{"id":8847,"date":"2011-10-25T18:03:38","date_gmt":"2011-10-25T15:03:38","guid":{"rendered":"http:\/\/www.waynakh.com\/eng\/?p=8847"},"modified":"2012-01-01T18:13:36","modified_gmt":"2012-01-01T15:13:36","slug":"tashukhadzhiyev-v-russia","status":"publish","type":"post","link":"https:\/\/www.waynakh.com\/eng\/2011\/10\/tashukhadzhiyev-v-russia\/","title":{"rendered":"Tashukhadzhiyev v. Russia"},"content":{"rendered":"

The ECHR case of Tashukhadzhiyev v. Russia (applications no. 33251\/04).<\/span><\/p>\n

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

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

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

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

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

(Application no. 33251\/04)<\/span><\/strong><\/p>\n

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

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

25 October 2011<\/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><\/p>\n

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

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

Nina Vaji\u0107, President, <\/span>
\n Anatoly Kovler, <\/span>
\n Elisabeth Steiner, <\/span>
\n Khanlar Hajiyev, <\/span>
\n Mirjana Lazarova Trajkovska, <\/span>
\n Julia Laffranque, <\/span>
\n Linos-Alexandre Sicilianos, judges, <\/span>
\n and S\u00f8ren Nielsen, Section Registrar,<\/span><\/p>\n

Having deliberated in private on 4 October 2011,<\/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. 33251\/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Mr Abdulbek (also referred to as Imali) Tashukhadzhiyev, on 5 August 2004.<\/span><\/p>\n

2.\u00a0\u00a0The applicant was represented by Mr M. Shidayev, a lawyer practising in Grozny. 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\u00a0The applicant alleged that his son \u201cdisappeared\u201d after being detained by Russian military servicemen in February 1996 in Chechnya. He referred to Articles 2, 5, 6, 13 and 14 of the Convention.<\/span><\/p>\n

4.\u00a0\u00a0On 9 March 2009 the Court decided to apply Rule\u00a041 of the Rules of Court, to grant priority treatment to the application and to give notice of the application to the Government. Under the provisions of former Article\u00a029\u00a0\u00a7\u00a03 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

5.\u00a0\u00a0The applicant was born in 1936. He is the father of Elbek Tashukhadzhiyev, who was born in 1970. At the material time the applicant lived in Berkat-Yurt, Chechnya. He currently lives in Shali, Chechnya.<\/span><\/p>\n

A.\u00a0\u00a0Disappearance of Elbek Tashukhadzhiyev<\/span><\/p>\n

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

(a)\u00a0\u00a0Detention of the applicant\u2019s son<\/span><\/p>\n

6.\u00a0\u00a0At the material time, during the first counterterrorist campaign in Chechnya, Elbek Tashukhadzhiyev worked as a driver of a URAL petrol tanker. On 9 February 1996 (in the documents submitted the date was also referred to as 11 February 1996) he was driving his lorry on the outskirts of Berkat-Yurt, Chechnya. Next to the village, in the vicinity of a Russian military checkpoint, he was stopped by a group of military intelligence officers under the command of Major A.Z. The group belonged to military unit no.\u00a074614 of the 205th<\/sup> brigade of the Internal Troops of the Russian Ministry of the Interior. After that, the applicant\u2019s son disappeared.<\/span><\/p>\n

(b)\u00a0\u00a0The search for the applicant\u2019s son<\/span><\/p>\n

7.\u00a0\u00a0On 10 February 1996 the applicant started a search for his son. On 12\u00a0February 1996 he found out that his son had been detained by the military servicemen. The applicant went to the base of an air force squadron stationed in the area, together with the head of the Berkat-Yurt village administration. There they spoke to the squadron commander and showed him a photograph of Elbek Tashukhadzhiyev. They told the commander that on 9 February 1996 Elbek had been detained by the military servicemen. The commander informed them that on 9 February 1996 a group of military intelligence officers, under the command of a Major, had arrived at their base with a detainee. They had introduced themselves as representatives of the 205th<\/sup> brigade of the Internal Troops and explained that they had arrived to provide medical assistance to two soldiers who had been blown up by a landmine. This intelligence group had arrived with a detainee, and the detainee had been Elbek Tashukhadzhiyev: the commander recognised him from the photograph. Upon providing medical assistance to the wounded soldiers, the intelligence officers had placed the applicant\u2019s son either in an armoured personnel carrier or an infantry battle vehicle (\u201cIBV\u201d) and left for Khankala, Chechnya. Elbek Tashukhadzhiyev\u2019s lorry had been driven away by a soldier.<\/span><\/p>\n

8.\u00a0\u00a0After that, the applicant and the head of administration went to see the commander of the 205th<\/sup> brigade, General Na. Upon their request, the General ordered that the applicant, together with a group of military servicemen on three IBVs and under the command of a Captain, would drive to where the 56th<\/sup> brigade (56-\u044f \u0431\u0440\u0438\u0433\u0430\u0434\u0430) were stationed. At that location, the commander of the 56th<\/sup> brigade confirmed that Elbek Tashukhadzhiyev had been detained by the intelligence officers.<\/span><\/p>\n

9.\u00a0\u00a0The applicant subsequently requested information about his missing son and his lorry from General Na. The commander refused to admit that the 205th<\/sup> brigade had detained Elbek Tashukhadzhiyev and that his lorry had been parked at their premises.<\/span><\/p>\n

10.\u00a0\u00a0Sometime later the applicant together with representatives of the military prosecutor\u2019s office visited the premises of the brigade, where they found Elbek Tashukhadzhiyev\u2019s lorry. The vehicle\u2019s registration numbers had been removed and it was being used by the brigade\u2019s servicemen.<\/span><\/p>\n

