{"id":6012,"date":"2010-07-22T19:22:15","date_gmt":"2010-07-22T16:22:15","guid":{"rendered":"http:\/\/www.waynakh.com\/eng\/?p=6012"},"modified":"2010-07-22T19:32:11","modified_gmt":"2010-07-22T16:32:11","slug":"akhmatkhanovy-benuyeva-and-others-v-russia","status":"publish","type":"post","link":"https:\/\/www.waynakh.com\/eng\/2010\/07\/akhmatkhanovy-benuyeva-and-others-v-russia\/","title":{"rendered":"Akhmatkhanovy – Benuyeva and Others v. Russia"},"content":{"rendered":"

The ECHR cases of Akhmatkhanovy v. Russia (application no. 20147\/07) and Benuyeva and Others v. Russia (application no. 8347\/05).<\/span><\/p>\n

.<\/span><\/p>\n

\u2026<\/span><\/p>\n

\u2026<\/span><\/p>\n

EUROPEAN COURT OF HUMAN RIGHTS<\/strong><\/span><\/p>\n

581<\/strong><\/span><\/p>\n

22.07.2010<\/strong><\/span><\/p>\n

Press release issued by the Registrar<\/strong><\/span><\/p>\n

Two Chamber judgments against Russia concerning disappearances in Chechnya<\/strong><\/span><\/p>\n

The European Court of Human Rights has today notified in writing two Chamber judgments concerning Russia, neither of which is final. Both cases concerned the applicants\u2019 allegations that their close relatives had been kidnapped by Russian servicemen in Chechnya. They further complained that the domestic authorities had failed to carry out an effective investigation into their allegations. They relied in particular on Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights. The judgments are only available in English.<\/span><\/p>\n

1.\u00a0\u00a0Benuyeva and Others v. Russia (application no. 8347\/05)<\/strong><\/span><\/p>\n

The applicants are 15 Russian nationals who live in different parts of Chechnya. They are the close relatives (parents, brothers and sisters) of Sayd-Selim Benuyev, born in 1982, and of Abu Zhanalayev, born in 1973.<\/span><\/p>\n

According to the applicants, Sayd-Selim and Abu, aged 20 and 29 at the time, were abducted from their homes on 24 November 2002 by around 12 armed men wearing masks. The men entered their courtyards and asked for Abu\u2019s identity papers and for Sayd-Selim himself. Having returned to the courtyard after collecting Abu\u2019s passport, his relatives saw no trace of Abu or the armed men and noticed a vehicle driving away from their courtyard. Sayd-Selim was dragged barefoot into the street, with a sack (or bag?) over his head, put into another vehicle and driven away. Both vehicles had distinctive marks, such as scratches on one side and an aerial, and a white cloth replacing broken windows. A few minutes later, relatives of Abu and Sayd-Selim took a car and chased the vehicles driving away with the two men. They stopped only after a serviceman from the military commander\u2019s office came out of one of the vehicles and told them that the vehicles belonged to the department of the interior of the Urus-Martan District in Chechnya and that, if they continued in pursuit, they might be shot. The following day, the head of that department told the applicants that he had contacted those who had abducted Abu and Sayd Selim and had asked them not to use force against them. A day later, some of the applicants saw the two vehicles leave the interior department\u2019s courtyard. There has been no news of Abu or Sayd-Selim since, despite the applicants\u2019 repeated enquiries, both in writing and in person, to various official bodies. The criminal investigations into their disappearance, which have so far lasted more than seven years, have produced no tangible results.<\/span><\/p>\n

Violation of Article 2 (right to life) in respect of Abu Zhanalayev and Sayd-Selim Benuyev;<\/span><\/p>\n

Violation of Article 2 (right to life) for failure to conduct an effective investigation into the circumstances of their disappearance;<\/span><\/p>\n

Violation of Article 3 (inhuman and degrading treatment) on account of the mental suffering of the mother of Sayd-Selim and the parents of Abu;<\/span><\/p>\n

No violation of Article 3 (inhuman and degrading treatment) on account of the mental suffering of the rest of the applicants;<\/span><\/p>\n

Violation of Article 5 (unacknowledged detention) in respect of Abu Zhanalayev and Sayd-Selim Benuyev<\/span><\/p>\n

Violation of Article 13 (right to an effective remedy) in conjunction with Article 2<\/span><\/p>\n

The Court awarded 1,500 Euros (EUR) to Sayd-Selim\u2019s mother and EUR 1,500 to Abu\u2019s parents for pecuniary damage, as well as EUR 55,000 to Sayd-Selim\u2019s mother and EUR 55,000 to Abu\u2019s parents for non-pecuniary damage, and EUR 850 to each of the remaining applicants in respect of non-pecuniary damage, and also EUR\u00a04,000 for costs and expenses.<\/span><\/p>\n

2.\u00a0\u00a0Akhmatkhanovy v. Russia (application no. 20147\/07)<\/strong><\/span><\/p>\n

The applicants are four Russian nationals who are the parents, sister and wife of Artur\u00a0Akhmatkhanov. In the morning of 2 April 2003, Artur and his mother had gone to the city centre to run errands, when she realised she needed a document and returned home to fetch it. Shortly after she reached her house, she heard shooting coming from the former medical storehouse located about 250 metres away. She approached the site and saw that it had been cordoned off by Russian military servicemen. After going back to the city centre, and not finding her son, she returned home only to learn from her husband that Artur\u2019s cap had been found at the site of the shooting. Several neighbours told her afterwards that they had either met Artur at the site shortly before the shooting, or that they had seen servicemen putting a young man with a plastic bag over his head into an armoured vehicle and driving away towards the city centre. In the afternoon of the same day, investigators went to the medical storehouse and collected cartridge and blood samples, apparently for a forensic examination. Two days later, an investigation was opened into Artur\u2019s disappearance. The applicants\u2019 complaints were forwarded numerous times to various prosecutors\u2019 offices. In December 2006, an investigator, in charge of the case at the time, told Artur\u2019s mother that the file did not contain any information about the blood samples and cartridges collected at the crime scene. The latest letter of February 2007 by Artur\u2019s father to the prosecution authorities, asking for information on the progress of the investigation, received no reply.<\/span><\/p>\n

The Russian Government submitted that the investigation was suspended and resumed several times for failure to identify the perpetrators and was still in progress. Despite specific requests by the Court, the Government did not disclose the full contents of the criminal case, claiming that such a step was incompatible with domestic legislation.<\/span><\/p>\n

Violation of Article 2 (right to life) in respect of Artur Akhmatkhanov;<\/span><\/p>\n

Violation of Article 2 (right to life) for failure to conduct an effective investigation into the circumstances of Artur\u2019s disappearance;<\/span><\/p>\n

Violation of Article 3 (inhuman and degrading treatment) on account of the mental suffering of Artur\u2019s parents, sister and wife;<\/span><\/p>\n

Violation of Article 5 (unacknowledged detention) in respect of Artur;<\/span><\/p>\n

Violation of Article 13 (right to an effective remedy) in conjunction with Article\u00a02<\/span><\/p>\n

The Court awarded Artur\u2019s wife EUR\u00a015,000 in respect of pecuniary damage, EUR\u00a060,000 in respect of non-pecuniary damage to Artur\u2019s parents, sister and wife jointly for non-pecuniary damage, and EUR\u00a05,500 for costs and expenses.<\/span><\/p>\n

**************<\/strong><\/span><\/p>\n

Information concerning the Court\u2019s findings in these cases<\/strong><\/span><\/p>\n

The Court considered that the relatives of the two disappeared men had provided a consistent account of the abductions. The fact that a group of armed men in uniform and with military vehicles had been able to move freely through the two towns, to arrest Abu and Sayd-Selim, and to open fire after sealing off an area, had strongly supported the applicants allegations that those men had been Russian servicemen conducting a security operation. Further drawing inferences from the Russian Government\u2019s failure to submit documents \u2013 despite specific requests from the Court \u2013 to which it exclusively had access, and the fact that it had not provided any other plausible explanation for the disappearances in question, the Court considered that the three young men had to be presumed dead following their unacknowledged detention by Russian servicemen. Accordingly, there had been a violation of Article 2 in respect of Abu, Sayd-Selim and Artur.<\/span><\/p>\n

In both cases the Court found that there had been further violations of Article\u00a02 on account of the authorities\u2019 failure to carry out effective investigations into the circumstances in which Abu, Sayd-Selim and Artur had disappeared.<\/span><\/p>\n

The Court also found that the mother of Sayd-Selim, the parents of Abu, as well as the parents, sister and wife of Artur, had suffered distress and anguish as a result of the disappearance of their close relatives and their inability to find out what had happened to them. The manner in which those applicants\u2019 complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment in violation of Article\u00a03.<\/span><\/p>\n

Furthermore, the Court held that the three young men had been held in unacknowledged detention without any of the safeguards contained in Article\u00a05, which constituted a particularly grave violation of the right to liberty and security.<\/span><\/p>\n

The Court finally held that, as the criminal investigations into the disappearance and killings of the applicants\u2019 relatives had been ineffective and the effectiveness of any other remedy that might have existed had consequently been undermined, the State had failed in its obligation under Article 13. Consequently there had been a violation of Article 13 in conjunction with Article\u00a02 in both cases.<\/span><\/p>\n

***<\/strong><\/span><\/p>\n

CASE OF BENUYEVA AND OTHERS v. RUSSIA <\/strong><\/span><\/p>\n

(Application no. 8347\/05)<\/strong><\/span><\/p>\n

JUDGMENT<\/strong><\/span><\/p>\n

STRASBOURG<\/strong><\/span><\/p>\n

22 July 2010<\/strong><\/span><\/p>\n

This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/em><\/span><\/p>\n

In the case of Benuyeva and Others v. Russia,<\/strong><\/span><\/p>\n

The European Court of Human Rights (First Section), sitting as a Chamber composed of:<\/span><\/p>\n

Christos Rozakis, President,
\nAnatoly Kovler,
\nElisabeth Steiner,
\nDean Spielmann,
\nSverre Erik Jebens,
\nGiorgio Malinverni,
\nGeorge Nicolaou, judges,
\nand S\u00f8ren Nielsen, Section Registrar,<\/span><\/p>\n

Having deliberated in private on 1 July 2010,<\/span><\/p>\n

Delivers the following judgment, which was adopted on that date:<\/span><\/p>\n

PROCEDURE<\/span><\/strong><\/p>\n

1.\u00a0\u00a0The case originated in an application (no. 8347\/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by fifteen Russian nationals listed below (\u201cthe applicants\u201d), on 25 February 2005.<\/span><\/p>\n

2.\u00a0\u00a0The applicants were represented by lawyers of the Stichting Russian Justice Initiative (\u201cSRJI\u201d), an NGO based in the Netherlands with a representative office in Moscow. The Russian Government (\u201cthe Government\u201d) were represented by Ms\u00a0V.\u00a0Milinchuk,\u00a0former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin.<\/span><\/p>\n

3.\u00a0\u00a0On 1 September 2005 the Court decided to apply Rule\u00a041 of the Rules of Court and to grant priority treatment to the application.<\/span><\/p>\n

4.\u00a0\u00a0On 7 January 2008 the Court decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 \u00a7 1).<\/span><\/p>\n

5.\u00a0\u00a0The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government\u2019s objection, the Court dismissed it.<\/span><\/p>\n

THE FACTS<\/strong><\/span><\/p>\n

I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/span><\/p>\n

6.\u00a0\u00a0The applicants are:<\/span><\/p>\n

1) Ms Zayra Benuyeva, born in 1951,<\/span><\/p>\n

2) Ms Kheda Benuyeva, born in 1985,<\/span><\/p>\n

3) Ms Razet Benuyeva, born in 1976,<\/span><\/p>\n

4) Ms Larisa Benuyeva, born in 1977,<\/span><\/p>\n

5) Ms Khava Benuyeva, born in 1994,<\/span><\/p>\n

6.<\/span>Ms Rezida Benuyeva, born in 1982,<\/span><\/p>\n

7) Mr Saydmagomed Benuyev, born in 1986,<\/span><\/p>\n

8) Mr Zelimkhan Benuyev, born in 1989,<\/span><\/p>\n

9) Mr Magomed Zhanalayev, born in 1941,<\/span><\/p>\n

10) Ms Lula Zhanalayeva, born in 1951,<\/span><\/p>\n

11) Ms Billant Musayeva, born in 1975,<\/span><\/p>\n

12) Ms Kheda Zhanalayeva, born in 1979,<\/span><\/p>\n

13) Mr Denis Zhanalayev, born in 1971,<\/span><\/p>\n

14) Mr Ilyas Zhanalayev, born in 1983, and<\/span><\/p>\n

15) Mr Imam Zhanalayev, born in 1993.<\/span><\/p>\n

7.\u00a0\u00a0The applicants live in the Chechen Republic. The third applicant lives in the town of Urus-Martan. The twelfth applicant lives in the village of Grushevoye, the Urus-Martan District. The other applicants live in the village of Martan-Chu, the Urus-Martan District.<\/span><\/p>\n

8.\u00a0\u00a0The first applicant was married to Mr Mumad Benuyev, born in 1951. The couple were the parents of the second, third, fourth, fifth, sixth, seventh and eighth applicants, and of Mr Sayd-Selim Benuyev, born in 1982. Mumad Benuyev died in 2005.<\/span><\/p>\n

9.\u00a0\u00a0The ninth and tenth applicants are the parents of the eleventh, twelfth, thirteenth, fourteenth and fifteenth applicants, and of Mr Abu Zhanalayev, born in 1973.<\/span><\/p>\n

A.\u00a0\u00a0Abduction of the applicants\u2019 relatives<\/span><\/p>\n

1.\u00a0\u00a0The applicants\u2019 account<\/span><\/p>\n

(a)\u00a0\u00a0Abduction of Abu Zhanalayev<\/span><\/p>\n

10.\u00a0\u00a0Abu Zhanalayev and his parents lived at 31 Pervomayskaya Street, in the village of Martan-Chu. Their house shared a courtyard with three other houses belonging to their relatives, including that of Mr\u00a0Khasmagomed Dzhanalayev, Abu Zhanalayev\u2019s uncle.<\/span><\/p>\n

11.\u00a0\u00a0In the evening of 24 November 2002 around twelve armed men wearing masks entered Khasmagomed Dzhanalayev\u2019s house without identifying themselves and started searching it. They asked if someone named Ayup lived there; Khasmagomed Dzhanalayev replied in the negative.<\/span><\/p>\n

12.\u00a0\u00a0In the meantime, other armed men searched the houses of two other relatives of the Zhanalayevs. Abu Zhanalayev\u2019s house was not searched.<\/span><\/p>\n

13.\u00a0\u00a0At some point the armed men decided to leave Khasmagomed Dzhanalayev\u2019s house. In the courtyard they met Abu Zhanalayev and ordered him to produce his identity papers. Abu Zhanalayev asked his uncle to bring the papers. Khasmagomed Dzhanalayev went to the Zhanalayevs\u2019 house and told the tenth applicant about the armed men; then they took Abu\u2019s identity papers and rushed to the courtyard. They saw no trace of Abu Zhanalayev or the armed men and noticed a UAZ vehicle driving away from their courtyard.<\/span><\/p>\n

(b)\u00a0\u00a0Abduction of Sayd-Selim Benuyev<\/span><\/p>\n

14.\u00a0\u00a0In the evening of 24 November 2002 Sayd-Selim Benuyev, his parents, siblings and other relatives were at their family home at 24\u00a0Pervomayskaya Street, in Martan-Chu. It appears that on that night there was a blackout in the village as the electricity had been cut off.<\/span><\/p>\n

15.\u00a0\u00a0At about 9 p.m. around twelve armed men wearing camouflage uniforms and armed with machine guns burst into the Benuyevs\u2019 house. All but four of them wore masks; those that were unmasked had Slavic features. The armed men spoke unaccented Russian. The Benuyev family inferred that the armed men belonged to the Russian military.<\/span><\/p>\n

16.\u00a0\u00a0The servicemen locked the first applicant in one of the rooms. Then they forced Mumad Benuyev to the floor and asked him where his sons were. Then they asked for Sayd-Selim Benuyev. When Sayd-Selim identified himself, the servicemen kicked and beat him and his father with machine gun butts until the two Benuyev men started to bleed. The servicemen also beat the second applicant.<\/span><\/p>\n

17.\u00a0\u00a0At some point the servicemen put a sack on Sayd-Selim Benuyev\u2019s head and took him barefoot into the street. The first applicant saw two UAZ vehicles parked near her house. The seventh applicant pointed at one of the UAZ vehicles with a flashlight and the first applicant noticed scratches on its right side; the vehicle had an aerial on its roof. The servicemen put Sayd-Selim Benuyev into the UAZ with the aerial and drove off.<\/span><\/p>\n

