CASE OF KAGIROV v. RUSSIA
(Application no. 36367/09)
23 April 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kagirov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 31 March 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 36367/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Ziyavdi Kagirov (“the applicant”), on 8 July 2009.
2. The applicant was represented by lawyers of the EHRAC/Memorial Human Rights Centre, NGOs with offices in Moscow and London. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged that in May 2009 his brother had been abducted by State agents and that the authorities failed to conduct an effective investigation into the incident.
4. By a decision of 27 August 2013 the Court declared the application admissible.
5. The applicant and the Government each filed further written observations (Rule 59 § 1) on the merits.
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1976 and lives in Zakan-Yurt, the Chechen Republic. The applicant is the brother of Mr Rustam (also known as Balavdi and Khamzat) Kagirov, who was born in 1979. Mr Rustam Kagirov suffered from a disability due to removal of one of his lungs.
A. Abduction of Mr Rustam Kagirov and surrounding events
1. Background information
7. According to the applicant, his brother had held strong religious beliefs and had studied at an “Islamic Institute” in Grozny. In the applicant’s opinion, Mr Rustam Kagirov’s religious convictions could have led the authorities to consider him a follower of Wahhabism, an Islamic fundamentalist movement, whose members had been accused of supporting illegal armed groups in the Chechen Republic.
8. On an unspecified date in the autumn of 2004 officers from the 7th Company of the 2nd Regiment of the Chechen traffic police allegedly apprehended Mr Rustam Kagirov and tortured him for two days demanding that he confessed to involvement in illegal armed groups. The officers had suspected him of the illegal activity because of a photograph depicting two men, one of whom thought to be a leader of an illegal armed group and the other one resembled Mr Rustam Kagirov.
2. Abduction of Mr Rustam Kagirov
(a) The applicant’s account
9. At the time of the events described below, the Kagirov family, including the applicant and Mr Rustam Kagirov, resided at 50 Sovetskaya Street in Zakan-Yurt. Their house was situated about a hundred metres from the building of the village administration.
10. On 17 May 2009 Mr Ramzan Kadyrov, President of the Chechen Republic, was supposed to take the Kavkaz (also referred to as the Rostov-Baku) motorway. Therefore, a section of the route between Grozny and Zakan-Yurt was heavily guarded by traffic police officers, who were stationed at every intersection and who would not let any vehicle through without checking the drivers’ and passengers’ identity documents. Driving from Grozny to Zakan-Yurt on that day the applicant was stopped on the motorway three times for identity checks.
11. At about 6 p.m. on that day the applicant, having pulled over to his house, saw a black VAZ Priora vehicle with registration number A 720 AT 95 parked next to the village administration in Sovetskaya Street. Meanwhile, Mr Rustam Kagirov and his friend Mr Kh.Kh., were walking in the street, next to the administration. When they were passing by the Priora vehicle, three armed men in black uniforms got out of the car. Two of them grabbed Mr Rustam Kagirov and forced him into the back seat. The third man pointed his gun at Mr Kh.Kh. and shouted in Chechen: “Turn around or I will shoot you!” Immediately thereafter the armed men got back in the car and drove off at high speed.
12. A few moments later the applicant, accompanied by Mr Kh.Kh., got into his car to follow the abductors. They saw that the abductors had passed, unimpeded, a roadblock situated on the road leading to Zakan-Yurt from the Kavkaz motorway which was manned by several traffic police officers. Then the abductors took the Kavkaz motorway and headed in the direction of Grozny. At the roadblock the applicant asked the police officers about the identity of the persons in the Priora vehicle they had just let to pass through and whether their documents had been checked. The policemen replied that they had not checked their documents as the persons had been in a hurry. Although the applicant immediately informed them that the men in Priora car had abducted his brother, the policemen disregarded that information and continued checking other vehicles. Despite being equipped with portable radio sets and mobile phones, they took no steps to alert other policemen of the abduction or ask them to stop the abductors’ car.
13. The applicant has had no news of Mr Rustam Kagirov since his abduction.
(b) Information submitted by the Government
14. The Government did not contest the basis of the applicant’s account concerning the circumstances of the abduction. At the same time they pointed out that the abduction of Mr Rustam Kagirov had taken place during “peacetime” in the absence of curfew and that unidentified armed culprits driving a civilian vehicle had been responsible for the incident. They stressed that in his initial complaints of the abduction lodged with the authorities between 18 and 21 May 2009 the applicant was not consistent in the description of its circumstances by submitting that the abduction had taken place from home, then that it had taken place from the street and then that Mr Rustam Kagirov had gone out and had not returned. They further stated that the applicant’s allegation of the increased security measures and presence of additional roadblocks on the motorway on the date of the abduction was based only on his own statement and that of Mr Kh.Kh. and that it was not unsubstantiated by any other evidence such as media reports or official announcements of enhanced security measures.