11.\u00a0\u00a0In support of his application, the applicant submitted his statement and copies of correspondence received from the authorities.<\/span><\/p>\n

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

12.\u00a0\u00a0The Government did not challenge most of the facts as presented by the applicant. With reference to the contents of the criminal investigation file, but without providing copies of the relevant documents, the Government submitted the following:<\/span><\/p>\n

\u201cIn the morning of 9 February 1996 Elbek Tashukhadzhiyev was driving a URAL lorry with registration number 74-83 \u0427\u0418\u041b from Grozny to Shali, Chechnya. In the vicinity of the villages Petropavlovskaya and Berkat-Yurt, on a cart road, he was detained by a military intelligence group from military unit no.\u00a074814 under the command of Major A.Z. The reason for the detention was the discovery of a grenade launcher RPG-26 in Elbek Tashukhadzhiyev\u2019s vehicle and his deviation from the route indicated in his waybill.\u201d<\/span><\/p>\n

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

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

(a)\u00a0\u00a0Background information<\/span><\/p>\n

13.\u00a0\u00a0On 15 March 1996 the military prosecutor\u2019s office of military unit no.\u00a044662 instituted an investigation into the disappearance of Elbek Tashukhadzhiyev.<\/span><\/p>\n

14.\u00a0\u00a0The investigator in charge of the criminal case, Mr\u00a0Az., informed the applicant that Major A.Z. had given himself up and confessed to detaining Elbek Tashukhadzhiyev. According to the Major, he and his servicemen had allegedly seized a grenade launcher from the applicant\u2019s son and had taken him to Khankala, Chechnya. In Khankala the servicemen had been ordered to transfer Elbek Tashukhadzhiyev to the Group Directorate of the Operational Headquarters (\u0413\u0440\u0443\u043f\u043f\u0430 \u0423\u043f\u0440\u0430\u0432\u043b\u0435\u043d\u0438\u044f \u041e\u043f\u0435\u0440\u0430\u0442\u0438\u0432\u043d\u043e\u0433\u043e \u0428\u0442\u0430\u0431\u0430 (\u0413\u0423\u041e\u0428)) in Grozny, Chechnya. On the way there Elbek Tashukhadzhiyev had jumped out of the car and ran towards the forest. He had been shot, covered with leaves and soil and left in the forest.<\/span><\/p>\n

15.\u00a0\u00a0It appears that on an unspecified date the military prosecutor\u2019s office searched for Elbek Tashukhadzhiyev\u2019s body in the forest, but to no avail.<\/span><\/p>\n

16.\u00a0\u00a0About two months after providing the initial statement concerning the shooting of Elbek Tashukhadzhiyev, Major A.Z. changed his statement and told the investigation that on the way to Grozny Elbek Tashukhadzhiyev had run away into the forest and had never been seen since.<\/span><\/p>\n

(b)\u00a0\u00a0The official investigation into the disappearance<\/span><\/p>\n

17.\u00a0\u00a0On 15 March 1996 the military prosecutor\u2019s office of military unit no.\u00a044662 instituted an investigation into the case of Elbek Tashukhadzhiyev under Article 103 of the Criminal Code (murder). The case was opened against Major A.Z. of military unit no.\u00a074814. The criminal case file was given the number 14\/27\/0148-98.<\/span><\/p>\n

18.\u00a0\u00a0On 15 September 1996 the criminal case concerning the murder of the applicant\u2019s son was terminated for a lack of corpus delicti. The applicant was informed about it on 17 October 1996. On an unspecified date the applicant appealed against the decision and on 30 April 1998 the proceedings were reopened (see paragraph 45 below). The applicant was not informed about the reopening of the proceedings.<\/span><\/p>\n

19.\u00a0\u00a0On 4 August 1997 the military prosecutor\u2019s office of the Northern Caucasus Military Circuit replied to a complaint made by the applicant\u2019s wife and stated, inter alia, the following:<\/span><\/p>\n

\u201c… the investigation established that on 9 February 1996 your son had been detained by a military intelligence group of military unit no.\u00a074814 … He had fled from the servicemen on the way to the military commander\u2019s office and had been shot at. However, it is unclear whether he was killed, as nobody saw him [again]-dead or alive. The military prosecutor\u2019s office examined the relevant part of the forest and did not find any graves …<\/span><\/p>\n

On the basis of the above, the criminal investigation was terminated on 15\u00a0September 1996 … It is impossible to establish your son\u2019s whereabouts …\u201d<\/span><\/p>\n

20.\u00a0\u00a0On 6 January 1998 the military prosecutor\u2019s office of military unit no.\u00a044662 forwarded the criminal case file to the military prosecutor\u2019s office of the Northern Caucasus Military Circuit.<\/span><\/p>\n

21.\u00a0\u00a0On an unspecified date the military prosecutor\u2019s office of the Northern Caucasus Military Circuit forwarded the criminal case file to the military prosecutor\u2019s office of military unit no.\u00a074814 in the Budennovsk military garrison.<\/span><\/p>\n

22.\u00a0\u00a0On 5 July 2002 the Chechnya prosecutor\u2019s office forwarded the applicant\u2019s complaint about his son\u2019s disappearance to the Grozny district prosecutor\u2019s office.<\/span><\/p>\n

23.\u00a0\u00a0On 14 July 2002 the Department of Coordination of Counterterrorist Operations of the Federal Security Service (the FSB) informed the applicant that his son Elbek Tashukhadzhiyev was not listed as a detainee of the Russian federal forces in Chechnya.<\/span><\/p>\n

