. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

3.  On 8 September 2009 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 former Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1969 and lives in Shali, Chechnya. She is the mother of Mamed Bagalayev (also spelled as Magomed Bogalayev), who was born in 1992.

A.  Killing of the applicant’s son

1.  Information submitted by the applicant

5.  At the material time the applicant and her family lived at 1 Kutuzova Street, Shali.

6.  At about 6 p.m. on 1 August 2003 the applicant’s three children, Mamed, his brother Malik and sister Rezida, were playing in the yard of their house. A group of military servicemen in camouflage uniforms and masks, armed with automatic weapons, arrived in an armoured personnel carrier (“APC”) and a GAZ-53 lorry at the house of Mr L.M. on Kurgannaya Street, situated next to the applicant’s house. The servicemen got out of the vehicles and opened fire at the buildings around. It appeared that they were conducting a special operation.

7.  Having heard the shooting, the children ran to hide in the summer house (времянка) situated in their yard. Inside the summer house, Mamed noticed that he was bleeding and fell unconscious. His sister Rezida, who was thirteen years old at the time, started calling for help. Next, a masked serviceman looked inside the summer house. Rezida told him that her brother had been wounded and that he needed medical help. The solder told her: “It is nothing, he can wait”. After that, several masked soldiers came into the summer house. They searched it and turned everything upside down. The soldiers did not help Mamed Bagalayev; they ordered the children to stay inside and left.

8.  For about an hour Mamed was unconscious; his sister and brother did not know whether he was alive. After the shooting stopped at about 7 p.m., a local policeman, Mr R.I., ran into the summer house and took Mamed to the Shali hospital, where it was established that the boy had died.

9.  Upon completion of the special operation, the servicemen got back in the APC and the GAZ-53 lorry and drove away in the direction of the former food factory in Shali, the “District Food Plant (Райпищекомбинат – “the factory”)”. When the vehicles were driving away, the tailgate of the GAZ-53 fell off the lorry and was later found by the investigators at the crime scene.

10.  At some later point, it was established that the GAZ-53 lorry used by the servicemen belonged to the former food factory. The vehicle’s driver, Mr Sh.Sh. (in the documents submitted also referred to as Mr A.Sh. and Mr R.Sh.), informed the applicant and her husband that the lorry had been taken from him by military servicemen prior to the events and that the tailgate which had been lost at the crime scene was returned to the vehicle about a month after the events. The driver had reported this incident to the factory’s director, Mr A.B. The latter informed the applicant that on 1 August 2003 he had provided the lorry to the Shali administration upon their request to this effect, and that after that the vehicle had disappeared and then reappeared about one-and-a-half months later.

11.  In support of her statements, the applicant submitted the following documents: a statement by the applicant’s husband Mr S.B., undated; a statement by the applicant’s neighbour Ms M.A., dated 5 March 2004; a statement by the applicant, dated 5 March 2004; a statement by the applicant’s daughter Rezida, dated 5 March 2004; a statement by the director of the former food factory Mr A.B., dated 22 September 2005; a statement by the deputy director of the former food factory Mr N.M., dated 22 September 2005; and a statement by a food factory’s driver Mr A.Sh., dated 19 June 2005.

2.  Information submitted by the Government

12.  The Government did not challenge the facts as presented by the applicant and did not provide a contrary version of the events. They denied any involvement of military servicemen in the death of the applicant’s son and stated that unidentified persons, possibly members of illegal armed groups, had been responsible for the killing of Mamed Bagalayev.

B.  Official investigation of the incident

1.  Information submitted by the applicant

13.  At 6.30 p.m. on 1 August 2003 the Shali district department of the interior (“the ROVD”) was informed of the fatal shooting of Mamed Bagalayev. On the same date, the district prosecutor’s office conducted an examination of the crime scene. As a result, it was established that the walls of Mr L.M.’s house had numerous bullet holes and that its windows were shattered. The investigators collected from the scene two bullet cartridges of calibre 7.62 and the tailgate of the GAZ-53 lorry. At some later point, the tailgate disappeared from the evidence collected during the investigation.

14.  On 1 August 2003 the district prosecutor’s office carried out a preliminary inspection of Mamed Bagalayev’s body. It was established that he had received a perforating gunshot wound to the chest.

15.  On 1 August 2003 the ROVD questioned Ms M.A., who stated that at about 6 p.m. on 1 August 2003 a GAZ lorry, followed by an APC, with military servicemen in camouflage uniforms and masks had arrived at her yard whilst the children had been playing there. The witness had asked the men not to open fire but they had ordered her to shut up. After they had finished shooting, the servicemen had gotten back in the APC and the lorry and had driven away.

16.  On 2 August 2003 the district prosecutor’s office opened an investigation into Mamed Bagalayev’s killing under Article 105 § 1 of the Criminal Code (murder). The decision stated, inter alia, the following:

“… at about 6.10 p.m. on 1 August 2003 unidentified men in camouflage uniforms and masks, armed with automatic weapons, accompanied by an APC and a GAZ-53 vehicle, opened fire at random at the houses located on Kutuzova Street in Shali.

As a result, M.S. Bagalayev, who was in the yard of house no. 1 in Kutuzova Street, received a gunshot wound to the chest, from which he died on the spot.

…”

The criminal case file was given the number 22112.

17.  On 28 August 2003 the investigators forwarded a number of requests to various prosecutors’ offices in Chechnya, asking them to provide information as to whether any special operations had been carried out by military units from their districts in the Shali area on 1 August 2003.

18.  On 2 October 2003 the investigation of the criminal case was suspended for failure to identify the perpetrators.

19.  On 18 January 2005 and then on unspecified dates in March and April 2005 the applicant’s lawyer complained to the district prosecutor that the investigation of the criminal case was ineffective and requested that the authorities take, inter alia, the following steps: questioning of certain witnesses; informing the applicant and her family of the progress of the investigation; questioning of the ROVD officers who had arrived at the crime scene shortly after the shooting; and questioning of the servicemen who had been stationed at the material time on the premises of the factory in Shali. No reply was given to any of these complaints.

20.  On 23 August 2005 the applicant’s lawyer complained about the investigation to the Chechnya prosecutor and asked the prosecutor to order the investigators to resume the proceedings, take a number of investigative measures and transfer the criminal case file to the military prosecutor’s office for investigation.

21.  On 27 September 2005 the district prosecutor informed the applicant’s lawyer that on 28 May 2005 he had found serious violations of the criminal procedure regulations on the part of the investigators and that, therefore, he had overruled the decision to suspend the proceedings. In addition, he stated that a number of witnesses had been questioned and that a number of other measures were under way.

22.  On 26 October 2005 the investigators again suspended the investigation for failure to identify the perpetrators.

23.  On 25 January 2006 the applicant’s lawyer asked the district prosecutor’s office to grant access to the investigation file.

24.  On 27 or 29 January and on 1 February 2006 the district prosecutor’s office replied to the lawyer that the decision of 26 October 2005 to suspend the investigation had been lawful and that he was entitled to access the criminal case file only after the completion of the proceedings.

25.  On 27 February 2006 the applicant’s lawyer again wrote to the district prosecutor’s office and asked for access to the investigation file.

26.  On 2 March 2006 the district prosecutor’s office again refused to grant the lawyer’s request.

27.  On 28 March 2006 the applicant’s lawyer complained to the Chechnya prosecutor about the lack of access to the documents concerning the criminal proceedings. The letter stated that the investigation was ineffective and that the investigators had consistently refused to provide the applicant with access to the case file. The lawyer requested that the prosecutor examine the investigators’ refusals and hold them responsible for violating the applicant’s rights.

28.  On 19 May 2006 the Chechnya prosecutor’s office forwarded the lawyer’s complaint to the district prosecutor’s office for examination.

29.  On 25 May 2006 the district prosecutor’s office informed the applicant’s lawyer that the investigation had been suspended for failure to identify the perpetrators.

30.  On 19 June 2006 the Russian Prosecutor General’s office informed the lawyer that his complaint about the lack of access to the case file had been forwarded to the Chechnya prosecutor’s office.

31.  On 1 July 2006 the district prosecutor’s office partially allowed the lawyer’s complaint. The decision stated that the lawyer and the applicant’s husband, who had been granted victim status in the criminal case, were to be allowed to familiarise themselves with the documents reflecting the steps taken with the victims’ participation.

32.  On 4 September 2006 the Russian Prosecutor General’s office informed the applicant’s lawyer that his complaint of unlawful actions on the part of the investigators had been forwarded to the Chechnya prosecutor’s office.

33.  On 16 October 2006 the Chechnya prosecutor’s office forwarded the applicant’s complaints about the investigation and the lack of access to the case file to the district prosecutor’s office for examination.

34.  On 27 July 2007 the district prosecutor’s office informed the applicant’s husband that he could familiarise himself with the case file.

35.  On 22 September 2006 the Chechnya prosecutor’s office partially allowed the lawyer’s complaint concerning the ineffectiveness of the investigation and numerous procedural violations in the criminal proceedings. On 22 December 2006 the Chechnya prosecutor’s office informed the lawyer that they had conducted an inquiry into the investigation of criminal case no. 22112. As a result, a number of procedural violations had been found and the deputy district prosecutor had been penalised.

36.  On 27 March 2007 the district prosecutor’s office refused to grant the lawyer’s request for access to the criminal case file.

37.  On 11 December 2008 the investigation of the criminal case was suspended for failure to identify the perpetrators.

38.  On an unspecified date between December 2008 and March 2009 the investigation of the criminal case was resumed.

39.  On 10 March 2009 the criminal investigation was again suspended for failure to identify the perpetrators. The applicant was not informed of this decision.

40.  On 24 March 2009 the applicant’s lawyer requested that the investigators allowed him to access the investigation file.

41.  On 27 March 2009 district prosecutor’s office refused to grant the lawyer’s request.

42.  On 1 April 2009 the applicant complained about the investigation to the head of the Investigations Department of the district prosecutor’s office. In particular, she stated that the investigators had failed to take such indispensable steps as carrying out an expert examination of the bullet cartridges collected from the crime scene, identification of military units equipped with those bullets and requesting information about special operations from the law-enforcement agencies.

43.  On 2 April 2009 the investigation of the criminal case was resumed.

44.  On 3 April 2009 the investigators rejected the applicant’s complaint of 1 April 2009.

45.  On 1 May 2009 the criminal investigation was again suspended for failure to identify the perpetrators. The applicant was provided with a copy of this decision on 21 May 2009.

46.  On 3 June 2009 the supervising prosecutor overruled the decision of 27 March 2009 as unlawful. The applicant was informed of this in the end of June 2009 during the judicial examination of her complaint against the investigators (see paragraph 121 below).

47.  On 7 August 2009 the applicant’s lawyer requested that the prosecutor’s office grant him access to the case file.

48.  On 23 September 2009 the applicant’s lawyer was informed that he could familiarise himself with the case file at the prosecutor’s office.

49.  On 21 January 2010 the applicant’s lawyer again requested that the prosecutor’s office grant him access to the criminal case file.

50.  On 4 February 2010 the investigators partially granted the lawyer’s request, stating that he was entitled to familiarise himself only with the documents reflecting the applicant’s participation in the criminal proceedings.

51.  On 11 February 2010 the investigation of the criminal case was again suspended for failure to identify the perpetrators.

52.  On 12 February 2010 the applicant’s lawyer asked the prosecutor’s office to provide him with copies of the last procedural decisions taken by the investigators in the criminal case. No reply was given to this request.

2.  Information submitted by the Government

53.  On 1 August 2003 the investigators from the district prosecutor’s office examined the crime scene. Two bullet cartridges of calibre 9 mm. along with two bullet cartridge of calibre 7.62 and a tailgate from a GAZ-53 lorry were collected from the scene as evidence.

54.  On 1 August 2003 the investigators conducted a preliminary examination of Mamed Bagalayev’s body and found two gunshot wounds to the chest.

55.  On the same date, 1 August 2003, the investigators questioned the applicant’s neighbour, Ms M.A., who stated that a group of armed military servicemen in camouflage uniforms and masks had arrived at her house in a GAZ-53 lorry and in an APC and without any warning had opened fire. She had asked the servicemen to stop the shooting, but they had ordered her to shut up. After the servicemen had left, the witness, together with other residents, had followed their GAZ-53 lorry. The vehicle had driven into the premises of the former food factory.

56.  On the same date, 1 August 2003, the investigators also questioned another of the applicant’s neighbours, Ms Z.Kh., who stated that a group of military servicemen had arrived in her street in a GAZ-53 lorry and had opened fire. Meanwhile, an APC with armed men had pulled over from another street. The witness and her neighbours had asked the servicemen to allow them to approach the children in the summer house; in response the servicemen had sworn at them.

57.  On 2 August 2003 the district prosecutor’s office opened criminal case no. 22122 in connection with the murder of Mamed Bagalayev.

58.  On 4 August 2003 the investigators granted the applicant’s husband victim status in the criminal case.

59.  On 18 August 2003 the district prosecutor requested that the military prosecutor of military unit no. 20116 provide him with an officer to assist in the investigation of the criminal case. The text of the letter included the following:

“… taking into account that there are sufficient grounds to believe that the crime [against Mamed Bagalayev] was committed by military servicemen, we are creating a group of investigators and, therefore, you are requested to provide an officer for participation in the investigation of the criminal case …”

60.  On 28 August 2003 the investigators forwarded requests to various district prosecutors’ offices in Chechnya, asking to be informed whether these bureaus had conducted any special operations in Shali on 1 August 2003.

61.  On 2 October 2003 the investigation of the criminal case was suspended for failure to identify the perpetrators.

62.  On 18 January 2005 the applicant’s lawyer complained to the district prosecutor that the investigation of Mamed Bagalayev’s murder was ineffective. In particular, he stated that the investigators had not questioned the applicant’s husband, the brother and sister of Mamed Bagalayev with whom he had hidden in the summer house, that they had not established the reasons for either the servicemen’s failure to provide Mamed with medical assistance or for their actions preventing the locals from helping him. The lawyer requested that the authorities resume the investigation, take a number of steps and inform the applicant of the progress of the proceedings.

63.  On 20 May 2005 the applicant’s lawyer complained about the investigation to the district prosecutor, stating that a number of crucial steps (such as questioning of eyewitnesses and military servicemen) had not been taken and that the proceedings had been suspended unlawfully.

64.  On 19 June 2005 the driver of the GAZ-53 lorry gave a statement to the applicant’s lawyer. According to him, the lorry belonged to the factory. In the summer of 2003 he had been ordered by military servicemen to hand the lorry over to them. He had later been told that this vehicle had been used by the military at the place of Mamed Bagalayev’s murder. This statement was submitted to the investigators and included in the case file.

65.  On 22 July 2005 the applicant’s lawyer wrote to the district prosecutor and requested that the prosecutor reply to the following questions:

“… on the day of Mamed Bagalayev’s murder you ordered that the lorry with its driver was to be taken to the Shali administration and then handed over to the military servicemen stationed on the premises of [the factory]. It is necessary to find out who the military serviceman were that received the vehicle (without its registration numbers) from the driver.

About one month later, the GAZ-53 lorry was returned to [the factory]. It is currently being driven by another driver.

… I request that you submit to the investigation your statement concerning the circumstances which are known to you and that you officially reply to my questions:

Who is currently driving the GAZ-53 lorry and where it is being stationed?

When was the vehicle’s tailgate taken away from the Shali ROVD? [...]”

66.  On the same date the applicant’s lawyer complained to the military prosecutor of the United Group Alignment (“the UGA”) and the district prosecutor that the investigation of the criminal case was ineffective. In particular, he pointed out the following:

“… The investigation is being conducted in a slipshod manner. It is obvious that the death of Mamed Bagalayev was caused by a gunshot from a military serviceman’s automatic weapon …

… For your information, as of 21 June 2005 neither eyewitnesses to the events, nor the parents of the murdered boy have been questioned by the investigators. The investigators have not questioned any of the servicemen stationed on the premises of [the factory] either … The investigation has failed to establish the circumstances under which the lorry’s tailgate was put back on the vehicle in spite of the fact that, according to the crime scene examination report, it had been collected as evidence and taken to the Shali ROVD …”

67.  On 16 August 2005 the applicant’s lawyer lodged complaints with the district prosecutor’s office and the Chechnya prosecutor’s office. He stated that the investigation of Mamed Bagalayev’s murder was ineffective and pointed out, amongst other things, the following failures of the investigative authorities:

“… on 2 October 2003 the investigators suspended the investigation without even having taken the most basic steps … such as:

(a)  [The applicant's husband] S.M. Bagalayev … was not questioned, in spite of the fact that he regularly keeps seeing the GAZ-53 lorry in which the military servicemen had arrived at the crime scene …; he had spoken with the lorry’s driver and found out why it had arrived at the scene … this vehicle belongs to [the factory], on the premises of which military units have been stationed … The tailgate which had fallen off the vehicle was collected as evidence from the crime scene, but at a later date the lorry was seen driving around with this very tailgate – who took this evidence out of the investigation file? Why had the lorry belonging to [the factory] been used by the military servicemen? Who drove this vehicle on the day of the events? … The investigators left these questions without examination …

(b)  [The applicant's relatives] who had witnessed the events have not been questioned, in spite of the fact that they could assist in establishing the factual circumstances of the events;

(c)  The investigators failed to examine the circumstances surrounding the [disappearance] of the GAZ-53′s tailgate, which, according to the witnesses, had fallen off the lorry after the military servicemen had finished the special operation and had been driving away;

(d)  The investigators failed to request information from the Shali military commander’s office concerning any special operations conducted on 1 August 2003 with the participation of the servicemen stationed on the premises of [the factory];

(e)  The investigators failed to question the officers from the Shali ROVD who had arrived at the crime scene after they had heard the shooting (for example, officer Sh.Sh.);

(f)  The investigators failed to question witness Mr R.I. and the director of [the factory], whose firm owned the GAZ-53 lorry used by the military servicemen at the crime scene;

(g)  The investigators failed to obtain information from the military command concerning the military units used for the pin-point military operation …

(h)  The investigators failed to establish why, for one hour, no medical assistance was provided to Mamed Bagalayev and why those who had wanted to provide it to him had been threatened [and precluded from doing it] by the military servicemen.

…”

68.  On 22 August 2005 the Chechnya prosecutor’s office asked the district prosecutor to inform them of the reasons for their failure to react to the applicant’s lawyer’s numerous complaints about the investigation lodged on 15 and 18 January, 20 May, 27 July and 19 August 2005.

69.  On 25 August 2005 the supervising prosecutor overruled the decision to suspend the criminal investigation as premature and unsubstantiated and ordered that the investigators take, amongst others, the following steps:

“… -  granting relatives of Mamed Bagalayev victim status in the criminal case and questioning them;

-  questioning of other relatives of Mamed Bagalayev;

-  identification and questioning of witnesses to the crime;

-  ordering and conducting a forensic examination of Mamed Bagalayev’s body;

-  requesting information from the Shali military commander’s office, the military commander’s office of military unit no. 20116, the command of the United Group Alignment (“the UGA”), the Chechnya Department of the Federal Security Service (the FSB) and finding out whether these agencies conducted a special operation in Shali in the beginning of August 2003 …”

70.  On 26 August 2005 the investigation of the criminal case was resumed.

71.  On 29 August 2005 the investigators granted the applicant victim status in the criminal case and questioned her. The applicant stated that on 1 August 2003 she and her husband had been away from their house. In the evening they had been on their way home, when at about 6.40 p.m. her neighbour had informed her that a special operation was being conducted in their street by military servicemen. When she had arrived at the crime scene, she had been told that her son had been shot, wounded and taken to the Shali hospital. After that, the applicant and her husband had gone to the hospital, where they had been told that their son had been sent back home. The applicant and her husband had gone home where they had found out that their son had died.

72.  On 29 August 2005 the applicant’s lawyer again complained about the investigation to the Chechnya prosecutor and asked to be granted access to the investigation file.

73.  On 30 August 2005 the investigators requested that the Shali military commander’s office, the Shali ROVD and the head of the UGA inform them whether these agencies had conducted any special operations in Shali on 1 August 2003.

74.  On various dates in September 2005 the investigators asked military unit no. 20116, the UGA and the Chechnya FSB to inform them whether they had conducted any special military operations in Shali on 1 August 2003. According to the replies received, none of the agencies had conducted such operations on the specified date.

75.  Based on the contents of the investigation file, on 15 September 2005 the investigators ordered a forensic examination of Mamed Bagalayev’s body.

76.  On the same date, 15 September 2005, the Chechnya Forensics Bureau concluded that the cause of Mamed Bagalayev’s death could have been the perforating wound to the right side of his chest.

77.  On 19 September 2005 the investigators questioned the applicant’s husband, who stated that he had arrived at his house at about 7 p.m. on 1 August 2003. His neighbours had told him that his son Mamed Bagalayev had been shot and wounded by military servicemen and that the boy had been taken to hospital, but to no avail.

78.  On the same date, 19 September 2005, the investigators questioned the applicant’s relative Mr S.-M.B., who stated that on 1 August 2003 he had been at home when his daughter had told him that his nephew Mamed Bagalayev had been shot by military servicemen. The witness had immediately gone to the hospital, where he had found out that Mamed had died from his wounds.

79.  On 3 October 2005 the investigators questioned the director of the factory, Mr A.B., who stated that on 1 August 2003 the head of the Shali administration, Mr M.D., had asked his permission to use his company’s lorry. The witness had authorised the driver, Mr Sh.Sh., to go with his GAZ-53 lorry to assist the administration. At some point later on the same date, the driver had informed the witness that military servicemen had taken the lorry away from him at the administration’s premises. After that, the lorry had disappeared but was returned one-and-a-half months later to the factory by unidentified persons.

80.  On 7 October 2005 the investigators questioned a police officer of the Shali ROVD, Mr R.I., who stated that on 1 August 2003 he had been informed by his friends that, on the road next to Shali, military servicemen had conducted a special operation, as a result of which a boy had been killed. He had immediately rushed to the scene. The area had been cordoned off by armed masked men, who had refused to answer questions. He had followed two of these men to the yard of the Bagalayev family, where he had heard children crying. The witness had rushed to the summer house, where he had found Mamed Bagalayev bleeding and with a weak pulse, and his brother and sister next to him. The witness had carried Mamed outside and had taken him to the Shali hospital, where Mamed had died. When the witness had been leaving the yard, he had seen an APC and a GAZ-53 lorry, both full of armed servicemen in camouflage uniforms, leaving the scene. He had immediately recognised the GAZ-53 lorry, as it had belonged to the factory. According to the witness, the military servicemen had not prevented him from accessing the summer house and taking the boy to the hospital. Having taken Mamed Bagalayev to the hospital, the witness had returned to the scene, where he and his colleagues had found the tailgate of the GAZ-53 lorry and had taken it to the Shali ROVD.

81.  On 20 October 2005 the investigators questioned Mr R.Sh., who stated that in 2003 he had worked as a driver of a GAZ-53 lorry for the factory. In August 2003 he had learnt that his vehicle had been used by criminals who had committed the murder of Mamed Bagalayev.

82.  On 26 October 2005 the investigation of the criminal case was suspended for failure to identify the perpetrators. The applicant was informed of this on the same date.

83.  On 7 December 2005 the applicant’s lawyer requested that the investigators resume the investigation of the criminal case.

84.  On 25 January 2006 the applicant’s lawyer requested that the investigators resume the proceedings, establish which military unit had carried out the special operation on 1 August 2003 and question military servicemen stationed in the Shali area. He also requested that the victims in the criminal case be provided with access to the investigation file.