(c)\u00a0\u00a0Subsequent events<\/span><\/p>\n

18.\u00a0\u00a0Immediately after Abu Zhanalayev\u2019s abduction the tenth applicant and Khasmagomed Dzhanalayev followed the UAZ vehicles. A few minutes later they met the first applicant and her brother-in-law.<\/span><\/p>\n

19.\u00a0\u00a0The relatives of the two abducted men chased the UAZ vehicles in a car. At some point Mr S., a serviceman of the military commander\u2019s office, managed to stop their car and told them not to follow the vehicles because they might be shot. Mr S. added that the UAZ vehicles belonged to the department of the interior of the Urus-Martan District (\u201cthe ROVD\u201d).<\/span><\/p>\n

20.\u00a0\u00a0Later, villagers of Martan-Chu saw red and a green flares in the sky. At about 10 p.m. some of them noticed two UAZ vehicles parked next to the military commander\u2019s office of Martan-Chu. Five or ten minutes later three military servicemen got out of the vehicles and entered the military commander\u2019s office, while a few men walked out of it and got into them. The two vehicles then drove away in the direction of Urus-Martan.<\/span><\/p>\n

21.\u00a0\u00a0At about 11 p.m. two servicemen, acquaintances of the applicants, saw two UAZ vehicles driving in the direction of Urus-Martan. At some point they contacted other servicemen on duty at several checkpoints via portable radio and found out that the two vehicles had arrived at the ROVD.<\/span><\/p>\n

2.\u00a0\u00a0The Government\u2019s account<\/span><\/p>\n

22.\u00a0\u00a0On 24 November 2002 Abu Zhanalayev and Sayd-Selim Benuyev were kidnapped from the village of Martan-Chu.<\/span><\/p>\n

B.\u00a0\u00a0Official investigation into the disappearance of Abu Zhanalayev and Sayd-Selim Benuyev<\/span><\/p>\n

1.\u00a0\u00a0 The applicants\u2019 account<\/span><\/p>\n

23.\u00a0\u00a0At about 11 p.m. on 24 November 2002 the first and tenth applicants went to the house of Mr M., the head of the ROVD. Mr M.\u2019s bodyguards fired at the two women. They shouted and the firing ceased. Then the first and tenth applicants talked to Mr M. who told them not to worry and to go home.<\/span><\/p>\n

24.\u00a0\u00a0On 25 November 2002 the first and tenth applicants lodged written complaints about their relatives\u2019 abduction with the ROVD, the military commander\u2019s office of Urus-Martan, the prosecutor\u2019s office of the Urus-Martan District (\u201cthe district prosecutor\u2019s office\u201d) and the local administration.<\/span><\/p>\n

25.\u00a0\u00a0At about 11 a.m. on 26 November 2002 the first and tenth applicants saw two UAZ vehicles without registration numbers leaving the courtyard of the ROVD. They recognised the vehicles by their distinctive marks because one of them had a thick scratch and an aerial and the other one had white oil-cloth replacing broken windows.<\/span><\/p>\n

26.\u00a0\u00a0On 25 November 2002 the head of the ROVD told the applicants that he had contacted those who had abducted Abu Zhanalayev and Sayd-Selim Benuyev and had asked them not to use force against the two men.<\/span><\/p>\n

27.\u00a0\u00a0Trying to establish the fate and whereabouts of their missing sons, the first and tenth applicants repeatedly contacted, in person and in writing, various State agencies and officials requesting assistance in the search for Abu Zhanalayev and Sayd-Selim Benuyev. In particular, they applied to the Russian State Duma, the President of the Chechen Republic, the Administration of the Chechen Republic and the local administration. Most of those complaints were forwarded to prosecutors\u2019 offices at different levels.<\/span><\/p>\n

28.\u00a0\u00a0On 25 November 2002 the tenth applicant complained to the district prosecutor\u2019s office about her son\u2019s abduction. She mentioned the searches of her relatives\u2019 homes. On the same date the first applicant asked the district prosecutor\u2019s office to establish her son\u2019s whereabouts; she noted that her husband and daughter had been beaten.<\/span><\/p>\n

29.\u00a0\u00a0On 27 November 2002 the district prosecutor\u2019s office instituted an investigation into the disappearance of Abu Zhanalayev and Sayd-Selim Benuyev under Article 126 \u00a7 2 of the Russian Criminal Code (aggravated kidnapping). The case was assigned the number 61161.<\/span><\/p>\n

30.\u00a0\u00a0On 29 November 2002 the local administration of the Urus-Martan District informed the first applicant that her complaint about the beating of Mumad Benuyev and the second applicant, as well as about the arrest of Sayd-Selim Benuyev had been forwarded to the military commander\u2019s office.<\/span><\/p>\n

31.\u00a0\u00a0On 20 December 2002 the prosecutor\u2019s office of the Chechen Republic forwarded the tenth applicant\u2019s complaint about her son\u2019s abduction by State agents to the district prosecutor\u2019s office.<\/span><\/p>\n

32.\u00a0\u00a0On 25 January 2003 the district prosecutor\u2019s office granted victim status in case no. 61161 to Mumad Benuyev and Khasmagomed Dzhanalayev.<\/span><\/p>\n

33.\u00a0\u00a0On 27 January 2003 the district prosecutor\u2019s office informed Mumad Benuyev and Khasmagomed Dzhanalayev that the investigation in case no.\u00a061161 had been suspended for failure to identify those responsible.<\/span><\/p>\n

34.\u00a0\u00a0On 7 April 2003 the first applicant complained to the prosecutor\u2019s office of the Chechen Republic that Russian servicemen had abducted her son and beaten her husband and daughter.<\/span><\/p>\n

35.\u00a0\u00a0On an unspecified date the tenth applicant asked the district prosecutor\u2019s office to resume the investigation into her son\u2019s kidnapping. On 11 April 2003 the request was declined for the reason that all possible investigative measures had been taken to solve the crime.<\/span><\/p>\n

36.\u00a0\u00a0On 12 May 2003 the prosecutor\u2019s office of the Chechen Republic forwarded the first applicant\u2019s complaint to the district prosecutor\u2019s office.<\/span><\/p>\n

37.\u00a0\u00a0On 14 and 16 May 2003 respectively, the district prosecutor\u2019s office informed the tenth and first applicants that the investigation in case no.\u00a061161 had been resumed.<\/span><\/p>\n

38.\u00a0\u00a0On 30 May 2003 the military prosecutor\u2019s office of the United Group Alignment forwarded the first applicant\u2019s complaint to the military prosecutor\u2019s office of military unit no. 20102 (\u201cthe unit prosecutor\u2019s office\u201d).<\/span><\/p>\n

39.\u00a0\u00a0On 6 June 2003 the district prosecutor\u2019s office informed the first applicant that on 19 May 2003 the investigation in case no. 61161 had been resumed. They also noted that they were verifying whether the vehicles belonging to the ROVD could have been used in the kidnapping.<\/span><\/p>\n

40.\u00a0\u00a0On 7 June 2003 the unit prosecutor\u2019s office forwarded the tenth applicant\u2019s complaint to the district prosecutor\u2019s office pursuant to jurisdiction rules.<\/span><\/p>\n

41.\u00a0\u00a0On 7 June 2003 the head of the Department of the Federal Security Service of the Chechen Republic (\u201cthe Chechen FSB\u201d) informed the first and tenth applicants that required measures were being taken to establish their sons\u2019 whereabouts and that Abu Zhanalayev and Sayd-Selim Benuyev had not been arrested by the Chechen FSB because there had been no legal grounds for their arrest.<\/span><\/p>\n

42.\u00a0\u00a0On 10 June 2003 the prosecutor\u2019s office of the Chechen Republic informed the tenth applicant that the investigation in case no. 61161 had been suspended on 27\u00a0January 2003. They also noted that law-enforcement agencies would search for her son more vigorously.<\/span><\/p>\n

43.\u00a0\u00a0On 19 June 2003 the prosecutor\u2019s office of the Chechen Republic asked the district prosecutor\u2019s office for an update on progress in the investigation in case no. 61161.<\/span><\/p>\n

44.\u00a0\u00a0On 7 July 2003 the prosecutor\u2019s office of the Chechen Republic informed the first and tenth applicants that the decision on suspension of the investigation had been quashed on 19 May 2003 and that investigative measures were being taken to solve their sons\u2019 kidnapping.<\/span><\/p>\n

45.\u00a0\u00a0On 31 July 2003 the first and tenth applicants asked the district prosecutor\u2019s office to update them on the progress of the investigation.<\/span><\/p>\n

46.\u00a0\u00a0On 8 August 2003 the tenth applicant complained to the prosecutor\u2019s office of the Chechen Republic that the district prosecutor\u2019s office was taking no action.<\/span><\/p>\n

47.\u00a0\u00a0On 18 August 2003 the district prosecutor\u2019s office informed the applicants that the investigation in case no. 61161 had been suspended on 19\u00a0July 2003.<\/span><\/p>\n

48.\u00a0\u00a0On 25 August 2003 the prosecutor\u2019s office of the Chechen Republic informed the first and tenth applicants that the decision on suspension of the investigation in case no. 61161 had been quashed on 20 August 2003 and that investigative measures were being taken to solve the crime.<\/span><\/p>\n

49.\u00a0\u00a0On 4 September 2003 the first applicant complained to the district prosecutor\u2019s office about her son\u2019s abduction by Russian servicemen and asked them to take certain investigative measures in order to establish his whereabouts.<\/span><\/p>\n

50.\u00a0\u00a0On 8 September 2003 the district prosecutor\u2019s office informed the first applicant that the investigation in case no. 61161 had been resumed on 20\u00a0August 2003 and was under way.<\/span><\/p>\n

51.\u00a0\u00a0On 30 December 2003 the SRJI asked, on behalf of the applicants, the district prosecutor\u2019s office to take certain measures in order to establish the whereabouts of Abu Zhanalayev and Sayd-Selim Benuyev.<\/span><\/p>\n

52.\u00a0\u00a0On 27 and 30 April 2004 respectively, the district prosecutor\u2019s office informed the tenth and first applicants that the investigation in case no.\u00a061161 had been suspended on 20 September 2003 for failure to identify those responsible.<\/span><\/p>\n

53.\u00a0\u00a0On 23 June 2004 the first and tenth applicants asked the district prosecutor\u2019s office to allow them access to the investigation file.<\/span><\/p>\n

54.\u00a0\u00a0On 26 October 2004 an investigator of the district prosecutor\u2019s office told the first and tenth applicants that there was no need to search for Abu Zhanalayev and Sayd-Selim Benuyev as they were most probably dead.<\/span><\/p>\n

55.\u00a0\u00a0On 19 December 2005 the first and tenth applicants complained about their sons\u2019 abduction and the suspension of the criminal investigation to the military commander of the Urus-Martan District.<\/span><\/p>\n

56.\u00a0\u00a0On 24 January 2007 the first and tenth applicants asked the district prosecutor\u2019s office to update them on the progress of the investigation in case no. 61161 and to resume it if it had been suspended.<\/span><\/p>\n

57.\u00a0\u00a0On 31 January 2007 the district prosecutor\u2019s office informed the first and tenth applicants that the investigation had been suspended on 20\u00a0September 2003 but that investigative measures were being taken to find their sons and the perpetrators despite the suspension.<\/span><\/p>\n

2.\u00a0\u00a0The Government\u2019s account<\/span><\/p>\n

58.\u00a0\u00a0On 27 November 2002 the district prosecutor\u2019s office instituted an investigation into the kidnapping of Abu Zhanalayev and Sayd-Selim Benuyev in case no. 61161 on the basis of complaints lodged by the first and tenth applicants.<\/span><\/p>\n

59.\u00a0\u00a0Mumad Benuyev and Khas-Magomed Zhanalayev were granted victim status.<\/span><\/p>\n

60.\u00a0\u00a0On 15 December 2002 the first applicant was questioned as a witness and stated that on 24 November 2002 around twelve armed men wearing camouflage uniforms and masks had arrived in two UAZ-469 vehicles at her house; one of the vehicles had been khaki with an aerial on its roof and a dent on its right door. The armed men had beaten the first applicant\u2019s husband, the second applicant and two other relatives. They had demanded that the Benuyevs produce identity papers; while Sayd-Selim Benuyev had been trying to reach for his papers, they had captured him and dragged him outside, put a plastic bag over his head and taken him away. Sayd-Selim Benuyev had not participated in illegal armed groups.<\/span><\/p>\n

61.\u00a0\u00a0On 16 December 2002 Mumad Benuyev was questioned and made a statement identical to that of the first applicant. He noted that the UAZ\u00a0vehicles had been grey and khaki.<\/span><\/p>\n

62.\u00a0\u00a0On 16 December 2002 Khas-Magomed Zhanalayev was questioned as a witness and stated that on 24 November 2002 Abu Zhanalayev had stepped out of his house and encountered armed men who had demanded to see his identity papers. Abu Zhanalayev had asked Khas-Magomed Zhanalayev to bring the papers from his house. While Khas-Magomed Zhanalayev had been absent, Abu Zhanalayev had been taken away by the armed men in a UAZ-469 vehicle. Abu Zhanalayev had not participated in illegal armed groups.<\/span><\/p>\n

63.\u00a0\u00a0On an unspecified date the first applicant was again questioned. She stated that the armed men in camouflage uniforms had beaten her guests who had arrived to attend a neighbour\u2019s wedding. There had been around twelve armed men, they had all been tall. Four of them had not been masked and one armed man had had red hair and a beard.<\/span><\/p>\n

64.\u00a0\u00a0On 24 January 2003 the department of the interior of the Vedenskiy District established that Abu Zhanalayev and Sayd-Selim Benuyev had not been kept in temporary detention facilities and that their dead bodies had not been found.<\/span><\/p>\n

65.\u00a0\u00a0On 22 May 2003 the investigators requested information on vehicles used by the ROVD between 10 November 2002 and 25 May 2003 from the head of the ROVD. According to the reply received, the ROVD owned twenty-eight vehicles, none of which was an UAZ-469.<\/span><\/p>\n

66.\u00a0\u00a0On 8 July 2003 an ROVD officer questioned the second applicant and Mr U., a relative of the Benuyevs. They both stated that at about 11\u00a0p.m. on 24 November 2002 armed men speaking Russian had arrived at their house in two UAZ vehicles \u2013 one grey and one khaki \u2013 and had taken away Sayd-Selim Benuyev.<\/span><\/p>\n

67.\u00a0\u00a0On 14 September 2003 ROVD officers presented seven UAZ\u00a0vehicles used by the ROVD for the first applicant to identify. She did not recognise any of those as the vehicle used by her son\u2019s kidnappers.<\/span><\/p>\n

68.\u00a0\u00a0On 20 September 2003 the investigation into the kidnapping was suspended for failure to identify those responsible.<\/span><\/p>\n

69.\u00a0\u00a0The investigation into the kidnapping of Abu Zhanalayev and Sayd-Selim Benuyev was repeatedly suspended and then resumed. The proceedings were pending and the required investigative measures were being taken to solve the crime.<\/span><\/p>\n

70.\u00a0\u00a0Despite specific requests from the Court, the Government refrained from disclosing most of the documents from the investigation file in case no.\u00a061161, except for copies of the decision to institute the investigation, transcripts of witness interviews, a record of the first and tenth applicants\u2019 identification of UAZ vehicles and the court judgments of 18 March and 6\u00a0April 2005. Relying on information obtained from the Prosecutor General\u2019s 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 witnesses or other participants in the criminal proceedings.<\/span><\/p>\n

C.\u00a0\u00a0Judicial proceedings instituted by the applicants<\/span><\/p>\n

71.\u00a0\u00a0On 14 April 2003 the first applicant complained to the Urus-Martan District Court that the district prosecutor\u2019s office was taking no action in case no. 61161. It is unclear whether the complaint has been examined.<\/span><\/p>\n

72.\u00a0\u00a0On 28 December 2004 the first and tenth applicants challenged the lawfulness of the decision on suspension of the proceedings of 20\u00a0September 2003 before the Urus-Martan District Court.<\/span><\/p>\n

73.\u00a0\u00a0On 27 January 2005 the Urus-Martan District Court upheld the decision arguing that the district prosecutor\u2019s office had taken all the required investigative measures. The applicants appealed.<\/span><\/p>\n

74.\u00a0\u00a0On 16 February 2005 the Supreme Court of the Chechen Republic allowed the first and tenth applicants\u2019 appeal, quashed the judgment of 27\u00a0January 2005 and remitted the case for fresh examination at the first instance.<\/span><\/p>\n

