The ECHR cases of Khantiyeva and Others – Satabayeva – Vakhayeva and Others v. Russia (application no. 43398/06, 21486/06 and 1758/04).

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EUROPEAN COURT OF HUMAN RIGHTS

No. 810

29.10.2009

Press release issued by the Registrar

Three Chamber judgments in respect of Russia

Khantiyeva and Others v. Russia (no. 43398/06)

Satabayeva v. Russia (no. 21486/06)

Vakhayeva and Others v. Russia (no. 1758/04)

DISAPPEARANCES IN CHECHNYA

Violations in all three cases of Article 2 (right to life of Mayrudin Khantiyev, Yusup Satabayev and Kazbek Vakhayev and lack of an effective investigation into their disappearances), Article 3 (inhuman treatment on account of the applicants’ psychological suffering), Article 5 (unacknowledged detention) and Article 13 (right to an effective remedy) of the European Convention on Human Rights; and, violation, in the last two cases, of Article 38 § 1 (refusal to submit documents requested by the Court)

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants a total of 9,000 euros (EUR) in respect of pecuniary damage, EUR 105,000 in respect of  non-pecuniary damage, and EUR 16,540 for costs and expenses. (The judgments are available only in English.)

Principal facts

The applicants in the first case are the parents, wife and son of Mayrudin Khantiyev, born in 1972. They have not seen their relative since 4 December 2000 when a group of armed men in dark-green camouflage uniforms burst into the family flat and, tying Mr Khantiyev up with adhesive tape, took him away in a vehicle with blackened windows and no licence plates. The applicants alleged that their relative had been abducted by Russian servicemen; the Government stated that Mayrudin Khantiyev had been kidnapped and taken away to an unknown destination by an unidentified illegal armed group who had passed themselves off as Russian servicemen, a frequent occurrence at the relevant time.

The applicant in the second case is the mother of Yusup Satabayev, born in 1977. The applicants in the third case are the mother, wife and children of Kazbek Vakhayev, born in 1975. All the applicants live in Urus-Martan (the Chechen Republic) where their two relatives were arrested, on 23 February and 1 August 2000, respectively: Mr Satabayev in the context of criminal proceedings against him for participating in an organised armed gang and illegal dealing in firearms; and, Mr Vakhayev during a security raid carried out on the eastern sector of town. Mr Satabayev’s mother alleged that, although the criminal proceedings against her son had been discontinued on 27 July 2000, he had not been released but transferred to the Urus-Martan temporary Department of the Interior of the Chechen Republic (the “VOVD”), a temporary police station with a detention facility set up in a former boarding school. Similarly, Mr Vakhayev was kept in the VOVD. The applicants routinely visited that detention centre and sent parcels to their relatives (for which they received receipts signed by their relatives) until 13 August 2000 when they were told by the authorities that their relatives had been released. The Government conceded that Mr Satabayev had been detained from 23 February to 1 August 2000 and then from 4 to 14 August 2000 and that Mr Vakhayev had been detained from 1 to 11 August; it failed however to provide any documents to confirm the arrests, subsequent detention or release. The applicants maintained that their relatives had never been released; they had subsequently identified from video footage their relatives’ bodies which had been found near the village of Goy-Chu.

Complaints and procedure

The three cases concerned the applicants’ allegations that their close relatives disappeared in Chechnya after having been detained by Russian servicemen. All the applicants further complained that the domestic authorities had failed to carry out an effective investigation into their allegations. They relied in particular on Articles 2, 3, 5 and 13. In the cases of Satabayeva and Vakhayeva and Others the applicants also complained about the Russian Government’s refusal to submit copies of the entire investigation file on the disappearance of their relatives, in breach of Article 38 § 1.

Decision of the Court

In the first case the Court considered that the applicants had presented a coherent and convincing picture of their relative’s abduction, corroborated by witness statements from neighbours and hand-drawn maps of their block of flats, situated in Grozny near at least three military checkpoints and with two military watch posts on its roof. Indeed, given the Russian authorities’ exclusive control over the area, the Court found it difficult to understand how a group of armed men in a vehicle without registration plates could abduct the applicants’ relative without any reaction by the servicemen posted on the roof of the block of flats. The Court therefore held that the evidence available to it established beyond reasonable doubt that the applicants’ relative had been abducted by agents of the State and that he had to be presumed dead following his unacknowledged detention by Russian servicemen during a security operation.

In the last two cases the Court found the Government’s submissions concerning the alleged release of the applicants’ relatives to be contradictory and inconsistent; nor had the Government, despite the Court’s requests, provided any proof that Yusup Satabayev or Kazbek Vakhayev had in fact been released. It therefore found it established that they had remained in continued detention under State control from, respectively, 23 February and 1 August 2000 onwards. There had been no reliable news of either of the applicants’ relatives since 14 August 2000; their names had not been found in any official detention records after that date and the Government had not submitted any explanation as to what could have happened to them. It was therefore found to be established that the applicants’ relatives had disappeared after 14 August 2000 while they remained in State custody and had to be presumed dead following their unacknowledged detention.

Noting in all the cases that the authorities had not justified the use of lethal force by their agents or otherwise accounted for the deaths, the Court concluded that there had been a violation of Article 2 in respect of all of the applicants’ relatives.

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

The Court also found that all the applicants had suffered and continued to suffer distress and anguish as a result of the disappearance of their relatives and their inability to find out what had happened to them. The manner in which their complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment, in violation of Article 3.

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

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CASE OF KHANTIYEVA AND OTHERS v. RUSSIA

(Application no. 43398/06)

JUDGMENT

STRASBOURG

29 October 2009

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

In the case of Khantiyeva and Others v. Russia,

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

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 8 October 2009,

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

PROCEDURE

1.  The case originated in an application (no. 43398/06) 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 four Russian nationals, listed in paragraph 5 below (“the applicants”), on 18 October 2006.

2.  The applicants were 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, Representative of the Russian Federation at the European Court of Human Rights.

3.  On 16 June 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application, and to give notice of the application to the Government. Under the provisions of Article 29 § 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 applicants are:

1)      Ms Ayna Khantiyeva, born in 1951;

2)      Mr Alaudin Khantiyev, born in 1940;

3)      Ms Kulsum Baysultanova, born in 1972, and

4)      Mr Adam Khantiyev, born in 1991.

The applicants live in Grozny, in the Chechen Republic.

6.  The first and second applicants are the parents of Mr Mayrudin Khantiyev, born in 1972. The third and fourth applicants are Mayrudin Khatntiyev’s wife and son.

A.  The background to the case

7.  According to a certificate issued on 12 March 2002 by the head of the Grozny SIZO-I remand prison, from 1998 to 1999 Mayrudin Khantiyev was employed as a junior inspector in the security department of that facility; he left his job in 1999 because of the hostilities. According to the applicants, Mayrudin Khantiyev subsequently worked as a mechanic and then as a construction worker on the construction site of a school.

8.  In December 2000 the city of Grozny was under curfew. The applicants and Mayrudin Khantiyev lived in the same five-storey block of flats at no. 269 Ugolnaya Street in Grozny (“house no. 269”). The flat of Mayrudin Khantiyev’s family was on the ground floor; his parents’ flat was on the first floor. Two guard posts of the Russian military forces were stationed on the roof of house no. 269 on a permanent basis, the soldiers having constructed a shelter there. The building was situated about fifty metres from the military commander’s office of the Staropromyslovskiy district (the district military commander’s office) and its checkpoint. Two further checkpoints were located in the vicinity of the applicants’ building. One of them, called “Katayama” (“Катаяма”), was located about 500 metres away; the other one, called “Zagryazhskiy” (“Загряжский”) was about 1.5 km away from the applicants’ building.

B.  Abduction of Mayrudin Khantiyev

1.  The applicants’ account

(i)  The events of 4 December 2000 as described by the applicants

9.  On 4 December 2000 the applicants and Mayrudin Khantiyev were sleeping in their respective flats at the above address. At about 6.15 a.m., during curfew, the third applicant was woken up by a noise at the entrance door. She approached the door and noticed the light of a torch. She saw that the door was being forced from the outside. The third applicant called Mayrudin Khantiyev and they tried to hold the door from the inside. After a while the door lock was broken and a group of about five armed men in dark-green camouflage uniforms and masks burst into the flat. The intruders were speaking Russian. They neither identified themselves nor produced any documents. The third applicant inferred that they were servicemen.

10.  The servicemen immediately grabbed the third applicant and Mayrudin Khantiyev and took them into one room. The third applicant asked one of the intruders what they were looking for. She did not receive any response to her question and was ordered to stay quiet. She heard the servicemen tying up her husband with adhesive tape; he could not say anything as apparently his mouth was covered with the tape. Having tied up Mayrudin Khantiyev, who was barefoot and in his underwear, the servicemen dragged him outside through the balcony and put him into a new white Niva vehicle with blackened windows and without licence plates, parked near the third applicant’s balcony. While the servicemen were leaving the flat with Mayrudin Khantiyev the third applicant started screaming for help. Meanwhile the men got into the car and it started driving away in the direction of the 36^th district (36-й участок) of Grozny.

11.  The third applicant ran outside calling for help, and saw the car drive away in the above direction. At that moment the first applicant and several neighbours ran outside. The applicants immediately asked the servicemen on the roof for help. The first applicant shouted to them that the men in the white car, which was still visible on the road, had abducted her son. Servicemen on one of the guard posts on the roof did not react to the first applicant’s calls for help. Soldiers at the other guard post ordered the applicants to stay quiet and to return home as it was curfew.

12.  According to the first applicant’s statement to her representatives, she reached Mayrudin Khantiyev’s flat while the armed masked men were still inside it. They would not let her inside.

13.  One of the applicants’ neighbours, the former head of a local department of the interior, also went outside and heard the applicants ask for help. He told the first applicant to get into his car and they drove to the Russian federal forces checkpoint located about 1.5 km away. At the checkpoint the first applicant told the soldiers that her son had been abducted by men in the white VAZ-2121 car and asked whether that car had passed the checkpoint. The soldiers told her that they did not know anything and threatened to kill the first applicant and her neighbour if they did not return home.

14.  On the same day the second applicant went to the district military commander’s office. He complained to the military commander that Mayrudin Khantiyev had been abducted. The second applicant pointed out that the servicemen on the roof must have seen the abductors and the direction in which they had taken his son away and that they had not done anything. The commander responded that the soldiers had not seen anything as they had been asleep.

15.  The above account of the events is based on the application form of 20 October 2006, the applicants’ statements to their representatives dated 19 October 2006 and two hand-drawn maps of the applicants’ block of flats in Grozny.

(ii)  Statements by witnesses

16.  The applicants produced undated statements from the residents of house no. 269 in support of their account of the events of 4 December 2000.

17.  In their statements Ms V., Ms P., Mr Da. and Ms S. submitted that at about 6.15 a.m. they had been woken up by noise and screaming coming from the courtyard. Ms V. and Ms P. had looked out of their windows and Mr Da. and Ms S. had gone outside. They had all seen a white NIVA vehicle drive off and the first and third applicants run after it screaming. Ms P. specifically pointed out that at the relevant time servicemen of the district military commander’s office had been stationed on the roof of the house.

18.  In their statements Ms B. and Mr U. submitted that at about 6 a.m., during curfew hours, they had been woken up by the screams and weeping of women and children. Ms B. and Mr U. had got to the staircase and had seen the door of Mayrudin Khantiyev’s flat broken and a white NIVA vehicle with blackened windows and without licence plates. Mayrudin Khantiyev, who was only in his underwear, had been forced into the vehicle and taken away.

19.  In his statement Mr Du. submitted that at about 6 a.m. on 4 December 2000 he had been woken up by the screaming of women and crying of children. He had got outside and had seen several servicemen who were wearing masks. Mr Du. had wanted to ask them what was going on but was afraid. Two servicemen had taken Mayrudin Khantiyev to a white NIVA vehicle with blackened windows and without licence plates.

2.  Information submitted by the Government

20.  The Government submitted that on 4 December 2000 unidentified armed persons had kidnapped Mayrudin Khantiyev and had taken him away to an unknown destination.

C.  The search for Mayrudin Khantiyev and the investigation

1.  The applicants’ account

21.  Between 4 and 19 December 2000 the applicants complained about their relative’s abduction to a number of local law enforcement agencies, including the department of the interior of the Staropromyslovskiy district (the ROVD), the local prosecutor’s office and the military commander’s office of the Staropromyslovskiy district (the district military commander’s office). The applicants did not retain copies of their complaints.

22.  On 20 December 2000 the applicants complained about the abduction of Mayrudin Khantiyev to the Grozny military commander’s office. In their complaint they provided a detailed description of the circumstances of their relative’s abduction. In particular, they stated that Mayrudin Khantiyev had been abducted at 6.15 a.m., during curfew, by armed men in camouflage uniforms who had tied him up and taken him away to an unknown destination. The applicants stated that immediately after the abduction, on the morning of 4 December 2000, they had complained about it to the military commander of the Staropromyslovskiy district, Mr Z.; the latter had denied knowing anything about the abduction and had refused to assist the applicants. In their complaint the applicants also submitted that they had previously applied in writing to the prosecutor’s office, the ROVD and other authorities but that their complaints had not produced any results.

23.  On 27 December 2000 the Grozny town prosecutor’s office (the town prosecutor’s office) instituted an investigation into the abduction of Mayrudin Khantiyev under Article 126 § 1 of the Criminal Code (kidnapping). The case file was given the number 12368. The decision stated that, having examined the materials of the inquiry opened following the third applicant’s complaint, the town prosecutor’s office had established that on 4 December 2000 at about 6.10 a.m. unidentified persons in masks and camouflage uniforms had abducted Mayrudin Khantiyev from his flat and taken him to an unknown destination.

24.  On 4 January 2001 the town prosecutor’s office forwarded the first applicant’s request for assistance in the search for her son to the ROVD for examination.

25.  On 18 January 2001 the town prosecutor’s office issued the applicants with a statement concerning the investigation into the abduction of Mayrudin Khantiyev. The document stated that on an unspecified date they had suspended the investigation in the criminal case for failure to establish the identity of the perpetrators.

26.  On 20 January 2001 the town prosecutor’s office granted the third applicant victim status in criminal case no. 12368.

27.  On 9 February 2001 the prosecutor’s office of the Chechen Republic (the republican prosecutor’s office) forwarded the applicants’ complaint about the abduction of Mayrudin Khantiyev to the town prosecutor’s office for examination and instructed the latter to consider whether an investigation into that incident should be opened.

28.  On 1 April 2001 the republican prosecutor’s office forwarded the first applicant’s complaint about her son’s abduction by armed masked men in camouflage uniforms to the town prosecutor’s office for examination.

29.  On 27 July 2001 the town prosecutor’s office replied to the third applicant’s query and informed her that the investigation in criminal case no. 12368 was under way.

30.  On 31 July 2001 the town prosecutor’s office replied to the first applicant that they had examined her complaint about her son’s abduction and that criminal case no. 12368 had been forwarded to the republican prosecutor’s office for examination.

31.  On 7 August 2001 the republican prosecutor’s office informed the first applicant that they had examined the investigation file in criminal case no. 12368 and had issued unspecified instructions aimed at identifying the perpetrators.

32.  On 8 August 2001 the republican prosecutor’s office forwarded the first applicant’s request for assistance in the search for her son to the town prosecutor’s office.

33.  On 21 August 2001 the Prosecutor General’s office of the Russian Federation informed the first applicant that her complaint about her son’s abduction had been forwarded to the republican prosecutor’s office.

34.  On 25 August 2001 the town prosecutor’s office granted the first applicant victim status in connection with the proceedings in case no. 12368.

35.  On 9 September 2001 the republican prosecutor’s office forwarded the first applicant’s request for assistance in the search for her son to the town prosecutor’s office.

36.  It appears that on 12 or 18 September 2001 the town prosecutor’s office suspended the investigation in criminal case no. 12368 for failure to establish the perpetrators. There is no indication that applicants were informed about that decision.

37.  On an unspecified date in September 2001 the first applicant wrote to the Prosecutor General of the Russian Federation. She complained about her son’s abduction by armed men in camouflage uniforms who had arrived on the white VAZ-2121 car. In her letter she pointed out that at the time of the abduction a number of Russian military servicemen had been stationed on the roof of the house; that the abductors had freely driven away in spite of the curfew and the presence of the soldiers on the roof. The applicant stated that her numerous complaints to various state authorities, including the ROVD, the military commander’s office and the prosecutor’s office, had failed to produce any results. She also complained that the investigating authorities had failed to inform her about the reasons for the suspension of the investigation in criminal case no. 12368. Lastly, the first applicant requested assistance in the search for her son.

38.  On 28 January 2002 the town prosecutor’s office informed the applicants that on 18 September 2001 they had suspended the investigation in criminal case no. 12368 owing to the failure to establish the perpetrators and that there were no reasons for that decision to be set aside.

39.  On an unspecified date in 2002 the first applicant wrote to the military prosecutor’s office of the United Group Alignment (the UGA military prosecutor’s office). She described the circumstances of her son’s abduction and stated that her numerous complaints to various law enforcement bodies had failed to produce any results. She also complained about the lack of information concerning the investigation in criminal case no. 12368.

40.  On 16 May 2002 Human Rights Watch wrote on behalf of the applicants to the Prosecutor General. The letter provided, among other things, a detailed description of the circumstances of Mayrudin Khantiyev’s abduction and requested the authorities to resume the criminal investigation into his kidnapping.

41.  On 23 July 2002 the first applicant wrote to the prosecutor of the Chechen Republic. She complained about her son’s abduction by armed men in camouflage uniforms and stated that her numerous requests for assistance in the search for Mayrudin Khantiyev had failed to produce any results.

42.  On 3 October 2002 the prosecutor of the Chechen Republic replied to Human Rights Watch. The letter stated that the authorities had been undertaking unspecified measures to establish the whereabouts of the applicants’ relative.

43.  It appears that at some point in 2003 the investigation in criminal case no. 12368 was transferred from the town prosecutor’s office to the Staropromyslovskiy district prosecutor’s office (“the district prosecutor’s office”). There is no indication that applicants were informed about it.

44.  On 17 May 2003 the UGA military prosecutor’s office forwarded the first applicant’s request for assistance in the search for her son to the military prosecutor’s office of military unit no. 20102 for examination.

45.  On 21 May 2003 the district prosecutor’s office informed the first applicant that they had examined her complaint. The letter stated that on 12 September 2001 the town prosecutor’s office had suspended the investigation in criminal case no. 12368 owing to the failure to identify the perpetrators and that the search for Mayrudin Khantiyev had been entrusted to the ROVD.

46.  On 16 June 2003 the republican prosecutor’s office informed the first applicant that it had examined case file no. 12368 opened into the abduction of Mayrudin Khantiyev on 4 December 2000 at about 6.10 a.m. by unidentified persons. The first applicant was informed that on 16 June 2003 the republican prosecutor’s office had set aside the decision of 12 September 2001 to suspend the investigation in criminal case no. 12368. The district prosecutor’s office had been given unspecified instructions and would inform the applicants about the progress in the criminal investigation.

47.  On 26 June 2003 the ROVD informed the first applicant that they had been conducting operational and search measures aimed at establishing Mayrudin Khantiyev’s whereabouts and identifying the perpetrators. However, those measures had failed to produce any results.

48.  On 15 June 2004 the UGA military prosecutor’s office forwarded the first applicant’s request for assistance in the search for her son to the military prosecutor’s office of military unit no. 20102 for examination. They informed the first applicant by a letter of 17 July 2004 that the examination of her complaint about her son’s abduction had not established any implication of the Russian military forces in the crime.