B. Official investigation into the abduction
1. As regards the case file
15. The Government were invited to provide an entire copy of the case file opened into the abduction of Mr Rustam Kagirov. In response to the Court’s enquiry of 9 July 2009 they provided copies of partial contents of case file no. 74024 reflecting “only the period of investigation between 18 May and 7 December 2009”. In reply to the second request for the entire contents of the case file of 19 September 2013, the Government furnished a copy of the contents reflecting “the period of the investigation after December 2009” on 1133 pages. The relevant information can be summarised as follows.
2. Main steps taken by the authorities
16. On 18 May 2009 the applicant complained of Mr Rustam Kagirov’s abduction to the Achkhoy-Martan District Prosecutor’s Office (the district prosecutor’s office) stating, amongst other things, the following:
“At about 6 p.m. on 17 May 2009 a group of armed men in camouflage uniforms stormed into our house. Threatening us with firearms, they had taken away my brother, Rustam Kagirov ...
These men did not introduce themselves and behaved rudely. They forced my brother into a black Priora model vehicle with registration number 720 and drove away with him. His whereabouts remain unknown to us ...”
17. On 19 May 2009 the applicant’s other brother, Mr Baudin Kagirov, complained of the abduction to the Chechnya Prosecutor. He provided detailed description of the circumstances of the abduction similar to the applicant’s submission to the Court. In addition, he provided the investigators with the registration number of the abductors’ vehicle and the address of its official owner. He did not mention the abductors’ alleged passage through the roadblock.
18. On 20 May 2009 the applicant complained to the Achkhoy-Martan District Department of the Interior (the ROVD) of Mr Rustam Kagirov’s disappearance stating, amongst other things, the following:
“I request that measures be taken to establish the whereabouts of my brother Rustam Kagirov, who on 17 May 2009 left home [situated] next to Zakan-Yurt administration and did not return ...”
19. On the same date, 20 May 2009, a group of the ROVD police officers arrived at the applicant’s house and questioned the applicant and his relatives (see paragraphs 59-61 below).
20. On the same date, 20 May 2009, the investigators examined the crime scene. No evidence was collected.
21. On 19 June 2009 the Achkhoy-Martan Inter-District Investigations Department of the Prosecutor’s Office of the Russian Federation in the Chechen Republic (the investigations department) opened an investigation into the abduction of Mr Rustam Kagirov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case was given the number 74024.
22. On 6 July 2009 the applicant was granted victim status in the criminal case and questioned again. The applicant reiterated his previously given statement (see paragraph 59 below).
23. On 7 July 2009 in reply to the applicant’s detailed request on the progress of the investigation, the investigators informed him that they had neither yet interviewed the traffic policemen from the Zakan-Yurt roadblock nor identified the owner of the abductors’ vehicle.
24. On 31 July 2009 the investigators requested the Chechnya traffic police to provide information on the owner of the Priora vehicle and the identities of the traffic police officers who had manned roadblocks on the Kavkaz (Rostov-Baku) motorway on the date of the abduction:
“... you are requested to provide information concerning the traffic policemen who were on-duty on the motorway Rostov-Baku between Zakan-Yurt and Grozny at about 6 p.m. on 17 May 2009;
... information concerning the owner of the vehicle with registration number A720 AT 95/RUS ...”
25. On an unspecified date in August 2009 the Chechnya traffic police replied to the investigators that on the date of the abduction the traffic policemen had only manned the permanent checkpoint at the entrance to Grozny:
“... On 17 May 2009, at about 6 p.m., on the motorway Kavkaz between Zakan-Yurt and Grozny, no roadblocks of the traffic police were put in place, save for the regular stationary checkpoint of the traffic police “Chernorechye” at the crossroads of the motorway Kavkaz and the entrance to Grozny ...”
The letter further provided information concerning the owner of the Priora car, Mr S.Kh. and his address.