75.\u00a0\u00a0On 18 March 2005 the Urus-Martan District Court again dismissed the first and tenth applicants\u2019 complaint reproducing the reasoning of the judgment of 27 January 2005 verbatim.<\/span><\/p>\n

76.\u00a0\u00a0On 6 April 2005 the Supreme Court of the Chechen Republic upheld the judgment of 18 March 2005.<\/span><\/p>\n

II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/span><\/p>\n

77.\u00a0\u00a0For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464\/02, \u00a7\u00a7\u00a067-69, 10\u00a0May 2007).<\/span><\/p>\n

THE LAW<\/strong><\/span><\/p>\n

I.\u00a0\u00a0The government\u2019s objection regarding non-exhaustion of domestic remedies<\/span><\/p>\n

A.\u00a0\u00a0The parties\u2019 submissions<\/span><\/p>\n

78.\u00a0\u00a0The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the kidnapping of Abu Zhanalayev and Sayd-Selim Benuyev had not yet been completed. They further submitted that the applicants could have also lodged civil claims for pecuniary and non-pecuniary damages, but had failed to do so.<\/span><\/p>\n

79.\u00a0\u00a0The applicants contested that objection. They stated that the criminal investigation had been pending for more than six years without producing any meaningful results and thus had proved to be ineffective. Moreover, they pointed out that their court complaint had produced no positive results. The applicants further asserted that civil remedies were ineffective in the circumstances of the case.<\/span><\/p>\n

B.\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

80.\u00a0\u00a0The 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, \u00a7\u00a7 73-74, 12\u00a0October 2006).<\/span><\/p>\n

81.\u00a0\u00a0The 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.<\/span><\/p>\n

82.\u00a0\u00a0As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v.\u00a0Russia, nos.\u00a057942\/00 and 57945\/00, \u00a7\u00a7\u00a0119-21, 24 February 2005). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.<\/span><\/p>\n

83.\u00a0\u00a0As regards criminal-law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law-enforcement authorities immediately after the kidnapping of Abu Zhanalayev and Sayd-Selim Benuyev and that an investigation into it has been pending since 27 November 2002. The applicants and the Government dispute the effectiveness of the investigation.<\/span><\/p>\n

84.\u00a0\u00a0The Court considers that this part of the Government\u2019s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants\u2019 complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below.<\/span><\/p>\n

II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION<\/span><\/p>\n

85.\u00a0\u00a0The applicants complained that Abu Zhanalayev and Sayd-Selim Benuyev had been arrested by Russian servicemen and then disappeared and that the domestic authorities had failed to carry out an effective investigation into the matter. They relied on Article 2 of the Convention, which reads:<\/span><\/p>\n

\u201c1.\u00a0\u00a0Everyone\u2019s 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.<\/span><\/p>\n

2.\u00a0\u00a0Deprivation 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:<\/span><\/p>\n

(a)\u00a0\u00a0in defence of any person from unlawful violence;<\/span><\/p>\n

(b)\u00a0\u00a0in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;<\/span><\/p>\n

(c)\u00a0\u00a0in action lawfully taken for the purpose of quelling a riot or insurrection.\u201d<\/span><\/p>\n

A.\u00a0\u00a0Arguments of the parties<\/span><\/p>\n

1.\u00a0\u00a0The Government<\/span><\/p>\n

86.\u00a0\u00a0The Government argued that it had not been proven that the applicants\u2019 relatives had been abducted by State agents. Their dead bodies had not been discovered and thus there was no evidence that they were no longer alive.<\/span><\/p>\n

87.\u00a0\u00a0The Government further observed that camouflage uniforms could have been freely purchased by criminals intending to be disguised as servicemen. The applicants had not noticed any insignia, which would necessarily be visible on the military uniforms. UAZ vehicles with aerials could be used by civilians. A considerable number of weapons had been seized by members of illegal armed groups in the course of battles with the federal military. The fact that the perpetrators had had Slavic features and spoke Russian did not prove their attachment to the Russian military because groups of Ukrainian, Belarusian and ethnic Russian mercenaries had committed crimes in the territory of the Chechen Republic.<\/span><\/p>\n

88.\u00a0\u00a0The applicants had made contradictory statements in the course of the investigation. For instance, the first applicant had claimed that she had not seen the vehicles\u2019 registration plates because it had been dark outside but that she had managed to see the dent on the vehicle and the aerial. Khas-Magomed Dzhanalayev had first stated that the armed men had not asked for his nephew\u2019s identity papers and later claimed that they had done so. He had also claimed initially that Abu Zhanalayev had been detained on his way to his uncle\u2019s house and then alleged that the missing man had been detained on his way home. There had been no other witnesses to Sayd-Selim Benuyev\u2019s kidnapping except for his relatives. Furthermore, the applicants had not reported the investigator\u2019s statement in which he had said that the two missing men were probably dead to the domestic investigative authorities and courts. Neither had they mentioned the military serviceman who had allegedly confirmed that the applicants\u2019 relatives had been taken away in the UAZ vehicles.<\/span><\/p>\n

89.\u00a0\u00a0The investigators had sent numerous requests to various State agencies and checked all possible places of temporary detention. A number of witnesses had been questioned. In sum, the investigation into the kidnapping had been effective, although so far fruitless, and was ongoing.<\/span><\/p>\n

2.\u00a0\u00a0The applicants<\/span><\/p>\n

90.\u00a0\u00a0The applicants maintained their complaints.<\/span><\/p>\n

91.\u00a0\u00a0They claimed that the inconsistencies in the witnesses\u2019 statements referred to by the Government were minor and that the investigators could have resolved them many years ago. They had not informed the investigators of the name of the military serviceman because it had been up to the prosecutor\u2019s office to question the servicemen and that the serviceman in question could have at risk of reprisals from other servicemen. The first applicant had seen the dent and the aerial because they had been lit by a torch while the registration plate had been in the dark.<\/span><\/p>\n

92.\u00a0\u00a0The applicants further stated that their relatives\u2019 abductors had been able to drive through the military checkpoint in paramilitary vehicles during the curfew hours. Moreover, according to Khasmagomed Dzhanalayev, the armed men had asked questions concerning the killing of policemen, which, in the applicants\u2019 view, clearly indicated that they had been State agents.<\/span><\/p>\n

93.\u00a0\u00a0The applicants further alleged that the investigations in case no.\u00a061161 had been ineffective and futile.<\/span><\/p>\n

B.\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

1.\u00a0\u00a0Admissibility<\/span><\/p>\n

94.\u00a0\u00a0The Court considers, in the light of the parties\u2019 submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court has already found that the Government\u2019s objection concerning the alleged non-exhaustion of criminal domestic remedies should be joined to the merits of the complaint (see paragraph 83 above). The complaint under Article 2 of the Convention must therefore be declared admissible.<\/span><\/p>\n

2.\u00a0\u00a0Merits<\/span><\/p>\n

(a)\u00a0\u00a0The alleged violation of the right to life of Abu Zhanalayev and Sayd-Selim Benuyev<\/span><\/p>\n

i.\u00a0\u00a0Establishment of the facts<\/span><\/p>\n

95.\u00a0\u00a0The Court reiterates that, in the light of the importance of the protection afforded by Article\u00a02, it must subject allegations of deprivation 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 Orhan v. Turkey, no.\u00a025656\/94, \u00a7 326, 18 June 2002). Where the events in issue lie wholly or largely 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.\u00a021986\/93, \u00a7\u00a0100, ECHR 2000-VII, and \u00c7ak\u0131c\u0131 v. Turkey [GC], no.\u00a023657\/94, \u00a7 85, ECHR 1999-IV).<\/span><\/p>\n

96.\u00a0\u00a0The 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, \u00a7\u00a7\u00a0103-09, 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.\u00a0the\u00a0United Kingdom, 18 January 1978, \u00a7 161, Series A no. 25).<\/span><\/p>\n

97.\u00a0\u00a0The Court notes that despite its requests for a copy of the entire investigation file into the kidnapping of Abu Zhanalayev and Sayd-Selim Benuyev, the Government refused to produce most of the documents from the file on the grounds that they were precluded from providing them all by Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v.\u00a0Russia, no.\u00a07615\/02, \u00a7\u00a0123, ECHR 2006-XIII (extracts)).<\/span><\/p>\n

98.\u00a0\u00a0In view of the foregoing and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government\u2019s conduct in this respect. It considers that the applicants have presented a coherent and convincing picture of their relatives\u2019 abduction.<\/span><\/p>\n

99.\u00a0\u00a0The Government suggested that the persons who had detained Abu Zhanalayev and Sayd-Selim Benuyev could have been members of paramilitary groups. However, this allegation was not specific and they did not submit any material to support it. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see \u00c7elikbilek v. Turkey, no.\u00a027693\/95, \u00a7\u00a071, 31\u00a0May 2005).<\/span><\/p>\n

100.\u00a0\u00a0The Court further points out that the perpetrators travelled in UAZ\u00a0vehicles \u2013 paramilitary vehicles regularly used by the military and law-enforcement agencies. It takes note of the Government\u2019s allegation that the weaponry and camouflage uniforms were probably stolen by insurgents from Russian arsenals in the 1990s. Nonetheless, it considers it very unlikely that heavily armed insurgents in camouflage uniforms travelling past curfew in paramilitary vehicles could have freely passed through Russian military checkpoints to enter the village without being noticed.<\/span><\/p>\n

101.\u00a0\u00a0It is of relevance in this respect that the domestic investigators accepted factual assumptions as presented by the applicants and looked at the possibility of the ROVD servicemen\u2019s implication in the crime (see paragraphs 65 and 67<\/span> above).<\/p>\n

102.\u00a0\u00a0The Court therefore considers that the fact that a large group of armed men in uniform equipped with paramilitary vehicles was able to move freely through Martan-Chu and to arrest the two men strongly supports the applicants\u2019 version of an involvement of State servicemen in their relatives\u2019 kidnapping.<\/span><\/p>\n

103.\u00a0\u00a0The Court reiterates that where the applicant makes out a prima\u00a0facie case and the Court is prevented from reaching factual conclusions owing to the lack of documents withheld by the Government, it is for the latter to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government, and if they fail in their arguments, issues will arise under Article 2 and\/or Article 3 (see To\u011fcu v. Turkey, no.\u00a027601\/95, \u00a7\u00a095, 31 May 2005, and Akkum and Others v. Turkey, no.\u00a021894\/93, \u00a7\u00a0211, ECHR 2005-II).<\/span><\/p>\n

104.\u00a0\u00a0In their observations on the admissibility and merits of the present application the Government seemed to raise doubts as to the credibility of the first applicant\u2019s statements, as well as those by Khasmagomed Dzhanalayev, concerning the factual circumstances of the abduction of Abu Zhanalayev and Sayd-Selim Benuyev.\u00a0\u00a0The Court notes in this connection that the crucial elements underlying the applicants\u2019 submissions as to the facts have not been disputed by the Government. The Government did not dispute that the abduction of the applicants\u2019 relatives had actually been committed by a group of armed men at the time stated by the applicants. This fact was confirmed by the official investigation conducted by the district prosecutor\u2019s office. The Court finds that the inconsistencies pointed out by the Government in the applicants\u2019 description of events are so insignificant that they cannot cast doubt on the overall credibility of the applicants\u2019 submission.<\/span><\/p>\n

<\/a>105.\u00a0\u00a0Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that Abu Zhanalayev and Sayd-Selim Benuyev were arrested by State servicemen. The Government\u2019s statement that the investigation did not find any evidence to support the involvement of the State agencies in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government\u2019s failure to submit the documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court considers that Abu Zhanalayev and Sayd-Selim Benuyev were abducted on 24 November 2002 by State servicemen during an unacknowledged security operation.<\/span><\/p>\n

106.\u00a0\u00a0The Court has to decide further whether Abu Zhanalayev and Sayd-Selim Benuyev are to be considered dead. It notes in this regard that there has been no reliable news of the missing men since 24 November 2002. Their names have not been found in any official records of detention facilities. Lastly, the Government did not submit any explanation as to what happened to them after the abduction.<\/span><\/p>\n

107.\u00a0\u00a0Having regard to the previous cases concerning disappearances of people in the Chechen Republic which have come before the Court (see, for example, Imakayeva, cited above, and Luluyev and Others\u00a0v. Russia, no.\u00a069480\/01, ECHR 2006-XIII ), 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 acknowledgement of the detention, this can be regarded as life-threatening. The absence of Abu Zhanalayev and Sayd-Selim Benuyev or any news of them for over six years corroborates this assumption.<\/span><\/p>\n

108.\u00a0\u00a0Accordingly, the Court finds it established that on 24 November 2002 Abu Zhanalayev and Sayd-Selim Benuyev were abducted by State servicemen and that they must be presumed dead following their unacknowledged detention.<\/span><\/p>\n

ii.\u00a0\u00a0The State\u2019s compliance with Article 2<\/span><\/p>\n

109.\u00a0\u00a0The 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 (see McCann and Others v. the United Kingdom, 27 September 1995, \u00a7 147, Series\u00a0A no.\u00a0324).<\/span><\/p>\n

110.\u00a0\u00a0The Court has already found it established that Abu Zhanalayev and Sayd-Selim Benuyev must be dead following their unacknowledged detention by State servicemen (see paragraph 108 above). Given that the authorities do not rely on any ground of justification in respect of the use of lethal force by their agents, the deaths of Abu Zhanalayev and Sayd-Selim Benuyev are attributable to the respondent Government.<\/span><\/p>\n

111.\u00a0\u00a0Accordingly, the Court finds that there has been a violation of Article 2 of the Convention in respect of Abu Zhanalayev and Sayd-Selim Benuyev.<\/span><\/p>\n

(b)\u00a0\u00a0The alleged inadequacy of the investigation into the abduction<\/span><\/p>\n

112.\u00a0\u00a0The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State\u2019s general duty under Article\u00a01 of the Convention to \u201csecure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention\u201d, 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, \u00a7 161, and Kaya v. Turkey, 19 February 1998, \u00a7\u00a086, Reports of Judgments and Decisions 1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim\u2019s 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.\u00a024746\/94, \u00a7\u00a7 105-09, ECHR 2001-III (extracts), and Douglas-Williams v. the United Kingdom (dec.), no.\u00a056413\/00, 8\u00a0January 2002).<\/span><\/p>\n

113.\u00a0\u00a0In the present case, the kidnapping of Abu Zhanalayev and Sayd-Selim Benuyev was investigated. The Court must now assess whether that investigation met the requirements of Article 2 of the Convention.<\/span><\/p>\n

114.\u00a0\u00a0The Court notes at the outset that the majority of the documents from the investigation were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the sparse information on its progress presented by the Government.<\/span><\/p>\n

115.\u00a0\u00a0The Court first notes that the authorities were made aware of the kidnapping of Abu Zhanalayev and Sayd-Selim Benuyev through the applicants\u2019 submissions shortly after the incident (see paragraphs 23 and 24 above). The investigation in case no. 61161 was instituted on 27 November 2002, that is, three days after the abduction. The Court notes that the delay in opening the criminal proceedings in the present case was not appallingly long but points out nonetheless that an effective investigation into kidnapping in life-threatening circumstances requires that crucial actions be taken in the first days after the event.<\/span><\/p>\n

116.\u00a0\u00a0The Court further points out that the information on the course of the investigation into the kidnapping of Abu Zhanalayev and Sayd-Selim Benuyev at its disposal is highly inadequate. It observes that the applicants, who themselves were not updated on the progress of the case, could not provide it with a list of investigative measures taken by the domestic authorities.<\/span><\/p>\n

117.\u00a0\u00a0The Government, in their turn, vaguely referred to the investigative steps taken to solve the kidnapping of Abu Zhanalayev and Sayd-Selim Benuyev. However, it follows from the information which they submitted that there were considerable delays in carrying out those measures.<\/span><\/p>\n

118. For instance,\u00a0the first applicant, her husband and Khasmagomed Dzhanalayev were questioned for the first time more than two weeks after the investigation began (see paragraphs 60 and 61 above). The Court is struck by the fact that the second applicant and another eyewitness to Sayd-Selim Benuyev\u2019s kidnapping were questioned for the first time only on 8\u00a0July 2003 (see paragraph 66 above), that is, more than seven months after the investigation had been opened. The investigators also failed to demonstrate due diligence when requesting information about vehicles employed by the ROVD six months after the events (see paragraph 65 above) and presenting the ROVD vehicles to the first applicant for identification ten months after the crime (see paragraph 67 above). It is obvious that these investigative measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation began (see Gekhayeva and Others v. Russia, no. 1755\/04, \u00a7 105, 29 May 2008).<\/span><\/p>\n