49.  On 29 July 2004 the district prosecutor’s office provided the first applicant with a certificate to the effect that on 4 December 2000 Mayrudin Khantiyev had been abducted from his flat in Grozny; that a criminal case had been opened into his abduction and that his whereabouts had not been established.

50.  On 24 August 2005 the ROVD provided the third applicant with a statement concerning the investigation into her husband’s abduction. The document stated that on 1 January 2003 they had opened an operational and search file no. 043064 in that connection, but the whereabouts of the applicant’s husband had not been established.

51.  On 18 April 2006 the first applicant complained to the district prosecutor’s office about the lack of information concerning the investigation into her son’s abduction and requested the authorities to inform her about the progress of the investigation in criminal case no. 12368.

52.  It appears that on 21 April 2006 the district prosecutor’s office replied to the first applicant that on an unspecified date they had suspended the investigation in criminal case no. 12368 for failure to identify the perpetrators.

53.  On 27 October 2006 the first applicant wrote to the prosecutor of the Staropromyslovskiy district, seeking information on the progress of the investigation.

54.  On 30 October 2006 the prosecutor of the Staropromyslovskiy district replied to the first applicant that on 24 May 2006 the investigation in case no. 12368 had been suspended. However, on an unspecified date that decision was set aside and the investigation resumed.

2.  Information submitted by the Government

55.  On 5 December 2000 unspecified authorities inspected the third applicant’s flat. The inspection established that the door lock was damaged and that several pieces of stucco were missing from the doorway. No objects were seized from the crime scene and no photographs were taken.

56.  On 17 December 2000 the ROVD forwarded the third applicant’s complaint about the abduction of her husband to the prosecutor’s office of the Shalinskiy District, which transmitted it on an unspecified date to the town prosecutor’s office.

57.  On 27 December 2000 the town prosecutor’s office instituted an investigation into the abduction of Mayrudin Khantiyev under Article 126 § 1 of the Criminal Code (kidnapping). The case was assigned the number 12368.

58.  On 20 January 2001 the third applicant was granted victim status in connection with the proceedings in case no. 12368 and questioned. She submitted that she had been living in the same flat as her husband Mayrudin Khantiyev and their two children. On the night of 4 December 2000 she had been woken up by a noise coming from the entrance door. Four armed men in camouflage uniforms and masks had burst into the flat and tied her husband up with adhesive tape. From their conversation she had understood that they were not Russian. They had told her that they would question her husband and then release him after which they had taken him outside. The third applicant then saw a white Niva vehicle without licence plates drive away from the house. Having heard the third applicant’s calls for help, several neighbours and her mother-in-law who resided in the same block of flats had come outside. The servicemen who had been on duty on the roof of the house that morning had been observing the incident from the roof. Mayrudin Khantiyev’s parents had complained about his abduction to the ROVD and the local military commander’s office.

59.  On 20 January 2001 the investigators questioned the first applicant as a witness. She submitted that on 4 December 2000 she had been woken up by the third applicant’s calls for help. When she rushed outside, the first applicant learnt that unidentified men had abducted her son. The neighbours who had gathered outside had shown the first applicant the Niva vehicle which at that moment was about 150-200 metres away from them and was moving in the direction of the motorway. The first applicant shouted to the servicemen on the roof, asking them for help. In response they requested her to be quiet because the curfew was not over yet. The first applicant then went to the “Zagryazheskiy” and “Neftyanik” checkpoints. She was told there that no NIVA vehicle had passed through those checkpoints. Mayrudin Khantiyev had not participated in illegal armed groups and had not been implicated in any illegal activities. The first applicant did not suspect any particular person of having abducted her son.

60.  On an unspecified date the investigators questioned the second applicant as a witness. He submitted that he had not witnessed his son’s abduction. He had learnt from his wife and the third applicant that his son had been abducted on 4 December 2000 by four unidentified persons who had arrived in a white NIVA vehicle with blackened windows. After the abduction the second applicant had asked Mr S., a former police officer, for assistance in the search for Mayrudin Khantiyev. Mr S. had contacted several checkpoints but had been told that no white NIVA vehicle had passed through those checkpoints.

61.  On an unspecified date the investigators questioned Mr Z., who had held at the time of the incident the post of military commander of the Staropromyslovskiy district. He submitted that on 4 December 2000 he had learnt from the residents of house no. 269 at Ugolnaya Street that unidentified persons had taken Mayrudin Khantiyev to an unknown destination. At the relevant time the area had been under curfew from 8 p.m. to 6 a.m. and a watch post of servicemen of the military commander’s office had been stationed on the roof of house no. 269. On the same day Mr Z. had been contacted by Mr S., the former head of the Staropromyslovskiy ROVD, who had enquired whether Mr Z. had any information about the abduction of Mayrudin Khantiyev. Mr Z. replied that he did not know anything about it. Some servicemen had told Mr Z. that they had seen a white NIVA vehicle but that they had not seen anyone being taken away.

62.  On an unspecified date the investigators questioned Mr K., who had been the acting military commander of the Staropromyslovskiy district since 19 December 2000. He submitted that he had not known anything about the abduction of Mayrudin Khantiyev. The names of the servicemen who had been on duty on 4 December 2000 on the roof of house no. 269 could have been obtained from the duty log [постовая ведомость]. The task of the servicemen stationed on the roof had been to secure compliance with the curfew, that is to survey the adjacent premises within their sight, including all pedestrians and vehicles. They had to notify an on-duty officer of the district military commander’s office of аny breach of curfew. In the event of a special operation the on-duty officer was informed about it. He was then to inform the unit on the roof that at a specific time a specific vehicle would arrive at a specific place. If the unit on the roof had not seen the Niva vehicle this could have been either because of negligence on the part of the servicemen or because there had been no special operations. If the unit on the roof had been informed about a special operation there would have been a record to that effect.

63.  On an unspecified date Mr K. was again questioned as a witness. He submitted that in December 2000 he had occupied the post of executing officer of the district military commander’s office. On the day of Mayrudin Khantiyev’s abduction he had been on leave. No special operations had been carried out on that day. Had there been a special operation, Mr K. would have been notified about it.

64.  On an unspecified date the investigators questioned as a witness Mr Ut., a serviceman of the district military commander’s office. Mr Ut. stated that on 4 December 2000 he and other servicemen of the district military commander’s office had been on duty on the roof of house no. 269 at Ugolnaya Street in Grozny. House no. 269 was located near the district military commander’s office. On the night of 4 December 2000 everything had been calm and nothing had attracted Mr Ut.’s attention. He had not seen a NIVA vehicle arrive at house no. 269. At about 6 a.m. he had seen a group of civilians who were shouting something. He had had a permanent connection to the district military commander’s office via military communication channels but on that morning he had not communicated with them. No one had mentioned a NIVA vehicle to him. He had learnt about the abduction of Mayrudin Khantiyev from the residents of the house in the morning. He had not heard any calls for help. On 18 December 2001 he had been summoned to the military commander’s office where he had met the first applicant. She had accused him of not telling the truth about the abduction of her son and he had answered that he had told the investigators everything he knew. Mr Ut. had known Mayrudin Khantiyev only by his face. He had heard from someone that Mayrudin Khantiyev had been taking drugs.

65.  On an unspecified date the investigators questioned Mr P. as a witness. He stated that he had been serving in the mine unit of the commander’s squadron with the district military commander’s office since June 2000. His unit duty was to secure compliance with the curfew and to provide fire support to the adjacent checkpoints in case of necessity. On the night of 4 December 2000 Mr P. had taken up his duties together with Mr Ut. and Mr Dug. Mr P. could not remember the names of the other servicemen on duty that night. At about 6.15 a.m. he had heard people speaking Chechen in the courtyard of the house. At about 9 a.m. he had learnt that Mayrudin Khantiyev had been abducted from house no. 269. The eyewitnesses to the incident and relatives of the abducted had submitted that a vehicle had arrived at the house. Mr P.’s duty hours had finished at 6 a.m. At about that time he had gone to the shelter where other servicemen were resting in order to wake up Mr Ut. The latter and Mr P. were absent for about ten minutes and did not hear a vehicle arriving. If it had indeed arrived at the house, servicemen from the second watch point located on the roof of house no. 269 would have noticed it. Mr P. had not known Mayrudin Khantiyev personally and had not had communicated with him.

66.  On an unspecified date the investigators requested the FSB Department of the Chechen Republic to provide information on Mayrudin Khantiyev’s eventual implication in illegal armed groups. From the reply of that authority it followed that Mayrudin Khantiyev had been a member of an organised criminal group that had been trading in arms and ammunition, including their acquisition in exchange for drugs.

67.  On an unspecified date the investigators questioned Ms V., a neighbour of the abducted, as a witness. She stated that on 4 December 2000 she had heard from the street a woman’s cry for help. Ms V. had learnt from other neighbours that Mayrudin Khantiyev had been abducted. At that time servicemen of the military commander’s office had been on duty on the roof the house. The first applicant had started shouting at them, asking them what they had been doing during the abduction. The servicemen had asked the first applicant what had occurred. When she had explained to them that Mayrudin Khantiyev had been abducted, they had got out of sight. They had not subsequently showed up and had not spoken to the crowd gathered in the courtyard.

68.  On an unspecified date the investigators questioned a certain Mr M. as a witness He stated that he had known Mayrudin Khantiyev since childhood. In the summer of 2000 they had started taking drugs together. Subsequently, Mayrudin Khantiyev had started dealing in drugs. Mayrudin Khantiyev had had close connections with the servicemen of the district military commander’s office. In November 2000 Mr M. had stopped taking drugs and seeing Mayrudin Khantiyev. The latter had not had any debts or enemies.

69.  On 1 February 2001 the investigators sought from the military prosecutor of military unit no. 20102 information on Mayrudin Khantiyev’s eventual arrest. However, no relevant information was received from that authority. The investigators also requested remand prisons IZ-20/2 in Chernokozovo and IZ-20/2 in Grozny to provide information on Mayrudin Khantiyev’s eventual placement in custody or detention in those facilities. It followed from the replies of those bodies that they did not have information of interest to the investigation. The investigators also instructed unspecified authorities of the Chechen Republic to verify unidentified corpses of persons with features similar to those of Mayrudin Khantiyev; to furnish information on his eventual criminal prosecution or on any special operations aimed at arresting him. No relevant information was received as a result of those requests.

70.  On 20 June 2003 unspecified authorities had severed the materials concerning Mayrudin Khantiyev’s implication in drug trafficking from case file no.12368 and transferred them to the ROVD.

71.  The investigation in case no. 12368 had been repeatedly suspended for failure to identify those responsible and then resumed. It had not established the implication of Russian servicemen in the abduction of Mayrudin Khantiyev. The investigation in case no. 12368 was pending.

72.  Despite specific requests by the Court, the Government refused to furnish any copies from the investigation file in case no. 12368. They claimed that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning witnesses and other participants in the criminal proceedings.

D.  Judicial proceedings against the investigators

73.  On an unspecified date in 2007 the first applicant lodged a complaint with the Staropromyslovskiy District Court of the Chechen Republic (the District Court). She submitted, among other things, that the investigators in case no. 12368 were taking no action to elucidate Mayrudin Khantiyev’s abduction and that they had repeatedly failed to provide her with information about the progress in the investigation.

74.  On 4 April 2007 the District Court dismissed the first applicant’s complaint. It noted that the investigation had been suspended on numerous occasions for failure to identify the perpetrators and then resumed, and noted that the latest decision to suspend was dated 12 March 2007. The court further held that the investigators had carried out a considerable number of unspecified investigative measures and noted that the first applicant and her lawyer had not previously sought access to the case file. There is no indication that the first applicant challenged the decision on appeal.

II.  RELEVANT DOMESTIC LAW

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

THE LAW

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

A.  The parties’ submissions

76.  The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the disappearance of Mayrudin Khantiyev had not yet been completed. They further argued that it had been open to the applicants to challenge in court any acts or omissions of the investigating or other law-enforcement authorities, but that the applicants had not availed themselves of that remedy. They also pointed out that the applicants had not lodged a claim for compensation of non-pecuniary damage under Articles 1069-70 of the Civil Code.

77.  The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective. Referring to the other cases concerning such crimes reviewed by the Court, they also alleged that the existence of an administrative practice of non-investigation of crimes committed by State servicemen in Chechnya rendered any potentially effective remedies inadequate and illusory in their case. With reference to the Court’s practice, they argued that they were not obliged to apply to civil courts in order to exhaust domestic remedies.

B.  The Court’s assessment

78.  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).

79.  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.

80.  As regards a civil action to obtain redress for damage sustained through illegal acts or unlawful conduct on the part of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (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 applicants were not obliged to pursue civil remedies.

81.  As regards criminal law remedies, the Court observes that the applicants complained to the law-enforcement authorities immediately after the abduction of Mayrudin Khantiyev and that an investigation has been pending since 27 December 2000. The applicants and the Government dispute the effectiveness of this investigation.

82.  The Court considers that this limb of the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the 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 under the substantive provisions of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

83.  The applicants complained under Article 2 of the Convention that their relative had disappeared after being detained by State agents and that the authorities had not taken any measures to prevent his abduction. They also complained that the investigation into his disappearance had not been effective. 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

1.  Submissions by the Government

84.  The Government submitted that there was no evidence that the applicants’ relative had been abducted by Russian servicemen or that he was not alive. The domestic investigation had not established that the security forces had carried out any special operations on 4 December 2000 aimed at arresting Mayrudin Khantiyev. None of the applicants had submitted in the course of the investigation that their relative’s abductors belonged to any specific service of the Russian army. In particular, the third applicant had claimed that the abductors had had no insignia, had not addressed each others by rank or name and that she had inferred that they were not Russians. In her statement to representatives of the SRJI the first applicant had submitted that the abductors had worn camouflage uniforms and masks and had been armed with sub-machine guns. However, according to the third applicant, the first applicant had come outside already after Mayrudin Khantiyev had been put into the NIVA vehicle and the abductors had left, taking him away. Hence, she could not have seen them. In fact, only the third applicant had witnessed the abduction. Other persons, including the first applicant, had gone outside later and had only seen the NIVA vehicle driving off and the first and third applicants running after it. In any event, the fact that Mayrudin Khantiyev’s abductors were wearing camouflage uniforms and masks and were armed was not sufficient to conclude that they were State agents. The Government further stressed that members of illegal armed groups had often passed themselves off as servicemen or members of law-enforcement bodies by wearing camouflage uniforms, carrying arms and passing unimpeded through federal forces checkpoints.

85.  The applicants’ allegation that their relative could not have been abducted without the connivance of State authorities because the soldiers on the roof and on the checkpoints had not reacted to the abduction was unfounded. Mr Ut. and Mr P. submitted that they had not seen the Niva vehicle, had not heard it arrive and had learnt about the abduction later. Furthermore, while being questioned by investigators, the second applicant submitted that when Mr S. had contacted some checkpoints, the latter had been told that no Niva vehicle had passed through those checkpoints.

86.  The domestic authorities had promptly opened an investigation into the abduction of Mayrudin Khantiyev and had checked various theses, including his kidnapping by State officials. The investigation had been conducted by an independent body which had sent out numerous requests for information. The third applicant was provided with sufficient information on the progress in the investigation.

2.  The applicants’ submissions

87.  The applicants submitted that it had been proved beyond reasonable doubt that their relative had been abducted by State agents and was to be presumed dead following his unacknowledged detention. They pointed out that soldiers from the district military commander’s office had been on the roof during the entire night and that, according to Mr Z., some servicemen had told him they had seen the Niva vehicle. It had not been contested that the applicants had asked the soldiers on the roof for help; that the applicants’ block of flats was only fifty metres from the district military commander’s office and that several checkpoints were located in the vicinity. In December 2000 only State representatives were allowed to carry weapons and to wear uniforms. If the abductors were rebels and not State agents it was unclear why the soldiers had not tried to stop them. Furthermore, had they been rebels their attack should have entailed a reaction on the part of the authorities but there was no evidence that such a thing had happened.

88.  The applicants further argued that their relative should be presumed dead following his unacknowledged detention because he had disappeared in a life-threatening situation and there had been no news of him for over eight years.

89.  The authorities had failed to conduct an effective investigation into the disappearance of Mayrudin Khantiyev. Although the authorities had inspected the crime scene on 5 December 2000, they had waited until 27 December 2000 to launch the investigation. The authorities had failed to question all witnesses properly and had done nothing to try to elucidate the discrepancies in their statements. The investigation has been dragging on for eight years without result and the third applicant was not granted victim status until 20 January 2001. The applicants had not been provided with sufficient information on the progress in the investigation.

B.  The Court’s assessment

1.  Admissibility

90.  The Court reiterates, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic criminal remedies should be joined to the merits of the complaint (see paragraph 82 above). The complaint under Article 2 must therefore be declared admissible.

2.  Merits

(a)  The alleged violation of the right to life of Mayrudin Khantiyev

(i)  General principles

91.  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).

(ii)  Establishment of the facts

92.  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, § 161, Series A no. 25).

93.  The applicants alleged that on 4 December 2000 Mayrudin Khantiyev had been abducted by Russian servicemen and then disappeared. In support of their submission they produced their own statements describing the events of that day, including the statement of the third applicant who had witnessed the abduction from the beginning, two hand-drawn maps of the applicants’ block of flats, and statements by several witnesses (see paragraphs 15-19 above).

94.  The Government denied that State agents were involved in the abduction of the applicants’ relatives and challenged the applicants’ and their witnesses’ statements as inconsistent.

95.  The Court notes at the outset that despite its requests for a copy of the investigation file into the abduction of Mayrudin Khantiyev, the Government produced no documents from the case file. They referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006- … (extracts)). In view of this and bearing in mind the principles cited above, the Court finds that it can draw inferences from the Government’s conduct in this respect.

96.  The Court further observes that there are indeed several inconsistencies in the applicants’ submissions. In particular, whilst the first applicant mentioned in her statement that she had seen the servicemen in Mayrudin Khantiyev’s flat, it transpires from the third applicant’s statement that the first applicant rushed outside shortly after Mayrudin Khantiyev had been put into the Niva vehicle and it had started taking off. Hence, the Court considers it unlikely that the first applicant could have seen the intruders in Mayrudin Khantiyev’s flat. Furthermore, the Court does not find it likely that Ms B. and Mr U. could have seen the Niva vehicle from inside the house when they got to the staircase (see paragraph 18 above).

97.  The Court is however not persuaded that the above-mentioned inconsistencies are such as to cast doubt on the overall veracity of the applicants’ submissions. Bearing in mind the difficulties for the applicants of obtaining the necessary evidence in support of their allegations and having examined the first to third applicants’ statements, their description of the events in the application form, their hand-drawn maps of the applicants’ block of flats, importantly, statements by Ms V., Ms P., Mr Da., Ms S. and Mr Du., the Court finds that the applicants have presented an overall coherent and convincing picture of the abduction of their relative by armed men in camouflage uniforms who spoke Russian and had arrived and left on a white Niva vehicle with blackened windows and without registration plates.

98.  Having regard to the considerations mentioned in paragraphs 92-97 above, the Court will thus proceed to examine the crucial elements in the present case that should be taken into account in order to decide whether the applicants’ relative’s disappearance should be attributed to the State authorities and whether he should be presumed dead.