85.  On 29 January 2006 the investigators rejected his request, stating that the proceedings were still pending and that the victims were allowed to familiarise themselves with the contents of the file only upon completion of the investigation.

86.  On 27 February 2006 the applicant’s lawyer again asked to be provided with access to the investigation file.

87.  On 2 March 2006 the deputy district prosecutor rejected his request.

88.  On 2 May 2006 the investigators again refused to allow the applicant’s lawyer to access the investigation file.

89.  On 17 May 2006 the applicant’s lawyer again complained about the investigation to the Chechnya prosecutor and requested that the suspended criminal proceedings be resumed.

90.  On 25 May 2006 the deputy district prosecutor rejected his request.

91.  On 8 June 2006 the supervising prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated and ordered that it be resumed. He ordered that the investigators take a number of steps, including conducting a ballistic expert evaluation of the bullet cartridges collected from the crime scene and questioning of a number of witnesses to the crime.

92.  On 22 June 2006 the investigators questioned Mamed Bagalayev’s sister Rezida, who stated that on 1 August 2003 she had been playing in the yard with her brothers Mamed and Malik. At about 5.30 p.m. they had heard gunfire and then she had noticed that her brother Mamed was bleeding. They had run into the summer house. Three armed men in camouflage uniforms had entered the summer house, had pointed their guns at the witness and her brothers and had searched the place. She had asked the men to help Mamed, who was bleeding, but the men had neither helped nor had allowed anyone else to approach him. They had told her that “nothing will happen to your brother”. Then the police officer from the Shali ROVD, Mr R.I., had taken Mamed to hospital, but her brother had died on the way there. The witness further stated that due to the passage of time she would not be able to identify the armed men.

93.  On the same date, 22 June 2006, the investigators questioned Mamed Bagalayev’s brother Malik, whose statement about the events was similar to the one given by his sister Rezida.

94.  On 1 July 2006 the deputy Chechnya prosecutor partially upheld the complaint brought by the applicant’s lawyer and allowed him to examine those contents of the investigation file which reflected the victims’ participation in the criminal proceedings.

95.  On 15 July 2006 the investigation of the criminal case was again suspended for failure to identify the perpetrators. The applicant was not informed of this decision.

96.  On 31 August 2006 the applicant’s lawyer complained to the Department of the Prosecutor General’s office in the Southern Federal Circuit about unlawful refusals on the part of the Chechnya prosecutor to allow him and the victims to access the contents of the investigation file.

97.  On 22 September 2006 the deputy Chechnya prosecutor ordered an inquiry in connection with the lawyer’s complaint about the lack of reply to his requests pertaining to the investigation of Mamed Bagalayev’s death.

98.  On 22 September 2006 the Chechnya prosecutor informed the applicant’s lawyer that they had established violations of criminal procedure regulations by the investigators of the criminal case.

99.  On 27 March 2007 the deputy district prosecutor rejected the applicant’s lawyer’s request for access to the investigation file.

100.  On 8 July 2006 the investigation of the criminal case was again suspended for failure to identify the perpetrators. The applicant was not informed of this decision.

101.  On 8 November 2008 the investigation of the criminal case was resumed upon a complaint brought by the applicant’s lawyer on 5 November 2008 of the investigators’ failure to comply with the Town Court’s decision of 24 July 2008 (see paragraph 119 below).

102.  On various dates in November 2008 the investigators forwarded requests to a number of military and law-enforcement agencies, asking them to provide information as to whether any special operations had been conducted by them on 1 August 2003. It does not appear that any replies were received to these requests.

103.  On 11 December 2008 the investigation of the criminal case was again suspended for failure to identify the perpetrators. The applicant was not informed of this decision.

104.  On 16 February 2009 the supervising prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated and ordered that a number of measures be taken. The investigators were to take, amongst others, the following steps: ordering a ballistic expert examination of the bullet cartridges collected from the crime scene; questioning of witnesses; establishing which military unit had been stationed on the premises of the factory at the material time; and establishing the circumstances under which the GAZ-53 lorry had been taken away from its driver by military servicemen. The supervising prosecutor’s orders were not complied with.

105.  On 10 March 2009 the investigation of the criminal case was again suspended for failure to identify the perpetrators.

106.  On 24 March 2009 the applicant’s lawyer again asked the investigators to provide him with access to the investigation file. On 27 March 2009 his request was rejected.

107.  On 1 April 2009 the applicant’s lawyer complained to the district prosecutor’s office of the investigators’ failure to comply with the court decision of 24 July 2008 (see paragraph 119 below) and requested that he be informed whether, amongst other things, the ballistic expert examination of the cartridges collected from the crime scene had been carried out. His complaint was rejected on 3 April 2009.

108.  On 2 April 2009 the investigators resumed the proceedings in the criminal case.

109.  On 1 May 2009 the investigation of the criminal case was again suspended for failure to identify the perpetrators.

110.  On 3 June 2009 the supervising prosecutor ordered that the applicant’s lawyer be provided with access to those contents of the case file which reflected the victims’ participation in the criminal proceedings.

111.  On 18 September 2009 the investigators informed the lawyer that he was allowed to familiarise himself with selected contents of the investigation file.

112.  On 9 November 2009 the supervising prosecutor overruled the decision to suspend the investigation as premature and the proceedings were resumed.

113.  According to the documents submitted by the Government, the investigation was suspended and resumed on several occasions, but it has so far failed to identify the perpetrators of Mamed Bagalayev’s murder. On a number of occasions the supervising prosecutors criticised the progress of the proceedings and stated that a number of important investigative steps should be taken without delay, but their orders were not complied with.

114.  Upon a request by the Court, the Government, referring to Article 161 of the Russian Criminal Procedure Code, disclosed a number of documents from criminal case no. 22112 running to 266 pages.

C.  Proceedings against the investigators

115.  On 23 September 2005 the applicant’s lawyer complained to the Shali District Court (“the District Court”) of the ineffectiveness of the criminal investigation. He requested that the court order the investigators to question certain witnesses, request information from the military commander about the servicemen who had participated in the special operation on 1 August 2003 and clarify the circumstances surrounding the disappearance of the lorry whose tailgate had been found at the crime scene.

116.  On 25 September 2005 the District Court fully allowed the complaint and stated that the investigators’ actions had been unlawful.

117.  On an unspecified date between October 2005 and April 2006 the applicant complained to the Shali Town Court (“the Town Court”) of ineffective investigation of the criminal case and the lack of access to the case file.

118.  On 3 April 2006 the Shali Town Court partially allowed the complaint and instructed the prosecutor’s office to provide the applicant’s lawyer with access to the criminal case file, with the exception of documents containing state secrets. The decision stated, inter alia, the following:

“… at about 6.10 p.m. on 1 August 2003 unidentified masked men in camouflage uniforms, armed with automatic weapons, with the support of armoured vehicles and a GAZ-53 automobile arrived at the crime scene and opened fire at random at the houses in Kutuzova Street … as a result, M. Bagalayev … was wounded in the chest … and died on the spot …

On 2 August 2003 the district prosecutor’s office opened criminal case no. 22112 … the investigation of the criminal case, without taking necessary investigative measures … was suspended on 2 October 2003.

[The applicant's lawyer] forwarded a number of requests and complaints to the district prosecutor’s office:

-  on 15 January 2005 he lodged a request that Mr S. Bagalayev, Ms Z. Bagalayeva and Ms R.B. be questioned and that other necessary investigative measures be taken …

-  on 20 May 2005 he lodged a request that the circumstances surrounding the disappearance of the tailgate of the lorry be investigated …

-  [he asked the investigators] to find out whether the Shali military commander had given his approval to this operation involving military servicemen (on 1 August 2003 the servicemen had been stationed on the premises of the [factory] and the GAZ-53 vehicle [still] belongs to this organisation);

-  [he asked the investigators] to question those officers of the Shali ROVD who had arrived at the scene of the shooting, for example, to question officer Sh.Sh., as well as the director of [the factory] and other individuals;

…

On 30 September 2005 the Shali district court found the actions of the Shali district prosecutor’s office to be unlawful. However, in spite of this, a number of investigative steps have not been taken [by the investigators]:

-  it has not been established which military units stationed on the premises of [the factory] participated in this operation;

-  it has not been established which officer was in charge of the military unit and under whose orders the servicemen arrived at the Bagalayev’s house …;

-  the driver of the GAZ-53 has not been questioned by the investigators; the circumstances surrounding the disappearance of the lorry’s tailgate, which had been found at the crime scene … were not examined.

…”

119.  On an unspecified date in 2008 the applicant complained of ineffective investigation to the Town Court. On 24 July 2008 the court allowed the applicant’s complaint in full. It criticised the investigation and stated that the proceedings had been suspended unlawfully without the most important investigative steps having been taken, and ordered that they be resumed (see paragraph 107 above). This decision was not complied with.

120.  On 21 May 2009 the applicant again complained to the Town Court. She argued that the investigation was ineffective and that the investigators’ refusal to allow her lawyer to access the case file was unlawful (see paragraph 42 above).

121.  On 22 June 2009 the Town Court left the applicant’s complaint without examination, as the request for access to the case file had been granted on 3 June 2009 (see paragraph 110 above).

II.  RELEVANT DOMESTIC LAW

122.  For a summary of the relevant domestic law see Abdurashidova v. Russia, no. 32968/05, § 51, 8 April 2010.

THE LAW

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

A.  The parties’ submissions

123.  The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the murder of Mamed Bagalayev had not yet been completed. They further argued that it had been open to the applicant to challenge in court any acts or omissions of the investigating authorities, and that she had availed herself of that remedy and could have continued to rely on it.

124.  The applicant contested that objection. She stated that the criminal investigation had proved to be ineffective and that her complaints to that effect, including her applications to the local courts, had been futile.

B.  The Court’s assessment

125.  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).

126.  As regards criminal law remedies provided for by the Russian legal system, the Court observes that the applicant complained to the law-enforcement authorities immediately after the murder of Mamed Bagalayev and that an investigation has been pending since 2 August 2003. The applicant and the Government dispute the effectiveness of the investigation of the murder.

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

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

A.  The parties’ arguments

128.  The applicant maintained that it was beyond reasonable doubt that the men who had killed Mamed Bagalayev had been State agents. In support of her complaint she referred to the following facts. At the material time Shali had been under the total control of federal troops. Russian military units had been stationed on the factory’s premises. The armed men who had killed Mamed Bagalayev had been wearing a specific camouflage uniform and had acted in a manner similar to that of military forces carrying out a special operation. The men had arrived in a military APC and a GAZ-53 vehicle in broad daylight and had opened fire in the presence of many witnesses, which indicated that they had not feared being heard by law-enforcement agencies located in the town. All the information disclosed in the criminal investigation file supported the applicant’s assertion as to the State agents’ responsibility for the death of Mamed Bagalayev.

129.  The Government submitted that unidentified armed men had killed Mamed Bagalayev. They further contended that the investigation of the incident was pending, that there was no evidence that the culprits had been military servicemen and that there were therefore no grounds for holding the State liable for the alleged violations of the applicant’s rights. The Government pointed out that the fact that the perpetrators had spoken Russian, had been wearing camouflage uniforms and had arrived in an APC and a GAZ-53 vehicle did not mean that these men could not have been members of illegal armed groups.

B.  The Court’s evaluation of the facts

130.  The Court relies on a number of principles that have been developed in its case-law when it is faced with the task of establishing facts on which the parties disagree. As to the facts in dispute, the Court refers to its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of the evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII (extracts)). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, 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).

131.  The Court notes that, despite its requests for a complete copy of the investigation file into the death of Mamed Bagalayev, the Government have produced only a part of documents from the case file on the grounds that they are precluded from disclosing the remaining documents by Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-XIII (extracts)).

132.  In view of this and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government’s conduct in respect of the well-founded nature of the applicant’s allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the death of the applicant’s son can be attributed to the authorities.

133.  The applicant alleged that the persons who had killed Mamed Bagalayev on 1 August 2003 had been military servicemen. The Government denied the involvement of military servicemen in the events. At the same time, they did not dispute any of the factual elements underlying the application and did not provide another explanation for the events in question.

134.  The Government suggested in their submissions that the perpetrators of Mamed Bagalayev’s murder might have been members of illegal armed groups. However, this allegation was not specific and the Government did not submit any material to support it. The Court takes note of the Government’s allegation that the vehicles, firearms and camouflage uniforms had probably been illegally obtained by the perpetrators. Nevertheless, it considers it very unlikely that the GAZ-53 lorry, which had been taken away from its driver by military servicemen on the day of the events, could have been unlawfully possessed by members of illegal armed groups and could have driven around freely in Shali on the same date with an APC without being noticed. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see Çelikbilek v. Turkey, no. 27693/95, § 71, 31 May 2005).

135.  The Court notes that the applicant’s allegation is supported by the witness statements collected by her and by the investigation, as well as by the available evidence. It finds that the fact that a large group of armed men in uniform in broad daylight, equipped with an APC and a lorry, were able to drive around the town and open fire without being afraid of being heard by local law-enforcement authorities strongly supports the allegation that these were military servicemen conducting a security operation. In their submissions to the authorities, the applicant and the witnesses to the events consistently maintained that Mamed Bagalayev had been shot by unknown military servicemen (see paragraphs 19, 42, 55, 56, 64-67, 71, 77-80 above). On numerous occasions the applicant and her lawyer requested that the investigation look into that possibility. The domestic investigation accepted these factual assumptions and took steps to check whether military servicemen were involved in Mamed Bagalayev’s killing (see paragraphs 59 and 73 above), but it appears that no serious investigative steps were taken in that direction.

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

137.  Taking into account the above elements, the Court is satisfied that the applicant has made out a prima facie case that her son was killed by military servicemen. The Government’s statement that the investigators had not found any evidence to support the involvement of State agents in the events is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties, and drawing inferences from the Government’s failure to submit the remaining documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court finds that Mamed Bagalayev was deprived of his life by State servicemen.

III.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

138.  The applicant complained under Article 2 of the Convention that her son had been killed by military servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads:

“1.  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.”

A.  The parties’ submissions

139.  The Government stated that the domestic investigation had obtained no evidence to the effect that any State servicemen had been involved in the killing of Mamed Bagalayev and contended that unidentified criminals had been responsible for his death. They further claimed that the investigation of the murder met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify the perpetrators. The Government did not comment on the applicant’s allegation concerning the authorities’ failure to protect the life of her son.

140.  The applicant argued that Mamed Bagalayev had been killed by State servicemen. At the same time, she alluded in broad terms that the domestic authorities had also failed to comply with the positive obligation under Article 2 to protect her son’s life. She further submitted that the investigation into the events had not met the effectiveness and adequacy requirements laid down by the Court’s case-law. The applicant also pointed out that by February 2009 the investigators had failed to take crucial investigative steps and that she had not been informed of the progress of the criminal proceedings. The fact that the investigation had been pending for such a long period of time without producing any tangible results was further proof of its ineffectiveness.

B.  The Court’s assessment

1.  Admissibility

141.  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 127 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 Mamed Bagalayev

142.  As for the applicant’s allusion concerning the authorities’ failure to comply with their positive obligation under Article 2 to protect the right to life of Mamed Bagalayev, taking into account its vague nature and the absence of any relevant comment from the Government, the Court will proceed to examine her complaint in the light of the negative obligation of the said provision.

143.  The applicant alleged that State servicemen had killed her son. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-147, Series A no. 324).

144.  The Court has already established that the death of Mamed Bagalayev can be attributed to the State. In the absence of any justification put forward by the Government, the Court finds that there has been a violation of Article 2 in respect of Mamed Bagalayev.

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

145.  The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention’s requirements (for a summary of these principles see Bazorkina v. Russia, no. 69481/01, §§ 117-119, 27 July 2006).

146.  In the present case, the death of the applicant’s son was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

147.  The Court notes at the outset that only part of the documents from the investigation file were disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the documents submitted by the parties and the information about its progress presented by the Government.

148.  The Court notes that the authorities were immediately made aware of the crime. The investigation was opened promptly, the crime scene was examined without delay, evidence was collected from the scene and two witnesses to the events were questioned (see paragraphs 53-57 above). However, after that, a number of very important steps were either delayed (for example, the key witnesses to the events were questioned only in June 2006 – that is, almost three years later (see paragraphs 92 and 93 above)) or not taken at all. In particular, the Court notes that, as can be seen from the orders of the supervising prosecutors and the decisions of domestic courts, the investigators failed to take a number of the most essential steps such as identification of the military unit stationed on the premises of the former food factory in Shali and questioning of a number of witnesses, including the ROVD officers, the applicants’ neighbours and the military command in Shali. Further, the investigators failed to carry out an autopsy of Mamed Bagalayev’s body or order a ballistic expert examination of the cartridges collected from the scene; they neither elucidated the circumstances under which the tailgate of the GAZ-53 lorry had disappeared from the investigation file nor found out how the lorry had been returned to its owners (see paragraphs 67, 104, 107 and 119 above). It is obvious that these measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Öneryıldız v. Turkey [GC], no. 48939/99, § 94, ECHR 2004-XII).

149.  The Court also notes that even though the applicant was eventually granted victim status in the investigation concerning her son’s murder, she was only informed of the suspension and resumption of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.

150.  Finally, the Court notes that the investigation was suspended and resumed several times and that there were lengthy periods of inactivity on the part of the prosecutor’s office when no proceedings were pending. On a number of occasions the supervising prosecutors and domestic courts criticised deficiencies in the proceedings and ordered remedial measures, but their instructions were not complied with.

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

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

IV.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

153.  The applicant relied on Article 3 of the Convention, submitting that as a result of her son’s murder and the State’s reaction thereto, she had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Admissibility

154.  In the present case, even though the Court does not doubt that the tragic death of her son caused the applicant profound suffering, it nonetheless notes that the case concerns the instantaneous deprivation of life as a result of gunfire. In this regard, the Court refers to its practice by which the application of Article 3 is usually not extended to the relatives of persons who have been killed by the authorities in violation of Article 2 (see Yasin Ateş v. Turkey, no. 30949/96, § 135, 31 May 2005) or to cases of unjustified use of lethal force by State agents (see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 229, 24 February 2005), as opposed to the relatives of the victims of enforced disappearances. The latter approach is exercised by the Court in view of the continuous nature of the psychological suffering of applicants whose relatives have disappeared and their resulting inability for a prolonged period of time to find out what happened to them (see, among many other authorities, Bazorkina, cited above, § 141; Imakayeva, cited above, § 166; and Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006-XIII (extracts)). In these circumstances, taking into account the instantaneous nature of the incident, the Court does not find that it amounts to a violation of Article 3 of the Convention.

155.  It therefore follows that this part of application should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention (see Udayeva and Yusupova v. Russia, no. 36542/05, §§ 82-83, 21 December 2010).

V.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

156.  The applicant complained that she had been deprived of an effective remedy in respect of the alleged violation of Article 2 contrary to Article 13 of the Convention, which provides:

“Everyone 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.”

A.  The parties’ submissions

157.  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 those remedies. The applicant had had the opportunity to challenge the acts or omissions of the investigating authorities in court. They added that she could have claimed damages in civil proceedings. In sum, the Government submitted that there had been no violation of Article 13.

158.  The applicant maintained the complaint.

B.  The Court’s assessment

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

160.  In view of the Court’s above findings with regard to Article 2, this complaint is clearly “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, § 52, Series A no. 131). The applicant should accordingly have been able to avail herself of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article 13.

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

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

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

163.  Article 41 of the Convention provides:

“If 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.”

A.  Non-pecuniary damage

164.  The applicant claimed 45,000 euros (EUR) in respect of non-pecuniary damage for the suffering she had endured as a result of the loss of her minor son, the indifference shown by the authorities towards her and their procrastination with regard to the criminal investigation of his death.

165.  The Government found the amounts claimed excessive.

166.  The Court has found a violation of Articles 2 and 13 of the Convention on account of the death of the applicant’s son and the authorities’ failure to investigate it effectively. 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 45,000 as claimed, plus any tax that may be chargeable thereon.

B.  Default interest

167.  The Court considers it appropriate that the default interest rate 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 Mamed Bagalayev;

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 surrounding the death of Mamed Bagalayev;

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 amount, to be converted into Russian roubles at the date of settlement:

(i)  EUR 45,000 (forty-five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant;

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

Done in English, and notified in writing on 19 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Nina Vajić
Registrar President

]]> http://www.waynakh.com/eng/2011/07/khashuyeva-v-russia/feed/ 0 Velkhiyev and Others v. Russia http://www.waynakh.com/eng/2011/07/velkhiyev-and-others-v-russia/ http://www.waynakh.com/eng/2011/07/velkhiyev-and-others-v-russia/#comments Fri, 08 Jul 2011 08:52:36 +0000 admin http://www.waynakh.com/eng/?p=8467 The ECHR case of Velkhiyev and Others v. Russia (applications no. 34085/06).

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CASE OF VELKHIYEV AND OTHERS v. RUSSIA

(Application no. 34085/06)

JUDGMENT

STRASBOURG

5 July 2011

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 Velkhiyev and Others v. Russia,

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

Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
George Nicolaou,
Mirjana Lazarova Trajkovska, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 14 June 2011,

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

PROCEDURE

1.  The case originated in an application (no. 34085/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Russian nationals, listed below (“the applicants”), on 15 August 2006.

2.  The applicants were represented by lawyers of the Memorial Human Rights Centre (Moscow) and the European Human Rights Advocacy Centre (London). The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

3.  On 11 March 2009 the Court decided to apply Rule 41 of the Rules of Court and grant priority treatment to the application, and to give notice of the application to the Government. Under the provisions of former Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

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

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants, Mr Bekhan Ulanovich Velkhiyev, Ms Rima Usamovna Velkhiyeva, Mr Ali Bashirovich Velkhiyev, Ms Kheda Bashirovna Velkhiyeva, Mr Dzhokhar Bashirovich Velkhiyev, Ms Marem Bashirovna Velkhiyeva and Ms Aminat Bashirovna Velkhiyeva, are Russian nationals who were born in 1965, 1961, 1992, 1994, 1998, 2000 and 2002 respectively. The first applicant lives in Malgobek, Ingushetia; the second to seventh applicants live in the village of Barsuki, Ingushetia.

A.  Detention and torture of the first applicant and Mr Bashir Velkhiyev. Death of Mr Bashir Velkhiyev.

6.  The first applicant is the brother of Mr Bashir Velkhiyev, born in 1963. The second applicant is the wife of Mr Bashir Velkhiyev and the third to seventh applicants are their children.

7.  The following account of the events submitted by the applicants was not contested by the Government, except for the alleged theft (see paragraph 15 below).

8.  On the evening of 19 July 2004 the first applicant came to the village of Barsuki to visit Mr Bashir Velkhiyev and his family, who lived at 6 Zapadnaya Street. The first applicant stayed at their house for the night.

9.  On 20 July 2004 the first applicant and Mr Bashir Velkhiyev got up at 8 a.m. while the second applicant was making breakfast and the third to seventh applicants were playing in the yard.

10.  At approximately 8.30 a.m. the first and second applicants and Mr Bashir Velkhiyev heard the children screaming and ran out into the yard. There they saw servicemen in camouflage uniform armed with automatic weapons who were jumping into the yard over the fence and coming through the gates.

11.  About thirty servicemen gathered in the yard. Most of them spoke Ingush, although three or four servicemen spoke Russian without an accent. Later it transpired that they were officers of the Ministry of the Interior. They had AK automatic rifles, sniper rifles and machine guns. The servicemen forced the children into a corner between two houses in the yard and held them there at gunpoint.