26. On 27 August 2009, the investigators again examined the crime scene. No evidence was collected.
27. On 30 August 2009 the deputy head of the Chechnya Investigations Department instructed the investigators to take a number of necessary steps, including the following:
“... 4. To identify and establish the whereabouts and question the traffic police officers who had been on-duty at about 6 p.m. on 17 May 2009 at the roadblock on the Rostov-Baku motorway between Zakan-Yurt and Grozny and find out whether they had stopped black Priora car with registration number A 720 AT 95; to show them for identification Rustam Kagirov’s photograph and establish who had been in the vehicle, how they had been dressed, whether they had been armed and whether they had shown service identification documents, and if so, to which power structure they had belonged; ...
9. To take steps to establish whether on 17 May 2009 a special operation was carried out in Zakan-Yurt to detain Rustam Kagirov and if so, to take all measures to identify the servicemen who had been in charge of the operation and who had detained Rustam Kagirov;
10. To take all possible measures to verify whether Rustam Kagirov was detained by servicemen from the Shatoy ROVD and taken to their premises ...”
28. On 12 November 2009 the investigators requested that the ROVD identified the police officers who had manned the Rostov-Baku motorway on 17 May 2009. They also requested that the police verified whether a Priora vehicle, with registration number A 720 T 95 RUS, was registered as belonging to local law enforcement bodies, including the police and the Federal Security Service. From the documents submitted it follows that no reply was given to this request.
29. On 17 November 2009 the Chechnya Ministry of the Interior informed the investigators that they had compiled photo fit pictures of the three perpetrators of Mr Rustam Kagirov’s abduction.
30. On 18 November 2009 the investigators requested that the ROVD put up copies of the photo fits in public places.
31. Between July and November 2009 the investigators requested a number of State authorities and detention facilities to inform them whether they had arrested or detained Mr Rustam Kagirov. No information in the positive was received.
32. According to an information statement issued by the ROVD on an unspecified date in 2009, Mr Rustam Kagirov had participated in illegal armed groups together with another individual, Mr R.B., which was proven by a photograph of those two men together. The document also stated that “according to recent operational information, at present, having joined an illegal armed group led by Mr I.A., he [Mr Rustam Kagirov] is [hiding] in the mountains.” The sources of that information were not specified.
33. On 19 November 2009 the investigation of the criminal case was suspended for failure to identify the perpetrators. It is unclear whether the applicant was informed thereof.
34. On 23 November 2009 the head of the investigations department ordered that the investigation was resumed and a number of steps were taken. In particular, his written instructions contained the following orders:
“... 3. To question the applicant and find out the reasons why in his complaint of the abduction of 18 May 2009 to the Achkhoy-Martan district prosecutor’s office he stated that Rustam Kagirov had been abducted from home whereas in the complaint lodged with the Achkhoy-Martan ROVD of 20 May 2009 he stated that Rustam Kagirov had been abducted from the street ......
... to question ROVD officers concerning the source of the information of Rustam Kagirov’s alleged membership in illegal armed groups;
... to examine the Priora vehicle with registration number A 720 T 95 and question its owner Mr M.T. in order to clarify whether he was implicated in the abduction;
... 12. To verify the information concerning Rustam Kagirov’s apprehension by the policemen from the Shatoy district department of the interior and his subsequent detention on the premises of that police station. To question the employees of its temporary detention centre who were on-duty between 17 and 20 May 2009 and examine the centre’s registration log of detainees ...
The above investigative steps are to be taken by 30 November 2009 ...”
35. On 7 December 2009 the investigation was resumed.
36. On 28 December 2009, the investigators examined Mr M.T.’s Priora car. No evidence was collected.
37. On 30 December 2009 the investigators issued a decision concerning the seizure of the detainees’ registration log of the Shatoy ROVD owing to “the information concerning the involvement of its employees in Mr Rustam Kagirov’s abduction and his detention on the ROVD premises...”
38. On 30 December 2009 the Shatoy ROVD informed the investigators that their police station did not have either a temporary detention unit or any other types of detention cells.
39. On the same date, 30 December 2009, the investigators examined the “registration log of persons taken to the temporary detention unit of the Shatoy ROVD (путевой журнал конвоирования задержанных лиц ИВС) between 3 May 2008 and 30 December 2009”. Mr Rustam Kagirov’s name was not indicated therein.
40. On 11 January 2010 the ROVD informed the investigators that Mr Rustam Kagirov had participated in the illegal armed group of Mr I.Us. and that as a result of operational search measures it was established that he had not been taken to or detained in Shatoy ROVD.