99.  The Court first points out that by January 2000 the Staropromyslovskiy district of Grozny was under the firm control of the authorities (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 39-42, 24 February 2005, and Goygova v. Russia, no. 74240/01, § 90, 4 October 2007). It is common ground between the parties that at the material time the city of Grozny was under curfew and that the applicants’ house was situated about 50 metres from the district military commander’s office which had its own checkpoint (see paragraphs 8 and 64 above). It is likewise undisputed that there were two permanent watch posts of servicemen of the district military commander’s office on the roof of the applicants’ house and that their task was to secure compliance with the curfew by surveying the adjacent premises and all moving objects, including vehicles and persons, and to provide fire support to the adjacent checkpoints in case of need (see paragraph 62 above). Besides the checkpoint of the district military commander’s office there were at least two further checkpoints of the Russian military forces in the vicinity of the applicants’ house, one of them being located about 500 metres away and the other – at about 1.5 km away (ibid.). Having regard to the above-mentioned considerations and, in particular, to the permanent presence of servicemen on the roof of the applicants’ house and the aims of their presence there, the Court is led to conclude that the authorities exercised exclusive control over the area and the premises from which Mayrudin Khantiyev had been abducted.

100.  It is further observed that, according to the statement by Mr Z., as summarised by the Government, at the relevant time the area was under curfew from 8 p.m. to 6 a.m. However, the Government did not furnish either Mr Z.’s statement or any other documents in that respect. At the same time the Court cannot overlook that in their complaints to the domestic authorities and written statements the applicants, as well as some of the witnesses to whom they referred, consistently submitted that Mayrudin Khantiyev had been abducted during the curfew (see paragraphs 9, 18 and 22 above). Be that as it may, and even assuming that the abductors were not State agents, as suggested by the Government, and that they had started forcing the third applicant’s entrance door at about 6.15 a.m. at the latest, it would mean that their group consisting of several armed men in camouflage uniforms moving in a vehicle without registration plates must have been able to arrive at the applicants’ house despite the curfew, past the checkpoints located in the area and notwithstanding the presence on the roof of the applicants’ house of soldiers from the military commander’s office stationed there with the specific aim of observing the adjacent premises – a fact which the Court finds hard to accept in the absence of any convincing explanation on the part of the Government.

101.  The Court also notes that there are numerous contradictions which cast serious doubts on the veracity of the Government’s submission that the soldiers on the roof of the applicants’ house had not seen the Niva vehicle arrive at the house and the armed men put Mayrudin Khantiyev into it and leave. First, whilst Mr Ut. claimed that at about 6 a.m. he had been on the roof and had seen a group of persons shouting something, Mr P. submitted that at 6 a.m. he had gone to the shelter to wake Mr Ut. up, that both of them had been absent for about ten minutes and had not heard the sound of the arriving vehicle (see paragraphs 64 and 65 above).

102.  Furthermore, although Mr Ut. stated that at about 6 a.m. he had seen a group of persons shouting something in the courtyard, he claimed that he had not heard any cries for help (ibid.). More importantly, in the Government’s own submission, when being questioned by the investigators, Mr Z. explicitly stated that servicemen from the roof unit had told him they had seen the white Niva vehicle on 4 December 2000 (see paragraph 61 above). In this connection the Court finds it particularly striking that the investigating authorities had not taken any steps to identify the servicemen referred to by Mr Z., notwithstanding Mr K.’s statement that the names of the servicemen on duty on 4 December 2000 could have been easily obtained from the relevant duty log and Mr P.’s submission that servicemen from the second watch post would have noticed the Niva vehicle (see paragraphs 62 and 65 above). In any event, the Government’s submission that the servicemen had not heard or seen anything is hardly reconcilable with the fact that numerous neighbours had been woken up by the third and first applicants’ shouting and screaming.

103.  Having therefore found that the servicemen on the roof were aware of the presence of the vehicle and the fact that Mayrudin Khantiyev was being abducted and even assuming that the related events were advancing very quickly, the Court is particularly struck by the absolute lack of any reaction on the part of the servicemen. Thus, although they had the necessary communication equipment (see paragraph 64 above), it transpires that they made no attempts whatsoever to alert the adjacent checkpoints to be on the lookout for the Niva vehicle (compare Osmanoğlu v. Turkey, no. 48804/99, § 80, 24 January 2008). Neither did they come downstairs to verify what had occurred. The Court considers that this blatant passivity of State agents in the face of an abduction of a person in their full view is yet another element which weighs heavily against the Government’s submission that State agents were not implicated in Mayrudin Khantiyev’s disappearance.

104.  The Court also took note of the Government’s submission that, according to the FSB Department of the Chechen Republic, Mayrudin Khantiyev was a member of an organised group trading in arms and ammunition, including their acquisition in exchange for drugs (see paragraph 66 above). In view of the fact that the security forces had the above-mentioned information on the applicants’ relative and having regard to the nature of that information and the overall situation in the Chechen Republic at the material time, the Court is led to surmise that Mayrudin Khantiyev was, at the very least, closely surveyed by State bodies.

105.  Having regard to all elements enunciated in paragraphs 92-104 above, the Court attaches particular weight to the authorities’ exclusive control over the area, the lack of any action on the part of the servicemen from the roof unit in the face of the abduction, the Government’s failure to furnish a convincing explanation as to how a group of armed men could have arrived at the place of the abduction in a vehicle without registration plates and could have abducted the applicants’ relative without any reaction on the part of the servicemen from the roof unit, and also to the Government’s unjustified refusal to submit any documents from the investigation case file. On the basis of all those elements taken together the Court finds it established, to the requisite standard of proof, that on 4 December 2000 Mayrudin Khantiyev was abducted by State agents during an unacknowledged security operation.

106.  The Court has to decide further whether Mayrudin Khantiyev is to be presumed dead. It notes in this regard that there has been no reliable news of him since 4 December 2000. His name has not been found in any official records of detention facilities. Lastly, the Government did not submit any explanation as to what had happened to him after his abduction.

107.  Having regard to the previous cases concerning disappearances in Chechnya which have come before it (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-… (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Mayrudin Khantiyev or of any news of him for over seven years corroborates this assumption.

108.  Accordingly, the Court finds it established that on 4 December 2000 Mayrudin Khantiyev was abducted by State servicemen and that he must be presumed dead following his unacknowledged detention.

(iii)  The State’s compliance with the substantive obligation under Article 2

109.  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, §§ 146-47, Series A no. 324, and Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001-VII (extracts)).

110.  The Court has already found that Mayrudin Khantiyev must be presumed dead following his unacknowledged detention by State servicemen. Noting that the authorities did not rely on any ground capable of justifying the use of lethal force by their agents or otherwise accounting for his death, it follows that the responsibility for his presumed death is attributable to the respondent Government.

111.  Accordingly, the Court finds that there has been a violation of Article 2 of the Convention in respect of Mayrudin Khantiyev.

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

112.  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 Kaya v. Turkey, 19 February 1998, § 86, Reports 1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or was otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-09, ECHR 2001-III (extracts), and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).

113.  The Court observes at the outset that no 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 few documents submitted by the applicants and the information about its progress submitted by the Government.

114.  Turning to the facts of the present case, the Court notes that on 5 December 2000, following the applicants’ complaint, representatives of a State body, apparently the ROVD, inspected the crime scene. It appears that the ROVD was subsequently in charge of an inquiry into the circumstances of Mayrudin Khantiyev’s abduction and then, between 17 and 27 December 2000, transferred the materials of the inquiry to the town prosecutor’s office (see paragraphs 23, 55 and 57 above). From the parties’ submissions it transpires that the only investigative step taken by the ROVD was the crime scene inspection which was carried out on 5 December 2000 and there is no indication that between 5 and 17 December 2000 the ROVD or any other authority took any further investigative steps. While the town prosecutor’s office received the file on 17 December 2000, it took it further ten days to institute the investigation. The Court considers that those delays, for which no explanation was provided, were in itself liable to affect the investigation of a crime such as abduction in life-threatening circumstances, where crucial action must be taken promptly.

115.  From the Government’s submissions it follows that the investigators had carried out various investigative measures. However, beyond simply referring to those measures, the Government mostly did not even specify the dates when they had allegedly been taken, let alone provide any supporting documents. In the absence of that information the Court cannot assess whether the investigative steps in question were taken expeditiously.

116.  In any event, having regard to the investigative measures referred to by the Government, the Court emphasises that certain crucial investigative steps were not taken at all. Most notably, the Court has no information to indicate that any efforts were made to identify and question the servicemen from the roof unit on duty on 4 December 2000, other than Mr P. and Mr U. As the Court has emphasised above, this omission is particularly striking in view of the evident contradictions between Mr P.’s and Mr U.’s statements and the fact that their fellow servicemen names could have been easily obtained from the relevant duty logs (see paragraph 62 above). In those circumstances it appears even more striking to the Court that the investigators made no attempt to question Mr Dug., another servicemen from the roof unit, whose name Mr P. explicitly mentioned while being questioned by investigators (see paragraph 65 above). It likewise does not transpire from the Government’s submissions that the investigators made any attempts to question the residents of house no. 269, except for Ms V. There is no indication that Mr S., the former head of the ROVD who might have had information of relevance to the investigation, was questioned. In the Court’s opinion, the above-mentioned omissions seriously undermined the ability of the investigation to establish the circumstances of the abduction of the applicant’s relative and to identify those responsible for it.

117.  The Court further observes that while the third applicant was promptly granted victim status, it took the town prosecutor’s office over seven months to declare the first applicant a victim in connection with the investigation into the abduction of her son. Moreover, there is no indication that the town or district prosecutor’s office ever considered the issue of granting victim status to the second applicant. In any event, it transpires from the documents submitted by the applicants that they were either not informed about important developments in the investigation, such as the decisions to suspend it or to transfer the case file from the town to the district prosecutor’s office, or were notified of those developments with a considerable delay (see paragraphs 36-38 and 43 above). Accordingly, the investigators failed to ensure that the investigation was subjected to the required level of public scrutiny, and to safeguard the interests of the next of kin in the proceedings (see Oğur v. Turkey [GC], no. 21594/93, § 92, ECHR 1999-III).

118.  It is further noted that the investigation has been pending for over seven years and was suspended and resumed several times, resulting in lengthy periods of inactivity on the part of the investigators.

119.  Having regard to the limb of the Government’s objection that was joined to the merits of the application, inasmuch as it concerns the fact that the domestic investigation is still pending, the Court notes that the investigation, having been repeatedly suspended and resumed and plagued by inexplicable delays and omissions, has been ongoing for over seven years and has produced no tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their objection in this regard.

120.  The Government also mentioned, in the context of the exhaustion of domestic remedies, that the applicants had the opportunity to apply for judicial review of the decisions of the investigating authorities. The Court observes that the applicants did, in fact, make use of that remedy. However, it did not lead to the resumption of the investigation and, in any event, the effectiveness of the investigation had already been undermined in its early stages by the authorities’ failure to take necessary and urgent investigative measures. In this connection the Court specifically emphasises that the first decision to suspend the investigation, issued in January 2001 and referring to the impossibility of identifying the perpetrators, was taken less than a month after the investigation had been launched. It transpires that by the time of that first suspension no measures other than the crime scene inspection had been taken (see paragraph 36 above).

121.  The Court observes that the investigation was repeatedly suspended and resumed in the same way, but it appears that no significant investigative measures were taken to identify those responsible for the kidnapping. In such circumstances, the Court considers that the applicants could not be required to challenge in court every single decision of the district prosecutor’s office, particularly in view of the lack of information on the developments in the investigation established above. Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation.

122.  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 Mayrudin Khantiyev, in breach of Article 2 in its procedural aspect. Accordingly, there has been a violation of Article 2 on this account also.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

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

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

A.  The parties’ submissions

124.  The Government submitted that there was no indication that the applicants had been subjected to treatment contrary to Article 3 of the Convention. They also argued that in the absence of evidence of the involvement of State authorities in the disappearance of Mayrudin Khantiyev, there was no causal link between the applicants’ alleged suffering and the actions of representatives of the State.

125.  The applicants maintained their submissions.

B.  The Court’s assessment

1.  Admissibility

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

2.  Merits

127.  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 applicant 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, and Imakayeva, cited above, § 164).

128.  In the present case the Court notes that the first and second applicants are the parents of Mayrudin Khantiyev and the third and fourth applicants are his wife and son. The third and first applicants were witnesses to the abduction of their close relative. The first to third applicants were involved in the search for Mayrudin Khantiyev. The Court considers that although the fourth applicant could not have been expected to communicate with the authorities owing to his young age, he was also adversely affected by the fact of his father’s disappearance. The applicants have had no news of Mayrudin Khantiyev for over seven years. Throughout this period they applied to various bodies with enquiries about his fate. Despite those attempts, the applicants have never received any plausible explanation as to what became of him following his abduction. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.

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

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

IV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

131.  The applicants further stated that Mayrudin Khantiyev 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.  The parties’ submissions

132.  The Government asserted that no evidence had been obtained by the investigators to confirm that Mayrudin Khantiyev had been deprived of his liberty by State agents in breach of the guarantees of Article 5 of the Convention.

133.  The applicants reiterated their complaint.

B.  The Court’s assessment

1.  Admissibility

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

2.  Merits

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

136.  The Court has found that Mayrudin Khantiyev was abducted by State agents on 4 December 2000 and has not been seen since. His detention was not acknowledged or logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).

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

138.  In view of the foregoing, the Court finds that Mayrudin Khantiyev 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

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

“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

140.  The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them.

141.  The applicants reiterated their complaint.

B.  The Court’s assessment

1.  Admissibility

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

2.  Merits

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

144.  As regards the complaint of a lack of effective remedies in respect of the applicant’ complaint under Article 2, the Court emphasises that, given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-62, 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, cited above, § 183).

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

146.  It follows that in circumstances where, as here, the criminal investigation into the disappearance has been ineffective and the effectiveness of any other remedy that may have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention.

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

148.  As regards the violation of Article 3 of the Convention found on account of the applicants’ mental suffering as a result of the disappearance of their relative, their inability to find out what had happened to him and the way the authorities handled their complaints, the Court notes that it has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention on account of the authorities’ conduct that led to the suffering endured by the applicants. The Court considers that, in the circumstances, no separate issue arises under Article 13 in conjunction with Article 3 of the Convention.

149.  As regards the applicants’ reference to Article 5 of the Convention, the Court reiterates that, according to its established case-law, the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements. In view of its finding of a violation of Article 5 of the Convention on account of the unacknowledged detention of the applicant’s relative, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

150.  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

151.  The applicants submitted that they had sustained damage in respect of the loss of Mayrudin Khantiyev’s earnings following his apprehension and disappearance. The first applicant claimed a total of 47,009.31 Russian roubles (RUB) under this head (approximately 1,341.59 euros (EUR)). The second applicant claimed RUB 36,636.57 (approximately EUR 1,045.56). The third applicant claimed RUB 94,018.60 (approximately EUR 2,603.18) and the fourth applicant claimed RUB 25,319.51 (approximately EUR 722.59).

152.  The applicants furnished a certificate from the Chechenagropromstroy company, according to which Mayrudin Khantiyev was employed by that company from June to July 2000 and his salary amounted to RUB 1,315 and RUB 1,169 for the respective months. With reference to the provisions of the Civil Code and the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary Department in 2007 (“the Ogden tables”), the applicants calculated Mayrudin Khantiyev’s earnings with an adjustment for 10% yearly inflation and submitted that the first and second applicants should each be entitled to 10% of the total amount of his earnings, while the third and fourth applicants should each be entitled to 20% of that amount.

153.  The Government argued that the applicants’ claims were unsubstantiated and that they had not made use of the domestic avenues for obtaining compensation for the loss of their breadwinner.

154.  The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. The Court has held that the loss of earnings also applies to dependant children and, in some instances, to elderly parents (see, among other authorities, Imakayeva, cited above, § 213). Having regard to its conclusions above, it finds that there is a direct causal link between the violation of Article 2 in respect of the applicants’ relative and the loss to them of the financial support which he could have provided. The Court notes however that the certificate furnished by the applicants concerned Mayrudin Khantiyev’s employment in June and July 2000 and that they did not furnish any other documents to certify that he had been employed after that latter date. Nonetheless, the Court finds that it is reasonable to assume that Mayrudin Khantiyev eventually would have had some earnings from which the applicants would have benefited (ibid.). Having regard to the applicants’ submissions and the fact that Mayrudin Khantiyev was unemployed at the time of his abduction, the Court finds it appropriate to award the applicants jointly EUR 2,000 in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Non-pecuniary damage

155.  The applicants claimed jointly EUR 70,000 in respect of non-pecuniary damage for the suffering they had endured as a result of the disappearance of their relative, the indifference shown by the authorities towards them and the latter’s’ failure to provide any information about the fate of their close relative.

156.  The Government contested the applicants’ claims as excessive.

157.  The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants’ relative. The applicants themselves have been found to have been the victims of a violation of Article 3 of the Convention. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It finds it appropriate to award the first and second applicants jointly EUR 15,000 and the third and fourth applicant jointly EUR 20,000, plus any tax that may be chargeable thereon.

C.  Costs and expenses

158.  The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff, as well as administrative expenses, translation and courier delivery fees. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 5,875.82.

159.  The Government submitted that reimbursement of costs should have been ordered only in so far as they had been actually incurred and were reasonable as to quantum.

160.  The Court has to establish first whether the costs and expenses indicated by the applicants’ relative were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

161.  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.

162.  As to whether the costs and expenses incurred for legal representation were necessary, the Court notes that this case was rather complex and required a certain amount of research and preparation. It notes, however, that the case involved little documentary evidence, in view of the Government’s refusal to submit most of the case file. Furthermore, due to the application of Article 29 § 3 in the present case, the applicants’ representatives submitted their observations on admissibility and merits in one set of documents. The Court thus doubts that the case involved the amount of research claimed by the applicants’ representatives.

163.  Having regard to the details of the claims submitted by the applicants, the Court awards them EUR 4,200, together with any value-added tax that may be chargeable to them; the net award is to be paid into the representatives’ bank account in the Netherlands, as identified by the applicants.

D.  Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

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

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

3.  Holds that there has been a violation of Article 2 of the Convention in respect of Mayrudin Khantiyev;

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 Mayrudin Khantiyev disappeared;

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

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

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

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

9.  Holds

(a)  that the respondent State is to pay to 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:

(i)  EUR 2,000 (two thousand euros) in respect of pecuniary damage to the applicants jointly, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on this amount;

(ii)  EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage to the first and second applicants jointly, EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage to the third and fourth applicants jointly, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(iii)  EUR 4,200 (four thousand two hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands;

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

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

Done in English, and notified in writing on 29 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President

***

CASE OF SATABAYEVA v. RUSSIA

(Application no. 21486/06)

JUDGMENT

STRASBOURG

29 October 2009

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

In the case of Satabayeva v. Russia,

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

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 8 October 2009,

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

PROCEDURE

1.  The case originated in an application (no. 21486/06) 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 a Russian national, Ms Tamara Satabayeva (“the applicant”), on 11 May 2006.

2.  The applicant, who had been granted legal aid, was represented by Mr D. Itslayev, a lawyer practising in Nazran. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their new Representative, Mr G. Matyushkin.

3.  The applicant alleged that her son had disappeared after being arrested on 23 February 2000. She complained under Articles 2, 5 and 13.

4.  By a decision of 11 September 2008 the Court declared the application admissible.

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

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1953. She lives in Urus-Martan, the Chechen Republic.

A.  Detention and subsequent disappearance of Yusup Satabayev

7.  The applicant’s son, Yusup Satabayev, born in 1977, lived with her in Urus-Martan at the address 1 Tolstogo Street. The applicant has two other children.

1.  The applicant’s account

8.  On 29 January 2000, following the outbreak of armed conflict in Chechnya, Yusup Satabayev joined one of the paramilitary groups which fought against the federal army. According to the applicant, he stayed with the paramilitary group for less than a month, during which time there were no armed confrontations, and then left. On 23 February 2000 he arrived in Martan-Chu, in the Urus-Martan district, allegedly to surrender to the authorities in order to benefit from the Amnesty Act. However, on the same day he was arrested at his sister’s house by servicemen of the Federal Security Service (FSB). After his arrest he voluntarily disclosed to the authorities the hiding place of his personal machine gun and a cache of weapons belonging to the paramilitaries.