119.\u00a0\u00a0Furthermore, a number of important investigative steps were never carried out. For instance, it does not appear that such a basic measure as the inspection of the crime scene has ever taken place. Moreover, nothing in the materials at the Court\u2019s disposal warrants the conclusion that the investigators tried to question the servicemen who had manned the checkpoints in Martan-Chu on the night of the abduction or to collect the registration logs of the passing vehicles.<\/span><\/p>\n

120.\u00a0\u00a0Accordingly, the Court considers that the domestic investigative authorities demonstrably failed to act of their own motion and breached their obligation to act with exemplary diligence and promptness in dealing with a crime as serious as kidnapping (see \u00d6nery\u0131ld\u0131z v. Turkey [GC], no.\u00a048939\/99, \u00a7 94, ECHR 2004-XII).<\/span><\/p>\n

121.\u00a0\u00a0The Court also notes that the applicants were not promptly informed of significant developments in the investigation and considers therefore 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 (see O\u011fur v. Turkey [GC], no.\u00a021594\/93, \u00a7\u00a092, ECHR 1999-III).<\/span><\/p>\n

122.\u00a0\u00a0Lastly, the Court notes that the investigation into the kidnapping of Abu Zhanalayev and Sayd-Selim Benuyev was repeatedly suspended and then resumed, which led to lengthy periods of inactivity on the part of the investigators when no proceedings were pending. Owing to the Government\u2019s failure to submit the entire case file, the Court is unable to establish the exact timeline of the investigation. However, it is not disputed between the parties that no proceedings have been pending since 20\u00a0September 2003, that is, for more than six years. Such handling of the investigation could only have had a negative impact on the prospects of identifying the perpetrators and establishing the fate of the applicants\u2019 relatives.<\/span><\/p>\n

123.\u00a0\u00a0Having regard to the limb of the Government\u2019s objection concerning the fact that the domestic investigation is still pending which was joined to the merits of the application, the Court notes that the investigation, which was opened on 27 November 2002, has produced no tangible results to date. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their objection.<\/span><\/p>\n

124.\u00a0\u00a0In 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 Abu Zhanalayev and Sayd-Selim Benuyev, in breach of Article\u00a02 of the Convention in its procedural aspect.<\/span><\/p>\n

III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/span><\/p>\n

125.\u00a0\u00a0The applicants complained that, at the moment of their abduction and after it, Abu Zhanalayev and Sayd-Selim Benuyev were subjected to ill-treatment. The second applicant also complained that she had been beaten by the men who had abducted her brother. The applicants further claimed that, as a result of the disappearance of their relatives and the State\u2019s failure to investigate the crimes properly, they had endured profound mental suffering. They relied on Article 3 of the Convention, which reads:<\/span><\/p>\n

\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/span><\/p>\n

A.\u00a0\u00a0The parties\u2019 submissions<\/span><\/p>\n

126.\u00a0\u00a0The Government disagreed with these allegations and argued that the investigation had not established that Abu Zhanalayev and Sayd-Selim Benuyev had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention. The second applicant had not brought her grievance concerning her alleged beating to the attention of the domestic authorities and thus had failed to exhaust available domestic remedies. The Government further argued that the applicants\u2019 mental suffering could not be imputable to the State.<\/span><\/p>\n

127.\u00a0\u00a0The applicants stated that they had informed the domestic authorities about the second applicant\u2019s beating and maintained their complaints.<\/span><\/p>\n

B.\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

1.\u00a0\u00a0Admissibility<\/span><\/p>\n

(a)\u00a0\u00a0The complaint concerning ill-treatment of Abu Zhanalayev and Sayd-Selim Benuyev<\/span><\/p>\n

128.\u00a0\u00a0The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof \u201cbeyond reasonable doubt\u201d but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, cited above, \u00a7 161 in fine).<\/span><\/p>\n

129.\u00a0\u00a0The Court has found it established that Abu Zhanalayev and Sayd-Selim Benuyev were taken away on 24 November 2002 by Russian federal forces and that no reliable news of them has been received since. It has also found that, in view of all the known circumstances, they can be presumed dead and that the responsibility for their deaths lies with the State authorities (see paragraph 108<\/span> above). However, questions remain as to the exact way in which they died and whether they were subjected to ill-treatment following their abduction. The Court considers that the materials at its disposal do not enable it to find beyond all reasonable doubt that Abu Zhanalayev and Sayd-Selim Benuyev were ill-treated in detention. It thus finds that this part of the complaint under Article 3 of the Convention has not been substantiated.<\/p>\n

130.\u00a0\u00a0It follows that this part of the complaint under Article 3 of the Convention is manifestly ill-founded and should be rejected in accordance with Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/span><\/p>\n

(b)\u00a0\u00a0The complaint concerning the second applicant\u2019s ill-treatment<\/span><\/p>\n

131.\u00a0\u00a0The Court takes note of the Government\u2019s plea of non-exhaustion; however, it does not deem it necessary to establish whether the second applicant made use of available domestic remedies for the following reason.<\/span><\/p>\n

132.\u00a0\u00a0The second applicant has not provided the Court with any medical evidence confirming that she sustained any injuries on the night of her brother\u2019s abduction. In the absence of any document confirming her allegations, the Court is bound to conclude that the second applicant\u2019s complaint concerning the alleged ill-treatment is unsubstantiated.<\/span><\/p>\n

133.\u00a0\u00a0It follows that this part of the complaint under Article 3 of the Convention is manifestly ill-founded and should be rejected in accordance with Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/span><\/p>\n

(c)\u00a0\u00a0The complaint concerning the applicants\u2019 mental suffering<\/span><\/p>\n

134.\u00a0\u00a0The Court notes that this part of the complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article\u00a035 \u00a7 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/span><\/p>\n

2.\u00a0\u00a0Merits<\/span><\/p>\n

135.\u00a0\u00a0The Court observes that the question whether a family member of a \u201cdisappeared person\u201d is a victim of treatment contrary to Article\u00a03 will depend on the existence of special factors which give the applicants\u2019 suffering 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 \u201cdisappearance\u201d of the family member but rather concerns the authorities\u2019 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\u2019 conduct (<\/a>see <\/a>Orhan v. Turkey, no. 25656\/94, \u00a7\u00a0358, 18 June 2002, and Imakayeva, cited above, \u00a7\u00a0164).<\/span><\/p>\n

136.\u00a0\u00a0In the present case the Court notes that Sayd-Selim Benuyev is a son of the first applicant and a sibling of the second, third, fourth, fifth, sixth, seventh and eighth applicants, while Abu Zhanalayev is a son of the ninth and tenth applicants and a sibling of the eleventh, twelfth, thirteenth, fourteenth and fifteenth applicants. It appears from the documents at the Court\u2019s disposal that it was only the first and tenth applicants who made various applications and enquiries to the domestic authorities in connection with their sons\u2019 disappearance. The Court accepts in principle that the ninth applicant, Abu Zhanalayev\u2019s father, may be regarded as having taken part in the search for his son together with his wife. It notes at the same time that no evidence has been submitted to the Court that the missing men\u2019s siblings were in any manner involved in the search for Abu Zhanalayev and Sayd-Selim Benuyev (see, by contrast, Luluyev and Others, cited above, \u00a7\u00a0112). In such circumstances, the Court, while accepting that the events of 24 November 2002 might have been a source of considerable distress to the second, third, fourth, fifth, sixth, seventh and eighth applicants, and to the eleventh, twelfth, thirteenth, fourteenth and fifteenth applicants, is nevertheless unable to conclude that their mental and emotional suffering was distinct from the inevitable emotional distress in a situation such as in the present case and that it was so serious that it fell within the ambit of Article 3 of the Convention (see Saydaliyeva and Others v. Russia, no.\u00a041498\/04, \u00a7 124, 2\u00a0April 2009, and Malsagova and Others v. Russia, no.\u00a027244\/03, \u00a7 133, 9\u00a0April 2009).<\/span><\/p>\n

137.\u00a0\u00a0As regards the first, ninth and tenth applicants, the Court notes that for more than seven years they have not had any news of their sons. During this period the first and tenth applicants have applied to various official bodies with enquiries about her son, both in writing and in person. Despite all their efforts, they have never received any plausible explanation or information as to what became of their sons following his arrest. The responses received by the applicants mostly denied that the State was responsible or simply informed them that an investigation was ongoing. The Court\u2019s findings under the procedural aspect of Article 2 are also of direct relevance here.<\/span><\/p>\n

138.\u00a0\u00a0In view of the above, the Court finds that the first, ninth and tenth applicants suffered, and continue to suffer, distress and anguish as a result of the disappearance of their sons and their inability to find out what happened to them. The manner in which their complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3.<\/span><\/p>\n

139.\u00a0\u00a0The Court therefore concludes that there has been a violation of Article 3 of the Convention on account of the first, ninth and tenth applicants\u2019 mental suffering and no violation of this provision on account of the second, third, fourth, fifth, sixth, seventh, eighth, eleventh, twelfth, thirteenth, fourteenth and fifteenth applicants\u2019 mental suffering.<\/span><\/p>\n

IV.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION<\/span><\/p>\n

140.\u00a0\u00a0The applicants further stated that their relatives had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant:<\/span><\/p>\n

\u201c1.\u00a0\u00a0Everyone 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:…<\/span><\/p>\n

(c)\u00a0\u00a0the 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;<\/span><\/p>\n

…<\/span><\/p>\n

2.\u00a0\u00a0Everyone 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.<\/span><\/p>\n

3.\u00a0\u00a0Everyone arrested or detained in accordance with the provisions of paragraph\u00a01\u00a0(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.<\/span><\/p>\n

4.\u00a0\u00a0Everyone 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.<\/span><\/p>\n

5.\u00a0\u00a0Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.\u201d<\/span><\/p>\n

A.\u00a0\u00a0The parties\u2019 submissions<\/span><\/p>\n

141.\u00a0\u00a0In the Government\u2019s opinion, no evidence was obtained by the investigators to confirm that the applicants\u2019 relatives had been deprived of their liberty in breach of the guarantees set out in Article 5 of the Convention.<\/span><\/p>\n

142.\u00a0\u00a0The applicants reiterated the complaint.<\/span><\/p>\n

B.\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

1.\u00a0\u00a0Admissibility<\/span><\/p>\n

143.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible.<\/span><\/p>\n

2.\u00a0\u00a0Merits<\/span><\/p>\n

144.\u00a0\u00a0The 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 \u00c7i\u00e7ek v. Turkey, no.\u00a025704\/94, \u00a7\u00a0164, 27 February 2001, and Luluyev, cited above, \u00a7\u00a0122).<\/span><\/p>\n

145.\u00a0\u00a0The Court has found it established that Abu Zhanalayev and Sayd-Selim Benuyev were abducted by State servicemen on 24 November 2002. Their detention was not acknowledged or logged in any custody records and there exists no official trace of the missing men\u2019s subsequent whereabouts or fate. In accordance with the Court\u2019s 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 <\/a>Orhan, cited above, \u00a7\u00a0371).<\/span><\/p>\n

146.\u00a0\u00a0In view of the foregoing, the Court finds that Abu Zhanalayev and Sayd-Selim Benuyev were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.<\/span><\/p>\n

V.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/span><\/p>\n

147.\u00a0\u00a0The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations of Articles 2 and 3, contrary to Article 13 of the Convention, which provides:<\/span><\/p>\n

\u201cEveryone 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.\u201d<\/span><\/p>\n

A.\u00a0\u00a0The parties\u2019 submissions<\/span><\/p>\n

148.\u00a0\u00a0The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them. The applicants had had an opportunity to challenge any actions or omissions on the part of the investigating authorities in court and in fact made use of it when challenging lawfulness of the decision of 20 September 2003. They could also claim damages through civil proceedings.<\/span><\/p>\n

149.\u00a0\u00a0The applicants reiterated the complaint.<\/span><\/p>\n

B.\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

1.\u00a0\u00a0Admissibility<\/span><\/p>\n

150.\u00a0\u00a0 In so far as the complaint under Article 13 concerns the existence of a domestic remedy in respect of the complaints concerning the alleged ill-treatment of the second applicant, Abu Zhanalayev and Sayd-Selim Benuyev, the Court notes that these parts of the complaint under Article 3 were declared manifestly ill-founded in paragraphs 130 and 133 above. Accordingly, the applicants did not have an \u201carguable\u00a0 claim\u201d of a violation of a substantive Convention provision in this respect and, therefore, Article\u00a013 of the Convention is inapplicable.<\/span><\/p>\n

151.\u00a0\u00a0It follows that these parts of the complaint under Article 13 of the Convention are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 \u00a7 3 and must be rejected in accordance with Article 35 \u00a7\u00a04 thereof.<\/span><\/p>\n

152.\u00a0\u00a0The Court notes that the remainder of the complaints under Article\u00a013 of the Convention is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/span><\/p>\n

2.\u00a0\u00a0Merits<\/span><\/p>\n

153.\u00a0\u00a0The Court reiterates that in circumstances where, as here, a criminal investigation into the disappearance has been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article\u00a013 of the Convention (see Khashiyev and Akayeva, cited above, \u00a7\u00a0183).<\/span><\/p>\n

154.\u00a0\u00a0Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.<\/span><\/p>\n

155.\u00a0\u00a0As regards the applicants\u2019 mental suffering, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13, read in conjunction with Article 3 of the Convention (see Kukayev v. Russia, no.\u00a029361\/02, \u00a7\u00a0119, 15\u00a0November 2007, and Aziyevy v. Russia, no.\u00a077626\/01, \u00a7\u00a0118, 20\u00a0March 2008).<\/span><\/p>\n

VI.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/span><\/p>\n

156.\u00a0\u00a0The applicants complained under Article 8 of the Convention that the Russian servicemen unlawfully searched their homes and under Article\u00a014 of the Convention alleging that they had been discriminated against in the enjoyment of their Convention rights on the grounds of their Chechen ethnic origin.<\/span><\/p>\n

157.\u00a0\u00a0Having regard to all the material in its possession, and as far as it is within its competence, the Court finds that the applicant\u2019s submissions disclose no appearance of violations of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 \u00a7\u00a7\u00a03\u00a0and\u00a04 of the Convention.<\/span><\/p>\n

VII.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/span><\/p>\n

158.\u00a0\u00a0Article 41 of the Convention provides:<\/span><\/p>\n

\u201cIf 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.\u201d<\/span><\/p>\n

A.\u00a0\u00a0Pecuniary damage<\/span><\/p>\n

159.\u00a0\u00a0The first, ninth and tenth applicants, all retired, claimed damages in respect of the loss of their sons\u2019 earnings after their disappearance. The applicants submitted that Abu Zhanalayev and Sayd-Selim Benuyev, both unemployed at the time of their disappearance, would not have had incomes lower than the subsistence level applicable in Russia. Basing their calculations on the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary\u2019s Department (\u201cthe Ogden tables\u201d) and relevant provisions of the Russian legislation, the first applicant claimed 164,653.92 Russian roubles (RUB) (4,480 euros (EUR)), the ninth applicant claimed RUB 114,947.61 (EUR\u00a03,130) and the tenth applicant claimed RUB 136,693.52 (EUR 3,720) in respect of pecuniary damage.<\/span><\/p>\n

160.\u00a0\u00a0The Government argued that the claims were unsubstantiated and that the three applicants had not made use of the domestic avenues for obtaining compensation for the loss of a breadwinner.<\/span><\/p>\n

161.\u00a0\u00a0The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its conclusions above, it finds that there is a direct causal link between the violation of Article 2 in respect of Abu Zhanalayev and Sayd-Selim Benuyev and the loss to the first, ninth and tenth applicants, the retired persons, of the financial support which their sons could have provided.<\/span><\/p>\n

162.\u00a0\u00a0Having regard to the first, ninth and tenth applicants\u2019 submissions and the materials in its possession and accepting that it is reasonable to assume Abu Zhanalayev and Sayd-Selim Benuyev would eventually have had some earnings resulting in financial support for their elderly parents, the Court awards EUR 1,500 to the first applicant and EUR 1,500 to the ninth and tenth applicants jointly in respect of pecuniary damage, plus any tax that may be charged thereon.<\/span><\/p>\n

B.\u00a0\u00a0Non-pecuniary damage<\/span><\/p>\n

163.\u00a0\u00a0The first, ninth and tenth applicant each claimed EUR 80,000 in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their sons. The other twelve applicants claimed EUR\u00a030,000 each in respect of non-pecuniary damage caused by the disappearance of their family members.<\/span><\/p>\n

164.\u00a0\u00a0The Government found the amounts claimed exaggerated.<\/span><\/p>\n