41. On 11 January 2010 the investigation was again suspended and the applicant was informed thereof.
42. On 5 February 2010 the deputy head of the Chechnya Investigations Department ordered that the investigation be resumed for the investigators’ failure to take necessary steps. He ordered that, amongst others, the following steps were taken:
“... establishing the identity and the whereabouts of Mr Z.A. who had been sentenced by the Achkhoy-Martan district court to imprisonment and was serving the sentence and question him about the circumstances of his encounter with Rustam Kagirov [in the mountains] ...”
43. On 5 February 2010 the investigation was resumed.
44. On 9 February 2010 the Chechnya Department of the Federal Security Service informed the investigators that on 13 November 2009 as a result of a special operation, the illegal armed group of Mr I.Us. had been eliminated by direct hit of a high precision missile. The fragments of up to nine bodies found at the place of the impact were not susceptible to identification other than by the comparative analysis of the suspects’ DNA and that of their relatives.
45. On 16 February 2010 Mr Z.A. was questioned (see paragraph 72 below) and participated in the photo-identification of Mr Rustam Kagirov. He did not identify Mr Rustam Kagirov as a member of the illegal armed group.
46. On 9 March 2010 the investigation was suspended. The applicant was informed thereof.
47. On 16 March 2010 the investigation was resumed.
48. On 16 April 2010 the investigation was suspended again. The applicant was informed thereof.
49. On an unspecified date in April or May 2010 the investigation was resumed.
50. On 25 May 2010 the investigators decided to take the blood sample of the applicant’s mother Ms Z.K. for comparative examination of her DNA with the fragments of the bodies found at the place of the elimination of the illegal armed group of Mr I.Us. (see paragraph 44 above).
51. On 26 May 2010 the investigation was suspended. The applicant was informed thereof.
52. On 3 November 2010 the experts of the Forensics Bureau of the Stavropol Region issued their evaluation report for the investigators. According to their findings, the mother of Mr Rustam Kagirov Ms Z.K. was not related to the fragments of the bod(y)ies found (see paragraphs 44 and 50 above).
53. On various dates between May and November 2010 the investigators requested information concerning the phone calls made from Mr Rustam Kagirov’s mobile telephone and their locations. From the documents submitted it follows that this information did not yield tangible results.
54. On 20 February 2013 the investigation was resumed.
55. On 20 February 2013 Ms Z.K. was informed of the results of the expert evaluation.
56. On 20 February 2013 the investigators forwarded information requests to various law enforcement and military agencies asking to inform whether any special operations had been carried out by their agents against Mr Rustam Kagirov in May 2009 in Zakan-Yurt. No replies were given to these requests.
57. On 21 February 2013 the investigation was again suspended. The applicant was informed thereof.
58. The investigation in case no. 74024 is still pending.
3. Main witness statements taken by the investigation
59. On 20 May 2009 the policemen questioned the applicant and Mr Kh.Kh. whose statements concerning the abduction were similar to the applicant’s account submitted to the Court. Neither the applicant nor Mr Kh.Kh. informed the investigators about the abductors’ unimpeded passage through the police roadblock on the motorway. Both witnesses provided detailed description of the abductors’ appearance and the registration number of their vehicle.
60. On 20 May 2009 the investigators also questioned the applicant’s other brother, Mr Adam Kagirov, whose statement was similar to that of the applicant. However, the witness added that the abductors’ car had been stopped by the police at the roadblock and that the policemen had not checked the abductors’ identity documents and had let the vehicle pass as the latter told them that they had been police officers.
61. On the same date, 20 May 2009, the policemen also questioned two of the applicant’s relatives, Ms Z.Kh. and Ms Z.K., whose statements were similar to that of the applicant provided on 20 May 2009.
62. On 22 May 2009 the police again questioned Mr Kh.Kh. whose statement concerning the abduction was similar to the applicant’s account submitted to the Court. In addition, the witness stated that he and the applicant had arrived at the roadblock during their pursuit of the abductors and had asked the police officers why the latter had not stopped the abductors’ car. The officers had explained that the persons in that vehicle had been officers of a law enforcement agency in a rush and that they had not been able to tell them to which law enforcement agency the persons had belonged. According to the officers, they had not had enough time to see who had been in the vehicle. The witness provided a detailed description of physical appearance of two of the abductors.
63. On the same date, 22 May 2009, the police again questioned the applicant’s brothers, Mr Adam Kagirov and then Mr Baudin Kagirov, whose statements were similar to the applicant’s account submitted to the Court. In addition, Mr Baudin Kagirov stated that after his brother’s abduction he had obtained access to the traffic police database and found out that registration number A 720 AT 95 of the abductors’ vehicle belonged to Mr S. Kh. The witness provided the investigators with the address of Mr S. Kh.