9.  Yusup Satabayev was then charged in criminal proceedings with participation in an organised armed gang and illegal dealing in firearms (case file no. 59211). He was remanded in custody during the investigation. On 4 March 2000 he was transferred to the pre-trial detention facility in the village of Chernokozovo in Naurskiy district. On 12 March 2000 the applicant visited this detention facility and, although she was not allowed to see him in person, she received his message confirming receipt of her parcel. The applicant then remained in Chernokozovo and regularly sent parcels to her son, each time receiving confirmation of their receipt.

10.  In mid-July 2000 legal counsel hired by the applicant, Ms T., visited Yusup Satabayev in the detention facility and ascertained that he was in good health.

11.  On 27 July 2000 the criminal proceedings against Yusup Satabayev were discontinued on the following grounds:

“[Yusup Satabayev] has acknowledged having participated in illegal organised gangs, is aware of being guilty of the [criminal offences he is charged with], he is liable to the maximum sanction of five years of imprisonment …, has voluntarily surrendered [his weapon] and indicated the place where paramilitaries’ arms were hidden, and thus should be absolved of criminal liability [for dealing in firearms]; he has not caused any damage to the Armed Forces of the Russian Federation, has no previous criminal record, and has a permanent place of residence, [he is] characterised positively, has voluntarily quit the illegal paramilitary groups, and has therefore ceased to pose a public danger.”

12.  Yusup Satabayev was notified of this decision on the same day and he signed the last page of it, as required by law. His release was due on the same day but he remained in custody.

13.  The applicant was not aware that the criminal proceedings against her son had been discontinued.

14.  On 28 July 2000 the applicant’s legal counsel, T., discovered that Yusup Satabayev had been transferred to the detention facility of the Urus-Martan temporary Department of the Interior of the Chechen Republic (VOVD) (Урус-Мартановский временный отдел внутренних дел Чеченской республики). The applicant went to Urus-Martan and met investigator O., who was in charge of the criminal case against Yusup Satabayev. He explained that Yusup Satabayev would be detained for another ten days and would then be released. He did not inform her that the criminal case had been discontinued.

15.  On the same day the applicant sent a parcel to her son in the detention facility and he confirmed its receipt as usual. Over the following days the applicant routinely spent all the time outside the curfew hours in front of the detention facility, waiting for her son’s release. She regularly sent parcels and received confirmations of receipt, and sometimes short notes which he wrote on the receipt form. On 1 August 2000 she met the families of other detainees, Kazbek Vakhayev (Vakhayeva and Others v. Russia, application no. 1758/04) and Mr G., who had been arrested earlier that day. From that day onwards they too were regularly in front of the detention facility.

16.  On 1-2 August 2000 the applicant sent her son a parcel with a pair of shoes, trousers, and a shirt. He sent her back his used clothes, namely a black jumper, socks, winter shoes and a towel.

17.  On 4 August 2000 the applicant visited investigator O. and asked him when her son would be released. He informed her that criminal proceedings against him had been discontinued on 27 July 2000. She then asked him on what grounds Yusup Satabayev was being kept in detention, but O. only said that it “had to be done this way”.

18.  On 9 August 2000 the applicant met Ms Ch., whose son had been arrested that day, in front of the detention facility.

19.  On 13 August 2000 the applicant saw the family of Kazbek Vakhayev submitting a parcel which was then returned to them, on the ground that he was no longer in the facility.

20.  At about 2 p.m. on the same day the applicant sent a parcel to her son, but the officer did not give her confirmation of its receipt. At her request he went to get the receipt but did not return.

21.  On the morning of 14 August 2000 the applicant, together with the families of the other detainees, visited the head of the Urus-Martan VOVD, Colonel Sh., who told them that Kazbek Vakhayev had been released on 11 August 2000, but that Yusup Satabayev, Mr G., and Mr Ch. had been abducted by the “Shamanovs” («Шамановцы») and taken to the “force groups”. According to the applicant, this meant the federal force group “Zapad” under the command of General Shamanov (группировка федеральных сил «Запад» под командованием генерала Шаманова) then located to the south-west of Urus-Martan. Neither the applicant nor other detainees’ families were able to obtain any further information on the matter.

2.  The Government’s account

22.  In their submissions prior to the Court’s decision of 11 September 2008 on the admissibility of the application, the Government stated that “[o]n 1 August 2000 officers of the Urus-Martan [VOVD] under Decree of the President of the Russian Federation of 2 November 1993 no. 1815 ‘On Measures for Prevention of Vagrancy and Mendicancy’ apprehended and brought to the said department Y. A. Satabayev, [Mr G.], K.L. Vakhayev and [Mr Ch.]. Subsequently they were released however, their whereabouts [are] still unknown”.

23.  In their submissions after the Court’s decision of 11 September 2008 on the admissibility of the application, the Government stated that “[o]n 27 July 2000 the criminal proceedings… against Yu. A. Satabayev were discontinued, the measure of restraint in respect of this person was cancelled. As the relevant decision came to [remand prison] IZ-20/2 on 1 August 2000, Yu. A. Satabayev was immediately released. On 4 August 2000 Yu. A. Satabayev, in the absence of identification documents, was detained for committing an administrative offence pursuant to the Decree  of the President of the Russian Federation of 2 November 1993 no. 1815 ‘On Measures for Prevention of Vagrancy and Mendicancy’, his detention in the detention ward of the [Urus-Martan VOVD] lasted for ten days until 14 August 2000, on this date Yu. A. Satabayev was released. The detention of Yu. A. Satabayev was sanctioned by the prosecutor of the Urus-Martan district as valid and justified. The applicants have never brought any complaints against this detention before the national courts.”

B.  Search for Yusup Satabayev and investigation

1.  The applicant’s account

24.  The applicant instructed her legal counsel, Ms T., to make all official enquiries with the authorities to establish the whereabouts of her son, which Ms T. did.

25.  On 19 August 2000 the acting prosecutor of the Urus-Martan district informed the applicant’s counsel that “according to the records of the Urus-Martan VOVD, [Yusup Satabayev] was released on 14 August 2000”.

26.  On 22 August 2000 the family of Kazbek Vakhayev learned from informal contacts that on 13 August 2000 four young Chechen men had been executed in the military camp near the village of Goy-Chu in the Urus-Martan district. Apparently the execution had been carried out by servicemen of the Urus-Martan district military commander’s office (Урус-Мартановская районная военная комендатура) and the bodies had been buried in a shallow grave in the grounds of the military camp. When the camp was dismantled for relocation one of the soldiers told the villagers of Goy-Chu about the grave and asked them to re-bury the dead. In the indicated place the villagers exhumed four corpses with numerous traces of violence and some spent cartridges. They did not identify the bodies but they made a video recording. The bodies were re-buried on the same day, 22 August 2000, in the Goyskoye village cemetery. A member of Kazbek Vakhayev’s family, Mr U., came to identify the bodies, but he did not recognise Kazbek Vakhayev among them. The applicant submitted to the Court a copy of the video recording.

27.  On 7 September 2000 the head of the Urus-Martan VOVD, Colonel Sh., sent a letter to the applicant’s counsel, informing her that “Yusup Satabayev, born in 1976, has neither been arrested by the Urus-Martan VOVD nor detained therein”.

28.  On 14 September 2000 the acting prosecutor of the Urus-Martan district informed the applicant that her complaint had been forwarded to the Urus-Martan VOVD to open an investigation into the disappearance of Yusup Satabayev. She was also informed that Yusup Satabayev had been detained as a vagrant from 4 to 14 August 2000 on the basis of Presidential Decree no. 1815 of 1993 and then released.

29.  On 16 September 2000 the applicant and the mothers of the other missing detainees, Kazbek Vakhayev, Mr G. and Mr Ch., applied to the Prosecutor’s Office of the Chechen Republic, complaining about the disappearance of their sons from the detention facility and alleging the use of torture against them.

30.  On 18 October 2000 the Urus-Martan District Prosecutor’s Office opened a criminal investigation into the abduction of four men, namely Yusup Satabayev, Kazbek Vakhayev, Mr G. and Mr Ch. (criminal case file no. 24048). The decision stated, in particular:

“On 1 August 2000 officers of the Urus-Martan [VOVD] apprehended and brought to the [VOVD] [Mr G.], Kazbek Vakhayev, [Mr Ch.] and Yusup Satabayev, pursuant to Decree no. 1815 of the President of the Russian Federation of 2 November 1993 ‘On Measures for the Prevention of Vagrancy and Mendicancy’.

On 14 August 2000 the detainees were released and sent to their places of residence.

However, to date [the detainees] have not returned to their places of residence, they are being searched for by their relatives and their whereabouts are not established.”

31.  On 25 October 2000 the applicant was informed by the Urus-Martan District Prosecutor’s Office that a criminal investigation had been instituted.

32.  On 1 November 2000 the applicant was granted victim status in case no. 24048. She claims that she was not informed of this decision.

33.  The applicant submitted that her flat in Urus-Martan had been subjected to several search raids. She referred in particular to the events of 22 February 2001, when a group of six or seven armed servicemen had broken into the flat at night, apparently searching for “men”. After these raids the applicant decided to leave Chechnya for security reasons.

34.  On 23 February 2001 the applicant, with her children, moved to Ingushetiya, where they lived until 2006 in a refugee camp for forced migrants from Chechnya.

35.  In March 2001 the applicant was visited in Ingushetiya by Rebart Vakhayeva, the mother of Kazbek Vakhayev. She showed her the video recording of the bodies exhumed on 22 August 2000 and said that one of the dead men was probably Kazbek Vakhayev. The applicant watched the video tape as well and concluded that another exhumed body belonged to Yusup Satabayev. In addition, she recognised the trousers and the shirt which she had sent him in the detention facility on 1-2 August 2000. According to the applicant, all four bodies showed signs of a violent death. Rebart Vakhayeva told the applicant that she had already requested the prosecutor’s office to re-exhume the bodies and to conduct a forensic examination and identification.

36.  During her stay in Ingushetiya the applicant had no contact with the prosecutor’s office: she was never informed about the progress of the investigation in case no. 24048 and no letters were delivered to her address.

37.  At the end of March 2006 the applicant returned to Chechnya.

38.  On 4 April 2006 she requested the prosecutor’s office to provide her with an update on the investigation of case no. 24048.

39.  On 6 April 2006 the Urus-Martan District Prosecutor’s Office informed the applicant that she had been granted victim status in case no. 24048.

40.  The applicant remained in contact with Rebart Vakhayeva and was aware of her attempts to secure the re-exhumation of the four bodies found near Goy-Chu and their identification. In particular, she referred to the judgment of 28 December 2004 given by the Urus-Martan Town Court, which ordered the Urus-Martan District Prosecutor’s Office to take measures in relation to these unidentified bodies. According to the applicant, this court order has not been carried out to date.

41.  The applicant submitted that there had been no development in the case since.

2.  The Government’s account

42.  Following the applications lodged by the applicant and the mothers of the three other men who had disappeared, the Urus-Martan District Prosecutor’s Office conducted a check, following which criminal proceedings under Article 126 of the Criminal Code (abduction) were instituted on 18 October 2000. The case was assigned number 24048.

43.  The applicant was granted victim status and questioned on numerous occasions. She submitted that Yusup Satabayev had been a member of a paramilitary group. She had no information about his fate after his release from the Urus-Martan district remand prison in August 2000.

44.  Kheda Aydamirova, the wife of Kazbek Vakhayev, Rebart Vakhayeva, Ms Ch. and Ms G. (apparently family members of Mr Ch. and Mr G. respectively) were also granted victim status and questioned. However, they provided no particular information about the disappearance of Yusup Satabayev and their relatives.

45.  Witnesses Mr A., Mr B., Mr S., Ms A., Ms Kh., Ms A. V., Ms L. T., Ms Akh. and Ms Z. T. “and others” submitted that they had no information about the apprehension of the disappeared persons by law-enforcement officials. It is not clear who those witnesses were and why their statements could have been relevant.

46.  Rebart Vakhayeva filed an application to include in the case file a videotape of four dead bodies, one of which, according to her, was her son. The Urus-Martan District Prosecutor’s Office received instructions to establish the circumstances in which the dead bodies had been found and to identify the dead persons.

47.  Rebart Vakhayeva also complained to the Urus-Martan District Court about the discontinuation of the criminal proceedings. Her complaint was partially allowed. The same court partially allowed her complaint concerning the necessity to take a procedural decision in respect of the discovery of the four dead bodies.

48.  On 4 August 2006 criminal proceedings concerning the discovery of the four dead bodies on 22 August 2000 were separated into a different set of criminal proceedings under Article 105 of the Criminal Code (murder).  The Prosecutor’s Office of the Chechen Republic gave instructions concerning the additional questioning of the applicant and exhumation of the dead bodies.

49.  The investigator instructed the local department of the interior to establish the whereabouts of the disappeared persons. In order to verify whether the officials of the FSB had been involved in the offence, the prosecuting authorities requested information concerning the possible detention of Yusup Satabayev, Mr G., Kazbek Vakhayev and Mr Ch. between 14 August 2000 and 9 October 2003. However, no information about their detention was received.

50.  The preliminary investigation in case no. 24048 was repeatedly suspended on account of failure to identify the persons to be charged with the offence. Those who had victim status in the criminal proceedings were duly informed of all the suspensions and resumptions of the investigation and the appeal procedure was clarified for them. After the most recent suspension of the investigation on 21 August 2006, it was resumed on 22 August 2006 by the Urus-Martan District Prosecutor’s Office.

51.  The following information concerning the progress of the investigation was submitted by the Government after the decision as to the admissibility of the application of 11 September 2008.

52.  On 23 September 2006 the investigation was resumed, apparently after having been suspended again after 22 August 2006.

53.  On 26 and 27 September 2006 the investigating authorities sent requests for information to the head of the FSB department in the Chechen Republic and the head of Operative-Search Bureau no. 2 at the Ministry of the Interior concerning the possible involvement of Yusup Satabayev, Mr G., Kazbek Vakhayev and Mr Ch. in illegal armed groups and their possible detention by law-enforcement authorities. According to the replies received, those authorities had no relevant information.

54.  On 11 October and on 10 November 2006 Kheda Aydamirova, the wife of Kazbek Vakhayev, was questioned. She confirmed her previous statements and identified, on the basis of the video footage, one of the bodies found near the village of Goy-Chu as Kazbek Vakhayev. According to the Government, she refused to indicate his burial place so that the authorities could conduct an exhumation, since that would be in breach of Muslim traditions.

55.  On 12 October 2006 the applicant was questioned. She confirmed the account of the events provided in her previous statements and in the statements of Kheda Aydamirova. On the basis of the video footage she identified one of the bodies found near the village of Goy-Chu as Yusup Satabayev, since he had the same stature and was wearing the same clothes.

56.  On 13 October 2006 Ms G. was questioned. She submitted that her daughter-in-law had watched the above-mentioned video footage and had identified one of the bodies as Mr G.

57.  On 20 and 25 November 2006 and 18 January 2007 numerous inquiries and instructions were sent to various law-enforcement authorities and detention facilities requesting information on the fate of Yusup Satabayev, Mr G., Kazbek Vakhayev and Mr Ch. and on their abductors. According to the replies received, the addressees had no relevant information.

58.  On 8 February 2007 the investigating authorities instructed the head of the Urus-Martan District Department of the Interior (ROVD) to locate persons held at the detention facility of the Urus-Martan VOVD simultaneously with Yusup Satabayev, Mr G., Kazbek Vakhayev and Mr Ch. The ROVD located seven persons: Mr A.M., Mr M.M., Mr A.E., Mr Kh.D., Mr S.-A.E., Mr Z.V. and Mr A.Z. It appeared impossible to establish the whereabouts of other detainees because they no longer resided in the Chechen Republic.

59.  On 11 February 2007 Mr A.E. was questioned. He submitted that at the beginning of August 2000 he had been detained by officers of the Urus-Martan VOVD because he had had no identity documents. He had been held for three days in cell no. 4 with his acquaintances Mr G. and Kazbek Vakhayev. He did not know the reasons for their detention. At the time of his release they were still held in cell no. 4. He had never seen them again.

60.  On 22 February 2007 Mr M.M. was questioned. He stated that on 1 August 2000 he had been detained by officers of the Urus-Martan VOVD since he had had no identity documents. He had been held in a cell with Mr G. and Kazbek Vakhayev until 11 August 2000. At the time of his release they had remained in detention. He and other detainees had not been subjected to physical or psychological pressure.

61.  On 24 February 2007 Mr A.M. was questioned. He made a statement similar to those of Mr A.E. and Mr M.M.

62.  Mr Kh.D., Mr A.V., Mr . S. and Mr S.-A.E. were questioned on 13, 15, 18 and 20 February 2007 respectively. They did not provide any relevant information.

63.  On 23 April 2008 an inquiry was sent to remand prison IZ-20/2 concerning Yusup Satabayev. According to the reply, Yusup Satabayev had been detained in IZ-20/2 until 1 August 2000, when he was transferred to the detention facility of the Urus-Martan VOVD.

64.  On 25 April 2008 the investigating authorities of the Penza district were instructed to question Mr Sh., the former head of the Urus-Martan VOVD.

65.  On the same date and on 26 April 2008 the head of the Urus-Martan ROVD was instructed to identify eye-witnesses to the murder and burial of the four corpses near the village of Goy-Chu, and the person who had handed over the video footage of the bodies to Rebart Vakhayeva. The replies received did not contain any relevant information.

66.  On 27 June 2008 Kheda Aydamirova was questioned. She confirmed her previous statements, agreed to show the burial place of Kazbek Vakhayev and stated that she had no objections to his exhumation. She also stated that she had never been subjected to any form of pressure in relation to her application before the Court.

67.  On 15 September 2008 the investigating authorities decided to apply to a court with requests for the seizure of certain documents and items classified as State secrets, kept in the archives of the FSB, the North-Caucasian Circuit of Internal Forces of the Ministry of the Interior, the Federal Service of Execution of Punishments, Interior Troops and the Ministry of Defence. The requests were granted by an unspecified court on an unspecified date and investigating officials proceeded to effectuate the seizure.

68.  On 30 September 2008 a special investigative group was set up. It included officers of the Military Investigation Department of the Investigation Committee of the Prosecutor’s Office of the Russian Federation.

69.  On 8 October 2008 the investigation was suspended on account of the failure to identify the perpetrators.

70.  On 18 October 2008 the investigation was resumed.

C.  Court proceedings concerning the inactivity of the investigating authorities

71.  On 5 January 2003 Rebart Vakhayeva applied to the Urus-Martan Town Court seeking to have the inaction of the Urus-Martan District Prosecutor declared unlawful. She complained about the absence of an effective investigation and requested the court to order the prosecutor’s office to resume criminal proceedings.

72.  On 16 April 2003 Rebart Vakhayeva lodged a complaint with the Supreme Court of the Chechen Republic about the town court’s failure to examine her claim and requested the Supreme Court to act as a first-instance court in her case. On 14 May 2003 the President of the Supreme Court of the Chechen Republic forwarded this letter to the Urus-Martan Town Court with a notice “to consider it on the merits”.

73.  On 1 July 2003 Rebart Vakhayeva had a meeting with the President of the Urus-Martan Town Court, who told her that she should have lodged a complaint with the prosecutors’ office. She concluded that the court would not consider her claim.