12.  Mr Bashir Velkhiyev asked the servicemen not to scare the children. He also told them that there were no criminals in his house. He said that they could enter and that there was no reason to be alarmed. The servicemen ordered the first applicant and Mr Bashir Velkhiyev at gunpoint to face the wall and to raise their hands. Then one of the servicemen asked: “Who is the master of the house?” Mr Bashir Velkhiyev replied that he was. At the same time he asked the servicemen to present their identity documents as well as documents authorising their entry to his house. The servicemen did not reply and took Mr Bashir Velkhiyev at gunpoint out of the yard.

13.  The first applicant remained facing the wall. The servicemen who were still in the yard asked him for his passport. The first applicant gave his passport to a serviceman who must have been about thirty-five years old with short dark hair. He was dressed in camouflage uniform and spoke Russian with an accent. Having checked the first applicant’s passport the serviceman asked him where he lived and what his occupation was. Having heard the reply, the serviceman said: “You stay at home. We have no issues with you.” However, he did not return the passport to the first applicant.

14.  At the same time several servicemen searched the house. They had neither produced a search warrant nor called for witnesses. The second applicant tried to enter the house to take some money that was kept in a wardrobe. The servicemen did not let her enter the house. Then she told the first applicant that she was not being let into the house to take the money. The first applicant rushed into the house having pushed away one of the servicemen. There were five or six servicemen in the house. They asked the first applicant what was in several bags placed in the bedroom. He replied: “See for yourselves, there is nothing illegal there.” He also asked them whether they had a search warrant and why they did not draw up a report on the search and Mr Bashir Velkhiyev’s arrest. One of the servicemen, thirty-five or forty years old and of heavy build with light-grey hair, replied to him in Ingush: “Get ready, everything will be explained to you there”. As the first applicant realised that they were going to detain him too, he approached the dark-haired serviceman and asked: “Why are you taking me, you said you had no issues with me?” The serviceman replied: “That Ingush took your passport from me. Sort it out with him.” The serviceman pointed at the officer who had ordered the first applicant to get ready.

15.  According to the applicants, after the servicemen left together with the first applicant and Mr Bashir Velkhiyev, the second applicant discovered that they had taken money in the amount of 12,000 United States dollars (USD) and 40,000 roubles (RUB) that was kept in the wardrobe. The servicemen also took Mr Bashir Velkhiyev’s mobile phone, twenty videotapes, fifteen audiotapes, Mr Bashir Velkhiyev’s wallet with USD 600 and RUB 20,000 and the first applicant’s wallet with USD 400 and RUB 1,000. The Government contested the applicants’ account in this part.

16.  When he was taken out of the yard into the street, the first applicant saw a large number of servicemen, two khaki UAZ-452 vehicles (“Tabletka”) with no registration numbers, and a VAZ-2109 car. The first applicant was ordered to get into one of the UAZ vehicles, where he saw Mr Bashir Velkhiyev sitting handcuffed with his shirt pulled over his head. One of the servicemen said to the others: “Let them sit together for the last time”. Then they handcuffed the first applicant and put a sports hat over his head which covered his eyes. Since the hat was transparent the first applicant could see the people in the vehicle. There were about eight or ten men and they spoke Ingush.

17.  When the UAZ vehicle moved, one of the servicemen said to the serviceman who was sitting opposite the first applicant and Mr Bashir Velkhiyev: “Check if he has a strong head.” The serviceman then took a metal helmet, hit Mr Bashir Velkhiyev twice over the head with it and said that he did have a strong head. The other serviceman replied: “We shall see when we arrive.”

18.  In approximately ten minutes they arrived at the Organised Crime Unit (УБОП) at the Ministry of the Interior of Ingushetia in Nazran. The first applicant could see the building through the hat pulled over his eyes. He and Mr Bashir Velkhiyev were taken to an office on the second floor of the building to the left of the entrance. They remained handcuffed.

19.  There, officers of the Ministry of the Interior asked the first applicant and Mr Bashir Velkhiyev their names, dates and places of birth. Then Mr Bashir Velkhiyev was asked where such a large amount of money, USD 12,000, had come from. He slowly replied that he and the second applicant had saved it to buy a house. The officer hit him over the head and told him to reply faster. Mr Bashir Velkhiyev said that he would reply only in accordance with the legal procedure. Then officers hit him several times and said: “Let us start again”. They put the same questions again. Mr Bashir Velkhiyev did not reply. One of the officers then grabbed him and hit his head against the wall saying: “Are you deaf?” Mr Bashir Velkhiyev repeated that he would reply only in accordance with the legal procedure. The reply made the officers angry. One of them said that Mr Bashir Velkhiyev had not been beaten yet and that he should be worked over “in full”, whereas the first applicant should be worked over “upwards”.

20.  Then Mr Bashir Velkhiyev was taken out of the office. The first applicant heard the order: “To the left.” Then officers put a band over the hat pulled over the first applicant’s eyes so that he could no longer see anything. They took off his handcuffs and instead placed on his hands a device which, according to the officers, did not leave bruises. They said, laughing, that it had been made especially for him.

21.  First the officers asked the first applicant where he had been on the night of 21 to 22 June 2004 when rebel fighters had attacked Ingushetia. He replied that he had been ill at home that night, as could be confirmed by his relatives. Then they asked him about a certain paper which they alleged he had written. The first applicant said that he had never written such a paper and that this could easily be checked by comparing handwriting if they untied his hands and provided him with a pen and paper. Then the officers hit the first applicant’s head against the wall, kicked him in the groin and hit him over the ears. They said: “This is to bring you back to your senses. Don’t try to be smart with us, we are just kidding to make you cooperate with us. For information on those who participated in the attack you’ll get a car, money and [the right to] move freely in the whole of Russia.” They also asked him which “Wahhabis” he knew in Ingushetia. He replied that he was not a “Wahhabi” but an entrepreneur.

22.  The officers again suggested that he cooperate with them and threatened him with “beating his genitals so that he could not have children” and “impaling him while video recording it”. They asked him to tell them about his relatives. The first applicant replied that he had nothing to tell. Then one of them said: “So you don’t want it in a good way?” and, addressing the other servicemen, ordered: “Bring him ‘upwards’.” The officers then started to beat him again. According to the first applicant, he was mainly beaten by officers commissioned from Russia.

23.  In a while the first applicant was taken to a different office where the beating continued. The officers beat him with rubber truncheons and said that it was just the beginning. They also threatened him with five years’ imprisonment.

24.  After the beating the first applicant was picked up from the floor and led to yet another office. There the officers said that he was aggravating his situation and that he now risked ten to fifteen years’ imprisonment. They also said that if he offended them he would leave with a first-degree disability, but if they were nice to him, only with a second-degree disability. The officers then placed the first applicant on his stomach, raised his legs and, while holding him in this position, kicked him on the spine and applied an electric current. They spilled water on his groin and then placed electric wires there. Because of the electric shock the first applicant fainted.

25.  According to the first applicant, the officers were laughing while torturing him. At the same time, he could hear awful screams from other offices where, apparently, people were also being tortured.

26.  When the first applicant recovered consciousness, an officer who spoke Russian without an accent asked him whether he was going to work in the law-enforcement agencies. The first applicant replied that he had wanted to work in the law-enforcement agencies, but after what they had done to him and having heard what they did to others he no longer wanted to.

27.  Then the officer took the first applicant into the corridor and removed the device placed on his hands. However, he left the hat over his eyes. Then a different officer led the first applicant to the first floor and brought him to a cell. He said: “Do not remove the hat until I leave.” As soon as he left, the first applicant took off the hat and saw another officer of small stature, who told him to enter the cell. In the cell there was another detainee of approximately fifty years of age. In a while a third detainee was placed in the cell. He said that he was from the village of Troitskaya.

28.  Later in the day the officer of small stature put a sports hat and black plastic bag on the first applicant’s head and took him out of the cell. He was then taken out of the building and put in a car. In the car he fainted because of the injuries sustained earlier. When he recovered consciousness, he heard one of the officers, who was talking on the phone, saying: “We have arrived”. Then another officer said to the first applicant: “If you take off the bag in less than ten minutes, your brain will be blown up.” Then he added: “I have almost forgotten, your brother Bashir is in Vladikavkaz. He must have quite a reputation to be there.” The officer then closed the door of the car. The first applicant also heard the doors of another car closing and the car moving away. He realised that the officers had left him and that he was alone in the car.

29.  The first applicant removed the hat and the plastic bag from his head and fainted again. When he recovered consciousness he heard some people talking in Ingush. A few men approached the car, opened the door and told him to get out of the car with his hands raised. The men appeared to be officers of the Nazran Department of the Interior (ГОВД). Although the first applicant told them that he could not walk and needed medical assistance, they refused to either call an ambulance or inform his relatives about his whereabouts. They took him to the Department of the Interior and placed him in a cell, having said that they would “sort it out” the next morning.

30.  At approximately 8.10 a.m. the next day investigator A. of the Nazran Prosecutor’s Office took the first applicant out of the cell. Investigator A. introduced himself and told the first applicant that Mr Bashir Velkhiyev had died. He had not survived the torture by officers of the Ministry of the Interior commissioned from Russia. According to investigator A., as soon as the relatives of the first applicant and Mr Bashir Velkhiyev had informed him of the men’s detention, he had tried to find them as he was concerned for their lives, since officers commissioned from Russia treated detainees very cruelly. However, officers of the Ministry of the Interior of Ingushetia, giving various excuses, had refused to let him meet the first applicant and Mr Bashir Velkhiyev. When he had learned from his colleagues that Mr Bashir Velkhiyev was indeed being held on the premises of the Organised Crime Unit, he had immediately gone there. However, Mr Bashir Velkhiyev was already dead. Having questioned officers of the Organised Crime Unit, he had obtained information about the first applicant’s detention. However, he had not found him that night. In the morning, having learned of the first applicant’s whereabouts from police reports, investigator A. had come to see him at the Nazran Department of the Interior.

31.  Investigator A. told the first applicant that he had been to the morgue and had seen Mr Bashir Velkhiyev’s body. He then took the first applicant to the Nazran Prosecutor’s Office, where he told him that Mr Bashir Velkhiyev had died in office no. 17 of the Organised Crime Unit at the Ministry of the Interior of Ingushetia because of the torture inflicted by officers of the Ministry. Having obtained the necessary documents from the prosecutor’s office, the first applicant went to the morgue. He took Mr Bashir Velkhiyev’s body to the village of Barsuki.

32.  On 21 July 2004 the first applicant and two other relatives of Mr Bashir Velkhiyev took his body to Vladikavkaz for a second forensic examination. His body was first examined by forensic experts shortly after his death (see paragraph 42 below).

33.  According to forensic report no. 464 of 21 July 2004, the following injuries were found on Mr Bashir Velkhiyev’s body: (i) multiple bruises to the outer corner of the right eye, the nose, the forehead, the back of the head extending to the right ear, the right side of the thorax, the left shoulder, the left forearm, the left wrist joint, the back of the left hand, the index finger of the left hand, the right shoulder, the right elbow joint, the right forearm, the right wrist joint, the shoulder blades, the hips, the lower legs and the tops of the feet; (ii) a single abrasion to each wrist joint; (iii) a single haemorrhage on the upper and the lower lip; (iv) a contused wound to the upper lip and (v) a puncture wound to the thorax. The bruises, the haemorrhages and the contused wound had been caused by multiple blows with hard, cylindrical blunt objects such as rubber truncheons. The abrasions to the wrist joints were most likely caused by handcuffs. The puncture wound must have been caused by a syringe. The injuries had been caused within the twenty-four hours preceding death. According to the report, the most probable cause of death was cardiovascular collapse.

34.  On the evening of 21 July 2004, having returned from Vladikavkaz, Mr Bashir Velkhiyev’s relatives buried him in the family cemetery in the village of Sredniye Achaluki.

B.  Search for the first applicant and Mr Bashir Velkhiyev and applications to the State authorities.

35.  According to the applicants, at 11.30 a.m. on 20 July 2004, approximately two hours after the detention of the first applicant and Mr Bashir Velkhiyev, the second applicant went to the Ministry of the Interior of Ingushetia in Nazran. Officers on duty at the reception desk refused to accept her application. They sent her to the security desk at the entrance and ordered her to get a pass there to enter the building.

36.  At the security desk the second applicant explained that she needed a pass in order to submit an application concerning the unlawful detention of her relatives. The officer on duty at the security desk told her that “the bosses had forbidden staff to issue passes” and advised her to apply to the Nazran Department of the Interior.

37.  At 12.30 p.m. the second applicant applied in person to the Nazran Department of the Interior. However, the officers in charge refused to accept her application. They said that neither the first applicant nor Mr Bashir Velkhiyev had been brought to the Department of the Interior. Having insulted the second applicant, they ordered her to leave the premises immediately.

38.  The second applicant returned to the Ministry of the Interior of Ingushetia. The same officers again refused to accept her application. However, one of them sent her to the Organised Crime Unit. He showed her the entrance to the Unit, which was within fifteen to twenty metres of the main entrance to the Ministry of the Interior, and said that the first applicant and Mr Bashir Velkhiyev were there. He also told the second applicant that they were being held by Russians who had been specially commissioned to Ingushetia and added: “God help them”.

39.  The second applicant was not let into the Organised Crime Unit. Officers ordered her to return home and said that neither the first applicant nor Mr Bashir Velkhiyev was being held there. She then went to the village of Sredniye Achaluki to see Mr Bashir Velkhiyev’s relatives and tell them about the events.

40.  On 21 July 2004, after the first applicant had been released and it had become known that Mr Bashir Velkhiyev had died, their relatives applied to the Nazran Prosecutor’s Office seeking the institution of criminal proceedings against officers of the Organised Crime Unit for torture and for Mr Bashir Velkhiyev’s murder. The applicants did not retain copies of their first applications. They re-submitted the applications a number of times later.

C.  Official investigation

41.  On 20 July 2004 the Nazran Prosecutor’s Office issued a notice for entry in the Crime Register (Книга учета сообщений о преступлениях) stating that, according to a telephone call received at approximately 4.35 p.m. on that date, the body of Mr Bashir Velkhiyev had been found in office no. 17 of the Organised Crime Unit at the Ministry of the Interior of Ingushetia, after Mr Velkhiyev had been brought there in order to give certain explanations. The notice also stated that an inquiry was being conducted into the events.

42.  On the same date the Nazran Prosecutor’s Office ordered a forensic examination of Mr Bashir Velkhiyev’s body. According to forensic report no. 91 of 20 July 2004, there were numerous bruises on the body; death had occurred two to four hours before the examination and was caused by traumatic shock as a result of the injuries.

43.  On 21 July 2004 the Nazran Prosecutor’s Office ordered an investigation into the death of Mr Bashir Velkhiyev.

44.  On 23 July 2004 the Nazran Prosecutor’s Office ordered a medical examination of the first applicant. According to forensic report no. 397 of the same date, the first applicant had the following injuries: large bruises measuring 19 x 22 cm and 18 x 17 cm on the back at the level of the thorax and on the shoulder blades; a bruise measuring 13 x 2 cm below the right shoulder blade; numerous subcutaneous wounds, abrasions ranging from 0.5 cm to 1.5 cm in length and bruises near the seventh cervical vertebra, and seven similar areas in the interscapular and lumbar regions (traces of surface notches with subsequent application of cupping glasses for bloodletting); multiple small haemorrhages on the back of the left hand; a partially healed abrasion on the back of the right hand; haematomas on the buttocks extending to the hips measuring 21 x 18 cm and 17 x 10 cm; four similar haematomas on both hips and the back of the knees ranging in size from 10 x 8 cm to 12 x 7 cm; similar multiple haematomas on the lower right leg measuring around 20 x 11 cm; a haematoma measuring 12 x 8 cm and swelling to the sole of the right foot. It was also stated that the mobility of the ankle was limited and that the first applicant complained of pain in his back and scrotum. The expert recommended consulting a urologist, a neuropathologist and a traumatologist.

45.  On the same date the first applicant was examined by two other doctors. It appears that they were a traumatologist and a neuropathologist. According to the relevant entries in his medical file, the first applicant had large haematomas on the buttocks, hips and shoulder blades; eight traces of application of an electric current on the shoulder blades and some on the hands; traces of blows on his hands and the soles of his feet and bruising to the forehead. The doctors stated that the injuries had been caused by beating and by the application of an electric current. They also stated that the first applicant had brain concussion and limited mobility of all his joints.

46.  On 30 July 2004 the Nazran Prosecutor’s Office decided to institute an investigation (no. 04560079) into the death of Mr Bashir Velkhiyev. It is not clear how this decision related to the previous decision of 21 July 2004 on the institution of an investigation.

47.  On 4 and 6 August 2004 the first applicant was again examined by a medical expert. Having regard to the previous examination on 23 July 2004 and to the entries in the applicant’s medical file the expert concluded that the abrasions and subcutaneous wounds had been caused by notches made for bloodletting five to seven days before the first applicant’s detention. All the other injuries had been caused by multiple blows by a hard object or objects two to three days before the examination on 23 July 2004.

48.  On 18 August 2004 the first applicant was questioned and granted victim status in case no. 04560079. He confirmed his account of the events of 20-21 July 2004 as set out in the preceding paragraphs.

49.  On the same date investigator A. of the Nazran Prosecutor’s Office examined the Organised Crime Unit’s register. It contained no entries concerning the first applicant or Mr Bashir Velkhiyev.

50.  On 24 August 2004 investigator A. of the Nazran Prosecutor’s Office questioned the second applicant. She made a statement in line with the account of the events set out in the preceding paragraphs. She also stated that she knew her husband had been beaten to death by police officers although she did not know the names of those responsible.

51.  On 25 August 2004 investigator A. of the Nazran Prosecutor’s Office questioned Ms A.Ts., Mr Bashir Velkhiyev’s neighbour. Ms A.Ts. stated that at approximately 8.30 a.m. on 20 July 2004 she had seen the first applicant and Mr Bashir Velkhiyev being taken away from the latter’s house by officers in camouflage uniform, put in a car and driven away. On the following day she had learnt that Mr Bashir Velkhiyev had been murdered.

52.  On the same date investigator A. of the Nazran Prosecutor’s Office questioned Ms L.Ts., Mr Bashir Velkhiyev’s neighbour, who stated that at approximately 8.30 a.m. on 20 July 2004 her daughter-in-law had told her that police officers had stormed Bashir’s house. She had then tried to go into the yard, but officers in camouflage uniforms and masks had been standing near the gates and had not let her pass. She had then taken the children out through the garden and had come back. Through a hole in the gates Ms L.Ts. could see Mr Bashir Velkhiyev being put into a car. Then the officers had left and the second applicant had told her that they had taken Mr Bashir Velkhiyev and the first applicant, who had come for a visit, after promising to bring them back in two hours. Ms L.Ts. did not know who the officers were and she could not see their faces since they were wearing masks. On the following day she had learned that Mr Bashir Velkhiyev had been murdered.

53.  Also on 25 August 2004 officer M. of the Organised Crime Unit was questioned. He submitted that he had been working at the Unit since 2000. Since 2001 he had been responsible for the provision of arms, receipt of information and organisation of field missions. Usually he remained on duty for twenty-four hours, after which he stayed at home for forty-eight hours. On 20 July 2004 officer M. had taken up duty at 8.30 a.m. On that date officer G., officer T. and officer Tut. had also been on duty. At 9 a.m. officers of the federal units of the Ministry of the Interior deployed in Ingushetia brought two detainees with black bags on their heads to the Organised Crime Unit. The officers were wearing masks and gave no information about the detainees, promising to provide it later. Officer M. made no entries in the register at that time. After waiting until 10 a.m., he asked the officers to provide him with the information concerning the detainees. They replied that they would obtain explanations from the latter and forward them to officer M. later. He did not know who the officers were, they were wearing camouflaged uniform. Officer M. also submitted that after the events of 21-22 June 2004 officers of the federal units were regularly stationed at the Organised Crime Unit. They would bring people there and question them. At approximately 1.40 p.m. on 20 July 2004 officer M. heard a loud noise on the staircase. After leaving his post, he saw two officers of the federal units lifting a man in dark clothes with a bag on his head. He asked them what was going on. They replied that the man had slipped on the stairs and fallen down. Having lifted him, they took the man upstairs. At approximately 2.50 p.m. the officers of the federal units left for a field mission, having informed officer M. that they had to fetch one more person who was an accomplice of those already brought to the Organised Crime Unit. At around 3 p.m. the officers returned. At 3.20 p.m. B., the Deputy Head of the Organised Crime Unit, called officer M. and told him to call an ambulance, which he did immediately. At 3.40 p.m. the ambulance arrived and, together with the doctors, officer M. went to the second floor and entered office no. 17. In the office medical assistant Kh. and Deputy Head B. were providing first aid to a man lying on the floor. The man, Mr Bashir Velkhiyev as officer M. learned later, died before the arrival of the doctors, who pronounced him dead of heart failure. Then the doctors left and an investigative unit from the Nazran Prosecutor’s Office arrived. In the evening the officers of the federal units arrived back at the Organised Crime Unit and took away the other detainee. As officer M. learned later, the detainee was the first applicant. Officer M. stated that he did not know who the officers were or to which particular unit they belonged. According to him, the officers of the federal units deployed in the Organised Crime Unit changed constantly and he was not personally acquainted with any of them. He did not know which officers had taken part in the detention of the first applicant and Mr Bashir Velkhiyev either. He had not witnessed any beating or other forms of ill-treatment. He did not know where exactly the first applicant had been held, but assumed that it was somewhere on the first floor.

54.  Officer G. of the Organised Crime Unit, questioned on the same date, made a statement similar to that of officer M. as regards the events of 20 July 2004, except that he had seen neither the detainees nor those who had brought them to the Organised Crime Unit. He had learned from officer M. that there had been a dead body on the Unit premises.

55.  Officer T. of the Organised Crime Unit, questioned on the same date, made a statement similar to that of officer G. as regards the events of 20 July 2004.

56.  On the same date investigator A. questioned medical assistant Kh. She submitted that she had been working as a medical assistant at the Organised Crime Unit since 2003 and was responsible for providing police officers with first aid. On 20 July 2004 at around 4 p.m. Deputy Head B. called her and asked her to examine a man in office no. 17. As she learned later, the man was Mr Bashir Velkhiyev. Having entered the office, she spoke to Mr Bashir Velkhiyev, who was sitting on a chair. He was dressed and had no visible injuries. He said that he was feeling weakness and pain in his chest. Medical assistant Kh. left to fetch a blood pressure monitor. Then she took Mr Bashir Velkhiyev’s blood pressure, which was 100/80. She gave him an injection of No-spa, but the weakness remained. After ten minutes she again took his blood pressure, which was 70/50. She gave the patient an injection of caffeine and recommended Deputy Head B. to call an ambulance, which he did immediately. Then they put Mr Bashir Velkhiyev on the floor and medical assistant Kh. and another officer started to perform indirect massage and artificial respiration. However, despite their efforts Mr Bashir Velkhiyev died. The ambulance arrived approximately ten minutes later. Medical assistant Kh. submitted that she did not know why Mr Bashir Velkhiyev had been brought to the Organised Crime Unit. He had not told her that he had been ill-treated. She did not know whether his brother had been detained as well. She also stated that, since the events of 21-22 June 2004, officers of the federal units were regularly stationed at the Organised Crime Unit. However, she had no contacts with them.