24.\u00a0\u00a0On 21 January 2003 the Chief Military Prosecutor\u2019s office forwarded the applicant\u2019s request for assistance in the search for his son to the military prosecutor\u2019s office of the United Group Alignment (\u201cthe UGA\u201d).<\/span><\/p>\n

25.\u00a0\u00a0On 12 September 2003 the Bureau of the Special Representative of the Russian President in Chechnya for rights and freedoms (\u201cthe Bureau\u201d) complained to the Grozny district prosecutor\u2019s office about the lack of information concerning the criminal investigation.<\/span><\/p>\n

26.\u00a0\u00a0On 14 January 2004 the Bureau requested that the UGA military prosecutor\u2019s office provide information about the progress of the investigation into the disappearance of the applicant\u2019s son. The letter stated, amongst other things, the following:<\/span><\/p>\n

\u201c… [The applicant] complained that his son Elbek Tashukhadzhiyev together with the URAL petrol tanker … had been detained by a military intelligence unit of the 205th brigade on 9 February 1996 … Elbek Tashukhadzhiyev\u2019s lorry had been found on the brigade\u2019s premises sometime later.<\/span><\/p>\n

On 15 March 1996 a criminal case was opened in connection with the above matter. The arguments concerning the detainee\u2019s escape, as well as the witnesses\u2019 statements concerning the place of his burial, are not convincing, as the witnesses have been changing their statements at every interrogation.<\/span><\/p>\n

The applicant complained that the investigators were reluctant to establish the true circumstances surrounding the events …\u201d<\/span><\/p>\n

27.\u00a0\u00a0On 27 January 2004 the UGA military prosecutor\u2019s office replied to the Bureau as follows:<\/span><\/p>\n

\u201c… The case concerning the circumstances of Elbek Tashukhadzhiyev\u2019s detention was investigated by the military prosecutor\u2019s office of military unit no.\u00a044662 within the framework of the criminal case opened against Major A.Z. of military unit no.\u00a074614. In connection with this, in accordance with the rules of jurisdiction, the applicant\u2019s complaint was forwarded to the military prosecutor of military unit no.\u00a044662 in Buynaks, Dagestan …\u201d<\/span><\/p>\n

28.\u00a0\u00a0On 26 February 2004 the military prosecutor\u2019s office of military unit no.\u00a044662 forwarded the applicant\u2019s complaint to the military prosecutor\u2019s office of the Budennovsk military garrison. The letter stated, amongst other things, the following:<\/span><\/p>\n

\u201c… the investigation established that on 15 March 1996 the military prosecutor\u2019s office of military unit no.\u00a044662 had opened an investigation under Article 103 of the Criminal Code in respect of officer Major A.Z. of military unit no.\u00a074814. Circumstances of the case: on 11 February 1996, in Chechnya, Major A.Z. committed the murder of Elbek Tashukhadzhiyev.<\/span><\/p>\n

On 15 September 1996 the criminal case against Major A.Z. was terminated … for a lack of corpus delicti.<\/span><\/p>\n

On 6 January 1998 the criminal case file was transferred from the military prosecutor\u2019s office of military unit no.\u00a044662 … to the military prosecutor\u2019s office of the Budennovsk military garrison (the station of military unit no.\u00a074814) …\u201d<\/span><\/p>\n

29.\u00a0\u00a0On 18 March 2004 the military prosecutor\u2019s office of military unit no.\u00a020102 informed the applicant that \u201cin March 1996 one of the military prosecutor\u2019s offices in the Northern Caucasus investigated a criminal case concerning the disappearance of Elbek Tashukhadzhiyev …\u201d but that it had not been their office which investigated the crime.<\/span><\/p>\n

30.\u00a0\u00a0On 24 March 2004 the UGA military prosecutor\u2019s office provided the applicant with similar information and stated that they had not investigated the case either.<\/span><\/p>\n

31.\u00a0\u00a0On 27 March 2004 the UGA military prosecutor\u2019s office forwarded the applicant\u2019s complaint about his son\u2019s disappearance to the military prosecutor\u2019s office of military unit no.\u00a020116.<\/span><\/p>\n

32.\u00a0\u00a0On 30 April 2004 the military prosecutor\u2019s office of military unit no.\u00a044662 informed the applicant, amongst other things, of the following:<\/span><\/p>\n

\u201c… it has been impossible to verify the arguments provided in [the applicant\u2019s] complaint about the murder of Elbek Tashukhadzhiyev … for the following reasons:<\/span><\/p>\n

In 1996 the military prosecutor\u2019s office of military unit no.\u00a044662 was transferred from Grozny to its current station in Buynaks, Dagestan …<\/span><\/p>\n

Military unit no.\u00a074814, where Major A.Z. was serving and in respect of whom the military prosecutor\u2019s office of military unit no.\u00a044662 had opened a criminal case under Article 103 of the Criminal Code (in connection with the murder of Elbek Tashukhadzhiyev) on 15 March 1996, was stationed in Budennovsk in the Stavropol Region along with the servicemen who had witnessed the events in question …<\/span><\/p>\n

Taking into account that in 1998 due to well known reasons the investigation of the criminal case was impossible, it was decided to transfer the criminal case against Major\u00a0A.Z. … to the military prosecutor\u2019s office of the Budennovsk military garrison, where the suspect and the witnesses were stationed at the time …\u201d<\/span><\/p>\n

33.\u00a0\u00a0On 13 May 2004 the military prosecutor\u2019s office of the Northern Caucasus Military Circuit informed the applicant that on an unspecified date they had requested that the military prosecutor\u2019s office of the Budennovsk military garrison provide them with the investigation file of criminal case no. 14\/27\/0148-98 opened against Major A.Z. of military unit no.\u00a074814. The case file had been requested in order to examine the applicant\u2019s complaints.<\/span><\/p>\n