64. On 6 July 2009 the investigators again questioned Mr Kh.Kh. who reiterated his previously given statements.
65. On various dates between August and November 2009 the investigators again questioned the applicant, Mr Kh.Kh., Mr Adam Kagirov and Mr Baudin Kagirov all of whom reiterated their previously given statements (see paragraphs 59 and 62 above) .
66. Between July and November 2009 the investigators questioned fifteen of Mr Rustam Kagirov’s neighbours and relatives, as well as owners of the Priora vehicle. The witnesses had not witnessed the abduction but had learnt of it from the applicant and his brothers. In addition, when questioned, Mr S.Kh., stated that in 2006 he had sold a Priora vehicle with the registration number A 720 AT 95 to Mr M.T. When questioned on 12 September 2009 Mr M.T. confirmed the vehicle’s purchase in 2006 but denied having any knowledge of the abduction.
67. On various dates in December 2009 the investigators questioned several of Mr Rustam Kagirov’s former classmates and employees of the local administration next to which the abduction took place. None of the questioned persons either witnessed the abduction or had any pertinent information about it.
68. On 28 December 2009 the investigators again questioned Mr M.T. who reiterated his previously given statement concerning the Priora vehicle and its registration number and stressed that he did not know anyone from either Zakan-Yurt or the Achkhoy-Martan district.
69. On 30 December 2009 the investigators questioned officers of the Shatoy ROVD Mr U.A. and Mr A.I. both of whom stated that their ROVD did not have detention cells owing to repair works in the building and that the detainees were taken to the temporary detention facility of the Chechnya Ministry of the Interior. They did not recall seeing Mr Rustam Kagirov on the premises of their ROVD.
70. On 31 December 2009 the investigators again questioned the applicant who reiterated his previously given statements and added that the difference in the abduction complaints lodged with the prosecutor’s office and the police was due to the fact that the complaint to the former had been typed by an employee of that office and that he had only signed the document without reading its contents in detail. The applicant stressed that his brother had been abducted next to the administration building which was situated close to his house.
71. On 31 December 2009 the investigators questioned the operational search officer from the Achkhoy-Martan ROVD Mr Z.B. who stated he had been responsible for the search for Mr Rustam Kagirov. He further stated that one of the detainees taken to their police station in October 2009, Mr Z.A., had told him that he had seen Mr Rustam Kagirov next to Roshni-Chu in the Urus-Martan district in the illegal armed group of Mr I.Us. The officer further stated that according to operational information, the abduction of Mr Rustam Kagirov had been staged by his relatives to avoid his prosecution for the membership in illegal armed groups. According to the officer, Mr Z.A. was serving a prison sentence.
72. On 16 February 2010 the investigators questioned Mr Z.A. about his membership in the illegal armed group of Mr I.Us. The witness stated that he had spent fourteen days in the autumn of 2009 with the group. He did not see Mr Rustam Kagirov there.
73. On 3 March 2010 the investigators again questioned the operational search officer from the Achkhoy-Martan ROVD Mr Z.B. who stated that he had received information concerning Mr Z.A.’s meeting with Mr Rustam Kagirov in the illegal armed group (see paragraph 71 above) from the head of criminal police division of the Achkhoy-Martan ROVD officer Mr A.M.
74. On 3 March 2010 the investigators questioned Mr A.M. who stated that after his arrest Mr Z.A. had identified Mr Rustam Kagirov by photograph as one of the members of the illegal armed group whom he had met in the autumn of 2009.
75. On various dates in March and April 2010 the investigators questioned forty-four persons all of whom stated that at some point in the past they had either sold or purchased a Priora vehicle. None of them had any information pertaining to the abduction.
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE
76. For the relevant domestic law and practice as well as international and domestic reports on disappearances in Chechnya and Ingushetia see Turluyeva v. Russia, no. 63638/09, §§ 56-74, 20 June 2013.
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
A. The parties’ submissions
77. The Government contended that the application should be declared inadmissible for failure to exhaust domestic remedies, as the investigation into the abduction of Mr Rustam Kagirov was still in progress. They argued that within the framework of the criminal proceedings the applicant, who had been granted victim status in the criminal case, could have complained about the acts or omission of the investigators to domestic courts and that he could have lodged a civil claim for compensation.