165.\u00a0\u00a0The 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\u2019 relatives. The first, ninth and tenth applicants have themselves been found victims of a violation of Article 3 of the Convention. The Court thus accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It finds it appropriate to award EUR 55,000 to the first applicant, EUR 55,000 to the ninth and tenth applicants jointly and EUR 850 to the second, third, fourth, fifth, sixth, seventh, eighth, eleventh, twelfth, thirteenth, fourteenth and fifteenth applicants each, plus any tax that may be charged thereon.<\/span><\/p>\n

C.\u00a0\u00a0Costs and expenses<\/span><\/p>\n

166.\u00a0\u00a0The applicants were represented by the SRJI. They submitted an itemised list 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\u2019 legal representation amounted to EUR\u00a07,416.55 to be paid into the applicants\u2019 representatives\u2019 account in the Netherlands.<\/span><\/p>\n

167.\u00a0\u00a0The Government pointed out that the applicants should be entitled to the reimbursement of their costs and expenses only in so far as it has been shown that they were actually incurred and are reasonable as to quantum (see Skorobogatova v. Russia, no.\u00a033914\/02, \u00a7 61, 1\u00a0December\u00a02005).<\/span><\/p>\n

168.\u00a0\u00a0The Court now has to establish first whether the costs and expenses indicated by the applicants were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27\u00a0September 1995, \u00a7 220, Series A no. 324).<\/span><\/p>\n

169.\u00a0\u00a0Having 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.<\/span><\/p>\n

170.\u00a0\u00a0As 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\u2019s refusal to submit the case files. Furthermore, owing to the application of Article 29 \u00a7 3 in the present case, the applicants\u2019 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\u2019 representatives.<\/span><\/p>\n

171.\u00a0\u00a0The Court thus awards the applicants the amount of EUR\u00a04,000, together with any value-added tax that may be chargeable to the applicants, the net award to be paid into the representatives\u2019 bank account in the Netherlands, as identified by the applicants.<\/span><\/p>\n

D.\u00a0\u00a0Default interest<\/span><\/p>\n

172.\u00a0\u00a0The 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.<\/span><\/p>\n

FOR THESE REASONS, THE COURT UNANIMOUSLY<\/strong><\/span><\/p>\n

1.\u00a0\u00a0Decides to join to the merits the Government\u2019s objection as to non-exhaustion of criminal domestic remedies and rejects it;<\/span><\/p>\n

2.\u00a0\u00a0Declares the complaints under Article 2, Article 3 in respect of the applicants\u2019 mental suffering, Article 5 and Article 13 in connection with Article 3 of the Convention on account of the applicants\u2019 mental suffering admissible and the remainder of the application inadmissible;<\/span><\/p>\n

3.\u00a0\u00a0Holds that there has been a violation of Article\u00a02 of the Convention in respect of Abu Zhanalayev and Sayd-Selim Benuyev;<\/span><\/p>\n

4.\u00a0\u00a0Holds that there has been a violation of Article\u00a02 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Abu Zhanalayev and Sayd-Selim Benuyev disappeared;<\/span><\/p>\n

5.\u00a0\u00a0Holds that there has been a violation of Article\u00a03 of the Convention in respect of the first, ninth and tenth applicants on account of their mental suffering;<\/span><\/p>\n

6.\u00a0\u00a0Holds that there has been no violation of Article\u00a03 of the Convention in respect of the second, third, fourth, fifth, sixth, seventh, eighth, eleventh, twelfth, thirteenth, fourteenth and fifteenth applicants on account of their mental suffering;<\/span><\/p>\n

7.\u00a0\u00a0Holds that there has been a violation of Article\u00a05 of the Convention in respect of Abu Zhanalayev and Sayd-Selim Benuyev;<\/span><\/p>\n

8.\u00a0\u00a0Holds that there has been a violation of Article\u00a013 of the Convention in conjunction with Article 2 of the Convention;<\/span><\/p>\n

9.\u00a0\u00a0Holds that no separate issues arise under Article 13 of the Convention in conjunction with Article 3 of the Convention on account of the applicants\u2019 mental suffering;<\/span><\/p>\n

10.\u00a0\u00a0Holds<\/span><\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts:<\/strong><\/span><\/p>\n

(i)\u00a0\u00a0EUR 1,500 (one thousand five hundred euros) to the first applicant and EUR\u00a01,500 (one thousand five hundred euros) to the ninth and tenth applicants jointly in respect of pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on these amounts;<\/span><\/p>\n

(ii)\u00a0\u00a0EUR\u00a055,000 (fifty-five thousand euros) to the first applicant, EUR 55,000 (fifty-five thousand euros) to the ninth and tenth applicants jointly and EUR 850 (eight hundred and fifty euros) to the second, third, fourth, fifth, sixth, seventh, eighth, eleventh, twelfth, thirteenth, fourteenth and fifteenth applicants each in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on these amounts;<\/span><\/p>\n

(iii)\u00a0\u00a0EUR 4,000 (four thousand euros), in respect of costs and expenses, to be paid into the representatives\u2019 bank account in the Netherlands, plus any tax that may be chargeable to the applicants;<\/span><\/p>\n

(b)\u00a0\u00a0that 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;<\/span><\/p>\n

11.\u00a0\u00a0Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/span><\/p>\n

Done in English, and notified in writing on 22 July 2010, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.<\/span><\/p>\n

S\u00f8ren Nielsen\u00a0Christos Rozakis
\nRegistrar\u00a0President<\/span><\/p>\n

***<\/strong><\/strong><\/span><\/p>\n

CASE OF AKHMATKHANOVY v. RUSSIA<\/span><\/strong><\/p>\n

(Application no. 20147\/07)<\/span><\/strong><\/p>\n

JUDGMENT<\/span><\/strong><\/p>\n

STRASBOURG<\/span><\/strong><\/p>\n

22 July 2010<\/span><\/strong><\/p>\n

This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/span><\/em><\/p>\n

In the case of Akhmatkhanovy v. Russia,<\/span><\/strong><\/p>\n

The European Court of Human Rights (First Section), sitting as a Chamber composed of:<\/span><\/p>\n

Christos Rozakis, President,
\nNina Vaji\u0107,
\nAnatoly Kovler,
\nElisabeth Steiner,
\nKhanlar Hajiyev,
\nDean Spielmann,
\nSverre Erik Jebens, judges,
\nand S\u00f8ren Nielsen, Section Registrar,<\/span><\/p>\n

Having deliberated in private on 1 July 2010,<\/span><\/p>\n

Delivers the following judgment, which was adopted on that date:<\/span><\/p>\n

PROCEDURE<\/span><\/strong><\/p>\n

1.\u00a0\u00a0The case originated in an application (no. 20147\/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by four Russian nationals listed below.<\/span><\/p>\n

2.\u00a0\u00a0The applicants were represented by lawyers of the Stichting Russian Justice Initiative (\u201cSRJI\u201d), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (\u201cthe Government\u201d) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.<\/span><\/p>\n

3.\u00a0\u00a0On 9 March 2009 the Court decided to apply Rule\u00a041 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 \u00a7 1 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.<\/span><\/p>\n

THE FACTS<\/span><\/strong><\/p>\n

I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/span><\/p>\n

4.\u00a0\u00a0The applicants are:<\/span><\/p>\n

1) Ms Bilat Akhmatkhanova, who was born in 1956,<\/span><\/p>\n

2) Mr Sharpudi Akhmatkhanov, who was born in 1952,<\/span><\/p>\n

3) Ms Toita Akhmatkhanova, who was born in 1989, and<\/span><\/p>\n

4) Ms Taisa Akhmatova, who was born in 1986.<\/span><\/p>\n

The applicants live in Shali, Chechnya. The first and the second applicants are the parents of Artur Akhmatkhanov (also spelled Akhmetkhanov), who was born in 1980. The third applicant is his sister and the fourth applicant is his wife.<\/span><\/p>\n

5.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/span><\/p>\n

A.\u00a0\u00a0Disappearance of Artur Akhmatkhanov<\/span><\/p>\n

1.\u00a0\u00a0The applicants\u2019 account<\/span><\/p>\n

6.\u00a0\u00a0At the material time Artur Akhmatkhanov was a third-year student at the Grozny Oil Institute; he received positive character references from his neighbours, the head of the Shali district department of the interior (the ROVD) and the imam of the Shali district.<\/span><\/p>\n

7.\u00a0\u00a0At about 9 a.m. on 2 April 2003 the first applicant went with Artur Akhmatkhanov to the Shali town centre to run errands. In the centre the first applicant realised that she had left a document at home. She returned to the family house, situated at 86 Melnichnaya Street in Shali, whereas her son remained in the town centre as he was going to talk to his cousin Mr A.A., who worked in the ROVD.<\/span><\/p>\n

8.\u00a0\u00a0About ten minutes after the applicant returned home she heard shooting coming from the former medical storehouse located about \u00a0250\u00a0metres from her house. The first applicant thought the Russian military were conducting a special operation to catch one of their neighbours, Mr\u00a0R.Ch., who was an active member of illegal armed groups.<\/span><\/p>\n

9.\u00a0\u00a0Having fetched the document, the applicant walked back to the town centre. On her way there she approached the storehouse and saw that the area was cordoned off by Russian military servicemen, who were not letting people in or out of the cordon. About half an hour later the applicant saw the military leaving in four APCs (armoured personnel carriers). About ten masked soldiers in new camouflage uniforms with white stripes on their sleeves were on each vehicle. One of the APCs was painted in camouflage colours.<\/span><\/p>\n

10.\u00a0\u00a0As soon as the military left, the applicant and other locals went to the site. There the applicant found a white bandage with traces of blood on it and blood spattered around it on the ground.<\/span><\/p>\n

11.\u00a0\u00a0After that the first applicant went to the town centre where she was supposed to meet her son. She did not find him there and decided to ask their relative Mr A.A. whether Artur Akhmatkhanov had called in at his office. She went to the ROVD, where she was told that her son had stopped off, looking for Mr A.A., but the latter had not been in the office and the applicant\u2019s son had left.<\/span><\/p>\n

12.\u00a0\u00a0Meanwhile, the second applicant informed the ROVD that his son\u2019s yellow cap had been found at the site of the shooting. When the first applicant returned home, she was told that her son\u2019s cap had been found on the site of the medical storehouse.<\/span><\/p>\n

13.\u00a0\u00a0After that one of the applicants\u2019 neighbours, Mr A.Sh., told the applicants that at about 10.30 a.m. he had been walking through the yard of the medical storehouse when he had met Artur Akhmatkhanov and had a brief conversation with him. According to Mr A.Sh., after that he had continued walking to the town centre when, about a minute later, he had heard shooting coming from the direction in which Artur Akhmatkhanov had gone.<\/span><\/p>\n

14.\u00a0\u00a0According to the applicant\u2019s neighbour, Ms L.Yu., at about 10 a.m. on 2\u00a0April 2003 she was walking home when she saw a group of masked armed men in camouflage uniforms surrounding the medical storehouse. These men were in four APCs; they were shooting and not letting anybody on to the site. From a distance she saw that the armed men were dragging a young man in black clothing with a sack over his head. They forced the man into one of the APCs and drove away.<\/span><\/p>\n

15.\u00a0\u00a0According to another resident of Shali, Ms R.Kh., at about 10.30\u00a0a.m. on 2\u00a0April 2003 she was walking down the applicants\u2019 street when she saw military servicemen in four APCs. The servicemen were surrounding the former medical storehouse and were shooting. Then the witness had seen the servicemen putting a young man with a plastic bag over his head into one of the APCs; after that they had driven away in the direction of the town centre.<\/span><\/p>\n

16.\u00a0\u00a0According to the applicants\u2019 neighbours, the family L., on the day of Artur Akhmatkhanov\u2019s abduction they were driving home in a tractor when they saw the military servicemen who had surrounded the former medical storehouse. The servicemen were taking one young man to an APC and dragging another one. They put both men into the APC and drove away.<\/span><\/p>\n

17.\u00a0\u00a0In support of their statements the applicants submitted the following documents: a statement by the first applicant dated 21 February 2007; a statement by Mr A.Sh. dated 21\u00a0February 2007; a statement by Ms L.Yu. dated 13 December 2006; a statement by Ms R.Kh. dated 13 December 2006; a statement by Ms T.M. dated 6 September 2006, and a statement by Mr D.A. dated 6 September 2006.<\/span><\/p>\n

2.\u00a0\u00a0Information submitted by the Government<\/span><\/p>\n

18.\u00a0\u00a0The Government did not dispute the matter as presented by the applicants.<\/span><\/p>\n

B.\u00a0\u00a0The search for Artur Akhmatkhanov and the investigation<\/span><\/p>\n

1.\u00a0\u00a0Information submitted by the applicants<\/span><\/p>\n

19.\u00a0\u00a0At about 3 p.m. on the same date, 2 April 2003, representatives of the ROVD and the Shali district prosecutor\u2019s office (the district prosecutor\u2019s office) visited the applicants\u2019 house. In the documents submitted the date was also referred to as 3 April 2003.<\/span><\/p>\n

20.\u00a0\u00a0After that the investigators went to the former medical storehouse with the applicants and other local residents. There they collected cartridge cases left by the servicemen after the shooting and found two spots of blood, one of them containing just a few drops of blood and the other looking like a puddle of blood. The investigators from the district prosecutor\u2019s office collected the blood for forensic examination. A child from Shali also found a service identification document which he handed over to the investigators.<\/span><\/p>\n

21.\u00a0\u00a0On the following day, 3 April 2003, two investigators from the district prosecutor\u2019s office, Mr Ka. and Mr Bu., returned to the medical storehouse and examined it again together with the applicants and other local residents. According to the first and second applicants investigator Ka. told them that the cartridge cases collected by the investigators from the scene of the shooting would assist the authorities in identifying the weapon and the officer to whom it belonged.<\/span><\/p>\n

22.\u00a0\u00a0On 4 April 2003 the district prosecutor\u2019s office initiated an investigation into the disappearance of Artur Akhmatkhanov under Article\u00a0126\u00a0\u00a7\u00a02 of the Criminal Code (aggravated kidnapping). The case file was given the number 22054 (in the submitted documents it was referred to as 22055).<\/span><\/p>\n

23.\u00a0\u00a0On 6 April 2003 the second applicant was granted victim status in the criminal case.<\/span><\/p>\n

24.\u00a0\u00a0On 15 May 2003 the Chechnya Ministry of the Interior (the Chechnya MVD) forwarded the applicants\u2019 complaint about the abduction of Artur Akhmatkhanov to the ROVD for examination. In response, on 29\u00a0January 2004 the ROVD informed the applicants that they were \u201ctaking measures to establish his whereabouts\u201d.<\/span><\/p>\n

25.\u00a0\u00a0On 22 December 2003 and 3 February 2004 the Chechnya prosecutor\u2019s office forwarded the applicants\u2019 requests for assistance in the search for Artur Akhmatkhanov to the district prosecutor\u2019s office for examination. In response, on 16 January and 2 April 2004 the investigators informed the applicants that the operational-search measures aimed at establishing Artur Akhmatkhanov\u2019s whereabouts were under way.<\/span><\/p>\n

26.\u00a0\u00a0On 14 January 2004 the military prosecutor\u2019s office of the United Group Alignment (the UGA) forwarded the applicants\u2019 complaint about the abduction to the military prosecutor\u2019s office of military unit no.\u00a020116. In response, on 20 February 2004 the latter informed the applicants that military unit no.\u00a020116 had not participated in a special operation on 2 April 2003 and had not detained Artur Akhmatkhanov. On 11 March 2004 the military prosecutor\u2019s office of the UGA confirmed this information.<\/span><\/p>\n

27.\u00a0\u00a0On 3 June 2004 the Chechnya prosecutor\u2019s office informed the applicants that the operational-search measures aimed at establishing Artur Akhmatkhanov\u2019s whereabouts and identifying the culprits were under way.<\/span><\/p>\n

28.\u00a0\u00a0On 4 June 2004 the Main Department of the Ministry of Justice in the Rostov Region informed the applicants that Artur Akhmatkhanov was not being held in their detention centres.<\/span><\/p>\n

29.\u00a0\u00a0On 26 July 2004 the Chechnya prosecutor\u2019s office forwarded the applicants\u2019 request for assistance in the search for Artur Akhmatkhanov to the district prosecutor\u2019s office for examination. In response, on 10 August 2004 the district prosecutor\u2019s office informed the applicants that on 10 July 2004 they had suspended the investigation in the criminal case.<\/span><\/p>\n

30.\u00a0\u00a0On 15 August 2004 the Shali district military commander\u2019s office (the district military commander\u2019s office) informed the applicants that they, with the ROVD and the district prosecutor\u2019s office, were searching for Artur Akhmatkhanov.<\/span><\/p>\n