34.\u00a0\u00a0On 15 June 2004 the military prosecutor\u2019s office of the Northern Caucasus Military Circuit informed the applicant, amongst other things, of the following:<\/span><\/p>\n

\u201c… the military prosecutor\u2019s office of the Budennovsk military garrison investigated the criminal case against Major A.Z. of military unit no.\u00a074814, who was suspected of murdering Elbek Tashukhadzhiyev. It was impossible to establish Elbek Tashukhadzhiyev\u2019s whereabouts or his corpse. The criminal investigation was terminated on 10 January 2000 …\u201d<\/span><\/p>\n

The letter provided neither the reasons for the termination of the criminal proceedings, nor contained a copy of the relevant decision.<\/span><\/p>\n

35.\u00a0\u00a0On 3 September 2004 the Chechnya Committee for the Defence of Constitutional Rights wrote on behalf of the applicant to the Chief Military Prosecutor\u2019s Office and the UGA military prosecutor\u2019s office. The letter stated, amongst other things, the following:<\/span><\/p>\n

\u201c … this document (the letter of 15 June 2004 from the military prosecutor\u2019s office of the Northern Caucasus Military Circuit) and other information received from the prosecutors\u2019 offices directly point to the involvement of Major A.Z. in the detention of Elbek Tashukhadzhiyev, who disappeared following the detention …<\/span><\/p>\n

… we have already complained to the UGA military prosecutor\u2019s office about the investigators\u2019 reluctance to establish the true circumstances of the case and the investigation\u2019s unconvincing arguments to this end …<\/span><\/p>\n

… It is irrefutable that the murder and the detention at the checkpoint took place … that there was no possibility for the detained [Elbek Tashukhadzhiyev] to use any physical force against [those who detained him], in particular, against the armed men … [Therefore] the arguments concerning the detainee\u2019s attempts to escape are ridiculous …\u201d<\/span><\/p>\n

36.\u00a0\u00a0On 30 November 2004 the UGA military prosecutor\u2019s office, without enclosing a copy of the relevant decision, informed the applicant of the following:<\/span><\/p>\n

\u201c… on 10 January 2000 the military prosecutor\u2019s office of the Budennovsk military garrison terminated criminal case no.\u00a014\/27\/0148-98 under Article 208\u00a0\u00a7\u00a02 of the Criminal Procedure Code [for a lack of evidence] …\u201d<\/span><\/p>\n

37.\u00a0\u00a0On 24 December 2004 and 21 January 2005 the military prosecutor\u2019s office of the Northern Caucasus Military Circuit replied to the applicant\u2019s complaints about his son\u2019s disappearance, stating that they were in the process of the examination of the contents of criminal case file no.\u00a014\/27\/0148-98 and that he would be informed of the results.<\/span><\/p>\n

38.\u00a0\u00a0According to the applicant, he was not granted victim status in the criminal case concerning his son\u2019s disappearance and the investigative authorities consistently failed to provide him with information on the progress of the criminal case.<\/span><\/p>\n

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

39.\u00a0\u00a0On 4 March 1996 Major A.Z. gave himself up and confessed to the killing of Elbek Tashukhadzhiyev. He and other witnesses showed investigators the place where they had buried the body.<\/span><\/p>\n

40.\u00a0\u00a0At some later stage, Major A.Z. backtracked and stated that he had only confessed to killing Elbek Tashukhadzhiyev to improve his image before the command, as he had been responsible for Elbek Tashukhadzhiyev\u2019s escape from the servicemen.<\/span><\/p>\n

41.\u00a0\u00a0On an unspecified date the investigators searched the burial site identified by the Major and the other witnesses, but Elbek Tashukhadzhiyev\u2019s body was not found.<\/span><\/p>\n

42.\u00a0\u00a0On 8 March 1996 the investigators examined Elbek Tashukhadzhiyev\u2019s lorry and forwarded it to the Grozny Refinery for storage.<\/span><\/p>\n

43.\u00a0\u00a0On 15 March 1996 the investigators opened a criminal case against Major A.Z. under Article 103 of the Criminal Code (murder).<\/span><\/p>\n

44.\u00a0\u00a0On 15 September 1996 the investigation of the criminal case was terminated for a lack of corpus delicti in the actions of Major A.Z.<\/span><\/p>\n

45.\u00a0\u00a0On 30 April 1998 the investigation of the criminal case was reopened.<\/span><\/p>\n

46.\u00a0\u00a0On 29 May 1998 and 5 January 1999 the investigation was suspended for failure to identify the perpetrators.<\/span><\/p>\n

47.\u00a0\u00a0On 30 June 1998 and 18 March 1999 the investigation was resumed.<\/span><\/p>\n

48.\u00a0\u00a0On 18 April 1999 the investigation of the criminal case was again terminated on account of a lack of corpus delicti in the actions of Major\u00a0A.Z.<\/span><\/p>\n

49.\u00a0\u00a0On 10 December 1999 the investigation of the criminal case was reopened.<\/span><\/p>\n

50.\u00a0\u00a0On 10 January 2000 the investigation of the criminal case was terminated for failure to prove the charges against Major A.Z.<\/span><\/p>\n

51.\u00a0\u00a0On 30 April 2009 the decision to terminate the criminal proceedings was overruled and the investigation was resumed.<\/span><\/p>\n

52.\u00a0\u00a0On an unspecified date the investigators questioned the applicant and his wife, who stated that in 1998 they had learnt from a Mr A.Kh., who had been released from a detention centre, that their son Elbek Tashukhadzhiyev had been detained in the Lefortovo remand prison in Moscow. According to the Government, the investigation did not obtain information confirming the applicant\u2019s son\u2019s detention in that prison.<\/span><\/p>\n