78. The applicant contested the Government’s objection. He argued that the only effective remedy in this case, that is the criminal investigation, had proved ineffective.
B. The Court’s assessment
79. The Court notes that in its decision of 27 August 2013 it considered that the question of the exhaustion of domestic remedies was closely linked to the substance of the applicant’s complaints and should be joined to the merits.
80. The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 65, 27 June 2006).
81. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.
82. As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others v. Russia, no. 60272/00, § 77, 12 October 2006). In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies. The preliminary objection in this regard is thus dismissed.
83. As regards criminal law remedies, the Court observes that the applicant complained to the law enforcement authorities after the abduction of Mr Rustam Kagirov and that an investigation has been pending since 19 June 2009. The applicant and the Government dispute the effectiveness of the investigation.
84. The Court considers that the Government’s preliminary objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicant’s complaints under Article 2. Thus, it considers that these matters fall to be examined below under the relevant substantive provisions of the Convention.
II. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS
A. The parties’ submissions
85. The applicant submitted that it was beyond reasonable doubt that his brother Mr Rustam Kagirov had been abducted by State agents and deprived of his life. In particular, he pointed out that the abduction took place during the increased traffic security measures due to the passage of the Chechen President.
86. The Government submitted that Mr Rustam Kagirov had been abducted by unidentified armed persons in black uniforms without any insignia who had arrived in an ordinary civilian vehicle and spoken Chechen. The Government pointed out that the outfits and firearms as well as the vehicle could have used by any criminals and that the abduction could have been staged by members of illegal armed groups. Mr Rustam Kagirov’s name had not been on the authorities’ wanted list, his body was not found and the ongoing investigation did not establish that he had been detained on State premises. They further pointed out that the investigation had not obtained any evidence of the allegedly increased security measures on the motorway on the date of the abduction; the applicant’s allegation of the abductors’ passage through the roadblock was substantiated only by his own statement and that of Mr Kh.Kh. and not by any other piece of evidence. Referring, inter alia, to the Court’s findings in the cases of Shafiyeva v. Russia, no. 49379/09, 3 May 2012, and Tovsultanova v. Russia, no. 26974/06, 17 June 2010, the Government asserted that the applicant failed to make a prima facie case of his brother’s abduction by State agents.
B. The Court’s assessment
87. The 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 violations of fundamental rights (for a recent summary of these, see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012).
88. The Court has found the Russian State authorities responsible for a number of disappearances of civilians perpetrated in the Chechen Republic even in the absence of final conclusions from the domestic investigation (see, among recent examples concerning abductions perpetrated in 2009 Askhabova v. Russia, no. 54765/09, § 135, 18 April 2013 and Turluyeva, cited above, § 82, and the ones perpetrated prior to 2009 see Ibragimov and Others v. Russia, no. 34561/03, § 82, 29 May 2008; Abdulkadyrova and Others v. Russia, no. 27180/03, § 120, 8 January 2009; and Kosumova and Others v. Russia, no. 27441/07, § 67, 7 June 2011). Adjudicating on those cases the Court bore in mind the difficulties associated with obtaining the evidence, and the fact that, often, little evidence could be submitted by the applicants in support of their applications. The prima facie threshold was reached primarily on the basis of witness statements, including the applicants’ submissions to the Court and to the domestic authorities, and other evidence attesting to the presence of State agents in the area concerned at the relevant time. The Court relied on references to military vehicles and equipment; the unhindered passage of the abductors through military roadblocks, in particular during curfew hours; conduct typical of security operations, such as the cordoning off of areas, checking of identity documents, searches of premises, questioning of residents and communication within a chain of command; and other relevant information about special operations, such as media and NGO reports. Given the presence of those elements, it concluded that the areas in question had been within the exclusive control of the State authorities in view of the military or security operations being conducted there and the presence of servicemen. If the Government failed to rebut this presumption, that would entail a violation of Article 2 in its substantive part. Conversely, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Tovsultanova, cited above, §§ 77-81; Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011; and Shafiyeva, cited above, § 71).
89. Turning to the circumstances of the present case, the Court notes that no assessment of evidence was carried out by domestic courts. Therefore, it is for the Court to assess the facts of the case as presented by the parties.