31.\u00a0\u00a0On 17 May 2005 the Chechnya prosecutor\u2019s office again forwarded the applicants\u2019 request for assistance in the search for Artur Akhmatkhanov to the district prosecutor\u2019s office for examination. In response, on 3 July 2005 the district prosecutor\u2019s office informed the applicants that on 3 July 2004 they had suspended the investigation in the criminal case.<\/span><\/p>\n

32.\u00a0\u00a0On 19 October 2005 the district prosecutor\u2019s office informed the applicants that their complaint had been examined and included in the investigation file.<\/span><\/p>\n

33.\u00a0\u00a0On 20 March 2006 the Chechnya prosecutor\u2019s office again forwarded the applicants\u2019 request for assistance to the district prosecutor\u2019s office for examination.<\/span><\/p>\n

34.\u00a0\u00a0On 5 May 2006 the Russian Federal Service of the Execution of Punishment informed the applicants that Artur Akhmatkhanov was not being held in their detention centres.<\/span><\/p>\n

35.\u00a0\u00a0In December 2006 the first applicant visited the district prosecutor\u2019s office to request information about the progress of the investigation. The investigator, who was in charge of the case at the time, Mr R.Ya., told her that the investigation file did not contain any information about the collection of the blood samples and the cartridge cases from the crime scene.<\/span><\/p>\n

36.\u00a0\u00a0On 10 January 2007 the second applicant wrote to the district prosecutor. He described in detail the circumstances of his son\u2019s abduction and stated that during the crime scene examination the investigators had collected cartridge cases and blood samples; that the investigator, Mr Ka., had told him that this collected evidence had been forwarded to the expert evaluation centre in Rostov-on-Don and that the results were supposed to be received in forty-five days; that the investigator had explained to him that the cartridge cases would allow the experts to identify the weapons used during the shooting, as the latter were supposed to be individually registered. The applicant requested the district prosecutor to provide him with a copy of the crime scene examination report of 3 April 2003 and a copy of the decisions ordering the expert evaluation of the evidence collected at the crime scene.<\/span><\/p>\n

37.\u00a0\u00a0On 16 January 2007 the Chechnya prosecutor\u2019s office informed the applicants that on the same date they had resumed the investigation in the criminal case.<\/span><\/p>\n

38.\u00a0\u00a0On 25 January 2007 the ROVD informed the applicants that on 13\u00a0April 2002 (it appears that the date is incorrect) they had opened search file no.\u00a071442 to establish the whereabouts of Artur Akhmatkhanov and that a search for the applicants\u2019 relative was under way.<\/span><\/p>\n

39.\u00a0\u00a0On 26 February 2007 the second applicant again wrote to the district prosecutor. He stated that in spite of the numerous pieces of evidence, such as the cartridge cases left by the perpetrators, the APCs and the fact that on 2 April 2003 the Shali law enforcement agencies had conducted a special operation to find a leader of illegal armed groups, Mr R.Ch., the investigators had failed to identify the servicemen who had conducted this operation and abducted Artur Akhmatkhanov. He further stated that his son\u2019s whereabouts had not been established for several years and that the investigation file in the criminal case did not contain the evidence collected from the crime scene on 3 April 2003. The applicant requested the prosecutor to provide him with access to the investigation file, to allow him to make a copy of its contents and to resume the investigation in the criminal case. No reply was received from the authorities.<\/span><\/p>\n

2.\u00a0\u00a0Information submitted by the Government<\/span><\/p>\n

40.\u00a0\u00a0On 2 April 2003 the second applicant complained to the district prosecutor\u2019s office that his son had been abducted \u201cby military servicemen in four APCs\u201d. He wrote that the servicemen had been masked, armed and that they had had white strips on the sleeves of their uniforms. He further stated that his son\u2019s cap, with bloodstains next to it, had been found at the scene after the abductors had driven away.<\/span><\/p>\n

41.\u00a0\u00a0On 4 April 2003 the district prosecutor\u2019s office initiated an investigation into the disappearance of Artur Akhmatkhanov under Article\u00a0126\u00a0\u00a7\u00a02 of the Criminal Code (aggravated kidnapping).<\/span><\/p>\n

42.\u00a0\u00a0On 6 April 2003 the second applicant was granted victim status in the criminal case and questioned. He stated that his son had been abducted by servicemen who had been masked, armed with automatic weapons, had white strips on the sleeves of their uniforms and had been driving around in APCs.<\/span><\/p>\n

43.\u00a0\u00a0On 4 June 2003 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators. The applicants were not informed about this decision.<\/span><\/p>\n

44.\u00a0\u00a0On 3 May 2004 the investigation in the criminal case was resumed and the decision concerning the suspension of the criminal proceedings was overruled by the supervising prosecutor as unlawful for the following reasons:<\/span><\/p>\n

\u201c…The examination of the investigation file demonstrated that the investigation in the criminal case had not been actually conducted at all as the investigator had taken only two investigating steps: he granted the father of the disappeared man victim status in the criminal case and questioned him.<\/span><\/p>\n

No witnesses had been identified and questioned, the crime scene had not been examined, no replies had been received to the requests forwarded to various law-enforcement bodies and a number of other investigating steps had not been taken…\u201d<\/span><\/p>\n

45.\u00a0\u00a0On the same date the supervising prosecutor issued orders for the investigators of the criminal case who were to take, inter alia, the following steps:<\/span><\/p>\n

\u201c1.\u00a0Make a plan of investigating steps to be taken…<\/span><\/p>\n

2.\u00a0Examine the crime scene…<\/span><\/p>\n

3.\u00a0From the witness statement of A. Akhmatkhanov [the second applicant] it follows that he learnt from his acquaintance named Ali that his son [Artur Akhmatkhanov] had been detained by military servicemen who had arrived in four APCs. In connection with this, it is necessary to identify the man named Ali and question him about the circumstances of the abduction.<\/span><\/p>\n

4.\u00a0Identify other witnesses of the crime, including the woman (the father of the abducted man knows her) who had also seen the military servicemen detaining and taking away Artur Akhmatkhanov and another man…it is necessary to question her about the events.<\/span><\/p>\n

5.\u00a0Take measures to identify where the APCs were from…<\/span><\/p>\n

6.\u00a0If the involvement of military servicemen in the abduction is established, it is necessary to forward the criminal case to the military prosecutor\u2019s office for further investigation…\u201d<\/span><\/p>\n

46.\u00a0\u00a0On 10 July 2004 (in the submitted documents the date was also referred to as 10 July 2005) the investigation in the criminal case was suspended for failure to identify the perpetrators.<\/span><\/p>\n

47.\u00a0\u00a0On 20 July 2004 the investigators conducted the crime scene examination. Nothing was collected from the scene.<\/span><\/p>\n

48.\u00a0\u00a0On 25 July 2004 the investigators questioned Mr A.M., who stated that in the morning of 2 April 2003 he had seen a group of armed men in camouflage uniforms and masks in four APCs. The men had dragged Artur Akhmatkhanov into one of the vehicles and had then driven away.<\/span><\/p>\n

49.\u00a0\u00a0On 28 July 2004 the investigators questioned Ms Z.P., who stated that in the morning of 2 April 2003 several military APCs had arrived in her street with men who were armed, masked and in camouflage uniforms. They had put Artur Akhmatkhanov and another man into one of the APCs and taken them away.<\/span><\/p>\n

50.\u00a0\u00a0On 26 May 2005 the supervising prosecutor overruled the decision to suspend the investigation of 10 July 2004 as premature and unsubstantiated. The investigation was resumed owing to the need to take additional investigative measures. The prosecutor criticised the investigation and ordered the following measures to be taken:<\/span><\/p>\n

\u201c…the examination of the investigation file demonstrates that the investigation is being conducted passively and that investigating and operational-search measures are of a formal nature. There is no control over the execution of the investigators\u2019 requests and orders. The decision to suspend the investigation was taken prematurely, without the necessary steps having been taken…<\/span><\/p>\n

It is necessary that the investigation take the following steps:<\/span><\/p>\n

-… request information concerning the vehicles which left the premises of the Shali military commander\u2019s office on 2 April 2003;<\/span><\/p>\n

– identify witnesses to the abduction from among the residents living near the place of the events;<\/span><\/p>\n

…<\/span><\/p>\n

– establish the identity of the second man who had been abducted with Artur Akhmatkhanov…\u201d<\/span><\/p>\n

51.\u00a0\u00a0On 18 June 2005 the Shali department of the Federal Security Service (the FSB) informed the investigators that they did not have any information concerning Artur Akhmatkhanov\u2019s involvement in illegal armed groups and that they had not conducted any special operations in the town on 2 April 2003.<\/span><\/p>\n

52.\u00a0\u00a0On 28 June 2005 the investigators again questioned the second applicant, who stated that his acquaintance Mr Ali had told him that he had clearly seen military servicemen placing Artur Akhmatkhanov in an APC and that Mr Ali had already provided this information to the investigators. Then the applicant provided the investigators with detailed information about Ms R.L., who had witnessed the abduction of his son by military servicemen in APCs.<\/span><\/p>\n

53.\u00a0\u00a0On 28 June 2005 the investigators also questioned the first applicant, who stated that her son had been abducted on 2 April 2003 by armed men in camouflage uniforms; that she had learnt from the witnesses that he had been taken away in an APC. The applicant described the events of the day of the abduction; her description was the same as the one provided to the Court (see paragraphs 7-15 above).<\/span><\/p>\n

54.\u00a0\u00a0On the same date the investigators also questioned Mr Kh.I. who stated that late in the morning of 2 April 2003 he had been at home when his wife had told him that military servicemen had been conducting a special operation in their street. He had gone out on the street where in about 300 metres on the premises of the former medical storehouse he had seen a military APC with groups of armed servicemen in camouflage uniforms. A number of local residents had gone outside of their houses and witnessed the events. After that he had gone back in the house. Later, after the military had left, he had learnt that the servicemen had taken away Artur Akhmatkhanov and that his cap had been found afterwards in the storehouse area.<\/span><\/p>\n

55.\u00a0\u00a0On the same date the investigators also questioned Mr S.A., who stated that at about 11.30 a.m. on 2 April 2003 he had been outside his house when he had seen a group of about thirty masked men in military camouflage uniforms surrounding the site of the former medical storehouse. The men had been armed with automatic weapons; they had had white stripes on the left sleeves of their uniforms. The men had arrived in two or three APCs and one other armoured military vehicle of a khaki colour. None of the vehicles had had registration or hull numbers. Then the men had opened fire on the storehouse. The witness had heard the men speaking among themselves in unaccented Russian. From their conversations he had understood that they were servicemen working in the police and that they were taking part in a special operation. The operation lasted for about two hours; local residents had not been allowed to access the cordoned-off area. The servicemen had detained Artur Akhmatkhanov on the site of the storehouse and taken him away.<\/span><\/p>\n

56.\u00a0\u00a0On 29 June 2005 the investigators questioned the applicant\u2019s neighbour Mr R.A., who stated that on the morning of 2 April 2003 he had been at work in the ROVD when Artur Akhmatkhanov had dropped by, looking for his relative Mr A.A. The latter had not been in the office and Artur had left. In the evening the witness had learnt that military servicemen had abducted Artur Akhmatkhanov.<\/span><\/p>\n

57.\u00a0\u00a0On the same date the investigators questioned Ms R.G., who stated that at about 10 a.m. on 2 April 2003 she had seen a group of armed men in camouflage uniforms; the men had been of Slavic appearance and had been in APCs. They cordoned off her street along the perimeter of the former medical storehouse. Then she had seen the men beating and forcing her neighbour Artur Akhmatkhanov into one of the APCs. It appeared that Artur had been wounded in the leg.<\/span><\/p>\n

58.\u00a0\u00a0On 3 July 2005 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.<\/span><\/p>\n

59.\u00a0\u00a0On 12 April 2006 the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated. He pointed out that the investigators had failed to take a number of investigative steps and ordered that the investigation be resumed.<\/span><\/p>\n

60.\u00a0\u00a0On 14 May 2006 the investigators again suspended the investigation in the criminal case for failure to identify the perpetrators.<\/span><\/p>\n

61.\u00a0\u00a0On 16 January 2007 the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated. He pointed out that the investigators had failed to take a number of investigating steps, such as:<\/span><\/p>\n

\u201c… The investigation file contains information concerning the use of automatic weapons by the abductors. However, the investigation did not take measures to establish whether any of the cartridge cases had been found [at the scene] by the relatives and the neighbours of the disappeared man;<\/span><\/p>\n

The investigators failed to request and include in the file information concerning the possible conduct of a special operation in Shali on 2 April 2003 by military units stationed in Chechnya.<\/span><\/p>\n

The investigators did not take steps to establish the identity of the man who had been abducted with Artur Akhmatkhanov…\u201d<\/span><\/p>\n

62.\u00a0\u00a0On 10 January 2007 the second applicant complained to the Shali prosecutor and requested to be granted access to the investigation file (see paragraph 36 above).<\/span><\/p>\n

63.\u00a0\u00a0On 19 January 2007 the investigators rejected his request, stating that the applicant was entitled to have access to the file only on completion of the investigation.<\/span><\/p>\n

64.\u00a0\u00a0On 12 February 2007 the investigators granted the first applicant victim status in the criminal case and questioned her. She stated that on 2\u00a0April 2003 her son Artur Akhmatkhanov had been abducted from the former medical storehouse by armed men in APCs; that she and her relatives had complained about it to the prosecutor\u2019s office and that the investigators had arrived at the scene on the same date. She further stated that in her presence and that of a number of her neighbours the investigators had collected from the scene a number of cartridge cases and that at some point later the investigator Ka. had told her that the collected evidence would enable the authorities to identify the firearms used by the abductors and would assist in establishing their identities. The applicant stated that her son had most probably been abducted as a result of a special operation conducted against Mr R.Ch., a leader of illegal armed groups, who lived near the storehouse.<\/span><\/p>\n

65.\u00a0\u00a0On 27 February 2007 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.<\/span><\/p>\n

66.\u00a0\u00a0On 13 March 2007 the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated. He pointed out that the investigators had failed to verify whether the evidence had been collected from the crime scene and that they had not complied with the orders of the supervisory prosecutor of 16 January 2007 (see paragraph 61 above).<\/span><\/p>\n

67.\u00a0\u00a0On 19 March 2007 the investigators collected from the first applicant Artur Akhmatkhanov\u2019s cap, found at the crime scene by his relatives, for inclusion in the investigation file as evidence.<\/span><\/p>\n

68.\u00a0\u00a0On 20 March 2007 the investigators questioned Mr M.A., who stated that on the morning of 2 April 2003 military servicemen had conducted a special operation in a nearby street; that they had cordoned off the area and that local residents had not been allowed to move within its perimeter. Later on the same date he had learnt that his neighbour Artur Akhmatkhanov had been taken away by armed men in military uniforms in APCs. He further stated that a group of investigators had arrived at the scene and that they had collected cartridge cases and pieces of bloody bandage for the expert evaluation.<\/span><\/p>\n

69.\u00a0\u00a0On 26 February 2007 the second applicant again complained to the Shali prosecutor and requested to be allowed access to the investigation file (see paragraph 39 above).<\/span><\/p>\n

70.\u00a0\u00a0On 21 March 2007 the investigators refused the request, stating that the applicant was entitled to have access to the file only on completion of the investigation. The applicant was not informed about the refusal.<\/span><\/p>\n

71.\u00a0\u00a0On 19 April 2007 the supervisory prosecutor overruled the decision of 21 March 2007 and partially allowed the applicant\u2019s complaint, stating that the applicant was entitled to familiarise himself with the transcripts of the investigative actions taken with his participation.<\/span><\/p>\n

72.\u00a0\u00a0On 26 March 2007 the investigators questioned the applicant\u2019s neighbour Mr A.Ch., who stated that on 2 April 2003 he had learnt that armed men in military uniforms who had arrived in APCs had abducted his neighbour Artur Akhmatkhanov. He further stated that on the same date the investigators had arrived at the scene, found a pool of blood there and collected a number of cartridge cases left by the abductors.<\/span><\/p>\n

73.\u00a0\u00a0On 30 March and 3 April 2007 the investigators questioned the applicant\u2019s neighbours Ms L.A. and Mr S.Yu., whose statements about the events were similar to the one given by Mr A.Ch.<\/span><\/p>\n

74.\u00a0\u00a0On 5 April 2007 the investigators questioned the applicant\u2019s relative Mr S.Sh., whose statement concerning the events was similar to the one given by Mr A.Ch. In addition, the witness stated that he had seen the cartridge cases which had been collected from the scene by the investigators. According to the witness, the cartridge cases were black, of 5.54 mm. calibre and numbered. He thought that they probably belonged to a special type of weapon. The investigators had also collected a white sleeve stripe from the scene. The crime scene examination had been conducted in the presence of a number of local residents and that the investigators had been taken there by Mr A.-S.P., who worked in the ROVD.<\/span><\/p>\n