53.\u00a0\u00a0The Government further submitted that, although the investigation had failed to establish the whereabouts of Elbek Tashukhadzhiyev, it was still in progress and all measures provided for in domestic law were being taken to solve the crime. The applicant had been duly informed of all decisions taken during the investigation.<\/span><\/p>\n

54.\u00a0\u00a0Despite specific requests by the Court, the Government did not disclose any documents from the investigation file of criminal case no.\u00a014\/27\/0148-98. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of their confidentiality, since the file contained secret information.<\/span><\/p>\n

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

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

56.\u00a0\u00a0The applicant complained under Article 2 of the Convention that his son has been deprived of his life by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the disappearance of his son Elbek Tashukhadzhiyev. Article 2 reads:<\/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\u00a0Admissibility<\/span><\/p>\n

57.\u00a0\u00a0In so far as the application concerned the death of the applicant\u2019s son the Government maintained that this complaint should be declared inadmissible as it fell outside of the Court\u2019s jurisdiction ratione temporis. They pointed out that the events took place in February 1996, whereas Russia had ratified the Convention in May 1998. The applicant accepted that the events took place in February 1996 but maintained that the ongoing investigation had not elucidated the circumstances of his son\u2019s death for which reason the ratione temporis ground would not apply.<\/span><\/p>\n

58.\u00a0\u00a0The Court notes that it is common ground between the parties that the applicant\u2019s son was arrested in February 1996 by the military servicemen under the command of Major A.Z. However, it is unclear what happened to him afterwards. It is not for the Court to seek to establish what occurred in 1996. As the Convention entered into force in respect of Russia only in 1998 such a matter is outside the Court\u2019s temporal jurisdiction. Furthermore, an assessment of what happened to the applicant\u2019s son thereafter would on the basis of the available information be mere speculation.<\/span><\/p>\n

59.\u00a0\u00a0In the light of this, the Court considers that it has no competence ratione temporis to examine the applicant\u2019s complaint under the substantive limb of Article 2 of the Convention for which reason this part of the application must be declared inadmissible pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.”<\/span><\/p>\n

60.\u00a0\u00a0As far as the application concerned the alleged ineffectiveness of the investigation into the applicant\u2019s son\u2019s disappearance and death, the Government considered that this part of the application was inadmissible for the applicant\u2019s failure to exhaust domestic remedies. They submitted that the applicant had failed to appeal against the decision of 10 January 2000 to terminate the criminal investigation. In addition, he failed to claim damages in civil proceedings or appeal against the investigators\u2019 other decisions to competent domestic authorities. In the alternative the Government suggested that the complaint was premature since the investigation had been resumed and was pending. Finally, the Government maintained that the applicant had failed to comply with the six-month rule, as the decision to terminate the criminal investigation had been taken in January 2000 whereas the applicant had lodged the application with the Court in August 2004.<\/span><\/p>\n

61.\u00a0\u00a0The applicant contested the Government\u2019s objections. He stated that he could not have appealed against the decision of 10 January 2000 as he had not been informed about it for several years afterwards and because the authorities had failed to provide him with a copy of it. He further stated that he had not been granted victim status in the criminal case and that throughout the proceedings he had not been informed of their progress. As for a civil claim for damages, the applicant pointed out that such a remedy would not have been effective in his case in the absence of the results of the criminal investigation. He stressed that the remedy relied upon by the Government was ineffective, as he had complained about the actions of the investigative authorities to their supervisory bodies, but his complaints had been forwarded for examination to the very authorities he had complained about. Finally, he submitted that the ongoing investigation into his son\u2019s fate only showed that it was ineffective.<\/span><\/p>\n

62.\u00a0\u00a0As regards the question of exhaustion of domestic remedies and turning to the Government\u2019s argument that the applicant could have sought compensation through civil proceedings, the Court observes that it has already considered this issue in a number of similar cases. It has found that, taken alone, a civil action to obtain redress for damage sustained through the allegedly illegal acts or unlawful conduct of State agents cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v.\u00a0Russia, nos.\u00a057942\/00 and 57945\/00, \u00a7\u00a7\u00a0119-21, 24 February 2005, and Estamirov and Others v. Russia, no.\u00a060272\/00, \u00a7 77, 12 October 2006). In the light of the above, the Court confirms that the applicant was not obliged to pursue a civil damages claim. The Government\u2019s objection in this regard is thus dismissed.<\/span><\/p>\n

63.\u00a0\u00a0Secondly, the Government argued that the applicant had failed to appeal against the decision to terminate the criminal investigation and to appeal the investigators\u2019 other decisions to the competent domestic authorities. The applicant insisted that he had not been duly notified of the impugned decision or of any other decisions taken by the investigators in the criminal case, and therefore that he could not have been expected to appeal against them.<\/span><\/p>\n

64.\u00a0\u00a0The Court has previously held that in the Russian legal system the power of a court to reverse a decision not to institute criminal proceedings is a substantial safeguard against the arbitrary exercise of powers by the investigating authorities and therefore a remedy that must be exhausted <\/span>(see Trubnikov v. Russia (dec.), no.\u00a049790\/99, 14\u00a0October 2003). However, an applicant does not need to exercise a remedy which, although theoretically of a nature as to constitute a remedy, does not in reality offer any chance of redressing the alleged breach (see G\u00fcndem v. Turkey, 22275\/93, Commission decision of 9\u00a0January 1995). If the remedy chosen was adequate in theory, but, over the course of time, proved to be ineffective, the applicant is no longer obliged to exhaust it <\/span>(see Tepe v. Turkey, 27244\/95, Commission decision of 25\u00a0November 1996; see also Mikheyev v. Russia (dec.), no.\u00a077617\/01, 7 October 2004).<\/span><\/p>\n