74.  On 2 July 2003 Rebart Vakhayeva requested the Supreme Court of the Chechen Republic to act as a court of first-instance in respect of her complaint against the Urus-Martan District Prosecutor’s Office.

75.  On 21 July 2003 the President of the Supreme Court of the Chechen Republic sent an enquiry to the Urus-Martan Town Court about the progress in the examination of Rebart Vakhayeva’s claim.

76.  On 30 July 2003 Rebart Vakhayeva requested the President of the Supreme Court of the Chechen Republic to inform her when her claim would be considered.

77.  On 15 August 2003 the President of the Urus-Martan Town Court informed the President of the Supreme Court of the Chechen Republic that the investigation in criminal case no. 24048 had been resumed as of 15 July 2003.

78.  On 12 September 2003 Rebart Vakhayeva requested the Supreme Court of the Chechen Republic to act as a court of first-instance in her case against the Urus-Martan District Prosecutor’s Office.

79.  On 7 October 2003 the Deputy President of the Supreme Court of the Chechen Republic informed Rebart Vakhayeva that the criminal investigation in case no. 24048 had been resumed and was to be completed in one month. Her complaint, together with her claims against the Urus-Martan District Prosecutor’s Office, were therefore forwarded to the Prosecutor’s Office of the Chechen Republic.

80.  On 22 July 2004 Rebart Vakhayeva filed a new complaint in the Urus-Martan Town Court against the Urus-Martan District Prosecutor’s Office. She challenged their failure to conduct an effective investigation.

81.  On 14 September 2004 the Urus-Martan Town Court granted Rebart Vakhayeva’s complaint and declared the failure to act on the part of the Urus-Martan District Prosecutor’s Office unlawful. The court ordered that her request of 21 May 2004 to bring criminal charges against officers of the Urus-Martan VOVD, exhume the bodies re-buried in Goyskoye and allow her access to the case file be dealt with by the prosecutor’s office.

82.  On 3 December 2004 Rebart Vakhayeva filed another complaint with the Urus-Martan Town Court against the Urus-Martan District Prosecutor’s Office. She challenged their failure to charge the officers of the department of the interior with criminal offences related to the abduction and, possibly, the murder of her son, the failure to give her access to the case file and to take measures to identify the bodies re-buried in Goyskoye.

83.  On 28 December 2004 the Urus-Martan Town Court granted her complaint in part and ordered the Urus-Martan District Prosecutor’s Office to take measures in relation to the unidentified bodies. The remainder of the complaint was dismissed.

84.  On 18 January 2005 Rebart Vakhayeva appealed.

85.  On 9 February 2005 the Supreme Court of the Chechen Republic dismissed her appeal and upheld the judgment of 28 December 2004.

D.  The Court’s request to submit the investigation file

86.  Despite the Court’s repeated requests, the Government did not submit a copy of the investigation file into the abduction of Yusup Satabayev. They submitted thirty-two pages of case file materials, which contained decisions on the institution, suspension and resumption of the investigation and the decision to grant the applicant victim status. The decisions reiterated that Mr G., Kazbek Vakhayev, Mr Ch. and Yusup Satabayev were apprehended on 1 August 2000. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in criminal proceedings.

87.  Despite the Court’s specific request, made after the decision of 11 September 2008 as to the admissibility of the application, to submit copies of all documents related to Yusup Satabayev’s arrest on 23 February 2000 and subsequent detention, including the decisions to remand him in custody and to release him and an extract from the detention facility register confirming his release, the Government submitted no documents.

II.  RELEVANT DOMESTIC LAW

88.  Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR (Russian Soviet Federative Socialist Republic). On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation.

89.  Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.

90.  Article 161 of the new Code of Criminal Procedure establishes the rule that data from the preliminary investigation cannot be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission.

91.  Presidential Decree no. 1815 of 2 November 1993 on Measures for the Prevention of Vagrancy and Mendicancy provided for the reorganisation of the system of “reception and distribution centres” for persons detained by the bodies of the Ministry of the Interior for vagrancy and mendicancy into centres of social rehabilitation for such persons. Section 3 of the Decree provides:

“Placement of persons engaged in vagrancy and mendicancy in centres of social rehabilitation is permitted subject to the prosecutor’s authorisation, for a term not exceeding ten days.”

THE LAW

I.  THE GOVERNMENT’S PRELIMINARY OBJECTION

92.  The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies since the investigation of the disappearance of Yusup Satabayev had not yet been completed.

93.  The applicant disputed that objection. In her view, the fact that the investigation had been pending for eight years with no tangible results proved that it was an ineffective remedy in this case.

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

95.  The Court observes that the applicant complained to the law-enforcement authorities shortly after the disappearance of Yusup Satabayev and that an investigation has been pending since 18 October 2000. The applicant and the Government dispute the effectiveness of this investigation.

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

II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

97.  The applicant complained under Article 2 of the Convention that her son had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 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.  Alleged violation of Yusup Satabayev’s right to life

1.  Arguments of the parties

98.  The applicant argued that it was beyond reasonable doubt that Yusup Satabayev had been killed by representatives of the federal forces. He had disappeared in the hands of the federal forces and the authorities had failed to provide any explanation as to his subsequent fate.

99.  The Government submitted that the circumstances of Yusup Satabayev’s disappearance were under investigation. The information about his death had not been confirmed. Nor had it been established that any State agents had violated his right to life.

2.  The Court’s assessment

(a)  General principles

100.  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)  Establishment of the facts

101.  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).

102.  The applicant maintained that after the criminal proceedings against Yusup Satabayev were discontinued he had not been released, as he should have been. Instead, he had been transferred to the detention facility of the Urus-Martan VOVD. There he had been detained with three other men, including Kazbek Vakhayev. The applicant and relatives of the other detainees had waited every day outside the Urus-Martan VOVD for their release. On 14 August 2000 the head of the Urus-Martan VOVD told them that the detainees had been released on 11 August 2000; however, according to the applicant, they had never been released. The applicant alleged that Yusup Satabayev had been killed by State agents and that his body had been subsequently discovered near the village of Goy-Chu.

103.  Prior to the Court’s decision of 11 September 2008 as to the admissibility of the application the Government submitted that Yusup Satabayev had been detained on 1 August 2000 under the Decree on Measures for the Prevention of Vagrancy and Mendicancy, together with Kazbek Vakhayev, Mr G. and Mr Ch. The detainees had been placed in the detention facility of the Urus-Martan VOVD and subsequently released. After the Court’s decision as to the admissibility of the application the Government stated that after the discontinuation of the criminal proceedings against Yusup Satabayev on 27 July 2000, detention as the measure of restraint applied to him had been lifted. He had been released as soon as the relevant decision had reached remand prison IZ-20/2, that is, on 1 August 2000. On 4 August 2000 Yusup Satabayev had been detained under the Decree on Measures for the Prevention of Vagrancy and Mendicancy since he had no identification documents. His detention in the detention unit of the Urus-Martan VOVD had lasted for ten days until 14 August 2000, when he was released.

104.  The Court observes that it is not disputed between the parties that Yusup Satabayev was arrested on 23 February 2000 in connection with the criminal proceedings instituted against him. The parties also agree that the criminal proceedings against him were discontinued on 27 July 2000 and that he should have been released on that date. However, according to the applicant, he was never released and was eventually killed by State agents. The Government changed their arguments. They first submitted that Yusup Satabayev had been detained for vagrancy and mendicancy on 1 August 2000 and had been subsequently released. Later they admitted that he had not been released on 27 July 2000 but had remained in detention until 1 August 2000. They further stated that he had been subsequently detained on 4 August 2000 for failure to produce identification documents and had been released on 14 August 2000.

105.  The Government therefore conceded that Yusup Satabayev had been detained from 23 February 2000 to 1 August 2000 and from 4 to 14 August 2000. It thus remains to be established whether he was released on 1 August 2000 and remained free until 4 August 2000, and whether he was released on 14 August 2000.

106.  The Court notes, firstly, that despite its repeated requests for a copy of the investigation file concerning the disappearance of Yusup Satabayev, the Government have failed to produce it, despite having submitted thirty-two pages of case file materials, which contained decisions on the institution, suspension and resumption of the investigation and the decision to grant the applicant victim status. They referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-… ).

107.  The Court further notes that in response to its direct request to submit copies of all documents related to Yusup Satabayev’s arrest on 23 February 2000 and subsequent detention, including an extract from the detention facility register confirming his release, the Government submitted no documents and provided no explanation for such failure.

108.  As regards the substance of the Government’s submissions, the Court observes that they were contradictory. Whereas they first submitted that Yusup Satabayev had been arrested on 1 August 2000, later they stated that he had been arrested on 4 August 2000. At the same time, in the decision to institute criminal proceedings of 18 October 2000 and subsequent decisions to suspend and resume the investigation which have been made available to the Court, it is stated that Yusup Satabayev and the other three men were arrested on 1 August 2000. However, in the circumstances of the present case, the Court considers that it should not attach weight to the interim findings of the domestic investigation in this respect, for the following reasons. First of all, it is inconsistent with the Government’s latest submissions that Yusup Satabayev was arrested on 4 August 2000. Secondly, despite the Court’s request the Government submitted neither documents related to Yusup Satabayev’s detention, nor any documents from the investigation file which would allow the Court to determine on which basis those interim findings were founded. Moreover, the contention that Yusup Satabayev was released between 1 and 4 August 2000 contradicts the Government’s account of the information received from remand prison IZ-20/2, according to which Yusup Satabayev had been held in the remand prison until 1 August 2000, when he was transferred to the detention facility of the Urus-Martan VOVD.

109.  Having regard to the contradictory nature of the Government’s submissions and to their failure, despite the Court’s requests for documents, to provide any proof of Yusup Satabayev’s release on either 1 or 14 August 2000, the Court finds it established that he remained in continued detention under State control from 23 February 2000 onwards.

110.  The Court has to decide further whether Yusup Satabayev may be presumed dead. The applicant contended that she identified one of the bodies found near the village of Goy-Chu on 22 August 2000 as her son on the basis of the video footage of the bodies before their re-burial. The Government argued that the fact of Yusup Satabayev’s death had not been established.

111.  The Court notes that no conclusive identification of the bodies found near the village of Goy-Chu was carried out. Accordingly, it can not establish that one of the bodies was that of Yusup Satabayev. At the same time, it observes that Yusup Satabayev disappeared after having been placed in State custody. There has been no reliable news of him since 14 August 2000. His name has not been found in any official records of detention facilities after that date. Lastly, the Government did not submit any explanation as to what had happened to him during his detention.

112.  Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, for example, Imakayeva, cited above, and Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-… ), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is placed in detention without any subsequent acknowledgement of the detention, this can be regarded as life-threatening. The absence of Yusup Satabayev or any news of him for over nine years corroborates this assumption. Furthermore, the Government have failed to provide any explanation of Yusup Satabayev’s disappearance and the official investigation in this respect, dragging on for nine years, has produced no tangible results.

113.  Accordingly, the Court finds it established that Yusup Satabayev disappeared after 14 August 2000 while he remained in State custody and that he must be presumed dead following his unacknowledged detention.

(c)  The State’s compliance with Article 2

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

115.  The Court has already found it established that the applicant’s son must be presumed dead following his placement in State custody. Noting that the authorities do not rely on any ground of justification in respect of the use of lethal force by their agents, or otherwise accounting for his death, it follows that liability for his presumed death is attributable to the respondent Government.

116.  Accordingly, the Court finds that there has been a violation of Article 2 in respect of Yusup Satabayev.

B.  The alleged inadequacy of the investigation into the abduction

1.  Arguments of the parties

117.  The applicant argued that the investigation had not met the requirements to be effective and adequate, as required by the Court’s case-law on Article 2. She noted that the investigation had been opened belatedly. In particular, the investigation into the discovery of the four unidentified bodies near the village of Goy-Chu had not been opened until after the communication of the present application to the Government. Furthermore, no effective measures were taken to establish what had happened to Yusup Satabayev and the three other detainees. The officers of the Urus-Martan VOVD who had held them in custody had not been questioned. Furthermore, the investigation had been repeatedly suspended and resumed, which had only added to the delay. Finally, the applicant had not been properly informed of the most important investigative steps.

118.  The Government submitted that a considerable number of investigative actions had been conducted and persons having victim status in the proceedings had been duly informed of them.

2.  The Court’s assessment

119.  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, p. 49, § 161, and Kaya v. Turkey, 19 February 1998, § 86, Reports 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. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-109, 4 May 2001, and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).

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

121.  Turning to the facts of the case, the Court notes that, according to the applicant, she applied to the authorities asking for assistance in establishing the whereabouts of Yusup Satabayev within a few days of 14 August 2000. On 19 August 2000 she received a prosecutor’s reply to her queries. This information is not contested by the Government. However, an official investigation was not opened until 18 October 2000, that is, approximately two months later. This delay, for which no explanation has been provided, was in itself liable to affect the investigation into a disappearance in life-threatening circumstances, where crucial action must be taken in the first days after the events complained of.

122.  The Court observes that on 1 November 2000 the applicant was granted victim status. However, it appears that a number of crucial steps were subsequently delayed and were eventually taken only after the communication of the complaint to the respondent Government, or not at all.

123.  In particular, according to the information available to the Court, between October 2000 and September 2006 the investigating authorities questioned the applicant, family members of the other detainees who had disappeared from the Urus-Martan VOVD and a number of other witnesses (see paragraph 45 above) and sent requests for information to the local department of the interior and the FSB. However, the Government have produced no documents, such as transcripts of questioning or copies of the requests and responses, to corroborate their submissions. Accordingly, not only is it impossible to establish how promptly some of those measures were taken, but whether they were taken at all. Furthermore, the Government provided no information as to why statements of the witnesses other than the detainees’ relatives could have been relevant for the investigation.

124.  The Court further notes that the investigation concerning the discovery of the four dead bodies in the vicinity of the village of Goy-Chu, which the relatives claimed to be the disappeared detainees, was instituted only on 4 August 2006, that is, six years after the bodies had been discovered in August 2000. Such an inexplicable delay could not but considerably affect the efficiency of the investigation.

125.  According to the Government, after September 2006 the investigating authorities carried out a substantial number of investigative actions. In particular, they questioned numerous witnesses, including the detainees’ cellmates, and sent numerous requests to various State authorities with a view to establishing their whereabouts. The Government have produced no documents to corroborate their submissions in this respect either. Accordingly, the Court cannot establish with sufficient certainty whether those measures were actually taken. However, even assuming that they were, no explanation has been provided as to why they were taken with a delay of over six years in a situation where active investigative steps had to be taken in the first days after the events under investigation.

126.  Furthermore, from the materials available to the Court it appears that a number of essential steps were never taken. Most notably, there is no information that the register of the detention facility of the Urus-Martan VOVD was ever inspected. Nor was there an inspection of the sites where the four bodies were discovered near the village of Goy-Chu and where they were reburied. Moreover, their exhumation has still not been conducted and, consequently, no meaningful measures for their conclusive identification have been taken, despite the decisions of the domestic courts in this respect (see paragraphs 81 and 83 above). Furthermore, there is no evidence that the officers of the Urus-Martan VOVD who held the four detainees in custody were ever questioned.

127.  The Court observes that in the present case the investigating authorities not only failed to comply with 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), but failed to take the most elementary investigative measures.

128.  The Court also notes that although the applicant was granted victim status shortly after the institution of the investigation, she was not informed of any significant developments in the investigation apart from several decisions on its suspension and resumption. Accordingly, the Court finds that the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.

129.  Finally, the Court notes that the investigation was adjourned and resumed on numerous occasions. Such handling of the investigation could not but have had a negative impact on the prospects of identifying the perpetrators and establishing the fate of Yusup Satabayev.

130.  Having regard to the Government’s preliminary objection, which was joined to the merits of the complaint, the Court notes that the investigation, having been repeatedly suspended and resumed and plagued by inexplicable delays and long periods of inactivity, has been ongoing for many years and has produced no tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection in this part.

131.  In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Yusup Satabayev, in breach of Article 2 under its procedural head. Accordingly, there has been a violation of Article 2 on this account also.

III.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

132.  The applicant further stated that Yusup Satabayev had been detained in violation of the guarantees of Article 5 of the Convention, which, in so far as relevant, 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:…

(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;

…

(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;

…

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.”

1.  Arguments of the parties

133.  The applicant contended that Yusup Satabayev had been detained on 23 February 2000 following the institution of criminal proceedings against him. However, after the discontinuation of the criminal proceedings on 27 July 2000 he had not been released and had remained in arbitrary and unlawful detention until his death.

134.  The Government first submitted that Yusup Satabayev had been detained on 1 August 2000 under the Decree on Measures for the Prevention of Vagrancy and Mendicancy, placed in the detention facility of the Urus-Martan VOVD and subsequently released. After the Court’s decision as to the admissibility of the application they stated that after the discontinuation of the criminal proceedings against Yusup Satabayev on 27 July 2000, detention as the measure of restraint applied to him had been lifted. He had been released as soon as the relevant decision had reached remand prison IZ-20/2, that is, on 1 August 2000. However, on 4 August 2000 he had again been detained under the Decree on Measures for the Prevention of Vagrancy and Mendicancy since he had had no identification documents. His detention in the detention ward of the Urus-Martan VOVD had lasted for ten days until 14 August 2000, when he was released. The Government also pointed out that the applicant had never lodged any complaints concerning Yusup Satabayev’s detention before the domestic courts. They concluded that there had been no violation of Article 5 of the Convention in respect of Yusup Satabayev’s detention.

2.  The Court’s assessment

135.  Inasmuch as the Government may be understood to raise the plea of non-exhaustion with respect to the present complaint on account of the applicant’s failure to challenge the lawfulness of Yusup Satabayev’s detention before a court, the Court reiterates that, under Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see K. and T. v. Finland [GC], no. 25702/94, § 145, ECHR 2001-VII, and N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X). However, in their submissions prior to the Court’s decision as to the admissibility of the present application the Government did not raise this argument. There are no exceptional circumstances which would have absolved the Government from the obligation to raise their preliminary objection before the adoption of that decision. Consequently, the Government are estopped from raising a preliminary objection of non-exhaustion of domestic remedies in this respect at the present stage of the proceedings.

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

137.  The Court has found it established in paragraphs 109-113 above that Yusup Satabayev was detained by State servicemen on 23 February 2000 and remained in continued detention until his presumed death after 14 August 2000. It is not disputed between the parties that until 27 July 2000 Yusup Satabayev was detained on suspicion of having committed a criminal offence. It is not in dispute either that he should have been released on that date following the discontinuation of the criminal proceedings against him. Accordingly, the Court has to decide whether his detention after 27 July 2000 was compatible with Article 5 of the Convention.

138.  The Court takes note of the Government’s latest submissions that Yusup Satabayev was released as soon as the relevant decision had reached remand prison IZ-20/2, that is, on 1 August 2000, as well as of the fact that they have not furnished any proof of Yusup Satabayev’s release on that date (see paragraph 109 above). However, as regards the period before 1 August 2000, even assuming that Yusup Satabayev remained in detention due to the fact that the decision on his release had not reached the detention facility with sufficient expedition, the Court reiterates that it must scrutinise complaints of delays in the release of detainees with particular vigilance (see Nikolov v. Bulgaria, no. 38884/97, § 80, 30 January 2003). Whereas some delay in implementing a decision to release a detainee is understandable and often inevitable in view of practical considerations relating to the running of the courts and the observance of particular formalities, the national authorities must attempt to keep it to a minimum (see, among other authorities, Mancini v. Italy, no. 44955/98, § 24, ECHR 2001-IX).