90. It should be noted at the outset that on the one hand, the applicant and Mr Kh.Kh. claimed before the Court that the abductors had driven through the roadblock unimpeded as they had belonged to a law-enforcement agency. They informed the investigators thereof for the first time on 20 May 2009 and maintained that submission throughout the proceedings. On the other hand, the Government stated that according to the information obtained by the investigation, the allegation of the abductors’ passage through the roadblock was based only on the statements of the applicant and of one other person and not on any other evidence (see paragraph 86 above) and that moreover, the investigators had established that no roadblocks, other than the only stationary checkpoint at the entrance to Grozny, had been in place on the motorway on the date of the abduction (see paragraph 25 above). The Government stressed that the applicant and his relatives had not mentioned the alleged roadblock passage in their initial complaints of the abduction lodged on 18, 19 and 20 May 2009 (see paragraphs 16-18 above).
91. Further, the Court notes that the abduction took place in broad daylight and in the presence of at least two witnesses. However, the Court observes that the documents submitted did not contain any features, such as the descriptions of insignias, special vehicles or other peculiarities such as a chain of command, or the use of technical equipment or specialised weapons allowing for a reasonable presumption that the perpetrators belonged to State authorities. None of witnesses to the incident pointed out any features indicating that the culprits belonged to State authorities (see, mutatis mutandis, Suleymanov v. Russia, no. 32501/11, §§ 133-34, 22 January 2013, and Shafiyeva, cited above, § 71). It is also noteworthy that no curfew was in force at the time and no other restrictions were imposed on driving around in civilian vehicles. These considerations along with the fact that the applicant and his relatives were inconsistent in their description of the circumstances of the abduction in their initial complaints of the incident, the fact that they did not mention therein the abductors’ alleged passage through the roadblock (see paragraphs 16-18 above) and that it remained unclear whether the roadblock had indeed been put in place on that date (see paragraph 25 above) - all these factors do not enable the Court to conclude that only State agents or persons acting with their consent could be the sole possible perpetrators of the abduction or that the domestic authorities had been aware of the risk to Mr Rustam Kagirov’s life.
92. Therefore, it has not been established to the required standard of proof - “beyond reasonable doubt” - that State agents were implicated in Rustam Kagirov’s disappearance or alleged death; nor does the Court consider that the burden of proof can be entirely shifted to the Government.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
93. The applicant complained under Article 2 of the Convention that his brother Mr Rustam Kagirov had been abducted and deprived of his life by State agents and that the domestic authorities failed to take measures to safeguard Mr Rustam Kagirov’s right to life. He further alleged that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. The parties’ submissions
94. The Government contended that the domestic investigation had obtained no evidence that Mr Rustam Kagirov was dead or that any State agents had been involved in his disappearance. They denied the allegation of the failure to protect the right to life as the domestic authorities had no information of a known risk to the life of Mr Rustam Kagirov and that he had not been in the hands of State agents during or after the abduction. The Government claimed that the investigation into the abduction met the Convention requirement of effectiveness. They stressed that the applicant failed to exhaust domestic remedies as he had been granted victim status in the criminal case and therefore could have appealed the investigators’ decisions in domestic courts.
95. The applicant alleged that Mr Rustam Kagirov had been abducted by State servicemen and should be presumed dead in the absence of any reliable news of him for several years. Referring to the case of Turluyeva, cited above, he further claimed that the policemen at the roadblock failed to take measures to protect his brother’s right to life. He also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court’s case-law on Article 2 of the Convention.
B. The Court’s assessment
1. The alleged violation of the right to life of Mr Rustam Kagirov
96. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, Series A no. 324, and Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001-VII (extracts)).
97. As noted above, the domestic investigation failed to produce any tangible results as to the identities of the persons responsible for the alleged abduction of Mr Rustam Kagirov. The applicant has not submitted persuasive evidence to support his allegations that State agents were the perpetrators of the abduction. The Court has already found above that, in the absence of unequivocal evidence, it is unable to find that security forces were implicated in the disappearance of the applicant’s brother (see paragraph 92 above) or that that he had been seen in the hands of State agents or that the authorities were aware at the time of the risk to his life (see paragraphs 16-18 and 59 above, and, by contrast, Turluyeva, cited above, §§ 82-83). Neither has it established “beyond reasonable doubt” that Mr Rustam Kagirov was deprived of his life by State agents.
98. In such circumstances the Court finds no violation of the substantive limb of Article 2 of the Convention.
2. The alleged inadequacy of the investigation into the abduction
(a) General principles
99. The obligation to protect the right to life under Article 2 of the Convention requires that there should be some form of effective official investigation (see McCann and Others, cited above, § 161). It is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Ögur v. Turkey [GC], no. 21954/93, §§ 91-92).