65.\u00a0\u00a0As to the effectiveness of the criminal remedies referred to by the Government, the Court notes that it is not clear whether the applicant had been indeed granted victim status in the criminal proceedings. However, setting aside the issue, the Court notes that, in any case, the applicant had not been duly and timely informed of the decision of 10 January 2000 <\/span>(see paragraphs 34 and 36 above) or of any other procedural decision taken by the investigators. From the documents submitted it does not appear that the authorities took any steps to provide the applicant with any meaningful information about the progress of the criminal proceedings and copies of the relevant decisions. It is highly doubtful that the applicant had a realistic possibility of challenging any decisions of the investigative authorities without having such essential information.<\/span><\/p>\n

66.\u00a0\u00a0In such circumstances, the Court dismisses the Government\u2019s objection in so far as it concerns the applicant\u2019s failure to appeal against the actions and decisions of the investigative authorities and, in particular, against the decision of 10 January 2000.<\/span><\/p>\n

67.\u00a0\u00a0Finally, in relation to the Government\u2019s argument concerning the effectiveness of the ongoing criminal investigation, the Court considers that this objection should be joined to the merits and falls to be examined below under the substantive provision of the Convention.<\/span><\/p>\n

68.\u00a0\u00a0As regards the question of applying the six-month rule, the Court has already stated that the six-month time-limit does not apply as such to continuing situations (see, for example, Agrotexim Hellas\u00a0S.A. and Others v.\u00a0Greece, no. 14807\/89, Commission decision of 12\u00a0February 1992, DR 71, p. 148, and Cone v. Romania, no.\u00a035935\/02, \u00a7\u00a022, 24 June 2008). The reason for this is that if there is a situation of ongoing breach, the time-limit in effect starts afresh each day and it is only once the situation ceases that the final period of six months will run to its end.<\/span><\/p>\n

69.\u00a0\u00a0In the present case the impugned decision concerning the termination of the criminal investigation was taken on 10 January 2000. From the documents submitted it can be seen that the applicant was informed about this fact only on 15 June 2004 (see paragraph 34). He lodged his application with the Court on 5 August 2004. Furthermore, the Court notes from the information submitted by the Government that on 30\u00a0April 2009 the decision to terminate the criminal proceedings was overruled and the investigation was resumed (see paragraph 51 above).<\/span><\/p>\n

70.\u00a0\u00a0In such circumstances, the Court rejects the Government\u2019s objection concerning the applicant\u2019s failure to comply with the six-month rule.<\/span><\/p>\n

71.\u00a0\u00a0Thus, as regards the issue of the admissibility of the applicant\u2019s complaint concerning the alleged ineffectiveness of the criminal investigation under the procedural limb of Article 2, the Court considers, in the light of the parties\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.<\/span><\/p>\n

72.\u00a0\u00a0Therefore, the complaint under the procedural limb of Article\u00a02 of the Convention must be declared admissible, no other reasons for declaring it inadmissible having been established.<\/span><\/p>\n

B.\u00a0\u00a0The merits<\/span><\/p>\n

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

73.\u00a0\u00a0The Government submitted that Elbek Tashukhadzhiyev had been arrested on 9 February 1996 as his vehicle had deviated from the route stated in his waybill and that as a result of a subsequent search a grenade launcher had been discovered in his vehicle. The arrest had been conducted under the President\u2019s Order \u201cOn measures concerning the suppression of the activities of illegal armed groups in Chechnya\u201d of 9 December 1994 and the relevant provisions of the Criminal Code. The Government further stated that during the transportation of Elbek Tashukhadzhiyev to the military commander\u2019s office, he had jumped out of the vehicle and had run towards the forest. The military servicemen had shot at him, but neither his corpse, nor he himself had been subsequently found, as he had managed to escape. The Government further contended that the domestic investigation had obtained no evidence to the effect that Elbek Tashukhadzhiyev was dead or that any servicemen had been responsible for his disappearance. The Government claimed that the investigation into the disappearance of the applicant\u2019s son had met the Convention\u2019s requirement of effectiveness.<\/span><\/p>\n

74.\u00a0\u00a0The applicant maintained that it was beyond reasonable doubt that the servicemen under the command of Major A.Z. had detained his son Elbek Tashukhadzhiyev who had subsequently disappeared. In support of his complaint he referred to the fact that the domestic investigation had confirmed the detention of Elbek Tashukhadzhiyev by the military servicemen (see paragraphs 19, 28, 32 and 34 above) and that all the other information disclosed by the authorities had supported his assertion as to the responsibility of the State agents for the disappearance of Elbek Tashukhadzhiyev. The applicant further argued that the authorities had failed to conduct an effective and thorough investigation into the fate of his missing son who had disappeared in life-threatening circumstances.<\/span><\/p>\n

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

75.\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

76.\u00a0\u00a0The Court would emphasise that the procedural obligation under Article 2 operates independently of the substantive obligation. A disappearance is a distinct phenomenon, characterised by an ongoing situation of uncertainty and unaccountability and is very often drawn out over time, prolonging the torment of the victim\u2019s relatives and giving rise to a continuing situation (see Varnava and Others v. Turkey [GC], <\/span>nos. 16064\/90, 16065\/90, 16066\/90, 16068\/90, 16069\/90, 16070\/90, 16071\/90, 16072\/90 and 16073\/90, \u00a7\u00a7 147 and 148, 18 September 2009). Thus, the procedural obligation will, potentially, persist as long as the fate of the person is unaccounted for; the ongoing failure to provide the requisite investigation will be regarded as a continuing violation. This is so, even where death may, eventually, be presumed and even if this death had occurred prior to the ratification of the Convention by the respondent state (see Varnava, cited above, \u00a7 194).<\/span><\/p>\n