139.  The Court reiterates that administrative formalities connected with release cannot justify a delay of more than several hours (see Nikolov, cited above, § 82) and that it is for the Contracting States to organise their legal system in such a way that their law-enforcement authorities can meet the obligation to avoid unjustified deprivation of liberty. In Matyush v. Russia (no. 14850/03, § 73, 9 December 2008), the Court found a four-day delay in release to be incompatible with Article 5 § 1 of the Convention.

140.  Therefore, assuming that Yusup Satabayev remained in detention for five days from 27 July to 1 August 2000 because of the delay in transmission of the order on his release to the detention facility, it follows that his detention within this period was not covered by sub-paragraph (c) of paragraph 1 of Article 5 and did not fall within the scope of any of the other sub-paragraphs of that provision. There has accordingly been a breach of Article 5 § 1 in this respect.

141.  As regards the subsequent period of Yusup Satabayev’s detention from 1 to 14 August 2000, the Court has already noted the contradictory nature of the Government’s submissions (see paragraph 108 above). Having first submitted that Yusup Satabayev was arrested on 1 August 2000, they later stated that he had been arrested on 4 August 2000. However, in the decision to institute criminal proceedings of 18 October 2000 and subsequent decisions to suspend and resume the investigation which have been made available to the Court, it is stated that Yusup Satabayev and three other men were arrested on 1 August 2000. At the same time, according to the Government’s account of the information received from remand prison IZ-20/2, Yusup Satabayev was held in the remand prison until 1 August 2000, when he was transferred to the detention facility of the Urus-Martan VOVD.

142.  However, the Court does not consider that it is called upon to resolve the above contradictions, for the following reasons. Should the Court rely on the Government’s submission that Yusup Satabayev was detained on 4 August 2000 on the basis of Presidential Decree no. 1815 of 2 November 1993 on Measures for the Prevention of Vagrancy and Mendicancy, this would lead to the conclusion that from 1 to 4 August 2000 he was detained without any legal basis. However, even relying on the Government’s initial submissions that Yusup Satabayev’s detention pursuant to the Decree began on 1 August 2000, the Court notes, firstly, that it harbours doubts as to whether the Decree in question could in principle constitute a legal basis for his detention, since it does not provide grounds for detention, but establishes the time-limits for placement in rehabilitation institutions. Furthermore, the Court finds it difficult to accept that the Decree could have been applicable in the present circumstances, and that the detention could therefore have fallen within the scope of Article 5 § 1 (e), since it is far from clear how a person can be arrested for vagrancy having already been placed in custody and remained continuously in detention. Yet, even assuming that the Decree could have been applied in the present case and constituted a legal basis for Yusup Satabayev’s detention, the Government have failed to submit to the Court a prosecutor’s order for his detention which, according to section 3 of the Decree, was a prerequisite for placement in a rehabilitation centre. Thus, Yusup Satabayev’s detention from 1 to 14 August 2000 was not in conformity with either the domestic law or with Article 5 § 1 (e) of the Convention (Bitiyeva and X v. Russia, nos. 57953/00 and 37392/03, § 115, 21 June 2007).

143.  As regards the subsequent period, although the Government alleged that Yusup Satabayev had been released on 14 August 2000, they provided no proof to this effect, such as extracts from the detention facility register.

144.  Moreover, according to the reply of the head of the Urus-Martan VOVD of 7 September 2000, which the applicant submitted to the Court, Yusup Satabayev was neither arrested by the Urus-Martan VOVD nor detained therein. Therefore, his detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).

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

146.  Consequently, the Court finds that from 27 July 2000 Yusup Satabayev was held in arbitrary 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.

IV.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

147.  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.”

148.  The applicant argued that the possible effectiveness of domestic remedies had been undermined by the authorities’ failure to conduct an effective investigation into Yusup Satabayev’s disappearance.

149.  The Government contended that the applicant had had effective domestic remedies, as required by Article 13 of the Convention. In particular, she could have had appealed to a court against the actions or omissions of investigating authorities.

150.  The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 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).

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

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

153.  As regards the applicant’s reference to Article 5 of the Convention, the Court notes that according to its established case-law the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and in view of its above findings of a violation of Article 5 of the Convention by unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case.

V.  OBSERVANCE OF Article 38 § 1 (a) of the convention

154.  The applicant argued that the Government’s failure to submit the documents requested by the Court at the communication stage disclosed a failure to comply with their obligations under Article 38 § 1 (a) of the Convention, the relevant part of which provides:

“1.  If the Court declares the application admissible, it shall

(a)  pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities;

…”

155.  The applicant invited the Court to conclude that the Government’s refusal to submit a copy of the entire investigation file in response to the Court’s requests was incompatible with their obligations under Article 38 of the Convention.

156.  The Government reiterated that the submission of the case file would be contrary to Article 161 of the Code of Criminal Procedure.

157.  The Court reiterates that proceedings in certain types of applications do not in all cases lend themselves to a rigorous application of the principle whereby a person who alleges something must prove that allegation and that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications.

158.  This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. It is inherent in the proceedings relating to cases of this nature, where individual applicants accuse State agents of violating their rights under the Convention, that in certain instances it is only the respondent State that has access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information which is in their possession without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention. In a case where the application raises issues as to the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of the facts and their absence may prejudice the Court’s proper examination of the complaint both at the admissibility and at the merits stage (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 71, ECHR 1999-IV).

159.  The Court notes that despite its repeated requests for a copy of the investigation file opened into the disappearance of the applicant’s son, the Government refused to produce such a copy, relying on Article 161 of the Code of Criminal Procedure, having provided only copies of decisions to suspend and resume the investigation and to grant victim status. The Court observes that in previous cases it has already found this reference insufficient to justify refusal (see, among other authorities, Imakayeva, cited above, § 123).

160.  Referring to the importance of a respondent Government’s cooperation in Convention proceedings, and mindful of the difficulties associated with the establishment of facts in cases of such a nature, the Court finds that the Government fell short of their obligations under Article 38 § 1 of the Convention because of their failure to submit copies of the documents requested in respect of the disappearance of Yusup Satabayev.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

161.  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

162.  The applicant did not submit any claims for pecuniary damage. As regards non-pecuniary damage, she claimed EUR 100,000 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.

163.  The Government found the amounts claimed to be exaggerated.

164.  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 Court accepts that she has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicant EUR 35,000, plus any tax that may be chargeable thereon.

B.  Costs and expenses

165.  The applicant also claimed EUR 5,607 and 1,445 roubles (RUB) for the costs and expenses incurred before the Court. She submitted a copy of the contract with her representative and an itemised schedule of costs and expenses, which included interviews with the applicant and the drafting of legal documents submitted to the Court at a rate of EUR 50 per hour. She also submitted an invoice for translation expenses for the amount of EUR 512 and a postal invoice for the amount of RUB 1,445. The applicant also claimed EUR 333 for administrative expenses.

166.  The Government disputed the reasonableness and the justification of the amounts claimed under this head. They further pointed out that it had not been shown that the applicant had actually incurred all the expenses claimed. They also objected to the representative’s request to transfer the award for legal representation directly into his account.

167.  The Court may make an award in respect of costs and expenses in so far that they were actually and necessarily incurred and were reasonable as to quantum (see Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V, and Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002).

168.  Having regard to the details of the contract between the applicant and her representative and the information submitted, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicant’s representative.  Further, the Court notes that this case was rather complex and required a certain amount of research and preparation. Accordingly, it accepts that the costs and expenses incurred for legal representation were necessary.

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

170.  Having regard to the details of the claims submitted by the applicant, the Court awards her the amount of EUR 5,640, less EUR 850 received by way of legal aid from the Council of Europe, together with any value-added tax that may be chargeable to the applicant, the net award to be paid into the representative’s bank account, as identified by the applicant.

C.  Default interest

171.  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.  Dismisses the Government’s preliminary objection;

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

3.  Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Yusup Satabayev disappeared;

4.  Holds that there has been a violation of Article 5 of the Convention in respect of Yusup Satabayev;

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

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

7. Holds that there has been a failure to comply with Article 38 § 1 (a) of the Convention in that the Government have refused to submit documents requested by the Court;

8.  Holds

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

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

(ii)  EUR 4,790 (four thousand seven hundred ninety euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid into the representative’s bank account;

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

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

Done in English, and notified in writing on 29 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President

***

CASE OF VAKHAYEVA AND OTHERS v. RUSSIA

(Application no. 1758/04)

JUDGMENT

STRASBOURG

29 October 2009

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

In the case of Vakhayeva and Others v. Russia,

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

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 8 October 2009,

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

PROCEDURE

1.  The case originated in an application (no. 1758/04) 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 seven Russian nationals listed below (“the applicants”), on 14 November 2003.

2.  The applicants, who had been granted legal aid, were represented by Mr D. Itslayev, a lawyer practising in Nazran. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their new Representative, Mr G Matyushkin.

3.  The applicants alleged that their relative had disappeared after being detained by servicemen in Chechnya on 1 August 2000. They complained under Articles 2, 3, 5 and 13.

4.  By a decision of 11 September 2008 the Court declared the application admissible.

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

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicants are:

1.  Ms Rebart (Rebat) Vakhayeva, born in 1945;

2.  Ms Kheda Aydamirova, born in 1976;

3.  Mr Adam Vakhayev, born in 1993;

4.  Ms Petimat Vakhayeva, born in 1995;

5.  Mr Akhmed Vakhayev, born in 1997;

6.  Mr Akhyad Vakhayev, born in 1998;

7.  Ms Khadizhat Vakhayeva, born in 2000.

The applicants are Russian nationals and live in Urus-Martan, the Chechen Republic.

7.  The applicants are members of one family and are close relatives of Kazbek Vakhayev, born in 1975, who was apprehended by the police and has been missing since 13 August 2000. The first applicant is his mother, the second applicant is his wife and the third to seventh applicants are his children. The applicants live together in their house in Urus-Martan at 5, Nuradilova Street, where Kazbek Vakhayev also lived before his arrest.

8.  Kazbek Vakhayev worked as a furniture maker before his arrest. According to the applicants, he had never been involved in the armed conflict in Chechnya and had no connections with the paramilitary.

A.  Arrest and detention of Kazbek Vakhayev

1.  The applicants’ account

9.  On 1 August 2000 the Urus-Martan Temporary Department of the Interior of the Chechen Republic Урус-Мартановский временный отдел внутренних дел Чеченской республики (“Urus-Martan VOVD”) conducted a sweeping operation in the eastern part of the town. From early morning military forces cordoned off the eastern sector of the town, and officers from the Ministry of the Interior carried out a security raid.

10.  During the raid a van belonging to the Urals police arrived at the Vakhayevs’ house. The whole family was already waiting in the courtyard with their documents, ready to be checked. According to the applicants, the servicemen were wearing police uniforms and were armed. Without any introduction or the presentation of a warrant they started searching the house. No attesting witnesses were present and no official records were made of the search. The search did not yield any incriminating evidence.

11.  After the search the servicemen proceeded with the document check, and requested the passports of the adult men who were present, namely Kazbek Vakhayev and his father, Lecha Vakhayev. They showed their passports, both of which were valid and bore registration stamps confirming their legal address, which was the place where they were being checked. The servicemen examined the passports and asked who Kazbek Vakhayev was. He answered and then asked whether anything was wrong with his documents. The servicemen told him that the documents were fine, but he was “on the list” and showed him a page from a notepad with some names on it. He was ordered to get in the van. In reply to the first applicant’s question as to where he was being taken one of the policemen said: “They will see. Interrogate him. He will be released in two hours”. Another policeman explained that Kazbek Vakhayev was being taken following the receipt of an anonymous letter.

12.  On the same day officers from the Urus-Martan VOVD arrested several other men from the neighbourhood, among them G., two brothers Sh. and four brothers M. At the time of their arrests their houses were also searched. All of them were taken to the Urus-Martan VOVD, a temporary police station with a detention facility set up in a former boarding school in the town centre.

13.  On 2 August 2000 the applicants learned that an order to remand Kazbek Vakhayev in custody for ten days had been issued on the grounds that he was a vagrant. Under the applicable legislation this meant a person without any legal address indicated in his passport.

14.  For the next ten days the first and the second applicants visited the Urus-Martan VOVD regularly to enquire about Kazbek Vakhayev and to leave food and clothes for him, to be passed to the detention facility. Every day they were told that there was nothing pending against him on the file and that he was about to be released.

15.  Whenever the applicants left a parcel they attached a list of its contents, which would then be signed by Kazbek Vakhayev, and the guard would show them his signature to confirm its receipt. The applicants submit that they recognised his signature every time they left him a parcel. Sometimes he would add a short note and they were also able to recognise his handwriting.

16.  On 11 August 2000 Kazbek Vakhayev was due to be released after his ten days’ detention. His relatives and the families of other detainees whose release was due on the same day went to the Urus-Martan VOVD early in the morning to pick them up. They waited until 5 p.m., when Major S. announced that no one would be released on that day. The applicants then left another parcel for Kazbek Vakhayev, the receipt of which he confirmed as usual. All the detainees’ families, including the applicants, stayed in front of the Urus-Martan VOVD until the start of the curfew and then left.

17.  On 12 August 2000 the applicants and the other families waited outside the Urus-Martan VOVD all day, but no one was released on that day either. In the evening the applicants left another parcel, the receipt of which Kazbek Vakhayev confirmed as usual.

18.  On 13 August 2000 the first and the second applicants and three relatives went to the Urus-Martan VOVD and waited there all day together with the families of the other detainees. At about 5 p.m. they submitted a parcel for Kazbek Vakhayev. However, after an unusually long delay a policeman brought it back and told them that their relative was no longer in the detention facility.

19.  The applicants asked to see the head of the Urus-Martan VOVD, Colonel Sh., and when he came to meet them outside the VOVD the first applicant asked him where her son was. Colonel Sh. took their names, went back into the police station and then returned with Kazbek Vakhayev’s passport. He handed the passport to the first applicant and told her he did not know where her son was. When she pressed him for an explanation he replied that he had probably been taken to the “force groups”. According to the applicants, this meant the federal force group “Zapad” (группировка федеральных сил «Запад») which at the time was located to the south-west of Urus-Martan. When the first applicant protested, saying that the police were in charge of Kazbek Vakhayev and that handing him over without any documents was unheard of, Colonel Sh. replied that he would punish the head of the detention facility. The applicants were unable to obtain any more information on the matter.

20.  On the evening of the same day the two brothers Sh. and four brothers M. were found after having been left on the Rostov-Baku motorway near the town of Argun in Chechnya. The applicants learned that all of them had sustained numerous injuries and had traces of torture. The first applicant also learned that on the night of 11-12 August 2000 they had been transferred from the Urus-Martan VOVD to the Urus-Martan District Department of the Interior (ROVD), a normal police station, and on the night of 12-13 August 2000 they had been taken to the federal force group “Zapad”. After spending a night there, on 13 August 2000 they were taken to the town of Khankala, then the main federal military base for Chechnya. On the evening of the same day they were driven to the Argun district, where they were dropped off on the motorway.

21.  On 14 August 2000 the applicants learned that two more detainees, Yusup Satabayev (Satabayeva v. Russia, application no. 21486/06) and Ch., had gone missing from the Urus-Martan VOVD at the same time as Kazbek Vakhayev. Yusup Satabayev had been in detention since 23 February 2000 on suspicion of involvement in illegal paramilitary groups; from the beginning of August he had been held in the Urus-Martan VOVD. According to the applicants, Ch. had been arrested during the sweeping operation on the Urus-Martan district on 9 August 2000. On 14 August 2000 the relatives of Yusup Satabayev and Ch. had learned of their disappearance from the Urus-Martan VOVD. G. had also gone missing from the VOVD.

22.  At about noon on the same day the families of the four missing men met the head of the Urus-Martan VOVD, Colonel Sh., who initially told them that all four men had been released. He then said that only Kazbek Vakhayev had been released on 11 August 2000, but that the others had been taken to the “force groups”. The first applicant talked to Colonel Sh. afterwards, and eventually he told her that all four men, including her son, had been taken to “FSB-2” («ФСБ-2»), which formed part of the “force groups”.

2.  The Government’s account

23.  In their submissions prior to the Court’s decision of 11 September 2008 on the admissibility of the application, the Government stated that “on 1 August 2000 officers of the Urus-Martan Temporary Department of the Interior of the Chechen Republic under Decree of the President of the Russian Federation of 2 November 1993 no. 1815 ‘On Measures for Prevention of Vagrancy and Mendicancy’ apprehended and brought to the said department Y. A. Satabayev, [G.], K.L. Vakhayev and [Ch.]. Subsequently they were released however, their whereabouts [are] still unknown”.

24.  In their submissions after the Court’s decision of 11 September 2008 on the admissibility of the application, the Government reiterated that Kazbek Vakhayev had been detained on 1 August 2000 on the ground of the above-mentioned Decree. At the same time they submitted that he had been released on 11 August 2000. The Government also stated that his detention was “sanctioned by the prosecutor of the Urus-Martan district as valid and justified. The applicants have never brought any complaints against this detention before the national courts”.

B.  The search for Kazbek Vakhayev and the investigation

25.  On 15 August 2000 the first applicant filed a complaint with the Urus-Martan District Prosecutor’s Office concerning the unlawful arrest, detention and disappearance of her son.

26.  On 20 August 2000 the acting prosecutor of the Urus-Martan district replied to the first applicant:

“Further to your application concerning the disappearance of your son, Kazbek Vakhayev, born in 1975, I can inform you that from 1 to 11 August 2000 he was detained in the detention facility of the Urus-Martan VOVD as a vagrant, after which he was released.”

27.  On 22 August 2000 the first and the second applicants learned from informal contacts that on 13 August 2000 four young Chechen men had been executed in a military camp near the village of Goy-Chu of the Urus-Martan district. The execution had apparently been carried out by servicemen from the Urus-Martan district military commander’s office (Урус-Мартановская районная военная комендатура) and the bodies had been buried in a shallow grave in the grounds of the military camp. When the camp was relocated one of the soldiers had told the villagers of Goy-Chu about the grave and asked them to re-bury the dead. In the place he indicated villagers exhumed four corpses with numerous traces of violence, and also found some spent cartridges. They could not identify the bodies but they made a video recording of them. The bodies were re-buried on the same day, 22 August 2000, in the Goyskoye village cemetery. A member of the applicants’ family, Mr U., came to identify the bodies, but he did not recognise Kazbek Vakhayev among them. The applicants submitted a copy of the above video recording to the Court.

28.  On 27 August 2000 the first applicant wrote to the military commander of the Urus-Martan district, requesting him to take urgent measures to search for her son.

29.  On 14 September 2000 the applicant filed a written complaint with the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic, requesting his assistance in the search for her son.

30.  On 16 September 2000 the first applicant and the mothers of the missing detainees Yusup Satabayev, G. and Ch. applied to the Prosecutor’s Office of the Chechen Republic, complaining about the disappearance of their sons from the detention facility and alleging the use of torture against them.

31.  On 17 September 2000 the Urus-Martan District Prosecutor’s Office informed the applicant that her letter of 20 August 2000 had been forwarded to the Urus-Martan VOVD.

32.  On 18 October 2000 the Urus-Martan District Prosecutor’s Office opened a criminal investigation into the abduction of four men, i.e. Kazbek Vakhayev, Yusup Satabayev, G. and Ch. (criminal case file no. 24048). The decision stated, in particular:

“On 1 August 2000 officers of the Urus-Martan [VOVD] apprehended and brought to the [VOVD] [Mr G.], Kazbek Vakhayev, [Mr Ch.] and Yusup Satabayev pursuant to Decree no. 1815 of the President of the Russian Federation of 2 November 1993 ‘On Measures for the Prevention of Vagrancy and Mendicancy’.

On 14 August 2000 the detainees were released and sent to their places of residence.