57.  Officer Tut. of the Organised Crime Unit, questioned on 26 August 2004, made a statement similar to that of officer G. as regards the events of 20 July 2004.

58.  On 30 August 2004 investigator A. questioned officer B., the Deputy Head of the Organised Crime Unit. The latter submitted that he occupied office no. 20 on the second floor. Across from him was office no. 17, which belonged to the Second Department of the Organised Crime Unit, headed by officer A. On 20 July 2004 at approximately 5 a.m. he left with other officers to conduct operations aimed at the detention of those responsible for the events of 21-22 June 2004. First they went to Troitskaya village, then to Karabulak and then to Barsuki. There, he and some other officers entered the yard of the Velkhiyevs’ house. They cordoned off the yard while officers of the federal units entered the house. The latter apprehended Mr Bashir Velkhiyev and the first applicant, put them into a UAZ vehicle and took them away. He and other officers went on to other villages to continue the operations. At around 3 p.m. Deputy Head B. returned to the Organised Crime Unit in order to draft a report on the operations conducted. At approximately 3.10 p.m. officers told him that in office no. 17 there was a man with a black bag on his head and that officers of the federal units who had “worked with him” had left to search for his accomplice. Then Deputy Head B. entered office no. 17 and saw a man with a black bag on his head lying on the floor. As he learned later, the man was Mr Bashir Velkhiyev. He removed the bag from his head and asked him who he was. The man replied that he had slipped and fallen on the stairs, and asked for water. He had no visible injuries. Deputy Head B. made him some tea and called for medical assistant Kh. Having taken his blood pressure and given an injection, she gave instructions to call an ambulance, which was done. When the ambulance arrived at approximately 3.40 p.m., Mr Bashir Velkhiyev was already dead. Immediately afterwards, Deputy Head B. called the investigative group of the Nazran Prosecutor’s Office. He did not know which officers of the federal units had detained Mr Bashir Velkhiyev. He did not know them personally since they had been stationed at the Organised Crime Unit after the events of 21-22 June 2004. Deputy Head B. did not know either where the first applicant had been held or whether Mr Bashir Velkhiyev or the first applicant had been subjected to ill-treatment by officers of the federal units. Neither he nor any officers of the Organised Crime Unit had subjected them to ill-treatment.

59.  On 3 September 2004 investigator A. questioned officer A., the head of the Second Department of the Organised Crime Unit. Officer A. stated that on 20 July 2004 he had arrived at the Organised Crime Unit at 8.45 a.m. He had neither left for any operation that morning nor sent his officers out. Around lunchtime he received information about a landmine at a market in Nazran and left for there with his officers. After returning to the Organised Crime Unit at around 4 p.m., he learned that a man had died in office no. 17 after being brought there by officers of the federal units in order to provide explanations. However, officer A. did not know by whom and when exactly the man had been brought there or whether his brother had been apprehended with him. Office no. 17 had been damaged as a result of the events of 21-22 June 2004. Since then it had been mainly used by officers of the federal units; however, officer A. did not know by whom exactly.

60.  Between 10 September and 18 October 2004 investigator A. questioned seven officers of the Organised Crime Unit: officer Ar., officer Ch., officer Das., officer Dol., officer Dz., officer Mach. and officer O. They stated that on 20 July 2004 they had heard that a man brought in for questioning by officers of the federal units had died in office no. 17. However, they did not know who the man was or the names of the officers who had brought him to the Organised Crime Unit.

61.  On 27 December 2004 the investigation was suspended for failure to identify those responsible.

62.  On 14 January 2005 the Ministry of the Interior of Ingushetia drafted a report on the internal inquiry concerning the death of Mr Bashir Velkhiyev. The report incorporated the above statements of the officers of the Organised Crime Unit and concluded that Mr Bashir Velkhiyev had died of natural causes.

63.  On 14 March 2005 the Nazran Prosecutor’s Office resumed the investigation.

64.  On 18 March 2005 officer Dar. and on 29 March 2005 officer Bek., both of the Organised Crime Unit, were questioned. They stated that they had learned from internal reports that a man had died on 20 July 2004. However, they had not known that Mr Bashir Velkhiyev and the first applicant had been brought to the Organised Crime Unit or exactly which officers of the federal units had been stationed at the Unit at the relevant time.

65.  On 24 March 2005 the second applicant was granted victim status in criminal case no. 04560079. She was questioned on the same date and confirmed her earlier statement.

66.  On 1 April 2005 the Nazran Prosecutor’s Office ordered a forensic medical examination aimed at establishing the character and gravity of the injuries sustained by Mr Bashir Velkhiyev and whether his death had been a result of the said injuries. The order stated that on 20 July 2004 unidentified officials of the Ministry of the Interior had unlawfully apprehended Mr Bashir Velkhiyev and the first applicant and taken them to the Organised Crime Unit where, acting in abuse of their official authority, they had subjected the detainees to violence. As a result, Mr Bashir Velkhiyev had died in office no. 17 of the Organised Crime Unit. It was further noted in the order that, according to forensic expert report no. 91 of 20 July 2004, Mr Bashir Velkhiyev’s death had been caused by traumatic shock as a result of the injuries he had sustained.

67.  According to forensic report no. 37 of 21 April 2005, Mr Bashir Velkhiyev had the following injuries:

(1)  multiple extensive bruises to the chest and the back at chest height;

(2)  multiple bruises to the head and upper extremities;

(3)  multiple extensive bruises to the knee joints extending to the shin, followed by oedema of the soft tissues and considerable swelling of the right knee joint and the lower right leg; extensive bruising to the right hip extending to the buttock; bruises to the tops of the feet;

(4)  circular bruises with abrasions of the wrists;

(5)  puncture wounds to the right buttock (from injections);

(6)  oedema of the brain;

(7)  loss of blood from the surface of the lung tissue and decrease in lung volume;

(8)  uneven blood flow to the cardiac muscle.

The injuries described at (1), (2) and (3) had been caused by multiple blows with a hard blunt object or objects which had a long cylindrical shape, possibly a truncheon. The injuries described in (4) had most likely been caused by handcuffs. The pathological changes to the internal organs described in (6), (7) and (8) were the result of the traumatic shock caused by the injuries described. Taking into account the location of the bruises and the depth of the lesions which had led to the traumatic shock, confirmed by the oedema of the brain, the decrease in lung volume and the uneven blood flow to the internal organs, all the injuries described in (1), (2), (3), (6), (7) and (8) were to be characterised as serious and life-threatening. All the injuries could have been caused at the time and in the circumstances described in the order. The cause of Mr Bashir Velkhiyev’s death was traumatic shock as a result of the injuries sustained. There was a direct causal link between the injuries and his death.

68.  On 2 April 2005 officer E. of the Criminal Investigation Department of the Nazran Department of the Interior was questioned. He stated that on 20 July 2004 he had been on duty with officer T-v. At approximately 8 p.m. they received a call about a suspicious white car. They left and found a white VAZ 2107 at the described location. They called out but nobody answered. Then they approached the car and saw a man lying on the floor by the back seat. The man had either a mask or a bag on his head. They then opened the door, put him on the seat and removed the bag or the mask. They asked his identity and what he was doing there. He answered that he had been brought there several hours earlier by policemen who had told him not to move. He said that his name was Belkhan Velkhiyev and that he and his brother, Bashir Velkhiyev, had been apprehended and detained at the Organised Crime Unit by officers wearing camouflage uniforms and masks who spoke unaccented Russian. Then officers E. and T-v. put the man in the UAZ vehicle and took him to the Nazran Department of the Interior.

69.  Officers Mer. and Gor. of the Nazran Department of the Interior, questioned on 5 and 7 April 2005 respectively, stated that on 20 July 2004 they had received information about a suspicious white car and had reported the information.

70.  On 11 April 2005 officer A-v., Head of Department of the Ingushetia Ministry of the Interior, was questioned. He stated that on 20 July 2004, following a call concerning a suspicious white car, he and other officers had gone to inspect the car. The first applicant had been found in the car.

71.  Officer Kh., Head of the Investigations Department of the Ingushetia Ministry of the Interior, questioned on 13 April 2005, provided no relevant information.

72.  On 18 April 2005 the first applicant was again questioned. He confirmed his earlier statement and provided some additional information.

73.  On 24 April 2005 the Nazran Prosecutor’s Office adjourned the criminal proceedings in case no. 04560079 for failure to identify the culprits.

74.  On 30 May 2005 the investigation was resumed.

75.  On 9 June 2005 the first applicant wrote to the Public Prosecutor of Ingushetia asking him to provide information on the course of the investigation and to assist in speeding it up.

76.  On 1 July 2005 the Nazran Prosecutor’s Office instituted investigation no. 05560068 (in some documents referred to as no. 05560079) into the alleged unlawful detention and ill-treatment of the first applicant.

77.  On the same date criminal case no. 05560068 was joined with criminal case no. 04560079 under the latter number. The first applicant was informed of the joinder on 7 July 2005.

78.  On 6 July 2005 the Nazran Prosecutor’s Office severed from the proceedings criminal case no. 05560072 against officer M. of the Organised Crime Unit, who had been on duty on 20 July 2004 and had allegedly held the first applicant in detention unlawfully.

79.  On 10 July 2005 the Nazran Prosecutor’s Office suspended the proceedings in criminal case no. 04560079 on the ground that it appeared impossible to identify the persons who had caused the injuries leading to Mr Bashir Velkhiyev’s death in the office of the Organised Crime Unit.

80.  On 6 October 2005 the Nazran Prosecutor’s Office suspended the proceedings in criminal case no. 05560072 on the ground that officer M. was outside the Republic of Ingushetia and was therefore precluded from participating in the criminal proceedings.

81.  On 6 February 2006 the first applicant complained to the Nazran District Court about the Nazran Prosecutor’s Office’s decisions of 10 July and 6 October 2005.

82.  On 25 April 2006 the Nazran District Court quashed the Nazran Prosecutor’s Office’s decision of 6 October 2005. However, it dismissed the complaint in the part relating to the decision of 10 July 2005.

83.  According to the applicants, they were not duly notified of the hearing and were therefore precluded from participating in it. Furthermore, they only received the decision of 25 April 2006 on 31 May 2006.

84.  On 6 June 2006 the first applicant appealed against the Nazran District Court’s decision of 25 April 2006 to the Supreme Court of the Republic of Ingushetia. It is not clear whether the complaint was examined.

85.  On an unspecified date the investigation in case no. 05560072 was completed and the case was transmitted to the court.

86.  On 28 March 2007 the Nazran District Court acquitted officer M. The court found, in particular:

“[According to the indictment,] on 20 July 2004 [officer M.], acting in abuse of his official authority, … in breach of [the law] and in collaboration with unidentified officers of the law-enforcement agencies of the Ministry of the Interior of the Russian Federation and the Ministry of the Interior of Ingushetia, including the former head of the Organised Crime Unit…, [officer B-v.], brought [the first applicant and Mr Bashir Velkhiyev] into the premises of the Unit without due registration. There they were subjected to physical violence by unidentified persons. In particular, [Mr Bashir Velkhiyev] sustained injuries which led to his death in office no. 17 of the Unit, while [the first applicant] sustained [slight] injuries. On 20 July 2004 from 9 a.m. to 7 p.m. [officer M.] unlawfully, and thus in abuse of his official authority, held [the first applicant] in a cell for detainees located in the basement of the Unit to which he had the key and held [Mr Bashir Velkhiyev] in office no. 17 of the Unit. After the death of [Mr Bashir Velkhiyev], [the first applicant] was released from the cell and taken by unidentified persons outside the Unit to the “Kavkaz” road…, where he was found by officers of the Nazran Department of the Interior.

[Officer M.], questioned at the hearing, submitted that … following the attacks [by rebel fighters] in Ingushetia on the night of 21 to 22 June 2004 many commissioned officers of the mobile detachment of the Russian Federation were stationed on the premises of [the Organised Crime Unit]. Those officers often brought persons to the Unit in order to check whether they had been involved in the crimes. However, they refused to provide him with information about those persons. When he reported that to the head of the Unit, [officer B-v.], the latter always replied that he was aware of it and [ordered officer M.] not to impede [the officers]. On 20 July 2004 at 8.30 a.m. [officer M.] took up duty. On that day at approximately 9 a.m. officers of the mobile detachment who were wearing masks brought two men with black plastic bags on their heads to the Unit. In reply to his question they said that the Head of the Unit … was informed. [Officer M.] telephoned the Head of the Unit, [officer B-v.], and reported that officers of the Ministry of the Interior of the Russian Federation had brought those men in and refused to provide him with the relevant information. In reply, [officer B-v.] ordered him not to interfere since operative work was under way. While on duty, [officer M.] always remained in the duty unit and did not know what was going on on the second floor. In the basement … there was a cell and a cage opposite it… The keys to the cell and the cage were kept in the duty unit. Some time after the two persons had been brought in [to the Unit], officers of the federal detachments took the key to the cage from [officer M.] and took one of the persons to the basement and placed him in the cage. At approximately 2.50 p.m. officers of the federal detachments left for [certain operative measures]. Ten to twenty minutes later the officers of the Unit who had left [to participate in those measures] returned. At approximately 3 p.m. the Deputy Head of the Unit, [officer B.] called the duty unit and asked for an ambulance to be called since the person brought to the Unit did not feel well. The ambulance arrived after approximately twenty minutes and [officer M.] accompanied the doctors to the second floor. In office no. 17 he saw a man who showed no signs of life lying on the floor. Doctors … put him into their car and … said that he was already dead. After that [officer M.] learned that the name of the deceased person was [Mr Bashir Velkhiyev], who had been brought to the Unit by officers of the federal detachments, and that the other person, who was being held in the cage at that point, was his brother. [Officer M.] could not and had no right to hinder the work of the officers of the federal agencies, who acted together and with the knowledge of the head of the [Unit]. The same evening … at approximately 7 p.m. officers of the federal detachments arrived at the Unit and then took [the first applicant] away with them.

[The first applicant] stated that … [officer M.] did not take part in his beating…

[Officer B.] stated that at the relevant time he held the office of Deputy Head of the Organised Crime Unit at the Ministry of the Interior of Ingushetia. On 20 July 2004 at approximately 5 a.m. he left for operative measures aimed at the detention of persons involved in crimes committed in [Ingushetia] on the night of 21 to 22 June 2004. He left together with officers of the Unit, the special police unit [ОМОН] of the Ministry of the Interior of Ingushetia and the federal detachments of the Ministry of the Interior of the Russian Federation. … [T]hey went to … Zapadnaya Street, where officers of the federal detachments arrested [the first applicant and Mr Bashir Velkhiyev] on suspicion of the murder of some policemen on 22 June 2004, and put them in their UAZ car. Then [officer B.] and some other officers went [to other villages] to continue operative measures. At approximately 3 p.m. he returned to the Organised Crime Unit together with other officers of the Unit. In a while officers of the Ministry of the Interior of the Russian Federation came to his office and said that a person apprehended by their fellow officers was being held in office no. 17 and that the officers who had apprehended him had left to find his accomplice. When [officer B.] entered office no. 17, he saw a man with a black plastic bag on his head lying on the floor. He recognised [Mr Bashir Velkhiyev] … Then he ordered [officer M.], who was on duty that day, to call the ambulance. However, when doctors arrived [Mr Bashir Velkhiyev] was already dead. [Officer B.] did not know that at that time [the first applicant] was being held in the basement of the Unit. The events took place shortly after Ingushetia had been attacked by illegal armed groups, resulting in the killing of over a hundred persons, the majority of whom were law-enforcement officers. Many officers of the federal agencies had then been commissioned to the region. They were not subordinate [to the Ministry of the Interior of Ingushetia]. Those officers were provided with offices in the Unit, to which they themselves brought detainees and worked with them. [Officer M.] could not have done anything even if he had wished to. As the officer on duty he had nothing to do with operative measures, nor had anybody provided him with information about the detained persons. He did not know whether it was [the first applicant and Mr Bashir Velkhiyev] who had been brought in or other persons. The Head of the Organised Crime Unit was aware of the work carried out. [Officer M.] did not work with detainees … His task was to ensure the security of the weapons and the Unit building.

[Officer T.] stated that on 20 July 2004 from 8.30 a.m. he was on duty at the security desk situated at the entrance gates of the Unit yard… At the time many officers of the federal detachments commissioned to Ingushetia were in the Unit. He did not know whether the officers had brought any detainees into the Unit that day since the officers entered the yard in cars with tinted windows and from the security desk he could not see who was brought in to the unit.

According to the forensic report … [the first applicant] had numerous haematomas, bruises and abrasions which constituted slight injuries.

From [another] forensic report it is clear that the death of [Mr Bashir Velkhiyev] was caused by traumatic shock as a result of the injuries sustained. [It is also clear that] there is a direct link between the injuries caused to [Mr Bashir Velkhiyev] and his death.

[The court has established that the first applicant and Mr Bashir Velkhiyev] were held in the Unit with the knowledge of its head, who explained to [officer M.] that their presence on the premises of the Unit was necessary [for operative measures]… In such circumstances [officer M.] had no way of preventing [their unlawful detention and ill-treatment] since he had no authority to do so. Furthermore, during the relevant period federal agencies were conducting operative measures in the region… Representatives of the federal agencies were not subordinate to the local authorities and conducted operative measures independently…”

87.  On an unspecified date the first applicant sought leave to study the file of criminal case no. 14560079.

88.  On 17 April 2007 the Prosecutor’s Office of the Republic of Ingushetia notified the first applicant that his request had been refused on the ground that the investigation was not completed but stayed. The Prosecutor’s Office also informed him that the prosecution of officer B-v., former head of the Organised Crime Unit, had been discontinued owing to his death and that the investigation was consequently stayed. However, the criminal case against officer M. had been transmitted to a court.

89.  On 21 June 2007 the first applicant lodged a complaint under Article 125 of the Code of Criminal Procedure concerning the refusal to grant him access to the investigation file before the Nazran District Court. It is not clear whether this complaint was examined.

90.  On 12 May 2009 the Investigative Committee of the Russian Federation Prosecutor’s Office in Ingushetia set aside the decision of 10 July 2005 of the Nazran Prosecutor’s Office to suspend the investigation, and resumed the proceedings.

II.  RELEVANT DOMESTIC LAW

91.  The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) establishes that a criminal investigation may be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigating authorities’ own initiative, where there are reasons to believe that a crime has been committed (Articles 146 and 147). A prosecutor is responsible for overall supervision of the investigation (Article 37). He or she may order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there are no grounds for initiating a criminal investigation, the prosecutor or investigator issues a reasoned decision to that effect, which has to be served on the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction under the procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions taken by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

92.  The applicants complained under Article 2 of the Convention that Mr Bashir Velkhiyev had been killed after being tortured by State agents and that there had been no adequate investigation into his death. Article 2 of the Convention provides, in so far as relevant:

“1.  Everyone’s right to life shall be protected by law. …”

93.  The Government conceded that there had been a violation of Mr Bashir Velkhiyev’s right to life, as confirmed by the evidence in criminal case no. 04560079. At the same time they argued that the investigation conducted into his death had been effective and satisfied the requirements of Article 2 of the Convention, as demonstrated by the number of steps taken to establish who had been responsible for the crime.

94.  The applicants contested the Government’s argument concerning the investigation conducted into Mr Bashir Velkhiyev’s death. According to them, the investigation had been flawed on account of its inability to resolve the contradictions in some witness statements and forensic reports, the failure to question officers of the federal units located in Ingushetia, the repeated suspensions and resumptions and the total lack of activity between 10 July 2005 and 12 May 2009. The applicant also argued that the inadequacy of the investigation was further confirmed by the prosecution and subsequent acquittal of officer M. of the Organised Crime Unit. In their view, officer M. had clearly had no authority over the detention of the first applicant and Mr Bashir Velkhiyev and could not have prevented it. At the same time, the acquittal judgment had referred a number of times to “unidentified officers of the law-enforcement agencies”, which demonstrated the deficiencies of the investigation.

A.  Admissibility

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

B.  Merits

1.  The alleged violation of the right to life of Mr Bashir Velkhiyev

(a)  General principles

96.  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, § 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 within 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, § 100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV).

(b)  The State’s compliance with Article 2

97.  The Court notes that the Government conceded that there had been a violation of Mr Bashir Velkhiyev’s right to life in the present case. Having regard to the materials in its possession and to the parties’ submissions, the Court cannot conclude otherwise.

98.  Accordingly, there has been a violation of Article 2 of the Convention in respect of Mr Bashir Velkhiyev.

2.  The alleged inadequacy of the investigation into Mr Bashir Velkhiyev’s death

(a)  General principles

99.  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 “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324, and Kaya v. Turkey, 19 February 1998, § 105, Reports of Judgments and Decisions 1998-I). The essential purpose of such 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. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see İlhan v. Turkey [GC] no. 22277/93, § 63, ECHR 2000-VII).

100.  For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Güleç v. Turkey, 27 July 1998, §§ 81-82, Reports 1998-IV). The investigation must also 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, for example, Kaya, cited above, § 87) and to the identification and punishment of those responsible (see Oğur v. Turkey [GC], no. 21594/93, § 88, ECHR 1999III). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony (see, for example, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling below this standard.

101.  In this context, there must also be an implicit requirement of promptness and reasonable expedition. 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 (see Tanrıkulu, cited above, § 109).

102.  Furthermore, 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 victim’s next of kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see McKerr v. the United Kingdom, no. 28883/95, § 148, ECHR 200-III).

(b)  Application to the present case

103.  Turning to the present case, the Court observes that on 20 July 2004 the Nazran Prosecutor’s Office registered information to the effect that, according to a telephone call, the body of Mr Bashir Velkhiyev had been found in office no. 17 of the Organised Crime Unit, and instituted an inquiry into the events. On the same date a forensic examination of his body was ordered. According to the forensic report of 20 July 2004 there were numerous bruises on the body, and death had been caused by traumatic shock as a result of the injuries. On 21 July 2004 the Nazran Prosecutor’s Office instituted an investigation into Mr Bashir Velkhiyev’s death. The Court is thus satisfied that the authorities’ reaction was sufficiently prompt.

104.  The Court further notes that during the first two months after the institution of the investigation the prosecuting authorities ordered a medical examination of the first applicant and granted him victim status, examined the Organised Crime Unit’s register and questioned numerous witnesses. The latter included the first and second applicants, two neighbours of Mr Bashir Velkhiyev, a medical assistant and officers of the Organised Crime Unit. The latter included officer B., the Deputy Head of the Organised Crime Unit, and officer A., the head of the Second Department of the Organised Crime Unit, to which office no. 17 belonged.

105.  After the investigation was suspended on 27 December 2004 for failure to identify those responsible and subsequently resumed on 14 March 2005, the investigating authorities, in March and April 2005, granted victim status to the second applicant, again questioned the first applicant and questioned other officers of the Organised Crime Unit as well as the officers of the Criminal Investigation Department of the Nazran Department of the Interior who had dealt with the discovery of the car in which the first applicant had been abandoned. The investigation was again suspended on 10 July 2005 and resumed on 12 May 2009.

106.  The Court observes that in the first year after the institution of the investigation the Nazran Prosecutor’s Office took a large number of investigative steps such as forensic examinations and questioning of numerous witnesses. It further notes that the statements of the officers of the Organised Crime Unit make unequivocally clear that the first applicant and Mr Bashir Velkhiyev were detained and ill-treated by officers of the federal units of the Ministry of the Interior stationed in Nazran following the attack by rebel fighters on 21-22 June 2004, although none of the witnesses was able to identify those officers or even to provide information on the exact unit they belonged to.