75.\u00a0\u00a0On 14 April 2007 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.<\/span><\/p>\n

76.\u00a0\u00a0On 17 April 2007 the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated. He pointed out that the investigators had failed to comply with the orders of the supervisory prosecutor of 16 January 2007 (see paragraph 61 above), as well as to question former investigator Ka. about the circumstances of the collection of the evidence from the crime scene on 2 April 2003.<\/span><\/p>\n

77.\u00a0\u00a0On 18 April 2007 the investigators questioned Mr S.M., an expert from the Chechnya Expert Evaluation Centre. He stated that on 2 April 2003 he had arrived at the crime scene in Shali with the investigators from the district prosecutor\u2019s office and the ROVD and that cartridge cases had been left by the abductors, as well as a cap with traces of blood next to it. The witness did not remember whether the investigators had collected the evidence from the scene, but he had personally taken photographs. He did not know whether the expert evaluation of the collected evidence had been carried out at all, but stated that no such evaluation had been carried out by the Shali expert evaluation centre, where he worked at the time.<\/span><\/p>\n

78.\u00a0\u00a0On 18 and 19 April 2007 the\u00a0investigators questioned the applicants\u2019 relatives, Ms Z.A. and Ms T.M., whose statements concerning the events were similar to the ones given by Mr A.Ch. and Mr S.Sh. (see paragraphs\u00a072 and 74 above).<\/span><\/p>\n

79.\u00a0\u00a0On 17 April 2007 the investigators collected from the first applicant a photograph of Artur Akhmatkhanov for inclusion in the investigation file.<\/span><\/p>\n

80.\u00a0\u00a0On 13 June 2007 the MVD of the Russian Federation informed the investigators that no special operations had been conducted by their branches in Shali on 2 April 2003.<\/span><\/p>\n

81.\u00a0\u00a0On 11 May 2007 the investigators questioned the applicants\u2019 relative Ms B.Sh. whose statement concerning the events was similar to the one given by Mr S.Sh.<\/span><\/p>\n

82.\u00a0\u00a0On 9 and 15 May 2007 the investigators questioned police officers Mr A.M., Mr S.Sh. and Mr V.S., who stated that in April 2003 they had worked in the Shali ROVD, but they did not remember whether they had participated in the crime scene examination on 2 April 2003.<\/span><\/p>\n

83.\u00a0\u00a0On 7 August 2007 the investigators questioned the former investigator of the district prosecutor\u2019s office Mr Ka., who stated that due to the passage of time he did not remember the details of the crime scene examination of the place where Artur Akhmatkhanov was abducted, and that he did not remember the conversation with the applicants concerning the collected evidence.<\/span><\/p>\n

84.\u00a0\u00a0On 17 May 2007 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.<\/span><\/p>\n

85.\u00a0\u00a0On 2 November 2007 the supervisory prosecutor issued a decision \u201cOn remedial actions to be taken in connection with violations of the federal criminal procedure regulations during the investigation of the criminal case\u201d. He criticised the investigation of the abduction and ordered the investigators to take the following measures:<\/span><\/p>\n

\u201c… the investigation of the criminal case has been conducted superficially, without taking all necessary steps… in violation of Article 208\u00a0\u00a7\u00a05 of the Code of Criminal Procedure.<\/span><\/p>\n

… it has not been established for what reasons the investigator Ka., who had visited the crime scene on 3 April 2003, had subsequently conducted a crime scene examination only on 22 July 2004…<\/span><\/p>\n

… the investigators still have not questioned the officers of the ROVD who had gone to the crime scene [on 2 April 2003] , that is Mr R.Kh., Mr T. and Mr R.M.<\/span><\/p>\n

….from the witnesses\u2019 statements it is clear that there had been gunfire during the special operation of the military servicemen and the abduction of Artur Akhmatkhanov… a large number of local residents had witnessed the military servicemen cordoning off the area around the former medical storehouse. However, the investigators did not take any steps to identify additional witnesses and obtain information about special operations conducted by the military units…<\/span><\/p>\n

….no instructions were issued for Mr D.Sh., the member of the investigators\u2019 team from the military prosecutor\u2019s office of military unit no.\u00a020116, in order to check the theory of the involvement of military servicemen [in the abduction]…\u201d<\/span><\/p>\n

86.\u00a0\u00a0On 22 November 2007 the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated. He pointed out that the investigators had failed to take a number of investigative actions and ordered the steps be taken (see the above paragraph) and that the investigators found and included in the investigation file the cartridge cases collected from the crime scene.<\/span><\/p>\n

87.\u00a0\u00a0On 23 December 2007 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.<\/span><\/p>\n

88.\u00a0\u00a0On 6 February 2008 the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated. He pointed out that the investigators had failed to take a number of investigative actions and ordered that those actions be taken (see paragraph\u00a085 above).<\/span><\/p>\n

89.\u00a0\u00a0On 18 February and 1 June 2008 the investigators questioned Mr\u00a0R.Kh. and Mr N.T., officers of the ROVD, who stated that due to the passage of time they did not remember the details of the crime scene examination of the place where Artur Akhmatkhanov was abducted.<\/span><\/p>\n

90.\u00a0\u00a0On 29 February 2008 the investigators again questioned the second applicant, who provided them with the names of Artur Akhmatkhanov\u2019s closest friends.<\/span><\/p>\n

91.\u00a0\u00a0On 1 March 2008 the investigators questioned the applicants\u2019 neighbours Mr A.T. and Mr A.Ch. Both of them stated that they had learnt from their neighbours about Artur Akhmatkhanov\u2019s abduction by military servicemen.<\/span><\/p>\n

92.\u00a0\u00a0On 7 March 2008 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.<\/span><\/p>\n

93.\u00a0\u00a0On 21 March 2008 the supervisory prosecutor again issued a decision \u201cOn remedial actions to be taken in connection with violations of the federal criminal procedure regulations during the investigation of the criminal case\u201d. He criticised the investigation of the abduction and ordered the investigators to take a number of investigative actions.<\/span><\/p>\n

94.\u00a0\u00a0On 13 April 2008 the investigators resumed the investigation in the criminal case.<\/span><\/p>\n

95.\u00a0\u00a0On 24 April 2008 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.<\/span><\/p>\n

96.\u00a0\u00a0The investigating authorities sent numerous requests for information to the relevant State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of Russian servicemen in the crime. The law-enforcement authorities had never arrested or detained Artur Akhmatkhanov on criminal or administrative charges; no criminal proceedings had been initiated against him. No special operations had been carried out in respect of the applicants\u2019 relative.<\/span><\/p>\n

97.\u00a0\u00a0The Government further stated that even though the investigation had failed to establish the whereabouts of Artur Akhmatkhanov, it was still in progress.<\/span><\/p>\n

98.\u00a0\u00a0Despite specific requests by the Court the Government did not disclose the full contents of criminal case no.\u00a022054, providing only \u201cthe main documents\u201d from the investigation file, running to up to 222 pages. They stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained personal data concerning witnesses or other participants in the criminal proceedings.<\/span><\/p>\n

II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/span><\/p>\n

99.\u00a0\u00a0For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464\/02, \u00a7\u00a7\u00a067-69, 10\u00a0May 2007).<\/span><\/p>\n

THE LAW<\/span><\/strong><\/p>\n

I.\u00a0\u00a0THE GOVERNMENT\u2019S OBJECTION REGARDING NON-EXHAUSTION OF DOMESTIC REMEDIES<\/span><\/p>\n

A.\u00a0\u00a0The parties\u2019 submissions<\/span><\/p>\n

100.\u00a0\u00a0The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies, as the investigation into the abduction of Artur Akhmatkhanov had not yet been completed. They further argued that it had been open to the applicants to lodge court complaints about any acts or omissions of the investigating authorities or pursue civil remedies.<\/span><\/p>\n

101.\u00a0\u00a0The applicants contested that objection stating that the only effective remedy, the criminal investigation, had proved to be ineffective.<\/span><\/p>\n

B.\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

102.\u00a0\u00a0The 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, \u00a7\u00a7 73-74, 12\u00a0October 2006).<\/span><\/p>\n

103.\u00a0\u00a0The 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.<\/span><\/p>\n

104.\u00a0\u00a0As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v.\u00a0Russia , nos.\u00a057942\/00 and 57945\/00, \u00a7\u00a7\u00a0119-121, 24 February 2005, and Estamirov and Others, cited above, \u00a7\u00a077). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.<\/span><\/p>\n

105.\u00a0\u00a0As regards criminal-law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law-enforcement authorities immediately after the kidnapping of Artur Akhmatkhanov and that an investigation has been pending since 4 April 2003. The applicants and the Government dispute the effectiveness of the investigation of the kidnapping.<\/span><\/p>\n

106.\u00a0\u00a0The Court considers that the Government\u2019s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants\u2019 complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below.<\/span><\/p>\n

II.\u00a0\u00a0THE COURT\u2019S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS<\/span><\/p>\n

A.\u00a0\u00a0The parties\u2019 arguments<\/span><\/p>\n

107.\u00a0\u00a0The applicants maintained that it was beyond reasonable doubt that the men who had taken Artur Akhmatkhanov away were State agents. In support of their complaint they referred to the following facts. At the material time Shali had been under the total control of federal troops. The armed men who had abducted Artur Akhmatkhanov had arrived in military APCs, cordoned off the area and acted in a manner similar to that of special forces carrying out a special operation. They were wearing a particular camouflage uniform, were armed and opened fire without fear of the law-enforcement agencies located in the town. Local residents had seen Artur Akhmatkhanov being taken into one of the abductors\u2019 APCs. All the information disclosed from the criminal investigation file supported their assertion as to the involvement of State agents in the abduction. Since their relative had been missing for a very lengthy period, he could be presumed dead. That presumption was further supported by the circumstances in which he had been arrested, which should be recognised as life-threatening. Finally, the Government had failed to provide any plausible explanation for the events.<\/span><\/p>\n

108.\u00a0\u00a0The Government submitted that unidentified armed men had kidnapped Artur Akhmatkhanov. They further contended that the investigation of the incident was pending, that there was no evidence that the men were State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants\u2019 rights. They further argued that there was no convincing evidence that the applicants\u2019 relative was dead. The Government raised a number of objections to the applicants\u2019 presentation of the facts. The fact that the perpetrators of the abduction were wearing camouflage uniforms did not mean that these men could not have been criminals. The Government further alleged that the applicants\u2019 description of the circumstances surrounding the abduction was inconsistent. In particular, the witnesses were unable to provide a detailed description of the uniforms worn by the abductors and they had been inconsistent in their description of the number of APCs used by the abductors.<\/span><\/p>\n

B.\u00a0\u00a0The Court\u2019s evaluation of the facts<\/span><\/p>\n

109.\u00a0\u00a0The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of matters in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481\/01, \u00a7\u00a7\u00a0103-109, 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, \u00a7\u00a0161, Series A no. 25).<\/span><\/p>\n

110.\u00a0\u00a0The Court notes that despite its requests for a copy of the file of the investigation into the abduction of Artur Akhmatkhanov, the Government produced only a part of the documents from the case file. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615\/02, \u00a7 123, ECHR 2006-XIII (extracts)).<\/span><\/p>\n

111.\u00a0\u00a0In view of this, and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government\u2019s conduct in respect of the well-foundedness of the applicants\u2019 allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicants\u2019 relative can be presumed dead and whether his death can be attributed to the authorities.<\/span><\/p>\n

112.\u00a0\u00a0The applicants alleged that the persons who had taken Artur Akhmatkhanov away on 2\u00a0April 2003 and then killed him were State agents. The Government did not dispute any of the factual elements underlying the application and did not provide any other explanation of the events.<\/span><\/p>\n

113.\u00a0The Government suggested in their submissions that the abductors of Artur Akhmatkhanov may have been members of criminal groups. However, this allegation was not specific and the Government did not submit any material to support it. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see \u00c7elikbilek v. Turkey, no.\u00a027693\/95, \u00a7\u00a071, 31\u00a0May 2005).<\/span><\/p>\n

114.\u00a0\u00a0The Court notes that the applicants\u2019 allegation is supported by the witness statements collected by the applicants and by the investigation. It finds that the fact that a large group of armed men in uniform in broad daylight, equipped with military vehicles, was able to move freely in the town, cordon off an area and open intensive gunfire strongly supports the applicants\u2019 allegation that these were State servicemen conducting a security operation. In their application to the authorities the applicants from the very beginning consistently maintained that Artur Akhmatkhanov had been detained by servicemen, and requested the investigation to look into that possibility (see paragraphs 36, 39, 40, 42, 45, 52, 53 and 64 above). The domestic investigation also accepted factual assumptions as presented by the applicants (see paragraphs 45, 50, 61, 76, 85 and 88 above) and took steps to check whether law-enforcement agencies were involved in the kidnapping (see paragraph 51 and 80 above) but it does not appear that any serious steps were taken to that end.<\/span><\/p>\n

115.\u00a0\u00a0The Government questioned the credibility of the applicants\u2019 statement of the facts in view of certain discrepancies relating to the exact description of the abductors and the number of APCs involved in the abduction. The Court notes in this respect that no other elements underlying the applicants\u2019 submissions as regards the facts have been disputed by the Government. In the Court\u2019s view, the fact that over a period of several years the witnesses\u2019 recollection of the event differed in rather insignificant details does not in itself suffice to cast doubt on the overall veracity of their statements.<\/span><\/p>\n

116.\u00a0\u00a0The Court observes that where the applicants make out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of relevant documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government, and if they fail in their arguments issues will arise under Article 2 and\/or Article 3 (see To\u011fcu v.\u00a0Turkey, no.\u00a027601\/95, \u00a7\u00a095, 31 May 2005, and Akkum and Others v.\u00a0Turkey, no.\u00a021894\/93, \u00a7\u00a0211, ECHR 2005-II).<\/span><\/p>\n

117.\u00a0\u00a0Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relative was abducted by State servicemen. The Government\u2019s statement that the investigators had not found any evidence to support the involvement of State servicemen in the kidnapping is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties, and drawing inferences from the Government\u2019s failure to submit the remaining documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court finds that Artur Akhmatkhanov was arrested on 2\u00a0April 2003 by State servicemen during an unacknowledged security operation.<\/span><\/p>\n

118.\u00a0\u00a0There has been no reliable news of the Artur Akhmatkhanov since the date of the kidnapping. His name has not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to him after his arrest.<\/span><\/p>\n

119.\u00a0\u00a0Having 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.\u00a069480\/01, ECHR 2006-XIII (extracts); Baysayeva v.\u00a0Russia, no. 74237\/01, 5 April 2007; Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva v.\u00a0Russia, no.\u00a068007\/01, 5\u00a0July 2007), the Court finds that in the context of the conflict in the Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Artur Akhmatkhanov or of any news of him for more than seven years supports this assumption.<\/span><\/p>\n

120.\u00a0\u00a0Accordingly, the Court finds that the evidence available permits it to establish that Artur Akhmatkhanov must be presumed dead following his unacknowledged detention by State servicemen.<\/span><\/p>\n

III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION<\/span><\/p>\n

121.\u00a0\u00a0The applicants complained under Article 2 of the Convention that their relative had been deprived of his life by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads:<\/span><\/p>\n

\u201c1.\u00a0\u00a0Everyone\u2019s 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.<\/span><\/p>\n

2.\u00a0\u00a0Deprivation 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:<\/span><\/p>\n

(a)\u00a0\u00a0in defence of any person from unlawful violence;<\/span><\/p>\n

(b)\u00a0\u00a0in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;<\/span><\/p>\n

(c)\u00a0\u00a0in action lawfully taken for the purpose of quelling a riot or insurrection.\u201d<\/span><\/p>\n

A.\u00a0\u00a0The parties\u2019 submissions<\/span><\/p>\n

122.\u00a0\u00a0The Government contended that the domestic investigation had obtained no evidence to the effect that Artur Akhmatkhanov was dead or that any servicemen of the federal law-enforcement agencies had been involved in his kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants\u2019 relative met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible.<\/span><\/p>\n

123.\u00a0\u00a0The applicants argued that Artur Akhmatkhanov had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for several years. The applicants also argued that the investigation had not met the effectiveness and adequacy requirements laid down by the Court\u2019s case-law. They pointed out that the investigators from the district prosecutor\u2019s office had destroyed the evidence, namely the cartridge cases and blood samples collected from the crime scene. The investigation into Artur Akhmatkhanov\u2019s kidnapping had been suspended and resumed at least nine times \u2013 thus delaying the taking of the most basic steps \u2013 and the relatives had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for such a long period of time without producing any known results was further proof of its ineffectiveness. They also invited the Court to draw conclusions from the Government\u2019s unjustified failure to submit the documents from the case file to them or to the Court.<\/span><\/p>\n