However, to date [the detainees] have not returned to their places of residence, they are being searched for by their relatives and their whereabouts are not established.”

33.  On 25 October 2000 the Urus-Martan District Prosecutor’s Office informed the first applicant about the institution of criminal proceedings.

34.  On 31 October 2000 the second applicant was granted victim status in the proceedings.

35.  On 11 November 2000 the first applicant was granted victim status in the proceedings.

36.  The first and second applicants, questioned on unspecified dates, made statements similar to their description of the events as submitted to the Court. At the same time, according to the Government, the first applicant informed the investigating authorities that her son had been detained because he had not had his passport with him because it had been lost. According to the first applicant, she never made such a statement.

37.  On 18 December 2000 the investigation into criminal case no. 24048 was adjourned.

38.  On 22 January 2001 the Prosecutor’s Office of the Chechen Republic forwarded the first applicant’s letter to the Urus-Martan District Prosecutor’s Office.

39.  On 25 January 2001 the Urus-Martan District Prosecutor’s Office wrote to the first applicant, informing her that criminal proceedings had been instituted further to her complaints.

40.  In March 2001 the first applicant watched the video recording of the bodies exhumed in Goy-Chu on 22 August 2000 and noted that one of the dead resembled Kazbek Vakhayev and was dressed in similar clothes. She also noted that the body was disfigured by torture; in particular, it was covered in bruises, parts of the flesh had been ripped off, and the fingernails had been pulled out. Relatives of the other three missing men, Yusup Satabayev, G. and Ch., also watched the video-tape and, likewise, considered that the other bodies looked like their relatives. Accordingly they all concluded that the four missing men were likely to have been executed on 13 August 2000. They requested the Urus-Martan District Prosecutor’s Office, in person, to order the exhumation and a forensic examination of the bodies buried in Goyskoye.

41.  On 12 April 2001 the applicants obtained a death certificate in respect of Kazbek Vakhayev from the Urus-Martan civil register. 24 March 2001 was indicated as the date of death. No other details were stated. It is not clear what constituted the basis for the issue of the death certificate. According to the Government, a check was instituted by the prosecuting authorities concerning its issue. There is no information on the outcome of the check.

42.  On 6 June 2001 the Urus-Martan District Prosecutor’s Office informed the first applicant that Kazbek Vakhayev, Yusup Satabayev, G. and Ch., who had been arrested on 1 August 2000, had been released on 14 August 2000 and sent to their places of residence. In this letter the applicant was also informed about the adjournment of the criminal investigation as of 18 December 2000.

43.  On 3 September 2001 the first applicant filed a complaint with the Prosecutor General, requesting that the head of the Urus-Martan VOVD, Colonel Sh., and the acting District Prosecutor I. be brought to justice. She also requested that there should be a criminal investigation in relation to the discovery of four unidentified bodies near Goy-Chu.

44.  On 13 October 2001 the Prosecutor’s Office of the Chechen Republic ordered the Urus-Martan District Prosecutor’s Office to submit the investigation file in case no. 24048 for examination.

45.  On 25 February 2002 the first applicant complained to the Prosecutor’s Office of the Chechen Republic that she had received no reply to her previous letters. She asked for the resumption of the criminal investigation and that all her previous applications be considered.

46.  On 12 March 2002 the investigation was resumed.

47.  On 19 March 2002 the Urus-Martan District Prosecutor’s Office issued the first applicant with a certificate stating that the criminal investigation into the disappearance of her son had been opened on 18 October 2000.

48.  On 12 April 2002 the investigation was suspended on account of the failure to identify the perpetrators. The decision reiterated that the four detainees had been released on 14 August 2000.

49.  On 14 June 2002 the first applicant wrote to the Human Rights Department of the Chechen Republic, requesting their assistance in establishing the whereabouts of Kazbek Vakhayev. On the same day she sent a similar request to the Deputy Prime Minister of the Government of the Chechen Republic.

50.  On 19 March 2003 the first applicant wrote to the Urus-Martan District Prosecutor’s Office, asking them to question Colonel Sh.

51.  On 15 July 2003 the Urus-Martan District Prosecutor’s Office lifted the adjournment of the criminal proceedings in case no. 24048 and resumed the investigation.

52.  On 22 August 2003 the first applicant requested the Urus-Martan District Prosecutor to inform her of the measures taken further to her earlier applications.

53.  On 8 September 2003 the Urus-Martan District Prosecutor’s Office informed the applicant that Colonel Sh. had not been charged with the abduction of her son and that there had been insufficient evidence to bring charges in the case.

54.  On 28 September 2003 the investigation was resumed.

55.  On 28 October 2003 the Urus-Martan District Prosecutor’s Office again adjourned the investigation on account of the failure to identify the perpetrators. The decision reiterated that the four detainees had been released on 14 August 2000.

56.  On 15 December 2003 the first applicant requested the Urus-Martan district prosecutor to allow her access to criminal case file no. 24048.

57.  On 19 December 2003 the acting Urus-Martan district prosecutor informed the applicant that access could not be granted as the case file had been sent to the Prosecutor’s Office of the Chechen Republic.

58.  On 27 January 2004 the first applicant wrote to the head of the Federal Security Service (FSB) of the Urus-Martan district, asking whether her son had been suspected of any illegal activities.

59.  On 27 February 2004 the FSB of the Urus-Martan district replied to the first applicant that they had no information concerning Kazbek Vakhayev.

60.  On 2 April 2004 the first applicant requested the Prosecutor’s Office of the Chechen Republic to inform her which prosecutor’s office was in charge of the investigation into case no. 24048 and asked them to inform her of the measures taken. On 19 April 2004 the applicant re-sent the same request to the Prosecutor’s Office of the Chechen Republic and the Urus-Martan District Prosecutor’s Office. On 18 May 2004, having received no reply, she repeated her enquiry.

61.  On 21 May 2004 the first applicant requested the Urus-Martan District Prosecutor’s Office to bring criminal charges against Colonel Sh., against the head of the detention facility of the Urus-Martan VOVD and against all the servicemen of that department involved in the arrest of Kazbek Vakhayev, his remanding in custody and, possibly, his murder. She further requested that the four unidentified bodies discovered on 22 August 2000 in Goy-Chu and re-buried in Goyskoye be exhumed. She also requested that she be allowed access to case file no. 24048 in order to take copies of it.

62.  On 10 June 2004 the investigation was resumed.

63.  On 15 June 2004 the acting prosecutor of the Urus-Martan district replied to the first applicant, informing her that the materials in the case file were insufficient to either establish the whereabouts of Kazbek Vakhayev or identify the persons responsible for his abduction. She was invited to submit all evidence, if she had any, to the prosecutor’s office.

64.  On 29 June 2004 the Prosecutor’s Office of the Chechen Republic informed the applicant that an investigation in case no. 24048 was underway.

65.  On 10 July 2004 the investigation was again suspended for failure to identify the perpetrators.

66.  On 29 September 2004 the Urus-Martan District Prosecutor’s Office informed the applicant about the resumption of the investigation in case no. 24048.

67.  On 27 October 2004 the first applicant submitted the video tape recorded on 22 August 2000 to the Urus-Martan District Prosecutor’s Office, requesting that it be included in the case file.

68.  On 28 October 2004 the tape was added to the case file.

69.  On 29 October 2004 the Urus-Martan District Prosecutor’s Office again suspended the investigation of case no. 24048.

70.  On 6 June 2005 the investigation was resumed.

71.  On 6 July 2006 the Urus-Martan District Prosecutor’s Office again suspended the investigation.

72.  On 21 July 2006 the investigation was resumed.

73.  On 4 August 2006 the materials concerning the discovery of the four unidentified bodies were made part of a separate investigation, no. 57051.

74.  On 21 August 2006 investigation no. 24048 was again suspended. It was resumed on the next day.

75.  On 22 September 2006 the investigation was again suspended.

76.  On 23 September 2006 the investigation was resumed. It was subsequently again suspended and resumed on 23 and 25 October 2006 respectively.

77.  The following information concerning the progress of the investigation was submitted by the Government after the decision of 11 September 2008 on the admissibility of the application.

78.  On 26 and 27 September 2006 the investigating authorities sent requests for information to the head of the FSB department in the Chechen Republic and the head of Operative-Search Bureau no. 2 at the Ministry of the Interior concerning the possible involvement of Yusup Satabayev, Mr G., Kazbek Vakhayev and Mr Ch. in illegal armed groups and their possible detention by law-enforcement authorities. According to the replies received, those authorities had no relevant information.

79.  On 11 October and on 10 November 2006 the second applicant was questioned. She confirmed her previous statements and, on the basis of the video footage, identified one of the bodies found near the village of Goy-Chu as Kazbek Vakhayev. According to the Government, she refused to indicate his burial place so that the authorities could conduct an exhumation, since that would be in breach of Muslim traditions.

80.  On 12 October 2006 Tamara Satabayeva, the mother of Yusup Satabayev, was questioned. She confirmed the account of the events provided in her previous statements and in the statements of the second applicant. She identified, on the basis of the video footage, one of the bodies found near the village of Goy-Chu as Yusup Satabayev, since he had the same stature and was wearing the same clothes.

81.  On 13 October 2006 Ms G. was questioned. She submitted that her daughter-in-law had watched the above-mentioned video footage and had identified one of the bodies as Mr G.

82.  On 20 and 25 November 2006 and 18 January 2007 numerous inquiries and instructions were sent to various law-enforcement authorities and detention facilities, requesting information on the fate of Yusup Satabayev, Mr G., Kazbek Vakhayev and Mr Ch. and on their abductors. According to the replies received, the addressees had no relevant information.

83.  On 25 November 2006 the investigation was suspended.

84.  On 28 December 2006 the investigation was resumed. The decision reiterated that the four detainees had been released on 14 August 2000.

85.  On 8 February 2007 the investigating authorities instructed the head of the Urus-Martan District Department of the Interior (ROVD) to locate the persons held at the detention facility of the Urus-Martan VOVD simultaneously with Yusup Satabayev, Mr G., Kazbek Vakhayev and Mr Ch. The ROVD located seven persons: Mr A.M., Mr M.M., Mr A.E., Mr Kh.D., Mr S.-A.E., Mr Z.V. and Mr A.Z. It appeared impossible to establish the whereabouts of other detainees because they no longer resided in the Chechen Republic.

86.  On 11 February 2007 Mr A.E. was questioned. He submitted that at the beginning of August 2000 he had been detained by officers of the Urus-Martan VOVD because he had had no identity documents. He had been held for three days in cell no. 4 with his acquaintances Mr G. and Kazbek Vakhayev. He did not know the reasons for their detention. At the time of his release they were still held in cell no. 4. He had never seen them again.

87.  On 22 February 2007 Mr M. M. was questioned. He stated that on 1 August 2000 he had been detained by officers of the Urus-Martan VOVD because he had had no identity documents. He had been held in a cell with Mr G. and Kazbek Vakhayev until 11 August 2000. At the time of his release they remained in detention. He and other detainees had not been subjected to physical or psychological pressure.

88.  On 24 February 2007 Mr A.M. was questioned. He made a statement similar to those of Mr A.E. and Mr M.M.

89.  Mr Kh.D., Mr A.V., Mr . S. and Mr S.-A.E. were questioned on 13, 15, 18 and 20 February 2007 respectively. They did not provide any relevant information.

90.  On 23 April 2008 an inquiry was sent to remand prison SIZO-20/2 concerning Yusup Satabayev. According to the reply, Yusup Satabayev had been detained in SIZO-20/2 until 1 August 2000, when he was transferred to the detention facility of the Urus-Martan VOVD.

91.  On 25 April 2008 the investigating authorities of the Penza district were instructed to question Mr Sh., the former head of the Urus-Martan VOVD.

92.  On the same date and on 26 April 2008 the head of the Urus-Martan ROVD was instructed to identify eye-witnesses to the murder and burial of the four corpses near the village of Goy-Chu, and the person who had handed over the video footage of the bodies to the first applicant. The replies received did not contain any relevant information.

93.  On 27 June 2008 the second applicant was questioned. She confirmed her previous statements, agreed to show the burial place of Kazbek Vakhayev and stated that she had no objections to his exhumation. She also stated that she had never been subjected to any form of pressure in relation to her application to the Court.

94.  On 15 September 2008 the investigating authorities decided to apply to a court with requests for the seizure of certain documents and items classified as State secrets, kept in the archives of the FSB, the North-Caucasian Circuit of Internal Forces of the Ministry of the Interior, the Federal Service of Execution of Punishments, Interior Troops and the Ministry of Defence. The requests were granted by an unspecified court on an unspecified date and investigating officials proceeded to carry out the seizure.

95.  On 30 September 2008 a special investigative group was set up. It included officers from the Military Investigation Department of the Investigation Committee of the Prosecutor’s Office of the Russian Federation.

96.  On 8 October 2008 the investigation was suspended on account of the failure to identify the perpetrators.

97.  On 18 October 2008 the investigation was resumed.

C.  Court proceedings concerning the inactivity of investigating authorities

98.  On 5 January 2003 the first applicant applied to the Urus-Martan Town Court seeking to have the inaction of the Urus-Martan District Prosecutor declared unlawful. She complained about the absence of an effective investigation and requested the court to order the prosecutor’s office to resume criminal proceedings.

99.  On 16 April 2003 the first applicant lodged a complaint with the Supreme Court of the Chechen Republic about the town court’s failure to examine her claim and requested the Supreme Court to act as a first-instance court in her case. On 14 May 2003 the President of the Supreme Court of the Chechen Republic forwarded this letter to the Urus-Martan Town Court with a notice “to consider it on the merits”.

100.  On 1 July 2003 the first applicant had a meeting with the President of the Urus-Martan Town Court, who told her that she should have lodged a complaint with the prosecutors’ office. The applicant concluded that the court would not consider her claim.

101.  On 2 July 2003 the first applicant requested the Supreme Court of the Chechen Republic to act as a court of first-instance in respect of her complaint against the Urus-Martan District Prosecutor’s Office.

102.  On 21 July 2003 the President of the Supreme Court of the Chechen Republic sent an enquiry to the Urus-Martan Town Court concerning the progress in the examination of the applicant’s claim.

103.  On 30 July 2003 the first applicant requested the President of the Supreme Court of the Chechen Republic to inform her when her claim would be considered.

104.  On 15 August 2003 the President of the Urus-Martan Town Court informed the President of the Supreme Court of the Chechen Republic that the investigation in criminal case no. 24048 had been resumed as of 15 July 2003.

105.  On 12 September 2003 the first applicant requested the Supreme Court of the Chechen Republic to act as a court of first-instance in her case against the Urus-Martan District Prosecutor’s Office.

106.  On 7 October 2003 the Deputy President of the Supreme Court of the Chechen Republic informed the applicant that the criminal investigation in case no. 24048 had been resumed and was to be completed in one month. Her complaint, together with her claims against the Urus-Martan District Prosecutor’s Office, were therefore forwarded to the Prosecutor’s Office of the Chechen Republic.

107.  On 22 July 2004 the first applicant filed a new complaint in the Urus-Martan Town Court against the Urus-Martan District Prosecutor’s Office. She challenged their failure to conduct an effective investigation.

108.  On 14 September 2004 the Urus-Martan Town Court granted the first applicant’s complaint and declared the failure to act on the part of the Urus-Martan District Prosecutor’s Office unlawful. The court ordered that the applicant’s request of 21 May 2004 to bring criminal charges against officers of the Urus-Martan VOVD, exhume the bodies re-buried in Goyskoye and allow her access to the case file be dealt with by the prosecutor’s office.

109.  On 3 December 2004 the first applicant filed another complaint with the Urus-Martan Town Court against the Urus-Martan District Prosecutor’s Office. She challenged their failure to charge the officers of the department of the interior with criminal offences related to the abduction and, possibly, the murder of her son, the failure to give her access to the case file and to take measures to identify the bodies re-buried in Goyskoye.

110.  On 28 December 2004 the Urus-Martan Town Court granted the first applicant’s complaint in part and ordered the Urus-Martan District Prosecutor’s Office to take measures in relation to the unidentified bodies. The remainder of the complaint was dismissed.

111.  On 18 January 2005 the first applicant appealed.

112.  On 9 February 2005 the Supreme Court of the Chechen Republic dismissed the first applicant’s appeal and upheld the judgment of 28 December 2004.

D.  The Court’s request to submit the investigation file

113.  Despite the Court’s repeated requests, the Government has not submitted a copy of the investigation file into the abduction of Kazbek Vakhayev. They have submitted case file materials extending to ninety-three pages, containing decisions on the institution, suspension and resumption of the investigation and the decisions to grant victim status, and copies of judicial decisions concerning the first applicant’s complaints. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in criminal proceedings.

114.  Despite the Court’s specific request, made after the decision as to admissibility of the application of 11 September 2008, to submit copies of all documents related to Kazbek Vakhayev’s arrest on 1 August 2000 and subsequent detention, including the decisions to remand him in custody and to release him and an extract from the detention facility register confirming his release, the Government submitted no documents.

II.  RELEVANT DOMESTIC LAW

115.  Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR (Russian Soviet Federative Socialist Republic). On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation.

116.  Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.

117.  Article 161 of the new Code of Criminal Procedure establishes the rule that data from the preliminary investigation cannot be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission.

118.  Presidential Decree no. 1815 of 2 November 1993 on Measures for the Prevention of Vagrancy and Mendicancy provided for the reorganisation of the system of “reception and distribution centres”, for persons detained by the bodies of the Ministry of the Interior for vagrancy and mendicancy, into centres of social rehabilitation for such persons. Section 3 of the Decree provides:

“Placement of persons engaged in vagrancy and mendicancy in centres of social rehabilitation is permitted subject to the prosecutor’s authorisation, for a term not exceeding ten days.”

THE LAW

I.  THE GOVERNMENT’S PRELIMINARY OBJECTION

119.  The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies, since the investigation into the disappearance of Kazbek Vakhayev had not yet been completed.

120.  The applicants disputed that objection. In their view, the fact that the investigation had been pending for eight years with no tangible results proved that it was an ineffective remedy in this case.

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

122.  The Court observes that the applicants complained to the law-enforcement authorities shortly after the disappearance of Kazbek Vakhayev and that an investigation has been pending since 18 October 2000. The applicant and the Government dispute the effectiveness of this investigation.

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

II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

124.  The applicants complained under Article 2 of the Convention that their family member had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 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.  Alleged violation of Yusup Satabayev’s right to life

1.  Arguments of the parties

125.  The applicants argued that it was beyond reasonable doubt that Kazbek Vakhayev had been killed by representatives of the federal forces. He had disappeared in the hands of the federal forces and the authorities had failed to provide any explanation as to his subsequent fate.

126.  The Government submitted that the circumstances of Kazbek Vakhayev’s disappearance were under investigation. The information about his death had not been confirmed. Nor had it been established that any State agents had violated his right to life.

2.  The Court’s assessment

(a)  General principles

127.  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)  Establishment of the facts

128.  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).

129.  The applicants maintained that Kazbek Vakhayev had been apprehended on 1 August 2000 at his home, subsequently placed in the detention facility of the Urus-Martan VOVD and never released. They alleged that he had been killed by State agents and that his body had been discovered near the village of Goy-Chu.

130.  The Government submitted that Kazbek Vakhayev had been detained on 1 August 2000 under the Decree on Measures for the Prevention of Vagrancy and Mendicancy. He had been placed in the detention facility of the Urus-Martan VOVD on the same date and released on 11 August 2000.

131.  The Court observes that it is not disputed between the parties that Kazbek Vakhayev had been arrested on 1 August 2000. However, according to the applicants, he was never released and had eventually been killed by State agents, whereas the Government contended that he was released on 11 August 2000.