107.  Having regard to the statements made by members of the Organised Crime Unit, the Court finds it inconceivable that the Unit could host officers of other federal units, and even conduct joint operations with them, without having information on who they were and which units they belonged to (see paragraphs 58 and 86 above). However, it is not the Court’s task to establish the veracity of such statements but to assess the efforts that the investigating authorities undertook to identify the officers responsible.

108.  In this regard the Court notes that, according to the documents available to it, no inspection of the crime scene ever took place. In fact, it appears that in the course of the investigation the competent authorities never visited the premises of the Organised Crime Unit even though, as the investigation was instituted on the day following the events, it was highly probable that the officers involved in the ill-treatment of the first applicant and Mr Bashir Velkhiyev were still there. It is obvious that the failure to take such crucial investigative steps could not but have adversely affected the effectiveness of the entire investigation and also constituted a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II).

109.  As for other possible steps aimed at identifying the culprits, although it was at least known to the investigation that they were officers of the federal units of the Ministry of the Interior, the Court has no information to indicate that any requests were addressed to the Ministry concerning the deployment of its federal units or of particular officers in Nazran at the material time. The Court was offered no explanation for such a serious failing.

110.  The Court also notes that the investigation was suspended and resumed a number of times and, in particular, that there was a very lengthy period of inactivity between 10 July 2005 and 12 May 2009, for which no explanation has been provided.

111.  It further takes note of the fact that the Government conceded that there had been a violation of Bashir Velkhiyev’s right to life as confirmed by the domestic investigation, which, in their view, had been effective and satisfied the requirements of Article 2. The Court reiterates in this regard that, whereas the domestic investigation indeed established that Bashir Velkhiyev’s death was a result of the ill-treatment to which he and the first applicant had been subjected by State agents, it fell short of the requirement of being capable of leading to the identification and punishment of those responsible (see paragraph 100 above).

112.  As regards the prosecution and subsequent acquittal of officer M. of the Organised Crime Unit on charges of abuse of official authority, the Court finds it irrelevant for the purposes of identifying those responsible for the ill-treatment of the first applicant and Mr Bashir Velkhiyev and the latter’s death. Although the failure to log their detention is a serious omission which the Court will address below under Article 5 of the Convention, in the circumstances of the present case the charges pressed against M. have no bearing on the effectiveness of the investigation into the ill-treatment and death.

113.  At the same time the Court notes that in the decision on officer M.’s acquittal of 28 March 2007 the Nazran District Court found that the first applicant and Mr Bashir Velkhiyev had been held in the Unit with the knowledge of its head, who had explained to officer M. that this was necessary for the purposes of operative measures. It also found that during the relevant period federal agencies had been conducting independent operative measures in the region without being subordinate to the local authorities.

114.  The Court considers that where both the domestic investigating authorities and the courts have established the responsibility of federal agencies, a failure to identify the individuals responsible may only be attributed to the reluctance of the prosecuting authorities to pursue the investigation.

115.  As regards the accessibility of the investigation, the Court notes that, whereas the first applicant was granted victim status on 18 August 2004, the second applicant was granted victim status with several months’ delay, on 24 March 2005. Furthermore, the applicants were not duly informed of the progress of the investigation as no documents from the case file were ever made available to them despite the first applicant’s requests. Accordingly, the investigating authorities failed to ensure that the investigation received the required level of scrutiny and to safeguard the interests of the next of kin in the proceedings.

116.  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 ill-treatment and death of Mr Bashir Velkhiyev, in breach of Article 2 in its procedural aspect.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT AND MR BASHIR VELKHIYEV

117.  The applicants complained under Article 3 of the Convention that the first applicant and Mr Bashir Velkhiyev had been tortured by State agents and that there had been no adequate investigation into these allegations either. Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

118.  The Government conceded that the first applicant and Mr Bashir Velkhiyev had been subjected to inhuman treatment in breach of Article 3 of the Convention, as confirmed by the evidence in criminal case no. 04560079. At the same time they argued that the investigation conducted had satisfied the requirements of the aforementioned provision.

119.  The applicants argued that the treatment to which the first applicant and Mr Bashir Velkhiyev had been subjected should be characterised as torture. To support their argument they referred to the severity of the injuries both of them had sustained and which in Mr Bashir Velkhiyev’s case had resulted in death. The applicants also contested the Government’s assertion that the investigation had been effective, on the same grounds as set out in paragraph 94 above in relation to Article 2 of the Convention.

A.  Admissibility

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

B.  Merits

1.  The ill-treatment of the first applicant and Mr Bashir Velkhiyev

(a)  General principles

121.  The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court has adopted the standard of proof “beyond reasonable doubt”, but has added that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV). Article 3, taken together with Article 1 of the Convention, implies a positive obligation on the States to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998-VI). Where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which an issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-11, Series A no. 241-A, and Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336).

(b)  The State’s compliance with Article 3

122.  The Court notes that the Government conceded that the first applicant and Mr Bashir Velkhiyev had been subjected to treatment in violation of Article 3 of the Convention.

123.  As to the seriousness of the acts of ill-treatment, the Court reiterates that in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. It appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. The Court has previously had before it cases in which it has found that there has been treatment which could only be described as torture (see, among other cases, Aksoy v. Turkey, 18 December 1996, § 64, Reports 1996-VI, and Mikheyev v. Russia, no. 77617/01, § 135, 26 January 2006).  The acts complained of were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. In any event, the Court reiterates that, in respect of persons deprived of their liberty, recourse to physical force which has not been made strictly necessary by their own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Selmouni v. France [GC], no. 25803/94, § 99, ECHR 1999-V).

124.  The Court finds that in the instant case the first applicant and Mr Bashir Velkhiyev were indisputably kept in a permanent state of physical pain and anxiety owing to their uncertainty about their fate. Furthermore, throughout the period of their detention they were subjected to particularly cruel forms of violence which led to very serious injuries, as attested by the medical reports and the first applicant’s statements and, tragically, by Mr Bashir Velkhiyev’s death as a result of the ill-treatment to which he was subjected. The sequence of events and the first applicant’s submissions also demonstrate that the pain and suffering were inflicted on them intentionally, in particular with a view to extracting from them a confession that they had been connected with the attack by rebel fighters on the night of 21 to 22 June 2004.

125.  In these circumstances the Court concludes that, taken as a whole and having regard to its purpose and severity, the ill-treatment at issue amounted to torture within the meaning of Article 3 of the Convention.

126.  Accordingly, there has been a violation of the above provision in respect of the first applicant and Mr Bashir Velkhiyev.

2.  The alleged inadequacy of the investigation into the ill-treatment of the first applicant and Mr Bashir Velkhiyev

(a)  General principles

127.  The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation. An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards, cited above, § 71, and Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000-III).

128.  Thus, the investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, §§ 103 et seq., Reports 1998-VIII). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, etc. (see, mutatis mutandis, Salman, cited above, § 106; Tanrıkulu, cited above, §§ 104 et seq.; and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.  Furthermore, the investigation must be conducted expeditiously (see Labita, cited above, §§ 133 et seq., and Timurtaş v. Turkey, no. 23531/94, § 89, ECHR 2000-VI).

(b)  Application to the present case

129.  The Court finds that the domestic investigation fell short of the requirement of effectiveness for the reasons stated in relation to the complaint under Article 2 in paragraphs 103-16 above.

130.  Accordingly, there has been a breach of Article 3 in its procedural aspect also.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE SECOND TO SEVENTH APPLICANTS

131.  The second to seventh applicants also relied on Article 3 of the Convention, alleging that the circumstances of Mr Bashir Velkhiyev’s death had caused them profound mental suffering which had been aggravated by the fact that the media had presented him as a rebel fighter killed in an exchange of fire.

132.  The Government conceded that the applicants’ suffering as a result of the death of their close relative had led to a violation of Article 3 of the Convention. They maintained, however, that the domestic investigation had been in compliance with that provision.

133.  The applicants reiterated the complaint and contested the Government’s contention that the investigation had been adequate. They argued that it had been ineffective and that the authorities’ failure to duly react had aggravated the applicants’ moral suffering. In particular, when the second applicant had repeatedly tried in person to find out the whereabouts of the first applicant and Mr Bashir Velkhiyev, she had been brusquely rebuffed at every attempt.

A.  Admissibility

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

B.  Merits

135.  The Court notes that in a number of cases it has found that relatives of a disappeared person were themselves victims of a violation of Article 3 of the Convention. Such findings were based on the state of uncertainty the relatives had had to endure owing to their inability to find out the fate of their next of kin and on the authorities’ reluctance to take due measures so as to respond to their enquiries (see, among other cases, Orhan, cited above, §§ 359-60, 18 June 2002, and Khamila Isayeva v. Russia, no. 6846/02, §§ 143-46, 15 November 2007).

136.  The Court observes that the question whether a member of the family of a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the applicants a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see Orhan, cited above, § 358).

137.  In the present case the Court notes that the second to seventh applicants are the wife and children of Mr Bashir Velkhiyev, who was taken from his home by men in camouflage uniform on the morning of 20 July 2004 and of whose death later that day they learned on 21 July 2004. It observes that this case is distinct from the majority of other cases concerning disappearances that have come before the Court, in that Mr Bashir Velkhiyev’s relatives did not have news of him for no more than twenty-four hours. Thus, within the meaning of the Court’s jurisprudence he could not be considered a “disappeared person” for the purposes of the present analysis. In view of the above, the Court considers that in the present case no separate issues arise under this Convention provision beyond those already examined under Article 2 of the Convention above (see Tangiyeva v. Russia, no. 57935/00, § 104, 29 November 2007, and Sambiyev and Pokayeva v. Russia, no. 38693/04, §§ 74-75, 22 January 2009).

138.  In these circumstances, while the Court does not doubt that the death of their husband and father caused the applicants profound suffering, it nevertheless finds no basis for finding a separate violation of Article 3 of the Convention in this context.

IV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

139.  The applicants complained under Article 5 of the Convention of the unlawful deprivation of liberty of the first applicant and Mr Bashir Velkhiyev. Article 5 of the Convention provides:

“1.  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:

(a)  the lawful detention of a person after conviction by a competent court;

(b)  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

(d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

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.”

140.  The Government conceded that the first applicant and Mr Bashir Velkhiyev had been unlawfully deprived of their liberty in violation of Article 5 of the Convention.

141.  The applicants emphasised that the deprivation of liberty of the first applicant and Mr Bashir Velkhiyev constituted a complete negation of the guarantees provided by Article 5 of the Convention.

A.  Admissibility

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

B.  Merits

143.  The Court has previously noted the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others v. Russia, no. 69480/01, § 122, ECHR 2006-XIII (extracts)).

144.  The first applicant and Mr Bashir Velkhiyev were detained by State agents on 20 July 2004 and brought to the Organised Crime Unit at the Ministry of the Interior of Ingushetia in Nazran. Later that day Mr Bashir Velkhiyev died on the premises of the Organised Crime Unit, while the first applicant was released. Their detention was not logged in any custody records. 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, § 371).

145.  Having regard to the foregoing and to the parties’ submissions, the Court finds that the first applicant and Mr Bashir Velkhiyev were held in unacknowledged detention without any of the safeguards contained in Article 5.

146.  Accordingly, there has been a violation of the right to liberty and security enshrined in Article 5 of the Convention.

V.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

147.  The applicants complained that the unlawful deprivation of liberty and subsequent death of Mr Bashir Velkhiyev constituted a violation of their right to respect for their private and family life guaranteed by Article 8 of the Convention, which provides:

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

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

148.  The Government argued that the unlawful deprivation of liberty and killing of Mr Bashir Velkhiyev constituted violations of Articles 5 and 2 of the Convention respectively and did not raise a separate issue under Article 8.

149.  The applicants made no further submissions.

150.  The Court observes that this complaint concerns the same facts as those examined under Articles 2 and 5 above. Therefore, the complaint should be declared admissible. However, having regard to its conclusions under Articles 2 and 5, the Court considers that no separate issue arises under Article 8 of the Convention.

VI.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1

151.  The applicants also relied on Article 8 of the Convention and Article 1 of Protocol No. 1, complaining about the search conducted at their home on 20 July 2004. They claimed that it had been unlawful, that some of their belongings had been damaged and that the State agents who conducted the search had stolen their money and some of their belongings. Article 1 of Protocol No. 1 provides:

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

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

152.  The Government contested this argument. They submitted that the applicants’ allegations were fully unsubstantiated and uncorroborated either by the findings of the domestic investigation or by any other evidence.

153.  The applicants maintained that the search conducted at their home had not been “in accordance with the law” and could not be regarded as being necessary in a democratic society and had therefore been in breach of Article 8 of the Convention. They also contended that the first applicant could claim to be a victim of the alleged violation because he had been staying overnight at the other applicants’ house. The applicants further maintained that in the course of the search USD 12,000 and RUB 40,000 had been stolen from their house, and claimed that the failure to investigate these allegations amounted to a breach of Article 1 of Protocol No. 1.

154.  The Court retains doubts as to whether the first applicant can claim to be a victim of the alleged violation of Article 8 in this regard, bearing in mind that he did not reside at the house in question but had gone there to visit his brother’s family. However, it does not find it necessary to decide on this issue since this part of the application is in any event inadmissible for the following reasons.

155.  The Court reiterates that while in accordance with Article 35 § 1 of the Convention those seeking to bring their case against the State before the Court are required to use first the remedies provided by the national legal system, there is no obligation under the said provision to have recourse to remedies which are inadequate or ineffective. If no remedies are available or if they are judged to be ineffective, the six-month period in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/000 et seq., 10 January 2002).

156.  In the instant case, it does not appear that the applicants properly raised the present complaint before the domestic authorities. The Court notes that on being questioned by the investigator the first and second applicants mentioned the intrusion into the house, the search and the alleged theft when describing the circumstances of the first applicant’s and Mr Bashir Velkhiyev’s detention. However, the Court considers that the applicants did not, as such, challenge the intrusion or search, nor did they lodge a complaint with regard to the theft, but rather referred to them as a background to their complaints about Mr Bashir Velkhiyev’s death and his and the first applicant’s detention and ill-treatment. The Court is thus not convinced that this could be regarded as an attempt by the applicants to bring the present complaint, as raised before the Court, to the attention of the national authorities. But even assuming that in the circumstances of the present case no remedies were available to the applicants, the events complained of took place on 20 July 2004, whereas the present application was lodged on 15 August 2006, more than six months later (see Ruslan Umarov v. Russia (dec.), no. 12712/02, 8 February 2007).

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

VII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

158.  The applicants complained under Article 13 of the Convention that they had had no effective domestic remedies in respect of the above alleged violations. Article 13 provides:

“Everyone 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.”

159.  The Government made no submissions in this regard.

160.  The applicants pointed to the Government’s failure to make any submissions and inferred that the Government did not dispute that there had been a violation of Article 13 of the Convention.

161.  The Court observes that this complaint concerns the same issues as those examined in paragraphs 103-116 and 129-130 above under the procedural limb of Articles 2 and 3 of the Convention. Therefore, the complaint should be declared admissible. However, having regard to its conclusions above under Articles 2 and 3 of the Convention, the Court considers it unnecessary to examine these issues separately under Article 13 of the Convention.

VIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

162.  Article 41 of the Convention provides:

“If 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.”

A.  Pecuniary damage

163.  The second to seventh applicants claimed a total of 205,245 euros (EUR) in respect of pecuniary damage caused by the loss of earning of their deceased husband and father.

164.  They submitted that Mr Bashir Velkhiyev had worked on private construction sites and earned RUB 50,000-60,000 per month. They enclosed a statement by the first applicant to this effect. The second to seventh applicants submitted that they would have benefited from Mr Bashir Velkhiyev’s financial support in the amount indicated above. Their calculations were based on the retirement age and life expectancy in Russia and the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary’s Department in 2007 (“the Ogden tables”).

165.  The applicants also claimed pecuniary damage on account of the arbitrary deprivation of their possessions which allegedly took place during the search conducted on 20 July 2004.

166.  The Government argued that the applicants had not proved that Mr Bashir Velkhiyev had been in employment, let alone substantiated the amount of his earnings. They had failed to submit any official documents in this regard, and the first applicant’s statement could not be accepted as reliable evidence for those purposes. The Government also noted that the applicants had omitted to provide any explanation for their failure to produce any documents on Mr Bashir Velkhiyev’s professional occupation and earnings. Furthermore, the Ogden tables did not apply in the Russian Federation, and the applicants had failed to seek compensation before the domestic courts in respect of damage caused by the death of the breadwinner under the Russian Civil Code. Likewise, they had failed to substantiate their assertion that they had relied on the financial support of Mr Bashir Velkhiyev.

167.  As regards the applicants’ claim for compensation in respect of the pecuniary damage allegedly caused by the arbitrary deprivation of their possessions, the Government pointed out that they had failed to substantiate their assertion that such an incident had ever taken place. Accordingly, the claim should be dismissed.

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

169.  The Court finds that there is a direct causal link between the violation of Article 2 in respect of Mr Bashir Velkhiyev and the loss by the second to seventh applicants of the financial support which he could have provided. The Court notes, however, that the applicants failed to substantiate their claim that Mr Bashir Velkhiyev had been in employment at the time of his death and to provide proof of the amount of his earnings. The statement by the first applicant cannot be considered as due evidence in this regard. However, the Court finds it reasonable to assume that Mr Bashir Velkhiyev would eventually have had some earnings from which the second to seventh applicants would have benefited (see, among other authorities, Imakayeva v. Russia, no. 7615/02, § 213, ECHR 2006-XIII (extracts)).

170.  The Court further notes that the applicants’ complaint concerning the alleged arbitrary deprivation of their possessions was declared inadmissible at paragraph 157 above. Accordingly, the Court dismisses the claim in this part.

171.  Having regard to the applicants’ submissions and their failure to substantiate the assertion that Mr Bashir Velkhiyev had been in employment and had earnings at the relevant time, the Court awards EUR 15,000 to the second to seventh applicants in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Non-pecuniary damage

172.  The first applicant claimed EUR 60,000 in respect of non-pecuniary damage for his unlawful detention, the torture inflicted on him by State agents and the suffering and distress caused by the torture and death of his brother, Mr Bashir Velkhiyev. The second to seventh applicants claimed EUR 100,000 in respect of non-pecuniary damage caused by the illegal detention, torture and eventual killing of Mr Bashir Velkhiyev, their husband and father, and the authorities’ failure to conduct an effective investigation in that regard. They also stated that they had witnessed Mr Bashir Velkhiyevs being apprehended on 20 July 2004 and had seen his body with multiple traces of torture the next day, and had been profoundly affected as a result. The third to seventh applicants, who were minors at the time, had developed nightmares, and the seventh applicant suffered from developmental delays, as confirmed by a medical certificate.

173.  The Government considered the amounts claimed to be excessive.

174.  The Court has found a violation of Articles 3 and 5 of the Convention on account of the unacknowledged detention and torture of the first applicant. It has also found a violation of Articles 2, 3 and 5 of the Convention on account of the unacknowledged detention, torture and death of the applicants’ close relative. The Court thus accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. Having regard to these considerations and acting on an equitable basis, it awards the first applicant EUR 55,000 and the second to seventh applicants jointly EUR 60,000, plus any tax that may be chargeable thereon.

C.  The applicants’ request for an investigation

175.  The applicants also requested, referring to Article 46 of the Convention, that an independent investigation which complied with the requirements of the Convention be conducted into their relative’s death. They relied in this connection on the cases of Assanidze v. Georgia ([GC], no. 71503/01, §§ 202-203, ECHR 2004-II) and Tahsin Acar v. Turkey ((preliminary objection) [GC], no. 26307/95, § 84, ECHR 2003-VI).

176.  The Court notes that in numerous cases in comparable circumstances (see, among others, Kukayev v. Russia, no. 29361/02, §§ 131-34, 15 November 2007; Medova v. Russia, no. 25385/04, §§ 142-43, ECHR 2009-… (extracts); and Lyanova and Aliyeva v. Russia, nos. 12713/02 and 28440/03, §§ 159-60, 2 October 2008), it decided that it was most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention. The Court does not discern any exceptional circumstances which would lead it to reach a different conclusion in the present case.

D.  Costs and expenses

177.  The applicants also claimed 5,248.55 pounds sterling (GBP) for the costs and expenses incurred before the Court. They were represented by lawyers of the Memorial Human Rights Centre and the European Human Rights Advocacy Centre. They submitted an itemised schedule of costs and expenses that included the drafting of legal documents submitted to the Court, at a rate of GBP 100 per hour, in the amount of GBP 750; administrative costs in the amount of GBP 175; and translation costs in the amount of GBP 4,323.55, supported by invoices.

178.  The Government did not dispute the details of the calculations submitted by the applicants, but pointed out that they should be entitled to the reimbursement of their costs and expenses only in so far as it had been shown that they had been actually incurred and were reasonable as to quantum (see Skorobogatova v. Russia, no. 33914/02, § 61, 1 December 2005).

179.  The Court has to establish first whether the costs and expenses indicated by the applicants were actually incurred and, second, whether they were necessary and reasonable (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).

180.  Having regard to the details available, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives.

181.  Further, it has to be established whether the costs and expenses incurred for legal representation were necessary. The Court notes that this case was rather complex and required a certain amount of research and preparation.

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

E.  Default interest

183.  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

1.  Declares unanimously the complaints under Articles 2, 3, 5, 8, insofar as it is related to unlawful deprivation of liberty, and 13 admissible and the remainder of the application inadmissible;

2.  Holds unanimously that there has been a violation of Article 2 of the Convention on account of the death of Mr Bashir Velkhiyev;

3.  Holds unanimously that there has been a violation of Article 2 of the Convention on account of the failure to conduct an effective investigation into Mr Bashir Velkhiyev’s death;

4.  Holds unanimously that there has been a violation of Article 3 of the Convention on account of the torture of the first applicant and Mr Bashir Velkhiyev;

5.  Holds unanimously that there has been a violation of Article 3 of the Convention on account of the failure to conduct an effective investigation into the torture of the first applicant and Mr Bashir Velkhiyev;

6.  Holds by six votes to one that there has been no violation of Article 3 of the Convention in respect of the second to seventh applicants;

7.  Holds unanimously that there has been a violation of Article 5 of the Convention in respect of the first applicant and Mr Bashir Velkhiyev;

8.  Holds unanimously that there is no separate issue under Article 8 of the Convention as regards the detention and death of Mr Bashir Velkhiyev;

9.  Holds unanimously that there is no separate issue under Article 13 of the Convention;

10.  Holds unanimously

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

(i)  EUR 15,000 (fifteen thousand euros) in respect of pecuniary damage to the second to seventh applicants, plus any tax that may be chargeable to the applicants, to be converted into Russian roubles at the rate applicable at the date of settlement;

(ii)  EUR 55,000 (fifty-five thousand euros) in respect of non-pecuniary damage to the first applicant, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement;

(iii)  EUR 60,000 (sixty thousand euros) in respect of non-pecuniary damage to the second to seventh applicants jointly, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement;

(iv)  GBP 5,248.55 (five thousand two hundred and forty-eight pounds fifty-five pence), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account in the United Kingdom;

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

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

Done in English, and notified in writing on 5 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Nina Vajić
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kovler is annexed to this judgment.

N.A.V.

S.N.