77.\u00a0\u00a0In the present case, the fate of Elbek Tashukhadzhiyev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.<\/span><\/p>\n

78.\u00a0\u00a0The Court notes at the outset that none of the documents from the investigation were disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the applicant and the general information about its progress presented by the Government.<\/span><\/p>\n

79.\u00a0\u00a0In addition, the Court observes that the Government failed to provide detailed information on the actual investigative steps taken by the authorities. However, from the scarce information in its possession, the Court notes the following. The investigation into Elbek Tashukhadzhiyev\u2019s disappearance was opened more than a month after the incident and it was subsequently terminated on several occasions \u2013 15 September 1996, 18\u00a0April 1999 and 10 January 2000 \u2013 and reopened on 30 April 1998, 10\u00a0December 1999 and 30 April 2009 (see paragraphs 43-45 and 48-51 above). Taking into account the Government\u2019s reluctance to provide information concerning the grounds for the various decisions to reopen the proceedings, the Court infers that the decisions to terminate the criminal investigation were overruled as unsubstantiated. This factor in itself \u2013 and the overall fourteen year timeframe of the currently ongoing criminal proceedings \u2013 demonstrates the ineffectiveness of the investigation into Elbek Tashukhadzhiyev\u2019s disappearance.<\/span><\/p>\n

80.\u00a0\u00a0The Court also notes that even though it is not clear from the documents submitted whether the applicant was granted victim status in the criminal case, it is clear from the copies of the letters received by him from the authorities that he was deprived of any meaningful information concerning the progress of the investigation. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.<\/span><\/p>\n

81.\u00a0\u00a0In the light of the foregoing, the Court rejects the Government\u2019s objection as to the exhaustion of domestic remedies due to the pending investigation and holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Elbek Tashukhadzhiyev, in breach of the procedural aspect of Article\u00a02.<\/span><\/p>\n

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

82.\u00a0\u00a0The applicant stated that Elbek Tashukhadzhiyev had been detained in violation of the guarantees contained in Article 5 of the Convention, which reads, in so far as relevant:<\/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\u00a0Admissibility<\/span><\/p>\n

83.\u00a0\u00a0The Government did not make a separate submission under this head. However, they stated in general terms that Elbek Tashukhadzhiyev had been arrested on the suspicion of unlawful possession of firearms and that his arrest had complied with domestic legislation (see paragraph\u00a073 above).<\/span><\/p>\n

84.\u00a0\u00a0The applicant reiterated the complaint.<\/span><\/p>\n

85.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) 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

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

86.\u00a0\u00a0The Court reiterates that it is not in dispute that the applicant\u2019s son was arrested by military servicemen and subsequently disappeared. The authorities acknowledged his arrest, but they have not provided any documentary evidence giving official trace of his whereabouts afterwards. The Court notes the obvious disregard of the procedural safeguards applicable to the detention of persons. While there is no evidence that Elbek Tashukhadzhiyev was still in detention in the period under the Court\u2019s consideration, it remains incumbent on the domestic authorities to show that they have since carried out an effective investigation into the arguable claim that he had been taken into custody and not seen subsequently (see, amongst many authorities, Kurt v. Turkey, 25 May 1998, \u00a7 124, Reports of Judgments and Decisions 1998-III and Varnava, cited above, \u00a7\u00a0208). The Court\u2019s findings above in relation to Article 2 leave no doubt that the authorities have also failed to conduct the requisite investigation in that regard. This discloses a continuing violation of Article\u00a05.<\/span><\/p>\n

III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/span><\/p>\n

87.\u00a0\u00a0The applicant complained that under national law he had been barred from filing a civil claim to obtain compensation for his son\u2019s unlawful detention or death pending the outcome of the criminal investigation. He relied on Article 6\u00a0\u00a7\u00a01 of the Convention, the relevant parts of which provide:<\/span><\/p>\n

\u201cIn the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/span><\/p>\n

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

88.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) 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

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

89.\u00a0\u00a0The Court finds that the applicant\u2019s complaint under Article\u00a06 concerns essentially the same issues as those discussed above in relation to the procedural aspect of Article 2 and below in relation to Article 13. It should also be noted that the applicant submitted no information which would prove his stated intention to apply to a domestic court with a claim for compensation. In such circumstances, it finds that no separate issues arise under Article 6 of the Convention (for a similar situation see Bazorkina, cited above, \u00a7\u00a0153).<\/span><\/p>\n

IV.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLES 2 AND 5 OF THE CONVENTION<\/span><\/p>\n

90.\u00a0\u00a0The applicant complained that he had been deprived of an effective remedy in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:<\/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\u00a0Admissibility<\/span><\/p>\n

91.\u00a0\u00a0The Government contended that the applicant had had effective remedies at his disposal as required by Article 13 of the Convention and that the authorities had not prevented him from using them. They stated that the applicant had had the opportunity to challenge the acts or omissions of the investigating authorities in court and to lodge civil claims for damages.<\/span><\/p>\n

92.\u00a0\u00a0The applicant reiterated the complaint.<\/span><\/p>\n

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

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

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

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

96.\u00a0\u00a0As regards the applicant\u2019s reference to Article 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention (see Kukayev v. Russia, no.\u00a029361\/02, \u00a7\u00a0119, 15\u00a0November 2007, and Aziyevy v. Russia, no. 77626\/01, \u00a7\u00a0118, 20\u00a0March 2008).<\/span><\/p>\n