132.  The Court notes, firstly, that despite its repeated requests for a copy of the investigation file concerning the disappearance of Kazbek Vakhayev, the Government have failed to produce it, despite having submitted ninety-three pages of case file materials, which contained decisions on the institution, suspension and resumption of the investigation, decisions to grant victim status and court decisions concerning the first applicant’s complaints. They referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-… ).

133.  The Court further notes that in response to its direct request to submit copies of all documents related to Kazbek Vakhayev’s arrest on 1 August 2000 and his subsequent detention, including an extract from the detention facility register confirming his release, the Government submitted no documents and provided no explanation for such failure.

134.  As regards the substance of the Government’s submissions, the Court observes that they are not consistent with the interim findings of the domestic investigation. Whereas the Government submitted that, after having been arrested for vagrancy on 1 August 2000, Kazbek Vakhayev was released on 11 August 2000, in the decision to institute criminal proceedings of 18 October 2000 and subsequent decisions to suspend and resume the investigation which have been made available to the Court, it is stated that Kazbek Vakhayev and the other three men were released on 14 August 2000. In view of the Government’s failure to submit documents related to Kazbek Vakhayev’s detention or any documents from the investigation file which would allow the Court to determine on which basis the Government’s submissions and the above interim findings were founded, the Court cannot rely on either of them.

135.  Having regard to the inconsistency in the Government’s submissions and the interim findings of the domestic investigation and to the Government’s failure, despite the Court’s requests for documents, to provide any proof of Kazbek Vakhayev’s release from custody, the Court finds it established that he remained in continued detention under State control from 1 August 2000 onwards.

136.  The Court must further decide whether Kazbek Vakhayev may be presumed dead. The applicants contended that they identified one of the bodies found near the village of Goy-Chu on 22 August 2000 as Kazbek Vakhayev, on the basis of the video footage of the bodies before their re-burial. The Government argued that the fact of his death had not been established.

137.  The Court notes that no conclusive identification of the bodies found near the village of Goy-Chu was carried out. Accordingly, it cannot establish that one of the bodies was Kazbek Vakhayev. At the same time, it observes that he disappeared after having been placed in State custody. There has been no reliable news of him since 14 August 2000. His name has not been found in any official records of detention facilities after that date. Lastly, the Government did not submit any explanation as to what had happened to him during his detention.

138.  Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, for example, Imakayeva, cited above, and Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-… ), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is placed in detention without any subsequent acknowledgement of the detention, this can be regarded as life-threatening. The absence of Kazbek Vakhayev or any news of him for over nine years corroborates this assumption. Furthermore, the Government have failed to provide any explanation of Kazbek Vakhayev’s disappearance and the official investigation in this respect, dragging on for nine years, has produced no tangible results.

139.  The Court also notes that on 12 April 2001 the Urus-Martan civil register issued the applicants with a death certificate in respect of Kazbek Vakhayev, giving 24 March 2001 as the date of death. However, since it is unclear on which basis the civil register determined the date of death (see paragraph 41 above), the Court is reluctant to accept it as conclusive and confines itself to the finding that Kazbek Vakhayev must be presumed dead.

140.  Having regard to the foregoing, the Court finds it established that Kazbek Vakhayev disappeared after 14 August 2000 while he remained in State custody and that he must be presumed dead following his unacknowledged detention.

(c)  The State’s compliance with Article 2

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

142.  The Court has already found it established that the applicants’ family member must be presumed dead following his placement in State custody. Noting that the authorities do not rely on any ground of justification in respect of the use of lethal force by their agents, or otherwise accounting for his death, it follows that liability for his presumed death is attributable to the respondent Government.

143.  Accordingly, the Court finds that there has been a violation of Article 2 in respect of Kazbek Vakhayev.

B.  The alleged inadequacy of the investigation into the abduction

1.  Arguments of the parties

144.  The applicants argued that the investigation had not met the requirements to be effective and adequate, as required by the Court’s case-law on Article 2. They noted that the investigation was opened belatedly. In particular, the investigation into the discovery of the four unidentified bodies near the village of Goy-Chu had not been opened until after the communication of the present application to the Government. Furthermore, no effective measures were taken to establish what had happened to Kazbek Vakhayev and the other three detainees. The officers of the Urus-Martan VOVD who had held them in custody had not been questioned. The investigation had been repeatedly suspended and resumed, which had only added to the delay. Finally, the applicants had not been properly informed of the most important investigative steps.

145.  The Government submitted that a considerable number of investigative actions had been conducted and that persons having victim status in the proceedings had been duly informed of them.

2.  The Court’s assessment

146.  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, p. 49, § 161, and Kaya v. Turkey, 19 February 1998, § 86, 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. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-109, 4 May 2001, and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).

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

148.  Turning to the facts of the case, the Court notes that, according to the applicants, the first applicant applied to the authorities asking for assistance in establishing the whereabouts of Kazbek Vakhayev on 15 August 2000. On 20 August 2000 she received a prosecutor’s reply to her query. This information is not contested by the Government. However, an official investigation was not opened until 18 October 2000, that is, approximately two months later. This delay, for which no explanation has been provided, was in itself liable to affect the investigation into a disappearance in life-threatening circumstances, where crucial action must be taken in the first days after the events complained of.

149.  The Court observes that on 31 October 2000 the second applicant and on 11 November 2000 the first applicant were granted victim status in the proceedings. However, it appears that a number of crucial steps were subsequently delayed and were eventually taken only after the communication of the complaint to the respondent Government, or not at all.

150.  In particular, according to the information available to the Court, between October 2000 and September 2006 the investigating authorities questioned the first and second applicants. However, the Government did not furnish the transcripts of these interviews. Accordingly, it is impossible to establish conclusively whether they were actually conducted.

151.  The Court further notes that the investigation concerning the discovery of the four dead bodies in the vicinity of the village of Goy-Chu, which the relatives claimed to be the disappeared detainees, was instituted only on 4 August 2006, that is, six years after the bodies were discovered in August 2000. Such an inexplicable delay could not but considerably affect the efficiency of the investigation.

152.  According to the Government, after September 2006 the investigating authorities carried out a substantial number of investigative actions. In particular, they questioned numerous witnesses, including the detainees’ cellmates, and sent numerous requests to various State authorities with a view to establishing their whereabouts. The Government have produced no documents to corroborate their submissions in this respect either. Accordingly, the Court cannot establish with sufficient certainty whether those measures were actually taken. However, even assuming that they were, no explanation has been provided as to why they were taken with a delay of over six years, in a situation where active investigative steps had to be taken in the first days after the events under investigation.

153.  Furthermore, from the materials available to the Court it appears that a number of essential steps were never taken. Most notably, there is no information that the register of the detention facility of the Urus-Martan VOVD was ever inspected. Neither was an inspection conducted of the sites where the four bodies were discovered near the village of Goy-Chu and where they were reburied. Moreover, their exhumation has still not been carried out and, consequently, no meaningful measures for their conclusive identification have been taken, despite the decisions of the domestic courts in this respect (see paragraphs 108 and 110 above). Furthermore, there is no evidence that the officers of the Urus-Martan VOVD who held the four detainees in custody were questioned.

154.  The Court observes that in the present case the investigating authorities not only failed to comply with 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), but failed to take the most elementary investigative measures.

155.  The Court also notes that although the first and second applicants were granted victim status shortly after the institution of the investigation, they were not informed of any significant developments in the investigation, apart from several decisions on its suspension and resumption. Accordingly, the Court finds that the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.

156.  Finally, the Court notes that the investigation was adjourned and resumed on numerous occasions. Such handling of the investigation could not but have had a negative impact on the prospects of identifying the perpetrators and establishing the fate of Kazbek Vakhayev.

157.  Having regard to the Government’s preliminary objection, which was joined to the merits of the complaint, the Court notes that the investigation, having been repeatedly suspended and resumed and plagued by inexplicable delays and long periods of inactivity, has been ongoing for many years and has produced no tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection in this part.

158.  In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Kazbek Vakhayev, in breach of Article 2 under its procedural head. Accordingly, there has been a violation of Article 2 on this account also.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

159.  The applicants further relied on Article 3 of the Convention, submitting that as a result of their close relative’s disappearance and the State’s failure to investigate those events properly, they had endured mental suffering in breach of Article 3 of the Convention. Article 3 provides:

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

160.  The applicants maintained the complaint.

161.  The Government submitted that the investigation had produced no evidence that the applicants had been subjected to treatment prohibited by the above-cited Convention provision.

162.  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 v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva, cited above, § 164).

163.  In the present case the Court notes that the applicants are the mother, wife and children of the individual who disappeared. They were eyewitnesses to his arrest. For more than nine years they have not had any news of him. During this period the applicants have applied to various official bodies with enquiries about their family member, both in writing and in person. Despite their attempts, the applicants have never received any plausible explanation or information as to what became of their family member following his detention. The responses received by the applicants mostly denied the State’s responsibility for his fate or simply informed them that an investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.

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

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

IV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

166.  The applicants further stated that Kazbek Vakhayev had been detained in violation of the guarantees of Article 5 of the Convention, which, in so far as relevant, 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:…

(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;

…

(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;

…

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.”

167.  The applicants contended that Kazbek Vakhayev’s detention had been unlawful, since he was clearly not a vagrant, given that he was arrested at his home and had his passport with him.

168.  The Government submitted that Kazbek Vakhayev had been detained as a person of no fixed residence. After his identity was established, he had been released. The Government also pointed out that the applicants had never lodged any complaints concerning Kazbek Vakhayev’s detention before the domestic courts. They concluded that there had been no violation of Article 5 of the Convention in respect of Kazbek Vakhayev’s detention.

169.  Inasmuch as the Government may be understood to raise the plea of non-exhaustion with respect to the present complaint on account of the applicants’ failure to challenge the lawfulness of Kazbek Vakhayev’s detention before a court, the Court reiterates that, under Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see K. and T. v. Finland [GC], no. 25702/94, § 145, ECHR 2001-VII, and N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X). However, in their submissions prior to the Court’s decision as to the admissibility of the present application the Government did not raise this argument. There are no exceptional circumstances which would have absolved the Government from the obligation to raise their preliminary objection before the adoption of that decision. Consequently, the Government are estopped from raising a preliminary objection of non-exhaustion of domestic remedies in this respect at the present stage of the proceedings.

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

171.  The Court has found it established that Kazbek Vakhayev was apprehended by State servicemen on 1 August 2000 and has not been seen since. According to the detailed account of the circumstances provided by the applicants, he was apprehended at his home. This was not disputed by the Government, who provided no alternative account of the relevant circumstances. However, they submitted that he had been arrested on 1 August 2000 and detained until 11 August 2000 on the basis of Presidential Decree of 2 November 1993 no. 1815 on Measures for the Prevention of Vagrancy and Mendicancy.

172.  In view of the Government’s reference to Kazbek Vakhayev’s detention within the legal framework relating to the prevention of vagrancy, the Court will first proceed to examine whether his detention in the relevant period can be considered to fall within the scope of Article 5 § 1 (e).

173.  In the first place, the Court harbours doubts as to whether the Decree in question could in principle constitute a legal basis for Kazbek Vakhayev’s detention, since it does not provide grounds for detention, but establishes time-limits for placement in rehabilitation institutions.

174.  Secondly, given that it is not disputed by the parties that Kazbek Vakhayev was apprehended at his home, the Court finds it difficult to accept that the Decree could have been applicable in the present circumstances, and that the detention could therefore have fallen within the scope of Article 5 § 1 (e), since it is far from clear how a person can be arrested for vagrancy at his own home.

175.  Finally, even assuming that the Decree could have been applied in the present case and constituted a legal basis for Kazbek Vakhayev’s detention, the Government have failed to submit to the Court a prosecutor’s order for his detention which, according to section 3 of the Decree, was a prerequisite for placement in a rehabilitation centre. Thus, Kazbek Vakhayev’s detention from 1 to 11 August 2000 was not in conformity with either the domestic law or with Article 5 § 1 (e) of the Convention (Bitiyeva and X v. Russia, nos. 57953/00 and 37392/03, § 115, 21 June 2007).

176.  As regards the subsequent period, although the Government alleged that Kazbek Vakhayev was released on 11 August 2000, they provided no proof to this effect, such as extracts from the detention facility register. Moreover, the Government’s submissions are not consistent with the interim findings of the domestic investigation, according to which he had been released on 14 August 2000. However, no proof of his release on that date has been provided to the Court either, having regard to which the Court has already found in paragraph 135 above that Kazbek Vakhayev remained in continued detention under State control from 1 August 2000 onwards.

177.  Therefore, Kazbek Vakhayev’s ensuing detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).

178.  The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants’ complaints that their family member 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.

179.  Consequently, the Court finds that from 1 August 2000 Kazbek Vakhayev was held in arbitrary 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

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

“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.”

181.  The applicants argued that the possible effectiveness of domestic remedies had been undermined by the authorities’ failure to conduct an effective investigation into Kazbek Vakhayev’s disappearance.

182.  The Government contended that the applicant had had effective domestic remedies, as required by Article 13 of the Convention. In particular, she could have appealed to a court against the actions or omissions of investigating authorities.

183.  The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 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).

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

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

186.  As regards the violation of Article 3 of the Convention found on account of the applicants’ mental suffering as a result of the disappearance of their family member, their inability to find out what had happened to him and the way the authorities had handled their complaints, the Court notes that it has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention on account of the authorities’ conduct, which led to the suffering endured by the applicants. The Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in connection with Article 3 of the Convention.

187.  As regards the applicant’s reference to Article 5 of the Convention, the Court notes that according to its established case-law the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and in view of its above findings of a violation of Article 5 of the Convention by unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case.

VI.  OBSERVANCE OF Article 38 § 1 (a) of the convention

188.  The applicants argued that the Government’s failure to submit the documents requested by the Court at the communication stage disclosed a failure to comply with their obligations under Article 38 § 1 (a) of the Convention, the relevant part of which provides:

“1.  If the Court declares the application admissible, it shall

(a)  pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities;

…”

189.  The applicants invited the Court to conclude that the Government’s refusal to submit a copy of the entire investigation file in response to the Court’s requests was incompatible with their obligations under Article 38 of the Convention.

190.  The Government reiterated that the submission of the case file would be contrary to Article 161 of the Code of Criminal Procedure.

191.  The Court reiterates that proceedings in certain types of applications do not in all cases lend themselves to a rigorous application of the principle whereby a person who alleges something must prove that allegation and that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications.

192.  This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. It is inherent in the proceedings relating to cases of this nature, where individual applicants accuse State agents of violating their rights under the Convention, that in certain instances it is only the respondent State that has access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information which is in their possession without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention. In a case where the application raises issues as to the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of the facts and their absence may prejudice the Court’s proper examination of the complaint both at the admissibility and at the merits stage (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 71, ECHR 1999-IV).

193.  The Court notes that despite its repeated requests for a copy of the investigation file opened into the disappearance of the applicants’ relative, the Government refused to produce such a copy, relying on Article 161 of the Code of Criminal Procedure, having provided only copies of decisions to suspend and resume the investigation and to grant victim status and of courts decisions concerning the first applicant’s complaints. The Court observes that in previous cases it has already found this reference insufficient to justify refusal (see, among other authorities, Imakayeva, cited above, §  123).

194.  Referring to the importance of a respondent Government’s cooperation in Convention proceedings, and mindful of the difficulties associated with the establishment of facts in cases of such a nature, the Court finds that the Government fell short of their obligations under Article 38 § 1 of the Convention on account of their failure to submit copies of the documents requested in respect of the disappearance of Kazbek Vakhayev.

VII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

195.  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

196.  The second to seventh applicants claimed that they had sustained damage in respect of the loss of financial support from their family member following his detention and subsequent disappearance. They claimed a total of 1,034,551 roubles (RUB) under this head (approximately 23,000 euros (EUR)).

197.  The applicants claimed that Kazbek Vakhayev worked as a furniture maker before his detention. They provided a certificate issued by the Urus-Martan Administration on 27 January 2004, stating that until Kazbek Vakhayev’s death the second to seventh applicants had been his dependents. The applicants further submitted that, since they were unable to obtain documents to corroborate the amount of Kazbek Vakhayev’s earnings, they would refer to provisions of the Civil Code on the calculation of lost earnings, to the effect that the earnings of an unemployed person should be equalled to the usual amount of remuneration of a person with similar qualifications and could not be based on an amount smaller than the subsistence level determined by federal laws. The second to seventh applicants submitted that they would have benefited from Kazbek Vakhayev’s financial support in the amount indicated above, taking into account an average inflation rate of 12 %, that is, 14.3 % of his earnings in respect of each of them.

198.  The Government regarded these claims as based on suppositions and unfounded.

199.  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”.

200.  The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article 2 in respect of the applicants’ family member and the loss by the applicants of the financial support which he could have provided. The Court further finds that it is reasonable to assume that Kazbek Vakhayev would eventually have had some earnings from which the applicants would have benefited (see, among other authorities, Imakayeva cited above, § 213). Having regard to the applicants’ submissions and, in particular, the fact that they failed to corroborate the amount of his earnings, the Court awards EUR 7,000 to the second to seventh applicants jointly in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Non-pecuniary damage

201.  The applicants claimed EUR 210,000 jointly in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family member, the indifference shown by the authorities towards him and the failure to provide any information about his fate.

202.  The Government found the amounts claimed to be exaggerated.

203.  The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the arbitrary detention and disappearance of the applicants’ close relative. The applicants themselves have been found to have been victims of a violation of Article 3 of the Convention. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicants EUR 35,000 jointly, plus any tax that may be chargeable thereon.

C.  Costs and expenses

204.  The applicants also claimed EUR 8,363 and 1,482 roubles (RUB) for the costs and expenses incurred in the domestic proceedings and before the Court. They submitted a copy of the contract with their representative and an itemised schedule of costs and expenses, which included interviews with the applicants and the drafting of complaints to the domestic courts and legal documents submitted to the Court at a rate of EUR 50 per hour. They also submitted an invoice for translation expenses for the amount of EUR 632 and postal invoices for the amount of RUB 1,482. The applicants also claimed EUR 506 on account of administrative expenses.

205.  The Government disputed the reasonableness and the justification of the amounts claimed under this head. They also objected to the representative’s request to transfer the award for legal representation directly into his account.

206.  The Court may make an award in respect of costs and expenses in so far as they were actually and necessarily incurred and were reasonable as to quantum (see Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V, and Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002).

207.  Having regard to the details of the contract between the applicants and their representative and the information submitted, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representative.  Further, the Court notes that this case was rather complex and required a certain amount of research and preparation. Accordingly, it accepts that the costs and expenses incurred for legal representation were necessary.

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

209.  Having regard to the details of the claims submitted by the applicants, the Court awards them the amount of EUR 8,400, less EUR 850 received by way of legal aid from the Council of Europe, together with any value-added tax that may be chargeable to the applicants, the net award to be paid into the representative’s bank account, as identified by the applicants.

D.  Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Dismisses the Government’s preliminary objection;

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

3.  Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Kazbek Vakhayev disappeared;

4.  Holds that there has been a violation of Article 3 of the Convention in respect of the applicants’ mental suffering;

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

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

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

8. Holds that there has been a failure to comply with Article 38 § 1 (a) of the Convention in that the Government have refused to submit documents requested by the Court;

9.  Holds

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

(i)  EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, to the second to seventh applicants in respect of pecuniary damage;

(ii)  EUR 35,000 (thirty-five thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, to the applicants jointly in respect of non-pecuniary damage;

(iii)  EUR 7,550 (seven thousand five hundred and fifty euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid into the representative’s bank account;

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

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

Done in English, and notified in writing on 29 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President