PARTLY DISSSENTING OPINION OF JUDGE KOVLER

I share the conclusions of the Chamber except on one point, concerning the finding that there has been no violation of Article 3 of the Convention in respect of the second to seventh applicants (the wife and children of Bekhan Velkhiyev).

According to the account of the circumstances of the case given in the judgment, “[t]he servicemen forced the children into a corner between two houses in the yard and held them there at gunpoint” (§ 11). The wife was also an eyewitness to the search of the house and the abduction of her husband, and a day later buried him in the family cemetery. I do not agree that the situation of “disappeared persons” can be automatically applied in this case. The scope of the present case differs substantially from cases where the “disappeared person” test was applied (see Kurt v. Turkey, 25 May 1998, §§ 130-134, Reports of Judgments and Decisions 1998-III; Gongadze v. Ukraine, no. 34056/02, § 184-196, ECHR 2005-XI; and Luluyev and Others v. Russia, no. 69480/01, §§ 116-118, ECHR 2006-XIII). The finding of a substantive violation of Article 2 of the Convention does not cover, to my mind, the mental suffering of the above-mentioned applicants, close relatives of Bekhan Velkhiyev. It is difficult to imagine that the loss of a close relative in the tragic circumstances of this case cannot form the basis for finding a separate violation of Article 3 of the Convention.

]]> http://www.waynakh.com/eng/2011/07/velkhiyev-and-others-v-russia/feed/ 0 Isayev and Others v. Russia http://www.waynakh.com/eng/2011/06/isayev-and-others-v-russia/ http://www.waynakh.com/eng/2011/06/isayev-and-others-v-russia/#comments Thu, 23 Jun 2011 09:14:14 +0000 admin http://www.waynakh.com/eng/?p=8408 The ECHR case of Isayev and Others v. Russia (applications no. 43368/04).

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CASE OF ISAYEV AND OTHERS v. RUSSIA

(Application no. 43368/04)

JUDGMENT

STRASBOURG

21 June 2011

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 Isayev and Others v. Russia,

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

Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
George Nicolaou,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 31 May 2011,

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

PROCEDURE

1.  The case originated in an application (no. 43368/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Russian nationals listed in paragraph 7 below (“the applicants”), on 15 November 2004.

2.  The applicants were represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights.

3.  The applicants alleged , in particular, that their relative had died as a result of torture inflicted on him in custody, that the authorities had failed to provide him with adequate medical treatment and to investigate his death and ill-treatment and that the applicants had not had effective remedies.

4.  On 1 September 2005 the President of the First Section decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application.

5.  On 17 September 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (former Article 29 § 3).

6.  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 objections, the Court dismissed them.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

7.  The applicants are:

1)      Mr Lecha Isayev, born in 1967;

2)      Mr Khamzat Isayev, born in 1975;

3)      Ms Madina Alkhanova (subsequently changed her name to Isayeva), born in 1981; and

4)      Ms Lipa Dudusheva, born in 1981.

8.  The applicants are Russian nationals and residents of the village of Goi-Chu, the Chechen Republic.

9.  The first and second applicants are brothers of Mr Zelimkhan Isayev, who was born in 1979. The third and fourth applicants are his sisters-in-law.

10.  At the time of the events described below the second to fourth applicants resided together with Zelimkhan Isayev at 24 Sverdlova Street in Goi-Chu. The first applicant resided at 17 Sverdlova Street in Goi-Chu.

A.  Zelimkhan Isayev’s arrest and subsequent death

1.  The applicants’ account

11.  The account of the events described below is based on the information contained in the application form, a written statement by the first applicant made on 28 October 2004, a written statement by the second applicant dated 30 October 2004, a written statement by the fourth applicant dated 23 October 2004 and a written statement by Mr Zelimkhan Isayev’s other brother, T.I., made on 25 October 2004.

(a)  Zelimkhan Isayev’s arrest and the search of his home on 9 May 2004

12.  In the evening of 9 May 2004 Zelimkhan Isayev and the fourth applicant and her child were at home at 24 Sverdlova Street.

13.  At about 8.30 p.m. two UAZ vehicles arrived at 24 Sverdlova Street. A group of armed men wearing masks emerged from the vehicles and burst into the courtyard. Zelimkhan Isayev and the fourth applicant inferred that they belonged to the Russian security forces.

14.  Zelimkhan Isayev stepped out of the house into the courtyard and the servicemen apprehended and handcuffed him. According to the fourth applicant, Zelimkhan Isayev showed no signs of resistance. Later on the servicemen took the handcuffed man back into the house.

15.  According to the written statement of the fourth applicant, two armed men levelled their guns at her and asked her where the weapons were. They searched the room where the fourth applicant was. One of them tore down a carpet from the wall and checked everything in the room but found nothing.

16.  The servicemen also searched the house and courtyard premises without producing any warrant but found no arms. Then they took Zelimkhan Isayev outside, forced him into one of the UAZ vehicles and drove away.

17.  Immediately after Zelimkhan Isayev’s arrest the first and second applicants pursued the UAZ vehicles in a car, but in vain. They then visited the head of the local administration and told him that Zelimkhan Isayev had been apprehended. The first and second applicants also went to the department of the interior of the Urus-Martan District (“the ROVD”). The ROVD policemen told them that they had no information on Zelimkhan Isayev’s whereabouts.

(b)  The search of the applicants’ home on 10 May 2004

18.  In the afternoon of 10 May 2004 a group of servicemen from the Federal Security Service (“the FSB”) under the command of D.Ch., an investigator of the FSB Department of the Chechen Republic, arrived at 24 Sverdlova Street and showed the second applicant a search warrant. They searched the house in the presence of two servicemen of the military commander’s office of the Urus-Martan District (“the military commander’s office”) acting as attesting witnesses. D.Ch. asked the second applicant and Zelimkhan Isayev’s other brother, T.I., whether there were any arms in the house; they replied in the negative.

19.  Having searched the rest of the house, the servicemen went to Zelimkhan Isayev’s room. According to the second applicant, he observed one of the servicemen stealthily place a grenade in his brother’s bed. Later the servicemen noted in the search report that they had found an explosive device in Zelimkhan Isayev’s room. The report was signed by the aforementioned attesting witnesses; when signing it, the second applicant and T.I. added that they had seen that the grenade had been planted by the servicemen.

(c)  Zelimkhan Isayev’s detention at the ROVD

20.  On 10 May 2004 Zelimkhan Isayev was placed in the temporary detention facility of the ROVD. Later that day Mr A., a police officer of the ROVD, informed the applicants that Zelimkhan Isayev had been transferred from the Urus-Martan Division of the Federal Security Service (“the Urus-Martan FSB”) to the ROVD and that he was in very poor health.

21.  The applicants went to the ROVD, where they met D.Ch., the investigator who had commanded the FSB officers during the search of 10 May 2004. D.Ch. told them that Zelimkhan Isayev was unwell, that he had been injured during his detention and had a broken rib because he had resisted the servicemen when being arrested.

22.  On 11 May 2004 ROVD officers invited a doctor to examine Zelimkhan Isayev because his state of health was growing worse, but they did not allow his transfer to a hospital.

23.  On 12 May 2004 the applicants retained a lawyer, who visited Zelimkhan Isayev at the ROVD. The lawyer considered that her client needed urgent medical assistance.

24.  On 12 May 2004 (in some of the documents enclosed by the applicants this date is also given as 13 May 2004) the Urus-Martan Town Court held a hearing on the investigators’ request to extend the term of Zelimkhan Isayev’s detention. The judge authorised the extension with reference to Zelimkhan Isayev’s confession and the testimony of his co-accused A.M. Zelimkhan Isayev argued that he had incriminated himself under torture and showed the injuries on his body in the court room. However, that fact did not prompt any reaction on the part of the judge.

(d)  Medical assistance dispensed to Zelimkhan Isayev and his death

25.  At some point on 12 May 2004 (in some of the documents enclosed by the applicants the date is referred to as 13 May 2004) Zelimkhan Isayev was transferred to the Urus-Martan district hospital (“the Urus-Martan hospital”). The ROVD policemen guarded his ward. His brothers visited him and, unbeknown to the guards, took photographs of Zelimkhan Isayev’s body.

26.  The three pictures submitted by the applicants to the Court represent a man sitting on a bed, his tee-shirt pulled up. Numerous abrasions and bruises can be seen on the man’s body, including his neck, wrists, arms, nipples, navel and a large bruise is visible on the right side of his lower back.

27.  In the applicants’ submission, during their visits Zelimkhan Isayev told his brothers what had happened to him after his arrest (see below).

28.  On 16 May 2004 Zelimkhan Isayev’s health deteriorated severely. He was spitting blood. The doctors said that they could not do anything for him and that he needed an artificial kidney. The applicants asked D.Ch. to authorise Zelimkhan Isayev’s transfer to a hospital in Nazran, Ingushetia, which, apparently, was better equipped than that of the Urus-Martan District. D.Ch. refused, but sent military doctors from the military commander’s office to examine the detainee. The military doctors measured Zelimkhan Isayev’s blood pressure and examined the X-ray pictures. After the check-up D.Ch. authorised Zelimkhan Isayev’s transfer to the Nazran Hospital. However, Zelimkhan Isayev’s relatives were not provided with an ambulance and had to pay 2,000 Russian roubles to hire one. D.Ch. told the ROVD policemen to accompany Zelimkhan Isayev, but they refused. The detainee was transported to Nazran unguarded.

29.  At about 11.30 p.m. on 16 May 2004, shortly after his arrival at the Nazran Hospital, Zelimkhan Isayev died.

30.  On an unspecified date Zelimkhan Isayev was buried by his relatives.

(e)  Zelimkhan Isayev’s account of the events between 9 and 13 May 2004

31.  In the applicants’ submission, Zelimkhan Isayev described to his brothers the events between 9 and 13 May 2004 as follows.

32.  When the servicemen apprehended Zelimkhan Isayev on 9 May 2004, they put a plastic bag over his head and forced him down on the floor of the UAZ vehicle. They drove for a while and arrived at the military commander’s office. They took the detainee to the third floor where, according to the applicants, the FSB headquarters were located.

33.  Without taking the plastic bag off his head, the FSB officers ordered Zelimkhan Isayev to tell them “everything he knew”. He said that he had nothing to tell. They then gave him several documents to sign, which he refused to do. After that the officers turned on a tape recorder and some of them left the room. Those who remained kicked and beat Zelimkhan Isayev with truncheons and tortured him with electric shocks and cigarette burns. Among other things, they applied electric wires to his genitals and passed the current through them.

34.  The servicemen asked Zelimkhan Isayev to disclose his sources of income. He replied that he was buying and reselling scrap. They beat him again and ordered him to sign the documents. Zelimkhan Isayev asked what the documents were. After that the servicemen put another plastic bag over his head and continued to torture him. At some point they filled his mouth with a foul-smelling liquid and forced him to drink it. The torture of Zelinkhan Isayev continued throughout the whole night.

35.  On 10 May 2004 Zelimkhan Isayev agreed to sign the documents and did so without reading them. He was then transferred to the temporary detention facility of the ROVD.

(f)  Medical certificates furnished by the applicants

36.  An excerpt from Zelimkhan Isayev’s medical record issued by the Urus-Martan Town hospital and dated 12 May 2004 mentioned the following injuries:

“…numerous bruises, abrasions and electrical burns to the body, upper and lower limbs, peritonitis

…

Blunt trauma of the chest [and] the abdominal cavity. Injuries to the lungs and internal organs; major bruising of the thorax, the front abdominal wall and the upper limbs. First-degree burns of the nipples. Contusion of the internal organs? Broken ribs on the left side.”

37.  According to the death certificate issued by the Nazran civil registry office and dated 27 June 2004, Zelimkhan Isayev’s death was caused by acute renal insufficiency, anuria and pulmonary oedema, as well as by blunt injuries to the abdomen and chest and broken ribs on the left-hand side.

2.  The Government’s account

38.  On 8 May 2004 the Chechen Department of the FSB instituted criminal proceedings against A.M. on suspicion of participation in illegal armed groups and terrorist activities. The investigation established that a group including A.M., Zelimkhan Isayev and other members had on several occasions blown up vehicles of the Russian federal forces. It appears that the case file was assigned the number 37045. In some of the documents it is also referred to as no. 94/22.

39.  At 4.55 p.m. on 10 May 2004 Zelimkhan Isayev was arrested on suspicion of having participated in illegal armed groups and carried out terrorist activities.

40.  On the same day he was interviewed in the presence of counsel and stated that he was unable to testify owing to his bad state of health.

41.  On 10 May 2004 the investigator in charge of the case applied to the Urus-Martan Town Court, seeking authorisation to search Zelimkhan Isayev’s home. The request was granted on the same day, following which the authorities searched Zelimkhan Isayev’s house and found a hand grenade there.

42.  On 12 May 2004 the Urus-Martan Town Court granted the investigators’ request and ordered Zelimkhan Isayev’s placement in custody. In the Government’s submission, he did not complain about ill-treatment at the hearing on his detention.

43.  On 12 May 2004 Zelimkhan Isayev was admitted for in-patient treatment to the surgery department of the Urus-Martan Town hospital.

44.  On 16 May 2004, following a decision of an investigator of the Chechen Department of the FSB and the recommendations of the doctors of the Urus-Martan Town hospital, Zelimkhan Isayev was transferred to the Nazran hospital where he died on the same day.

45.  According to the death certificate of 16 May 2004, Zelimkhan Isayev was admitted to the intensive care unit of the Nazran Hospital from the Urus-Martan Town hospital with the diagnosis: blunt trauma of the chest and the abdomen, broken ribs on the left-hand side, major bruising of the body, oedema of the lungs, acute renal insufficiency. The death was recorded at 11.30 p.m. on 16 May 2004.

B.  Proceedings related to Zelimkhan Isayev’s death

1.  The applicants’ account

(a)  Decision to discontinue criminal proceedings against Zelimkhan Isayev

46.  By a decision of 12 June 2004 D.Ch. discontinued criminal proceedings against Zelimkhan Isayev in view of his death. The decision stated that on 8 May 2004 a criminal investigation had been opened in respect of A.M., who was suspected of terrorist activities and participation in illegal armed groups. The case was assigned the number 94/22. The investigation established that in October 2000 A.M., together with several persons, including Zelimkhan Isayev, had blown up several vehicles of the Russian military. On 10 May 2004 Zelimkhan Isayev was arrested and placed in the temporary detention facility of the department of the interior of the Urus-Martan District. At some point Zelimkhan Isayev confirmed his involvement in the explosions and A.M. testified against him. On 16 May 2004 Zelimkhan Isayev was transferred to hospital and died.

(b)  The applicants’ request to prosecute the FSB servicemen

47.  On 20 July 2004 the first applicant requested the Prosecutor General’s Office of the Russian Federation and the prosecutor’s office of the Chechen Republic (“the republican prosecutor’s office”) to institute criminal proceedings against the servicemen of the Urus-Martan FSB in relation to the torture which had caused Zelimkhan Isayev’s death. The first applicant described in detail the circumstances of his brother’s arrest and detention and the treatment to which he had been subjected while in custody. He insisted that Zelimkhan Isayev had been arrested on 9 and not 10 May 2004, as stated in the official documents, and that a number of witnesses, including the neighbours of the Isayevs and the deputy head of the local administration, Z.D., could confirm that fact. In support of his submissions he enclosed the death certificate dated 16 May 2004, mentioning numerous injuries sustained by his brother, and the pictures of his body bearing marks of torture, taken during his visit to the hospital. He averred that although at the hearing on 10 May 2004 his brother had complained about the torture and shown the judge the marks of ill-treatment on his body, the Urus-Martan Town Court had disregarded his complaints and ordered his placement in custody. The first applicant stressed that, despite Zelimkhan Isayev’s grave condition, the authorities had not authorised his transfer to a proper hospital until 16 May 2004.

48.  The first applicant further stated that on 9 May 2004 the FSB officers had unlawfully searched Zelimkhan Isayev’s home, without providing any further details. He also submitted that during a sweeping operation in Goi-Chu carried out on 11 June 2004, servicemen of the federal forces had harassed Zelimkhan Isayev’s other brothers by taking them to the outskirts of the village, interviewing them about ball bearings they had at home and making a video recording of the interview. The first applicant stated that the FSB servicemen who had tortured his brother were still working in the Urus-Martan FSB and that he considered that Zelimkhan Isayev’s relatives, as witnesses to the crime committed by the FSB officers, were in danger. Accordingly, he requested that the authorities provide for their protection. The first applicant also stressed that although the authorities had been made aware of the torture by 10 May 2004, Zelimkhan Isayev’s relatives had no information as to whether this fact had prompted the opening of an investigation into the torture. Lastly, he requested that he be admitted to any subsequent criminal proceedings as a victim.

49.  On 3 August 2004 the republican prosecutor’s office forwarded the first applicant’s request to the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) and ordered that the request be included in the investigation file in case no. 94/22 and that the applicants’ submissions be examined and they be informed of any decisions taken by 9 August 2004.

50.  By a letter dated 18 August 2004 the district prosecutor’s office informed the first applicant that it had examined his complaint and had decided not to institute criminal proceedings against the FSB officers. The refusal to institute criminal proceedings was enclosed in the letter and, in so far as relevant, stated as follows:

“…

On 6 August 2004 the district prosecutor’s office received the [first applicant’s] request to institute criminal proceedings against FSB officers … The complaint alleges that upon admission to the district FSB Zelimkhan Isayev was tortured with electric wires, beaten up and made to sign unspecified documents …

Following the examination of the submissions contained in the complaint it has been established:

On 10 May 2004 … Zelimkhan Isayev was arrested in the village of Goi-Chu … in connection with the proceedings in criminal case no. 37045 … During his arrest Zelimkhan Isayev offered resistance and the officers of the district division of the FSB had to apply physical force. According to statements of servicemen of the 13th military commander’s office of the Urus-Martan District … E.L. and A.Sh., on 10 May 2004 they were invited to participate as attesting witnesses in a search of the Isayevs’ home in the village of Goi-Chu …. The investigator conducted the search in accordance with all requirements of the Code of Criminal Procedure. When it was established that Zelimkhan Isayev felt unwell, he was provided with medical assistance and on 16 May 2004 he was transferred for in-patient treatment to a medical institution.

The fact of torture in respect of Zelimkhan Isayev is not confirmed by the materials in the criminal file. From the materials of criminal case no. 37045 … it appears that suspect Zelimkhan Isayev offered resistance to the law-enforcement officers during his transfer, as a result of which physical force was applied to him and he sustained numerous injuries.

Under Article 38 § 1 of the Criminal Code of Russia, inflicting of harm on a person who has committed a crime while arresting him with a view to having him brought before law-enforcement authorities and in order to prevent him from committing further offences, if there are no other means of arresting such person and if the use of force is not excessive, does not constitute a crime.

Accordingly, the actions of the officers of the Urus-Martan Division of the FSB, who arrested Zelimkhan Isayev … did not constitute a crime under Article 286 of the Criminal Code…”

51.  The decision stated that it was open to appeal to a higher-ranking prosecutor or a court under Articles 124 and 125 of the Code of Criminal Procedure.

52.  By a letter of 7 September 2004 the republican prosecutor’s office informed the first applicant, in reply to his complaint of 20 July 2004, that the military prosecutor’s office of military unit no. 20102 had refused to institute criminal proceedings against the FSB officers on 13 June 2004. The letter stated that on 12 May 2004 the Urus-Martan Town Court had authorised Zelimkhan Isayev’s detention on remand on suspicion of terrorist activities and participation in illegal armed groups. At the time of the arrest Zelimkhan Isayev had hit the FSB servicemen in attempting to escape and, in return, the servicemen had used force and injured him. Accordingly, their actions could be classified as use of force in excess of their powers within the meaning of Article 286 of the Russian Criminal Code. Nevertheless Article 21 of the Russian Federal Law on the Suppression of Terrorism authorised the injuring or killing of terrorists if necessary. The letter concluded that there had been no grounds for prosecuting the FSB servicemen. The letter did not mention that it contained any enclosures, including the decision of 13 June 2004, and there is no indication that the applicants were provided with a copy of the decision of 13 June 2004.

2.  The Government’s account

53.  On 19 May 2004 the district prosecutor’s office forwarded the materials concerning the death of Zelimkhan Isayev to the military prosecutor of military unit no. 20102 for examination.

54.  On 12 June 2004 criminal proceedings against Zelimkhan Isayev were discontinued owing to his death and on 8 July 2004 the deputy prosecutor of the Chechen Republic forwarded the materials of file no. 94/22 to the district prosecutor’s office for further investigation. There the case file was assigned the number 37045.

55.  On 13 June 2004 the deputy military prosecutor of military unit no. 20102 decided not to institute criminal proceedings against the officers of the Urus-Martan FSB, finding no evidence of crime. The decision stated that the head of the Urus-Martan FSB and his subordinates had been in charge of Zelimkhan Isayev’s arrest. During his arrest he had attempted to escape and had offered resistance, hitting unspecified FSB officers. The latter had applied physical force to restrain him, as a result of which he had sustained bodily injuries. The above account of events was confirmed by the explanations of FSB officers N. and Ch.

56.  On 21 January 2005 the acting prosecutor of the Urus-Martan district set aside the refusal to institute criminal proceedings against the FSB officers and ordered that an additional inquiry be conducted. The Government failed to specify which refusal to institute criminal proceedings had been quashed on that date but it appears that they referred to the decision by the military prosecutor issued on 13 June 2004.

57.  On the same date an unspecified authority (apparently the district prosecutor’s office) refused to institute criminal proceedings against the officials of the temporary detention facility of the ROVD on suspicion of abuse of authority (Article 286 of the Criminal Code), finding no evidence of crime. On the same day the materials concerning the use of force by the officers of the Urus-Martan FSB against Zelimkhan Isayev were transferred for examination to the military prosecutor’s office.

58.  On 17 February 2005 the deputy military prosecutor of military unit no. 20102 refused to institute criminal proceedings against the FSB officers, finding no evidence of crime in their actions. The related decision stated that during his arrest Zelimkhan Isayev had offered resistance to the FSB officers, following which they had had to apply physical force to restrain him.

59.  On 16 November 2007 the deputy Main Military Prosecutor set aside the decision of 17 February 2005 and forwarded the relevant materials for examination to the investigative department of the Investigating Committee with the Prosecutor General’s Office of the Russian Federation.

60.  On an unspecified date the relevant materials, as well as a report on the discovery of evidence of crime (“рапорт об обнаружении признаков преступления”) were forwarded to the head of the military investigating department of the United Group Alignment (“the investigating department of the UGA”) for examination.

61.  On 21 November 2007 the investigating department of the UGA instituted criminal proceedings against the FSB officers under Article 286 § 3 (a) and (c) (abuse of office associated with the use of violence and entailing serious consequences). The case was assigned the number 34/00/0022-07.

62.  In the Government’s submission, the investigation in case no. 34/00/0022-07 is pending.

63.  Despite the Court’s repeated requests, the Government refused to produce any documents from the case file concerning the investigation of the death of Zelimkhan Isayev or the case files related to the inquiries into his death conducted by the district prosecutor’s office or the prosecutor of military unit no. 20102. They referred to Article 161 of the Russian Code of Criminal Procedure.

C.  The applicants’ alleged intimidation

1.  The applicants’ account

64.  In the applicants’ submission, on several occasions D.Ch. invited the Isayev brothers to his office for questioning. They did not specify the dates of those interviews or their subject matter.