V.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION<\/span><\/p>\n

97.\u00a0\u00a0The applicant complained that he had been discriminated against in the enjoyment of his Convention rights because the violations of which he complained had taken place because he was resident in Chechnya and because of his ethnic background as a Chechen. This was contrary to Article\u00a014 of the Convention, which reads as follows:<\/span><\/p>\n

\u201cThe enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\u201d<\/span><\/p>\n

98.\u00a0\u00a0The Court finds that no evidence has been submitted to it that suggests that the applicant was treated differently due to his ethnic background or place of residence.<\/span><\/p>\n

99.\u00a0\u00a0It follows that this part of the application should be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/span><\/p>\n

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

100.\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

101.\u00a0\u00a0The applicant claimed damages in respect of expenses incurred by him and his family in connection with the search for his disappeared son. The applicant claimed a total of 900,000 Russian roubles (RUB) under this heading (about 22,500 euros (EUR)), stating that the amount was approximate as his religious beliefs and traditions precluded him from keeping a record of the expenses.<\/span><\/p>\n

102.\u00a0\u00a0The Government stated that this claim should be rejected as completely unsubstantiated.<\/span><\/p>\n

103.\u00a0\u00a0In the absence of any documents substantiating the applicant\u2019s claim for pecuniary damage, the Court does not make any award under this head.<\/span><\/p>\n

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

104.\u00a0\u00a0As for non-pecuniary damage, the applicant left the determination of any amount for the Court.<\/span><\/p>\n

105.\u00a0\u00a0The Government stated that the finding of a violation would be adequate just satisfaction in the applicant\u2019s case.<\/span><\/p>\n

106.\u00a0\u00a0The Court has found a violation of Articles 2, 5 and 13 of the Convention. The Court thus accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by finding violations. It awards to the applicant EUR\u00a030,000, plus any tax that may be chargeable to him thereon.<\/span><\/p>\n

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

107.\u00a0\u00a0The applicant did not submit any claims under this head.<\/span><\/p>\n

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

108.\u00a0\u00a0The Court considers it appropriate that default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/span><\/p>\n

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

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

2.\u00a0\u00a0Declares by a majority the complaints under the procedural aspect of Article\u00a02 of the Convention, as well as the complaints under Articles\u00a05,\u00a06 and\u00a013 of the Convention admissible and the remainder of the application inadmissible;<\/span><\/p>\n

3.\u00a0\u00a0Holds unanimously 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 Elbek Tashukhadzhiyev disappeared;<\/span><\/p>\n

4.\u00a0\u00a0Holds by 6 votes to 1 that there has been a violation of Article\u00a05 of the Convention in respect of Elbek Tashukhadzhiyev;<\/span><\/p>\n

5.\u00a0\u00a0Holds unanimously that no separate issues arise under Article\u00a06 of the Convention;<\/span><\/p>\n

6.\u00a0\u00a0Holds unanimously that there has been a violation of Article\u00a013 of the Convention in conjunction with Article\u00a02 of the Convention;<\/span><\/p>\n

7.\u00a0\u00a0Holds unanimously that no separate issues arise under Article 13 of the Convention in conjunction with Article\u00a05 of the Convention;<\/span><\/p>\n

8.\u00a0\u00a0Holds unanimously<\/span><\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, EUR\u00a030,000 (thirty thousand euros), in respect of non-pecuniary damage, to be converted into Russian roubles at the date of settlement\u00a0plus any tax that may be chargeable to the applicant,;<\/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

9.\u00a0\u00a0Dismisses unanimously the remainder of the applicant\u2019s claim for just satisfaction.<\/span><\/p>\n

Done in English, and notified in writing on 25 October 2011, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.<\/em><\/span><\/p>\n

S\u00f8ren Nielsen\u00a0Nina Vaji\u0107\u00a0Registrar\u00a0President<\/strong><\/span><\/p>\n

In accordance with Article 45 \u00a7 2 of the Convention and Rule 74 \u00a7 2 of the Rules of Court, the partly dissenting opinion of Judge Kovler is annexed to this judgmen<\/span><\/p>\n

PARTLY DISSENTING OPINION OF JUDGE KOVLER<\/strong><\/span><\/p>\n

I cannot share the conclusions of the Court as regards the admissibility of the complaint under Article 5 of the Convention and the violation of that provision in this case.<\/span><\/p>\n

Taking into account the Court\u2019s findings concerning the substantive limb of Article 2 of the Convention in respect of the presumed death of Elbek Tashukhadzhiyev prior to the ratification of the Convention by the respondent State (5 May 1998), I conclude that his detention for a number of hours in February 1996 before his presumed death also falls outside the Court\u2019s competence ratione temporis. I cannot accept the finding of\u00a0 \u201ca continuing violation\u201d of Article 5 (see paragraph 86 of the judgment), founded on a formalistic interpretation of the Varnava test. It follows for me that the Court is not competent to examine whether the applicant had an \u201carguable claim\u201d of a breach of a substantive Convention right (see, among other authorities, Voroshilov v. Russia (dec.), no.\u00a021501\/02, 8 December 2005, and Meriakri v. Moldova (dec.), no. 53487\/99, 16 January 2001).<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

The ECHR case of Tashukhadzhiyev v. Russia (applications no. 33251\/04).<\/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":[],"class_list":["post-8847","post","type-post","status-publish","format-standard","hentry","category-echr-cases"],"views":1222,"_links":{"self":[{"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/posts\/8847","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=8847"}],"version-history":[{"count":1,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/posts\/8847\/revisions"}],"predecessor-version":[{"id":8849,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/posts\/8847\/revisions\/8849"}],"wp:attachment":[{"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/media?parent=8847"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/categories?post=8847"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/tags?post=8847"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}