B.\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

1.\u00a0\u00a0Admissibility<\/span><\/p>\n

124.\u00a0\u00a0The Court considers, in the light of the parties\u2019 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\u2019s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 106 above). The complaint under Article 2 of the Convention must therefore be declared admissible.<\/span><\/p>\n

2.\u00a0\u00a0Merits<\/span><\/p>\n

(a)\u00a0\u00a0The alleged violation of the right to life of Artur Akhmatkhanov<\/span><\/p>\n

125.\u00a0\u00a0The Court has already found that the applicants\u2019 relative must be presumed dead following unacknowledged detention by State servicemen. In the absence of any justification put forward by the Government, the Court finds that his death can be attributed to the State and that there has been a violation of Article 2 in respect of Artur Akhmatkhanov.<\/span><\/p>\n

(b)\u00a0\u00a0The alleged inadequacy of the investigation of the kidnapping<\/span><\/p>\n

126.\u00a0\u00a0The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention\u2019s requirements (for a summary of these principles see Bazorkina, cited above, \u00a7\u00a7\u00a0117-119).<\/span><\/p>\n

127.\u00a0\u00a0In the present case, the kidnapping of Artur Akhmatkhanov was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.<\/span><\/p>\n

128.\u00a0\u00a0The Court notes at the outset that not all of the documents from the investigation file were disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the documents submitted by the parties and the information about its progress presented by the Government.<\/span><\/p>\n

129.\u00a0\u00a0The Court notes that the authorities were immediately made aware of the crime by the applicants\u2019 submissions. The investigation in case no.\u00a022054 was instituted on 4 April 2003, that is two days after Artur Akhmatkhanov\u2019s abduction. Further, within the first two months of the investigation, where crucial action has to be taken as soon as possible, the investigators took only two actions (see paragraphs 43 and 44 above). Such a postponement per se was liable to negatively affect the investigation of the kidnapping in life-threatening circumstances and negate the chances for its possible solution at a later date. From the documents submitted by the Government it is clear that a number of the most essential steps had not been taken by the investigators at all or that they had been taken with irreparable delays and only after the investigation had been criticised by the supervising prosecutors (see paragraphs 44, 45, 50, 61, 66, 76, 85, 86, 88 and 93 above). In spite of the numerous concurring witness statements to this effect (see paragraphs 40, 42, 48, 49, 52, 53, 54-57, 64, 68, 72-74 and 91 above), it does not appear that the investigators tried to question the officers of the Shali law-enforcement agencies or the military commander\u2019s office about their possible involvement in the abduction or that they took any measures to identify the APCs used by the abductors and question their drivers. It is obvious that these investigative measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation had begun. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities\u2019 failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see \u00d6nery\u0131ld\u0131z v. Turkey [GC], no. 48939\/99, \u00a7 94, ECHR 2004-XII).<\/span><\/p>\n

130.\u00a0\u00a0The Court also notes that even though the first and second applicants were granted victim status in the investigation concerning the abduction of their son, they were only informed of the suspension and resumption of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.<\/span><\/p>\n

131.\u00a0\u00a0Finally, the Court notes that the investigation was adjourned and resumed at least nine times and that there were lengthy periods of inactivity on the part of the district prosecutor\u2019s office when no proceedings were pending. The supervising prosecutors criticised deficiencies in the proceedings and ordered remedial measures, but their instructions were not complied with.<\/span><\/p>\n

132.\u00a0\u00a0The Government argued that the applicants could have sought judicial review of the decisions of the investigating authorities in the context of the exhaustion of domestic remedies. The Court observes that the applicants, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged acts or omissions of investigating authorities before a court. Furthermore, the Court emphasises in this respect that while the adjourning or reopening of proceedings is not in itself a sign that the proceedings are ineffective, in the present case the decisions to adjourn were made without the necessary investigative steps being taken, which led to numerous periods of inactivity and thus unnecessary protraction. Moreover, owing to the time that had elapsed since the events complained of, certain investigative measures that ought to have been carried out much earlier could no longer usefully be conducted. Therefore, it is highly doubtful that the remedy relied on would have had any prospects of success. Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicants\u2019 failure to exhaust domestic remedies within the context of the criminal investigation.<\/span><\/p>\n

133.\u00a0\u00a0In 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 Artur Akhmatkhanov, in breach of Article\u00a02 in its procedural aspect.<\/span><\/p>\n

IV.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/span><\/p>\n

134.\u00a0\u00a0The applicants relied on Article 3 of the Convention, submitting that as a result of their relative\u2019s disappearance and the State\u2019s failure to investigate it properly, they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:<\/span><\/p>\n

\u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/span><\/p>\n

A.\u00a0\u00a0The parties\u2019 submissions<\/span><\/p>\n

135.\u00a0\u00a0The Government disagreed with these allegations and argued that the applicants had not been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.<\/span><\/p>\n

136.\u00a0\u00a0The applicants maintained their submission.<\/span><\/p>\n

B.\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

1.\u00a0\u00a0Admissibility<\/span><\/p>\n

137.\u00a0\u00a0The Court notes that this complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 \u00a7\u00a03 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/span><\/p>\n

2.\u00a0\u00a0Merits<\/span><\/p>\n

138.\u00a0\u00a0The Court has found on many occasions that in a situation of enforced disappearance close relatives of the victim may themselves be victims of treatment in violation of Article 3. The essence of such a violation does not mainly lie in the fact of the \u201cdisappearance\u201d of the family member but rather concerns the authorities\u2019 reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no.\u00a025656\/94, \u00a7\u00a0358, 18 June 2002, and Imakayeva, cited above, \u00a7\u00a0164).<\/span><\/p>\n

139.\u00a0\u00a0In the present case the Court notes that the applicants are close relatives of the disappeared person. For more than seven years they have not had any news of the missing man. During this period the applicants have made enquiries of various official bodies, both in writing and in person, about their missing relative. Despite their attempts, they have never received any plausible explanation or information about what became of him following his detention. The responses they received mostly denied State responsibility for their relative\u2019s arrest or simply informed them that the investigation was ongoing. The Court\u2019s findings under the procedural aspect of Article 2 are also of direct relevance here.<\/span><\/p>\n

140.\u00a0\u00a0The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicants.<\/span><\/p>\n

V.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION<\/span><\/p>\n

141.\u00a0\u00a0The applicants further stated that Artur Akhmatkhanov had been detained in violation of the guarantees contained in Article 5 of the Convention, which reads, in so far as relevant:<\/span><\/p>\n

\u201c1.\u00a0\u00a0Everyone 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:…<\/span><\/p>\n

(a)\u00a0\u00a0the 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;<\/span><\/p>\n

…<\/span><\/p>\n

2.\u00a0\u00a0Everyone 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.<\/span><\/p>\n

3.\u00a0\u00a0Everyone arrested or detained in accordance with the provisions of paragraph\u00a01\u00a0(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.<\/span><\/p>\n

4.\u00a0\u00a0Everyone 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.<\/span><\/p>\n

5.\u00a0\u00a0Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.\u201d<\/span><\/p>\n

A.\u00a0\u00a0The parties\u2019 submissions<\/span><\/p>\n

142.\u00a0\u00a0The Government asserted that no evidence had been obtained by the investigators to confirm that Artur Akhmatkhanov had been deprived of his liberty. He was not listed among the persons kept in detention centres and none of the regional law-enforcement agencies had information about his detention.<\/span><\/p>\n

143.\u00a0\u00a0The applicants reiterated the complaint.<\/span><\/p>\n

B.\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

1.\u00a0\u00a0Admissibility<\/span><\/p>\n

144.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible.<\/span><\/p>\n

2.\u00a0\u00a0Merits<\/span><\/p>\n

145.\u00a0\u00a0The 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 \u00c7i\u00e7ek v. Turkey, no.\u00a025704\/94, \u00a7\u00a0164, 27 February 2001, and Luluyev, cited above, \u00a7\u00a0122).<\/span><\/p>\n

146.\u00a0\u00a0The Court has found that Artur Akhmatkhanov was abducted by State servicemen on 2\u00a0April 2003 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court\u2019s 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, \u00a7\u00a0371).<\/span><\/p>\n

147.\u00a0\u00a0The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants\u2019 complaints that their relative had been detained and taken away in life-threatening circumstances. However, the Court\u2019s 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.<\/span><\/p>\n

148.\u00a0\u00a0In view of the foregoing, the Court finds that Artur Akhmatkhanov 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.<\/span><\/p>\n

VI.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/span><\/p>\n

149.\u00a0\u00a0The 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:<\/span><\/p>\n

\u201cEveryone 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.\u201d<\/span><\/p>\n

A.\u00a0\u00a0The parties\u2019 submissions<\/span><\/p>\n

150.\u00a0\u00a0The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention. The applicants had had an opportunity to challenge the acts or omissions of the investigating authorities in court. They could also claim damages in civil proceedings.<\/span><\/p>\n

151.\u00a0\u00a0The applicants reiterated the complaint.<\/span><\/p>\n

B.\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

1.\u00a0\u00a0Admissibility<\/span><\/p>\n

152.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/span><\/p>\n

2.\u00a0\u00a0Merits<\/span><\/p>\n

153.\u00a0\u00a0The Court reiterates that in circumstances where, as here, a criminal investigation into the disappearance has been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article\u00a013 of the Convention (see Khashiyev and Akayeva, cited above, \u00a7\u00a0183).<\/span><\/p>\n

154.\u00a0\u00a0Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.<\/span><\/p>\n

155.\u00a0\u00a0As regards the applicants\u2019 reference to Articles 3 and 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13, read in conjunction with Articles 3 and 5 of the Convention (see Kukayev v. Russia, no.\u00a029361\/02, \u00a7\u00a0119, 15\u00a0November 2007, and Aziyevy v. Russia, no. 77626\/01, \u00a7\u00a0118, 20\u00a0March 2008).<\/span><\/p>\n

VII.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/span><\/p>\n

156.\u00a0\u00a0Article 41 of the Convention provides:<\/span><\/p>\n

\u201cIf 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.\u201d<\/span><\/p>\n

A.\u00a0\u00a0Pecuniary damage<\/span><\/p>\n

157.\u00a0\u00a0The fourth applicant claimed damages in respect of loss of earnings by her husband Artur Akhmatkhanov after his arrest and subsequent disappearance. The applicant claimed a total of 683,714 Russian roubles (RUB) under this heading (17,100 euros (EUR)).<\/span><\/p>\n

158.\u00a0\u00a0She claimed that her husband had been a student at the time of his abduction and that in such cases the calculation should be made on the basis of the subsistence level established by national law. She calculated his earnings for the period, taking into account an average inflation rate of 13.63 %. Her calculations were also based on the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary\u2019s Department in 2007 (\u201cOgden tables\u201d).<\/span><\/p>\n

159.\u00a0\u00a0The Government regarded these claims as based on suppositions and unfounded. They also pointed to the existence of domestic statutory machinery for the provision of a pension for the loss of the family breadwinner.<\/span><\/p>\n

160.\u00a0\u00a0The 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\u00a02 in respect of the applicant\u2019s husband and the loss by her of the financial support which he could have provided. Having regard to the applicant\u2019s submissions and the fact that Artur Akhmatkhanov was not employed at the time of his abduction, the Court awards EUR\u00a015,000 to the fourth applicant in respect of pecuniary damage, plus any tax that may be chargeable on that amount.<\/span><\/p>\n

B.\u00a0\u00a0Non-pecuniary damage<\/span><\/p>\n

161.\u00a0\u00a0The applicants claimed EUR\u00a01,000,000 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 them and the failure to provide any information about the fate of their close relative.<\/span><\/p>\n

162.\u00a0\u00a0The Government found the amounts claimed excessive.<\/span><\/p>\n

163.\u00a0\u00a0The 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\u2019 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 jointly EUR\u00a060,000, plus any tax that may be chargeable thereon.<\/span><\/p>\n

C.\u00a0\u00a0Costs and expenses<\/span><\/p>\n

164.\u00a0\u00a0The 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. The aggregate claim in respect of costs and expenses related to the applicants\u2019 legal representation amounted to EUR\u00a07,004.<\/span><\/p>\n

165.\u00a0\u00a0The Government did not dispute the reasonableness of and justification for the amounts claimed under this heading.<\/span><\/p>\n

166.\u00a0\u00a0The Court has to establish first whether the costs and expenses indicated by the applicants\u2019 representatives were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, \u00a7 220, Series A no. 324).<\/span><\/p>\n

167.\u00a0\u00a0Having regard to the details of the information and legal representation contract submitted by the applicants, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants\u2019 representatives.<\/span><\/p>\n

168.\u00a0\u00a0As to whether the costs and expenses were necessary, the Court notes that this case was rather complex and required a certain amount of research and preparation. It notes at the same time, that due to the application of Article 29 \u00a7 3 in the present case, the applicants\u2019 representatives submitted their observations on admissibility and merits in one set of documents. The Court thus doubts that legal drafting was necessarily time-consuming to the extent claimed by the representatives.<\/span><\/p>\n

169.\u00a0\u00a0Having regard to the details of the claims submitted by the applicants, the Court awards them the amount of EUR\u00a05,500, together with any value-added tax that may be chargeable to the applicants, the net award to be paid into the representatives\u2019 bank account in the Netherlands, as identified by the applicants.<\/span><\/p>\n

D.\u00a0\u00a0Default interest<\/span><\/p>\n

170.\u00a0\u00a0The 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.<\/span><\/p>\n

FOR THESE REASONS, THE COURT UNANIMOUSLY<\/span><\/strong><\/p>\n

1.\u00a0\u00a0Decides to join to the merits the Government\u2019s objection as to non-exhaustion of criminal domestic remedies and rejects it;<\/span><\/p>\n

2.\u00a0\u00a0Declares the application admissible;<\/span><\/p>\n

3.\u00a0\u00a0Holds that there has been a substantive violation of Article\u00a02 of the Convention in respect of Artur Akhmatkhanov;<\/span><\/p>\n

4.\u00a0\u00a0Holds that there has been a violation of Article\u00a02 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Artur Akhmatkhanov disappeared;<\/span><\/p>\n

5.\u00a0\u00a0Holds that there has been a violation of Article\u00a03 of the Convention in respect of the applicants;<\/span><\/p>\n

6.\u00a0\u00a0Holds that there has been a violation of Article\u00a05 of the Convention in respect of Artur Akhmatkhanov;<\/span><\/p>\n

7.\u00a0\u00a0Holds that there has been a violation of Article\u00a013 of the Convention in conjunction with Article 2 of the Convention;<\/span><\/p>\n

8.\u00a0\u00a0Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5;<\/span><\/p>\n

9.\u00a0\u00a0Holds<\/span><\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay, within three months of the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, <\/strong>the following amounts, to be converted into Russian roubles on the date of settlement, save in the case of the payment in respect of costs and expenses:<\/span><\/p>\n

(i)\u00a0\u00a0EUR\u00a015,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the fourth applicant;<\/span><\/p>\n

(ii)\u00a0\u00a0EUR\u00a060,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicants jointly;<\/span><\/p>\n

(iii)\u00a0\u00a0EUR\u00a05,500 (five thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives\u2019 bank account in the Netherlands;<\/span><\/p>\n

(b)\u00a0\u00a0that 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;<\/span><\/p>\n

10.\u00a0\u00a0Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/span><\/p>\n

Done in English, and notified in writing on 22 July 2010, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.<\/span><\/p>\n

S\u00f8ren Nielsen\u00a0Christos Rozakis
\nRegistrar\u00a0President<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

The ECHR cases of Akhmatkhanovy v. Russia (application no. 20147\/07) and Benuyeva and Others v. Russia (application no. 8347\/05).<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0,"footnotes":""},"categories":[15],"tags":[1374,1376,263,1375],"class_list":["post-6012","post","type-post","status-publish","format-standard","hentry","category-echr-cases","tag-abu-zhanalayev","tag-artur-akhmatkhanov","tag-echr","tag-sayd-selim-benuyev"],"views":1277,"_links":{"self":[{"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/posts\/6012","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/comments?post=6012"}],"version-history":[{"count":6,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/posts\/6012\/revisions"}],"predecessor-version":[{"id":6015,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/posts\/6012\/revisions\/6015"}],"wp:attachment":[{"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/media?parent=6012"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/categories?post=6012"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/tags?post=6012"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}