65.  On 12 June 2004 the Russian military carried out a sweeping operation in the village of Goy-Chu. T.I. and the second applicant were seized and taken to a military base where the servicemen questioned them about ball bearings found in their house. Timur and Khamzat Isayev explained that they used the ball bearings in their work and denied any involvement in illegal activities. They recognised a serviceman who was filming the interrogation as one who had searched their house on 10 May 2004.

66.  On an unspecified date D.Ch. questioned the second applicant as a witness. In the second applicant’s submission, the FSB officer pressured him in the course of the questioning. The second applicant provided no further details concerning the alleged pressure put on him.

67.  On 12 August 2004 the head of the Goy-Chu village local administration, A.A., allegedly called the first applicant to his office and asked him whether he had complained about his brother’s death to the Prosecutor General. When the first applicant replied in the affirmative, A.A. told him that his complaint to the Prosecutor General might lead to dangerous consequences and advised him to turn for help to A.K., an official of the administration of the Urus-Martan District.

68.  On an unspecified date the first applicant talked to A.K. and the latter advised him to withdraw the complaint, implying that the FSB servicemen might take revenge against the first applicant and other relatives of Zelimkhan Isayev. The first applicant replied that it was not possible to withdraw the complaint, which had been sent to Moscow and Grozny. A.K. told him that if the Isayevs stopped complaining about Zelimkhan’s death they would have no further problems with the FSB; the first applicant promised not to file any more complaints or appeals.

69.  In the applicants’ submission, when they received the refusal to institute criminal proceedings of 18 August 2004 and the letter of 7 September 2004, they did not dare to take any further steps to challenge those decisions in view of the facts described above.

2.  Information submitted by the Government

70.  The Government furnished copies of two written statements by A.K. dated 21 November 2007 and 24 January 2008.

71.  According to those documents, A.K. stated that he had been working in the local administration of Urus-Martan since 2000 and that he remembered Zelimkhan Isayev’s arrest in 2004 on suspicion of participation in illegal armed groups. However, A.K. had no information on his fate. Zelimkhan Isayev’s relatives had not applied to him in that connection and thus he could not have brought pressure to bear on them or forced them to refrain from lodging complaints against law-enforcement officials. At the material time, owing to a complicated situation in the region, there were many similar cases and A.K. always assisted the residents of the Urus-Martan district in obtaining information on the fate of their relatives and the reasons for their detention. According to A.K., A.A. could not have influenced the applicants either, because he was not a law-enforcement officer and thus had no reason to do so.

II.  RELEVANT DOMESTIC LAW

72.  Abuse of office associated with the use of violence and entailing serious consequences carries a punishment of three to ten years’ imprisonment and a ban on occupying certain positions for up to three years (Article 286 § 3 (a, c) of the Criminal Code of the Russian Federation (“the Criminal Code”)).

73.  Article 21 of the Suppression of Terrorism Act (Law 130-FZ of 25 July 1998, with further amendments), as in force at the material time, provided that, in accordance with the legislation and within the limits established by it, damage could be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of an anti-terrorist operation. Servicemen, experts and other persons engaged in the suppression of terrorism were exempted from liability for such damage under Russian law. Law 130-FZ was abolished in 2006.

74.  Under Article 124 of the Code of Criminal Procedure of the Russian Federation (“the CCP”), a prosecutor can examine a complaint concerning actions or omissions of various officials in charge of a criminal investigation. Once a complaint is examined, the complainant should be informed of its outcome and of possible avenues of appeal against the prosecutor’s decision.

75.  Article 125 of the CCP provides that a decision of an investigator or a prosecutor refusing to institute criminal proceedings, as well as other decisions, acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice are open to appeal before a district court. The district court can examine the lawfulness and well-foundedness of the impugned decision, act or omission. Following the examination of the complaint, the district court is empowered to declare the decision, act or omission unlawful or unfounded and order the authority to rectify the shortcomings (Article 125 § 5).

76.  Article 161 § 1 of the CCP prohibits the disclosure of details of the preliminary investigation. Such information can be disclosed only with the permission of a prosecutor or investigator and in the amount determined by them, and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings and does not prejudice the investigation (Article 161 § 3).

77.  Under Article 1069 of the Civil Code of the Russian Federation, a State agency or a State official is liable towards a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated for at the expense of the federal or regional treasury.

THE LAW

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

A.  The parties’ submissions

1.  The Government

78.  The Government contended that the applicants’ complaints should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into their relative’s death was pending. They further stated that the applicants had had an opportunity under Articles 124 and 125 of the CCP to challenge acts and omissions of the investigating authorities before prosecutors or courts but had failed to make use of those procedures. In particular, the Government suggested that the applicants should have appealed against the refusal to institute criminal proceedings issued on 13 June 2004. In that connection they referred to the cases of E., S., I. and D., in which the domestic courts granted the applicants’ complaints and ordered the investigating authorities to secure their access to the materials in the files relating to the investigation into their relatives’ disappearance. The Government also referred to the case of a Ms Kh., where the domestic courts allowed her complaint about the decision to suspend the investigation into the disappearance of her relative and instructed the investigating authority to investigate it thoroughly. The Government omitted to furnish copies of the decisions they referred to.

79.  They also argued that it had been open to the applicants to claim damages under Article 1069 of the Civil Code. By way of an example, they referred to a decision of the Supreme Court of the Karachay-Cherkess Republic of 19 October 2004, by which it had awarded an applicant 10,000 Russian roubles in respect of non-pecuniary damage sustained as a result of unspecified unlawful actions of a prosecutor’s office. The Government failed to produce a copy of that decision.

80.  Lastly, with reference to the statements made by A.K., the Government argued that the applicants’ submissions regarding the pressure allegedly put on them were unsubstantiated. They submitted that there was no evidence that any officials had pressured the applicants with a view to preventing them from claiming damages at the domestic level in connection with the alleged violations of the Convention, and that the applicants had not complained to the domestic authorities about the alleged pressure.

2.  The applicants

81.  With reference to the case of Khashiyev and Akayeva v. Russia (nos. 57942/00 and 57945/00, 24 February 2005), the applicants submitted that they were not obliged to apply to civil courts to exhaust domestic remedies.

82.  As regards criminal remedies, they argued that a complaint under Article 125 of the CCP did not constitute an effective remedy because, even if a judge found a refusal to institute an investigation unlawful, after further examination a prosecutor could again decide to refuse to open a criminal case. As to the examples concerning the use of Article 125 of the CCP referred to by the Government, the applicants stressed that in all those cases the judges’ decisions allowing the applicants’ complaints had not led to any progress in the investigations, which had remained ineffective. They also claimed that the authorities in the present case had immediately been made aware of the death of Zelimkhan Isayev and thus they had been under an obligation to investigate it, without leaving it to the initiative of his relatives, including a complaint under Article 125 of the CCP. However, in the present case the authorities had preferred to wait until the applicants lodged a formal complaint, and even then they refused to investigate the matter. The applicants averred that if the Government’s logic were to be accepted the State would remain unaccountable for the deaths of persons at the hands State agents when the victims had no relatives to pursue the matter.

83.  The applicants further stated that they had no legal education or knowledge of criminal proceedings and could not afford legal representation. More importantly, the authorities had subjected them to serious pressure in connection with their complaints about Zelimkhan Isayev’s killing. Given the circumstances of his death and the general climate of impunity for human rights violations in the Chechen Republic, the applicants had come to fear making further complaints to the authorities, including lodging an appeal to a court under Article 125 of the CCP. They considered that it was standard administrative practice not to investigate crimes committed by members of the federal forces in the Chechen Republic. They also insisted that A.K. had exerted undue pressure on them to refrain from complaining further about their relative’s killing.

84.  Lastly, the applicants argued that the authorities had opened a criminal investigation into their relative’s death only after the communication of the application to the Government, and that in any event that investigation did not satisfy the Convention requirements.

B.  The Court’s assessment

1.  General principles

85.  The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants first to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but that no recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions  1996-VI, and Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996-IV).

86.  The Court emphasises that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others and Aksoy, both cited above, § 69 and §§ 53-54).

2.  Application of the general principles to the present case

87.  Turning to the circumstances of the present case, the Court observes 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 proceedings and criminal remedies.

(a)  Alleged failure to file a civil action

88.  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, among many other authorities, Khashiyev and Akayeva v. Russia, cited above, §§ 119-121, and Estamirov and Others v. Russia, no. 60272/00, § 77, 12 October 2006). The Court sees no reason to depart from those findings in the present case and confirms that the applicants were not obliged to pursue civil remedies.

(b)  Alleged failure to exhaust criminal remedies

89.  As to criminal remedies, the Court observes that the Government’s argument was twofold. On the one hand they argued that the applicants’ complaint was premature because the criminal investigation into their relative’s death was pending. On the other hand they submitted that the applicants had failed to challenge acts or omissions of the investigating authorities and, in particular, the refusal of 13 June 2004 to institute criminal proceedings, before higher-ranking prosecutors or courts, under Articles 124 and 125 of the CCP respectively.

(i)  The alleged failure to make use of Article 124 of the CCP

90.  In so far as the Government relied on Article 124 of the CCP, the Court reiterates that the powers conferred on the superior prosecutors constitute extraordinary remedies, the use of which depends upon the prosecutors’ discretion. It therefore does not consider that the applicants had to use this remedy in order to comply with the requirements of Article 35 § 1 of the Convention (see Trubnikov v. Russia (dec.), no. 9790/99, 14 October 2003, and Belevitskiy v. Russia, no. 72967/01, § 59, 1 March 2007).

(ii)  The alleged failure to challenge the decision of 13 June 2004 before the domestic courts

91.  The Government further argued that the applicants should have challenged before the courts the refusal to institute criminal proceedings issued by the military prosecutor on 13 June 2004.

92.  In this connection the Court reiterates that it has held on several occasions that in the Russian legal system the power of a court to reverse a decision refusing to institute criminal proceedings is a substantial safeguard against the arbitrary exercise of powers by the investigating authorities (see Trubnikov, cited above, and Belevitskiy, cited above, § 61). Therefore, in the ordinary course of events such an appeal might be regarded as a possible remedy where the prosecution decided not to investigate the claims (see Samoylov v. Russia, no. 64398/01, §40, 2 October 2008).

93.  Nonetheless, the Court is not persuaded by the Government’s argument in the present case for the following reasons. It observes in the first place that it emerges from the materials available and the parties’ submissions that the applicants learnt about the existence of the decision of 13 June 2004 from the letter of the republican prosecutor’s office dated 7 September 2004 and sent to the applicants in reply to their complaint of 20 July 2004 (see paragraphs 47 and 52 above).

94.  Leaving aside the question of whether the authorities intended to notify the applicants of the inquiry conducted by the military prosecutor and the ensuing decision not to open a criminal case if they had not complained about their relative’s death to the Prosecutor General and the republican prosecutor’s office, the Court cannot but note that, whilst the letter of 7 September 2004 referred to the decision of 13 June 2004, it nowhere stated that the impugned decision was enclosed with it. There is also no indication that the applicants were furnished with a copy of that decision in good time or at all (see paragraph 52 above). Against this background the Court is not convinced that they could effectively have challenged the decision of 13 June 2004 before the domestic courts, as suggested by the Government (see Kantyrev v. Russia, no. 37213/02, § 43, 21 June 2007, and Akulinin and Babich v. Russia, no. 5742/02, § 29, 2 October 2008).

95.  In any event, it appears from the Government’s submissions that the decision of 13 June 2004 is no longer valid because it was set aside on 20 January 2005 (see paragraph 56 above, and compare Georgiy Bykov v. Russia, no. 24271/03, § 46, 14 October 2010).

96.  It is further noted that by the time the applicants learnt about the existence of the decision of 13 June 2004, they had been notified of yet another refusal to institute criminal proceedings into the circumstances of their relative’s death and alleged ill-treatment, issued by the district prosecutor’s office on 18 August 2004 (see paragraph 50 above). It furthermore appears that after the quashing of the decision of 13 June 2004 and an additional inquiry, on 17 February 2005 the military prosecutor of military unit no. 20102 decided, once again, not to institute criminal proceedings against the FSB officers, and that on 21 January 2005 a similar decision was issued in respect of the ROVD officials (see paragraphs 57 and 58 above).

97.  It transpires that the authorities instituted criminal proceedings into the circumstances of Zelimkhan Isayev’s death only after the Court had given notice of the application to the Government (see paragraph 61 above).

98.  The Court reiterates its constant case-law to the effect that when individuals have been killed as a result of the use of force, the authorities are under an obligation to investigate those deaths, and that they must act of their own motion once the matter has come to their attention and cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see, specifically, in the context of exhaustion of domestic remedies, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII, and Bazorkina v. Russia, no. 69481/01, § 117, 27 July 2006).

99.  In the present case the authorities were aware of the death of Zelimkhan Isayev by 19 May 2004 at the latest and it transpires that at that moment they considered that the circumstances of his death warranted an inquiry (see paragraph 99 above). In addition, the applicants lodged a formal complaint with the authorities, requesting that the circumstances of their relative’s death be elucidated and that those responsible be brought to justice (see paragraph 47 above).

100.  Against this background the Court considers that the matter was sufficiently drawn to the attention of the relevant domestic authorities. Regard being had to the repeated refusals of a number of investigating authorities, including the district prosecutor’s office and the military prosecutor’s office, to institute criminal proceedings and the fact that the investigation was launched only after notice of the application had been given to the Government, it is not convinced, in the special circumstances of the present case, that having recourse to an appeal to a court, as suggested by the Government, would have yielded a different result from the one obtained by the applicants in the present case. In so far as the Government cited a number of cases decided at the domestic level in support of their argument, the Court observes that they failed to produce copies of the related decisions. In any event, it seems that those cases concerned pending investigations of disappearances and specific issues of refusal of access to case-file documents and decisions to suspend the investigation (see paragraph 78 above) which, in the Court’s view, are not directly relevant to the matter examined by it in the present case.

101.  It follows that the Government’s objection regarding the applicants’ failure to challenge the decision of 13 June 2004 before the courts must be rejected.

102.  In view of this finding the Court does not consider it necessary to examine the applicants’ arguments concerning the pressure allegedly put on them by the authorities, the lack of knowledge and legal representation and the existence of an administrative practice of not investigating similar complaints in the Chechen Republic.

(iii)  Failure to await the outcome of the criminal proceedings instituted in November 2007

103.  The last limb of the Government’s objection concerned the fact that the criminal proceedings instituted in connection with the death and alleged ill-treatment of Zelimkhan Isayev were pending and that the applicants’ complaints were premature.

104.  The Court notes that the authorities decided to open an investigation into the death and alleged ill-treatment of the applicants’ relative in November 2007, that is more than three years after the events in question. The investigation is still pending. The parties dispute the effectiveness of the investigation.

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

II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

106.  The applicants complained that Zelimkhan Isayev had died in custody as a result of torture inflicted on him by State agents, and that the authorities had failed to provide him with prompt and adequate medical assistance and to carry out an effective investigation into his death. They relied on Article 2 of the Convention, which provides:

“1.  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.”

A.  Submissions by the parties

1.  The Government

107.  The Government submitted that, contrary to the applicants’ assertion, Zelimkhan Isayev had been arrested not at 8.30 p.m. on 9 May 2004 but at 4.55 a.m. on 10 May 2004. In that respect they relied on unspecified documents from an unspecified criminal file, without producing them.

108.  They further argued that the FSB officers had had to use force against Zelimkhan Isayev during his arrest because he had actively resisted it and because they had had to prevent him from escaping or killing other persons. Moreover, he had been suspected of terrorist activities and membership of illegal armed groups, which constituted particularly serious crimes. Relying on the case of McKerr v. the United Kingdom (no. 28883/95, ECHR 2001-III), the Government stated that the use of force against Zelimkhan Isayev had been absolutely necessary. In so far as his relatives alleged that he had not offered any resistance at the time of his arrest, they had not witnessed how the events unfolded and, in particular, how he had been transferred to the ROVD. In addition, his death had occurred not immediately after his arrest but several days later and he had been provided with medical assistance in the interim.

109.  The Government further submitted that the investigation initiated by the authorities in November 2007 was examining whether the force applied by the State agents had been absolutely necessary and proportionate to the danger posed by the applicants’ relative. However, at the time of the submission by the Government of their observations the investigation had not established a causal link between the actions of the law-enforcement officers, Zelimkhan Isayev’s injuries and his death. The investigating authorities had conducted two forensic medical examinations on the basis of unspecified medical documents. And a further complex medical examination was under way; within its framework, thirty-two questions had been put to experts with a view to establishing the nature, location and means of infliction of Zelimkhan Isayev’s bodily injuries and the cause of his death. In the Government’s submission it followed from a number of documents that, apart from internal injuries, Zelimkhan Isayev had had a number of “small wounds on his body”. Those wounds had been covered with scabs but their further morphological characteristics had not been indicated. In the absence of a post mortem examination and a histological test it was impossible to establish with certainty the means and time of infliction of those injuries, including whether they had been sustained as a result of cigarette burns or the application of an electric current.

110.  Contrary to the applicants’ submissions, Zelimkhan Isayev had been provided with the required medical assistance. The issue of the adequacy of the medical assistance rendered to him was moreover being investigated by the domestic authorities. The medical staff of the Urus-Martan District Hospital and the Nazran Hospital, interviewed by the investigators, had stated that the applicants’ relative had been admitted to their hospitals in such a poor condition that no medical treatment could have saved him in any event.

111.  In the Government’s submission, the investigation conducted by the authorities satisfied the Convention requirements.

2.  The applicants

112.  The applicants argued that there existed a causal link between the ill-treatment of Zelimkhan Isayev and his death and that it had been imputable to the State. Zelimkhan Isayev had been in good health prior to his arrest and had not offered any resistance while being arrested, as was confirmed by the fourth applicant’s statement, who had witnessed his arrest. Moreover, he could not have offered any resistance at the time of the arrest or subsequently because immediately after the FSB officers had burst into the applicants’ house they had handcuffed him. There had been around fifteen servicemen and it was hardly plausible that Zelimkhan Isayev, handcuffed, could have offered them any resistance. If that was nonetheless the case, the force used against their relative was clearly disproportionate.

113.  The applicants insisted that Zelimkhan Isayev had been arrested at about 8.30 p.m. on 9 May 2004. However, the record of the arrest had not been drawn up until 4.55 a.m. on 10 May 2004. Hence, for that period of time he had been held in custody without any procedural guarantees. The Government acknowledged that in the early morning of 10 May 2004 Zelimkhan Isayev had already been unable to testify in view of his poor state of health and that he had sustained his injuries as a result of the actions of State agents. Zelimkhan Isayev had died in a hospital while still being guarded by State officials.

114.  The applicants stressed that the Government had refused to submit any documents concerning the investigation of their relative’s death which could have confirmed their argument that the force used against him had been absolutely necessary. Accordingly, the burden of proving that his death was not imputable to the State or that the force used against him had been proportionate was to be shifted to the Government. Given that Zelimkhan Isayev’s death had occurred in State custody, the Government were under an obligation to provide a convincing and plausible explanation for the related events but had failed to do so.

115.  The applicants further submitted that Zelimkhan Isayev had not been provided with adequate medical assistance. Although from the Government’s submissions it followed that he had been in need of urgent medical care in the morning of 10 May 2004, he had not been admitted to a hospital until two days later and there was no indication that he had been provided with any medical assistance prior to that date. Upon his admission to the Urus-Martan Town Hospital the authorities must have immediately realised that the hospital did not possess the facilities necessary for Zelimkhan Isayev’s treatment, but they had failed to take appropriate action and had not transferred him to a properly equipped hospital until 16 May 2004.

116.  As regards the investigation into Zelimkhan Isayev’s death and ill-treatment, the applicants argued that the authorities had blatantly refused to institute criminal proceedings in respect of those events until the Court gave notice of the application to the Government, and that even after it was opened the investigation could not be considered to have been either prompt or effective. The applicants had not been granted victim status or informed of any steps taken by the investigating authorities. There was no indication that the investigators had interviewed the officers who had arrested Zelimkhan Isayev or searched his house on 10 May 2004, or the residents of Goy-Chu who had witnessed his arrest. No post-mortem examination had been conducted.

B.  The Court’s assessment

1.  Admissibility

117.  The Court considers, in the light of the parties’ submissions, that the applicants’ complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, it 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 105 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

2.  Merits

(a)  Zelimkhan Isayev’s death

(i)  General principles

118.  Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, Series A no. 324, and Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000-VII).

119.  In the light of the importance of the protection afforded by Article 2, the Court must subject complaints about deprivation of life to the most careful scrutiny, taking into consideration all relevant circumstances. Persons in custody are in a particularly vulnerable position and the authorities are under an obligation to account for their treatment. Consequently, where an individual is taken into police custody in good health but later dies, it is incumbent on the State to provide a plausible explanation of the events leading to his death, failing which an issue under Article 2 will arise (see Carabulea v. Romania, no. 45661/99, § 108, 13 July 2010, with further references).

120.  In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, 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). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, 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, among many other authorities, Anguelova v. Bulgaria, no. 38361/97, §§ 109-11, ECHR 2002-IV).

121.  Lastly, the Court would note that it is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), cited above). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see Aktaş v. Turkey, no. 24351/94, § 271, ECHR 2003-V (extracts), with further references).

(ii)  Application of those principles to the present case

122.  Turning to the circumstances of the present case, the Court notes that the parties disputed the exact time of Zelimkhan Isayev’s arrest. In particular, the Government claimed, with reference to unspecified documents they refused to provide, that the applicants’ relative had been arrested at 4.55 a.m. on 10 May 2004. The applicants submitted that Zelimkhan Isayev had been arrested at about 8.30 p.m. on 9 May 2004. Having regard to the Government’s refusal to provide any documents in support of their submission and the fact that the applicants presented a coherent account of their relative’s arrest and a number of witness statements to corroborate it (see, in particular, paragraph 11 above), the Court finds that Zelimkhan Isayev was arrested at his home at about 8.30 p.m. on 9 May 2004, as described by the applicants.

123.  It is further observed that it was undisputed between the parties that the applicant’s relative had been in good health prior to his arrest on 9 May 2004, that on 12 May 2004 he had been transferred from the Urus-Martan ROVD to the Urus-Martan Town hospital and that upon admission to the hospital he had a number of serious injuries, including a blunt trauma of the chest and the abdominal cavity, contusion of internal organs, broken ribs, large scale bruising of the body and electrical burns (see paragraph 36 above).

124.  Nor was it contested that Zelimkhan Isayev had been transferred from the Urus-Martan Town Hospital to the Nazran hospital, where he had died on 16 May 2004. According to the death certificate issued by the Nazran civil registry office, the cause of his death was acute renal insufficiency, anuria, pulmonary oedema, as well as blunt injuries to the abdomen and chest and broken ribs on the left-hand side (see paragraph 37 above). The Government did not contest either the authenticity of that document or the accuracy of the information contained therein.

125.  Having regard to those facts and the principles enunciated in paragraphs 118-121 above, the Court considers that it was incumbent on the Government to provide a plausible explanation of the events leading to the death of Zelimkhan Isayev. However, it finds that they failed to do so, for the following reasons.

126.  The Government argued that Zelimkhan Isayev had offered resistance during his arrest, that the FSB officers had had to use force against him with a view to preventing him from fleeing or harming other persons and that the force used had been absolutely necessary.

127.  The Court notes, however, that they failed to submit any evidence – such as statements of officers who had arrested the applicants’ relative, or other witnesses to the incident – which could have confirmed that Zelimkhan Isayev had resisted arrest.

128.  Moreover, the Government’s unsupported allegation contradicts the applicants’ submissions, as confirmed by the statement of the fourth applicant who had witnessed Zelimkhan Isayev’s arrest, that he had not offered any resistance to the arresting officers.

129.  Accordingly, the Court is not persuaded that Zelimkhan Isayev offered any resistance at the time of his arrest as claimed by the Government.

130.  In so far as the Government appear to suggest, albeit very vaguely, that the applicants’ relative might have offered resistance on the way from his house to the place of his detention (see paragraph 107 above), the Court cannot accept this submission as convincing in view of their failure to substantiate it with any evidence. The same holds true for the Government’s allegation concerning the proportionality of the use of force against Zelimkhan Isayev.

131.  The Court would further point out that not only have the Government failed to support their submissions with any evidence but that they refused to provide any documents from the criminal file opened into the death of Zelimkhan Isayev, despite the Court’s repeated requests. In so far as they relied in that respect on Article 161 of the CCP, it reiterates that in a number of cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see, among many other authorities, Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-XIII (extracts)). It sees no reason to depart from those findings in the present case and considers that the Government’s conduct justifies drawing inferences as to the well-foundedness of the applicants’ allegations.

132.  In sum, in the light of all the relevant circumstances, the Court considers that the Government have failed to provide any plausible or satisfactory explanation for the death of Zelimkhan Isayev and that their responsibility for his death is therefore engaged.

133.  It finds therefore that there has been a violation of Article 2 of the Convention, under its substantive limb, in respect of Zelimkhan Isayev.

(b)  Alleged failure to provide Zelimkhan Isayev with medical treatment

134.  The applicants also claimed that the authorities had failed to provide their relative with prompt and adequate medical assistance.

135.  Regard being had to its findings in paragraphs 122-133 above, the Court does not consider it necessary to examine this part of the applicants’ submissions.

(c)  The alleged inadequacy of the investigation into Zelimkhan Isayev’s death

(i)  General principles

136.  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 “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, 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. The investigation must be, inter alia, thorough, impartial and careful (see, among other authorities, McCann, cited above, §§ 161-63, and Kaya v. Turkey, 19 February 1998, § 105, Reports 1998-I).

137.  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 (see Carabulea, cited above, § 128, with further references).

138.  For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness 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. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Anguelova, cited above, §§ 136-39, with further references, and Ognyanova and Choban v. Bulgaria, no. 46317/99, § 105, 23 February 2006).

139.  A requirement of promptness and reasonable expedition is implicit in this context. 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 a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr, cited above, § 114, with further references).

140.  For the same reason, 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, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in, or tolerance of, unlawful acts. 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 ibid., § 115, and Anguelova, cited above, § 140, with further references).

(ii)  Application of those principles to the present case

141.  The Court notes at the outset that the Government refused to produce any of the documents from case file no. 34/00/0022-07 concerning the investigation into the death of Zeimkhan Isayev or the documents relating to the enquiries into those events conducted by the district prosecutor’s office or the military prosecutor and leading to their decisions to refuse to launch criminal proceedings. It therefore has to assess the effectiveness of the investigation on the basis of the very sparse information submitted by the Government and the few documents available to the applicants that they provided to the Court.

142.  Turning to the facts of the present case, the Court recalls that the authorities became aware of the death of the applicants’ relative by 19 May 2004 at the latest and that they considered at that moment that the circumstances of his death warranted an inquiry (see paragraph 99 above). However, it is unable to discern from the text of the decision of 18 August 2004 what investigative steps the district prosecutor had taken before deciding not to open a criminal case (see paragraph 50 above). Given the Government’s refusal to furnish any documents relating to that inquiry or to the inquiry conducted by the military prosecutor and in the absence of a copy of the decision of 13 June 2004, the Court is prevented from assessing the scope of the authorities’ reaction to the death of Zelimkhan Isayev at the material time.

143.  In any event, having regard to the text of the decision of 18 August 2004 and the fact that the authorities decided to open an investigation into the circumstances of his death only in November 2007, that is more than three years after the events, the Court has strong doubts as to whether they can be regarded to have complied with the requirements of promptness and reasonable expedition, laid down in its case-law.

144.  The Court further has to assess the scope of the investigative measures taken.

145.  As it has noted above, it has no information on the investigative steps taken in the framework of the inquiries conducted by the district and military prosecutors. In the Government’s submission, after the opening of the investigation the authorities carried out two medical examinations and a further medical examination was under way. They also claimed that the investigators had interviewed unspecified doctors. However, they produced no documents in support of their submissions and hence, not only is it impossible to establish when those measures were taken but whether they were taken at all (compare, for example, Alapayevy v. Russia, no. 39676/06, § 94, 3 June 2010).

146.  In any event, assuming that those measures were carried out and considering the time that had elapsed since the death of Zelimkhan Isayev, it is clear from the Government’s own submissions that the medical examinations, conducted more than three years after the events, were unable to establish either the means or the time of infliction of the injuries sustained by the applicants’ relative (see paragraph 109 above).

147.  Furthermore, it appears that a number of crucial investigative steps were never taken.

148.  In the first place, there is no evidence that the investigating authorities conducted a post-mortem examination of Zelimkhan Isayev. The Court cannot but deplore this failure, for which the Government offered no explanation, because that investigative step was clearly indispensable not only to establish an accurate record of the injuries sustained by him but, more importantly, to determine, with the requisite precision and on the basis of objective clinical findings, the cause of his death.

149.  Furthermore, there is no indication that the investigators interviewed the FSB officers who had participated in the applicants’ relative’s arrest or identified and interviewed other persons who had witnessed it, including the fourth applicant. It considers this failure particularly alarming, given that the authorities must have known which FSB officers had participated in the operation aimed at Zelimkhan Isayev’s arrest.

150.  It likewise does not emerge from the materials available or the parties’ submissions that any attempts have been made to identify and interview the State officials who had had access to Zelimkhan Isayev after his placement in custody, or his eventual fellow detainees.

151.  Those omissions remained unexplained by the Government.

152.  In the Court’s opinion, the above-mentioned defects critically undermined the ability of the investigation to establish the relevant facts, as well as to identify and bring to justice the persons responsible.

153.  It furthermore does not appear from the materials available to the Court that the authorities ever considered granting any of the applicants victim status in the proceedings initiated in connection with their relative’s death. Nor did the Government contest the applicants’ submission that they had not been provided with any information on the progress of the investigation. Accordingly, the Court has serious doubts that the investigators ensured that the investigation received the required level of public scrutiny to safeguard the interests of the next of kin in the proceedings (see Oğur v. Turkey [GC], no. 21594/93, § 92, ECHR 1999-III).

154.  Having regard to the part of the Government’s objection that was joined to the merits of the complaint, inasmuch as it concerned the fact that the domestic investigation is still pending, the Court notes that the investigation, plagued by inexplicable delays, has been ongoing for several years and has produced no tangible results. Moreover, owing to the time which had elapsed since the events complained of, certain investigative measures that ought to have been carried out much earlier could no longer be usefully conducted. Against this background the Court finds that the remedy relied on by the Government was ineffective in the circumstances and therefore rejects their objection.

155.  In the light of the foregoing, the Court concludes that the authorities failed to carry out an effective investigation into the circumstances of Zelimkhan Isayev’s death, in breach of Article 2 in its procedural aspect.

III.  THE ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

156.  The applicants complained under Article 3 of the Convention that Zelimkhan Isayev had been tortured by State agents before he died and that the authorities had not investigated his alleged ill-treatment, in breach of the procedural obligation arising from that provision. Article 3 reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  Submissions by the parties

157.  The Government argued that the investigation conducted by the domestic authorities had obtained no evidence that the applicants’ relative had been subjected to treatment in breach of Article 3 of the Convention. In their submission, the investigation of the allegations concerning his ill-treatment satisfied the Convention requirements.

158.  The applicants submitted, with reference to the medical documents they had furnished, that Zelimkhan Isayev had been ill-treated in breach of Article 3 of the Convention and that the treatment to which he had been subjected had amounted to torture. They also stated that there had been a breach of Article 3 in its procedural aspect on account of the authorities’ failure to investigate their relative’s torture.

B.  The Court’s assessment

1.  Admissibility

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

2.  Merits

160.  The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this level depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, cited above, § 162).

161.  Where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see, among many other authorities, Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004). Where an individual, when taken into police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-111, Series A no. 241-A).

162.  Turning to the circumstances of the present case, the Court notes that it has already found that the Government have failed to provide a plausible explanation for the injuries sustained by Zelimkhan Isayev (see paragraphs 122-133 above).

163.  It will further examine whether the treatment to which Zelimkhan Isayev had been subjected amounted to torture, as claimed by the applicants.

164.  In this connection it has regard to the distinction, embodied in Article 3, between the notion of torture and that of inhuman or degrading treatment. As the Court held on numerous occasions, it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. The Court has previously had before it cases in which it has found that there has been treatment which could only be described as torture (see Aksoy, cited above, § 64; Aydin v. Germany, no. 16637/07, §§ 83-84, 27 January 2011; Selmouni v. France [GC], no. 25803/94, §§ 94-96, ECHR 1999-V; and, more recently, Maslova and Nalbandov v. Russia, no. 839/02, §§ 106-08, ECHR 2008-… (extracts), and Akulinin and Babich v. Russia, no. 5742/02, § 44, 2 October 2008). The acts complained of were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance.

165.  The Court also reiterates its well-established case-law that in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right enshrined in Article 3 of the Convention. It observes that the requirements of an investigation and the undeniable difficulties inherent in the fight against crime cannot justify placing limits on the protection to be afforded in respect of the physical integrity of individuals (see Tomasi, cited above, § 115, and Ribitsch v. Austria, 4 December 1995, §§ 38-40, Series A no. 336).

166.  The Court finds that in the instant case the existence of physical pain and suffering is attested by the medical documents concerning Zelimkhan Isayev and furnished by the applicants (see paragraphs 36 and 37 above). It also considers that the ill-treatment inflicted upon Zelimkhan Isayev was particularly cruel and severe since it resulted in his death. Moreover, the sequence of the events suggests that the pain and suffering were inflicted on him intentionally, in particular, with a view to extracting from him information about his alleged connections to paramilitary groups active in the Chechen Republic.

167.  In these circumstances, the Court concludes that, taken as a whole, the treatment to which the applicants’ relative was subjected amounted to torture within the meaning of Article 3 of the Convention.

168.  Accordingly, there has been a violation of Article 3 under its substantive limb.

169.  As to the alleged inadequacy of the investigation, the Court refers to its findings in paragraphs 141-154 and to its conclusion in paragraph 155.

170.  It finds, on the same grounds, that there has also been a violation of Article 3 under its procedural limb (see Carabulea, cited above, § 151).

IV.  THE ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

171.  The second, third and fourth applicants complained under Article 8 of the Convention about the unlawful search of their home carried out on 9 May 2004. Article 8 reads:

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

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

A.  Submissions by the parties

172.  The Government argued that the domestic investigation had obtained no evidence that the home of the second to fourth applicants had been searched on 9 May 2004. Moreover, the applicants provided no specific information in connection with that complaint, such as, who had searched the house and where, or whether anything had been discovered during the alleged search. Moreover, the applicants had not complained about the search to the authorities.

173.  In the Government’s submission, contrary to the applicants’ assertion, the search in Zelimkhan Isayev’s home was carried out on 10 May 2004. It had been authorised by a judge and had been conducted in accordance with all relevant legal requirements. The fact that the search had been conducted on that date was confirmed by a number of documents.

174.  The applicants maintained their submissions and claimed that they had raised the issue before the authorities in their complaint about Zelimkhan Isayev’s death.

B.  The Court’s assessment

175.  The Government argued that the applicants had failed to exhaust the domestic remedies in respect of their complaint about the allegedly unlawful search of their home under Article 8 of the Convention. The applicants contested that submission.

176.  The Court considers that it need not resolve this issue because it finds that the second to fourth applicants’ complaint is in any event inadmissible for the following reasons.

177.  It notes in the first place that, according to the applicants’ submissions, the fourth applicant was the only person, apart from Zelimkhan Isayev, who had been present at 24 Sverdlova Street at the time of his arrest. The other applicants and T.I. had not been present. The Court further observes that, whilst in their application form the applicants claimed that the officers who had arrested Zelimkhan Isayev had also searched the entire house and the yard, in her written statement the fourth applicant stated only that the servicemen had searched her room, without mentioning any other parts of the house (see paragraphs 15 and 16 above). It is also noted that neither the written statement of T.I. nor the statements of any of the applicants, other than the fourth applicant, mentioned anything concerning the alleged search of the premises on 9 May 2004.

178.  The Court further points out that, apart from stating that their house had been unlawfully searched on 9 May 2004, the applicants failed to provide any further details either in their complaint to the authorities (see paragraph 48 above) or in their application to the Court.

179.  In sum, having regard to the applicants’ submissions concerning the alleged search, the Court considers that they are not only vague but also contradictory in a number of important aspects.

180.  In the light of the foregoing, it concludes that the applicants’ complaint under Article 8 should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

181.  The applicants complained that they had had no effective domestic remedies against the above violations, contrary to Article 13 of the Convention, which reads as follows:

“Everyone 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.”

A.  Submissions by the parties

182.  The Government submitted that the applicants had had effective remedies, as required by Article 13. In essence they reiterated their submissions relating to the applicants’ failure to exhaust domestic remedies (see paragraphs 78-79 above).

183.  The applicants maintained their complaint.

B.  The Court’s assessment

1.  Admissibility

184.  The Court notes that it has declared the applicants’ complaint under Article 8 of the Convention inadmissible. It therefore considers that the applicants did not have an arguable claim of a violation of that Convention provision. Accordingly, their complaint under Article 13 that they had no effective remedies in relation to the complaint under Article 8 must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).

185.  As regards the remainder of the applicants’ submissions under Article 13, the Court considers that this part of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

186.  The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova, cited above, §§ 161-162, ECHR 2002-IV, and Süheyla Aydın v. Turkey, no. 25660/94, § 206-07, 24 May 2005).

187.  The Court also reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Orhan v. Turkey, no. 25656/94, § 384, 18 June 2002).

188.  Having regard to its findings above concerning Articles 2 and 3 of the Convention, the Court considers that these complaints are “arguable” for the purposes of Article 13 (see Boyle and Rice, cited above, § 52). Accordingly, the applicants should have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation, for the purposes of Article 13.

189.  However, in circumstances where, as here, the criminal investigation into suspicious deaths was ineffective in that it lacked sufficient objectivity and thoroughness, and where the effectiveness of any other remedy that may have existed, including the civil remedies suggested by the Government, was consequently undermined, the Court finds that the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 185, 24 February 2005; Chitayev and Chitayev v. Russia, no. 59334/00, § 202, 18 January 2007, and Menesheva v. Russia, no. 59261/00, § 76, ECHR 2006-III).

190.  It follows that there has been a violation of Article 13 of the Convention.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

191.  Article 41 of the Convention provides:

“If 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.”

A.  Damage

192.  The applicants did not submit any claims for pecuniary damage. They claimed non-pecuniary damage for the suffering they had endured as a result of the loss of their relative and the authorities’ failure to investigate his death and alleged ill-treatment, leaving the determination of its amount to the Court.

193.  The Government submitted that, should the Court find a violation of the applicants’ Convention rights, a finding of a violation would constitute sufficient just satisfaction.

194.  The Court notes that it has found a violation of Articles 2, 3 and 13 of the Convention on account of the torture and death of the applicants’ relative. It accepts therefore that the applicants must have suffered non-pecuniary damage which cannot be compensated for by findings of violations. Having regard to the particularly grave circumstances of the present case and the nature of the multiple violations found, it awards them 78,000 euros (EUR) jointly in respect of non-pecuniary damage, plus any tax that may be chargeable to them.

B.  Costs and expenses

195.  The applicants were represented by lawyers from the NGO EHRAC/Memorial Human Rights Centre. The aggregate claim in respect of costs and expenses related to the applicant’s legal representation amounted to 1,783.7 pounds sterling (GBP), to be paid into the representatives’ account in the United Kingdom. The amount claimed was broken down as follows:

a)  GBP 600 for six hours of legal drafting of documents submitted to the Court at a rate of GBP 100 per hour;

(b)  GBP 1,008.7 for translation costs, and

(c)  GBP 175 for administrative and postal costs.

196.  The Government pointed out that the applicants should be entitled to the reimbursement of the 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). They further stated that Ms M., in respect of whose services the applicants claimed GBP 600, had not been mentioned in the authority form and it was doubtful whether consulting her could be considered “reasonable”, given that the applicants were already represented by a number of EHRAC lawyers.

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

198.  Having regard to the details of the information and legal representation contracts submitted by the applicants, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives, save in the case of Ms M., in respect of whose services the applicants failed to furnish any supporting documents.

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

200.  Having regard to the details of the claims submitted by the applicants and in so far as they were substantiated, the Court awards them the amount of EUR 1,481, together with any value-added tax that may be chargeable to the applicants, the net award to be paid into the representatives’ bank account in the United Kingdom, as identified by the applicants.

C.  Default interest

201.  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, in so far as that objection concerns the fact that criminal proceedings pertaining to the death and ill-treatment complaint are pending, and rejects it;

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

3.  Holds that there has been a violation of Article 2 of the Convention in respect of Zelimkhan Isayev’s death;

4.  Holds that there is no need to examine the complaint under Article 2 of the Convention concerning the alleged lack of medical treatment provided to Zelimkhan Isayev;

5.  Holds that there has been a violation of Article 2 of the Convention in that the authorities failed to conduct an effective investigation into Zelimkhan Isayev’s death;

6.  Holds that there has been a violation of Article 3 of the Convention on account of the torture inflicted on Zelimkhan Isayev and the authorities’ failure to investigate it;

7.  Holds that there has been a violation of Article 13 of the Convention;

8.  Holds

(a)  that the respondent State is to pay the applicants, 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 78,000 (seventy-eight thousand euros) to the applicants jointly in respect of non-pecuniary damage, plus any tax that may be chargeable to them;

(ii)  EUR 1,481 (one thousand four hundred and eighty-one euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account in the United Kingdom;

(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;

9.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 21 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Nina Vajić
Registrar President

]]> http://www.waynakh.com/eng/2011/06/isayev-and-others-v-russia/feed/ 0 Nakayev v. Russia http://www.waynakh.com/eng/2011/06/nakayev-v-russia/ http://www.waynakh.com/eng/2011/06/nakayev-v-russia/#comments Tue, 21 Jun 2011 22:05:00 +0000 admin http://www.waynakh.com/eng/?p=8396 The ECHR case of Nakayev v. Russia (applications no. 29846/05).

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CASE OF NAKAYEV v. RUSSIA

(Application no. 29846/05)

JUDGMENT

STRASBOURG

21 June 2011

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 Nakayev v. Russia,

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

Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
George Nicolaou,
Mirjana Lazarova Trajkovska, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 31 May 2011,

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

PROCEDURE

1.  The case originated in an application (no. 29846/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Ibragim Nakayev (“the applicant”), on 27 June 2005.

2.  The applicant, who had been granted legal aid, was represented by Mr D. Itslayev, a lawyer practising in Grozny, Chechnya. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3.  The applicant alleged principally that he had been wounded as a result of the military action in December 1999 and that no effective investigation had taken place. He referred to Articles 2, 3, 6 and 13 of the Convention.

4.  On 4 September 2008 the President of the First Section decided to grant the application priority under Rule 41 of the Rules of Court and to give notice of it to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

1.  The applicant’s wounding in 1999

5.  The applicant was born in 1979 and lives in Urus-Martan, Chechnya.

6.  In 1999 the Russian Government launched a counter-terrorist operation in Chechnya.

7.  In the autumn of 1999, because of the armed clashes, the applicant and his family moved temporarily to the house of their relative, Mr S. Kh., at 9 Trudovaya Street, Martan-Chu, in Urus-Martan district. The village administration recorded the applicant as an internally displaced person.

8.  According to the applicant, on 4 December 1999 between 11 a.m. and 12 noon advancing Russian federal forces subjected the area around Martan-Chu to indiscriminate shelling. He submitted that the army had used “Grad” (“Град”) or “Uragan” (“Ураган”), multiple rocket launch systems, which were stationed about ten kilometres from the village. Several projectiles hit the village. One of them landed in the yard of Mr S. Kh. and hit a car which was parked there. The applicant was standing next to the car and received numerous splinter wounds, including to the head. According to the applicant’s submissions made to the Court, in June 2005 a part of the projectile which had wounded the applicant remained in Mr S. Kh.’s yard.

9.  On 19 December 1999 the administration of Martan-Chu issued a paper which stated that the applicant and his cousin had been wounded as a result of the bombardment of the village on 4 December 1999 and that on the same date they had been taken to the hospital in Novyie Atagi, in Grozny district.

2.  The effect of the applicant’s wounding on the state of his health

10.  As a result of the wounding the applicant’s health deteriorated; he had become unable to work, which was recognised in 2001 by a forensic examination as second-degree disability. He receives a monthly disability pension.

11.  According to the submitted documents, the applicant underwent several rounds of treatment in connection with his injuries. Between 4 and 21 December 1999 the applicant was in Novyie Atagi hospital. On 2 February 2000 a splinter was removed from his head. Between 2 and 29 August 2001 the applicant received post-operative treatment.

12.  On 2 November 2004 the Urus-Martan district hospital summarised the state of the applicant’s health. According to the document, the applicant’s health had been monitored by the hospital since 2000; he required constant rehabilitation therapy.

13.  Between 25 and 29 April 2008 the applicant was examined by the experts of the Chechnya Bureau of Forensic Expertise. According to their evaluation, the applicant had a penetrating wound to the right part of the frontal lobe with damage to the brain; such a wound could have been caused by a shell splinter and was qualified as serious damage to the applicant’s health.

3.  The first round of the criminal investigation

14.  On 11 March 2002 the applicant’s mother wrote to the Russian Ombudsman and asked for assistance in relation to the applicant’s situation. She indicated that her son had been injured on 4 December 1999 as a result of the shelling of Martan-Chu and that the family had been bearing the costs of complex medical interventions.

15.  On 28 May 2003 the applicant’s mother informed the Urus-Martan district prosecutor’s office (“the district prosecutor’s office”) about the applicant’s injury received during the bombardment on 4 December 1999. She alleged that the shelling of the village had been carried out by the servicemen of the “245th regiment”.

16.  On 14 August 2003 the applicant’s mother complained about the applicant’s injuries to the Urus-Martan district police department (“the ROVD”) and requested the authorities to institute a criminal investigation into the events.

17.  On 16 September 2003 the ROVD refused to institute criminal proceedings in connection with the applicant’s wounding on 4 December 1999. The decision stated that the authorities had conducted an inquiry, which had established the following: a number of armed clashes, including exchanges of gunfire, had taken place between Russian forces and illegal armed groups in the area of the applicant’s residence in 1999. As a result of the bombardment of Martan-Chu the applicant was injured, which had been confirmed by the witness statements of Ms R. N., Mr R. Kh. and Mr B. The projectile, which had hit the yard of Mr S. Kh. and wounded the applicant, had been launched by one of the parties to the conflict. However, it was impossible to establish which party had launched the projectile. Thus, taking into consideration that the applicant had been injured as a result of an accident, the request for the institution of criminal proceedings was to be rejected pursuant to Article 24 § 1 (2) of the Criminal Procedure Code owing to the lack of corpus delicti.

18.  On 16 September 2003 the ROVD informed the applicant about their decision concerning the refusal to instit