100. The authorities must act of their own motion once the matter has come to their attention; they cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see, for example, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII).
101. In this context, there must also be an implicit requirement of promptness and reasonable expedition (see Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87, 106, ECHR 1999-IV). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation of a particular situation. However, a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.
102. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible (Ögur, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident (see, for example, Tanrikulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV). Any deficiency in the investigation which undermines its ability to establish the identity of the person responsible will risk falling below this standard.
103. In addition, there must be a sufficient element of public scrutiny of the investigation or its results to ensure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see McKerr v. the United Kingdom, no. 28883/95, § 115, ECHR 2001-III).
(b) Application of the principles to the present case
104. In the present case, the abduction of Mr Rustam Kagirov was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.
105. The Court notes that the applicant and his relatives reported the alleged abduction to the authorities shortly after the incident (see paragraphs 16-18 above). In response to their complaints, the police interviewed the witnesses who had provided them with detailed information on the registration number of the abductors’ vehicle and their physical appearance (see paragraphs 59-63 above). In spite of the very serious nature of the allegation of the abduction and the detailed information, the authorities opened the criminal investigation only a month later, on 19 June 2009 (see paragraph 21 above). Further, having obtained witness statements concerning the alleged passage of the abductors through the roadblock on the motorway, the investigators took the first step to verify it almost a month and half after the abduction (see paragraph 24 above). A month later, in the end of August 2009, the supervising body criticised the pace of the investigation and instructed the investigators to take basic steps to clarify the circumstances of the abduction (see paragraph 27 above).
106. From the documents submitted, it transpires that after the initiation of the criminal investigation on 19 June 2009 the authorities took very few meaningful steps and on 19 November 2009 they suspended the proceedings. The decision to suspend the investigation of such a life-threatening crime was taken in a situation where no urgent steps had been taken to verify the important information received at the very beginning of the investigation (see, for example, paragraphs 17 and 28). It is noteworthy, that the applicant directed the investigators attention to the information concerning the culprits once again in July 2009 (see paragraph 23 above), but only three months later did they try to verify it (see paragraph 28 above). The Court observes that in such a situation the investigators should not have left the responsibility for the taking of any investigatory procedures, such as obtaining important evidence, to the next of kin (see, for example, mutatis mutandis, İlhan, cited above, § 63). Furthermore, from the documents submitted it follows that in November 2009 the head of the investigations department criticised the investigators yet again for failure to take the most important investigative steps and reiterated his orders. Those orders were carried out either with a significant delay or not at all (see paragraphs 27, 34, 37 and 39 above). Therefore, it does not appear that the investigators took all reasonable steps to secure the evidence and to verify the witnesses’ allegations concerning possible involvement of State agents in the abduction (see paragraphs 60 and 62 above). In the absence of any explanations for such a failure, the Court concludes that the authorities failed to demonstrate diligence and promptness in dealing with such a serious matter (see Öneryıldız v. Turkey [GC], no. 48939/99, § 94, ECHR 2004-XII).
107. As for the overall conduct of the proceedings, the Court notes that after having commenced on 19 June 2009, the investigation was suspended on at least six occasions (see paragraphs 33, 41, 46, 48, 51 and 57 above). Each time, the investigation was stayed without the necessary steps having been taken and each time it was resumed upon the supervisors’ criticism. These premature suspensions in the situation when vital steps had not been taken undermined the investigators’ ability to identify and punish the perpetrators (see Ögur, cited above, § 88).
108. Turning to the requirement of public scrutiny, the Court notes that, within three weeks after the initiation of the proceedings on 19 June 2009, the applicant was granted victim status and questioned. From the documents submitted it follows that he was informed of the suspensions in the criminal proceedings. According to the Government, the applicant should have sought judicial review of the decisions of the investigating authorities as part of the exhaustion of domestic remedies. The Court accepts that, in principle, this remedy may offer a substantial safeguard against the arbitrary exercise of power by an investigating authority, given a court’s power to annul a refusal to institute criminal proceedings and indicate defects to be addressed.
109. The Court, however, has strong doubts as to whether this remedy would have been effective in the circumstances of the present case for the following reasons. In the situation of the investigation of such a serious crime as abduction, it would be reasonable to presume that the authorities took all possible measures of their own motion to establish the whereabouts of the abducted man and identify the culprits. Assuming that the applicant’s request on the progress of the proceedings and the follow up on the evidence submitted to the investigation (see paragraph 23 above), it would have been sensible to presume that the necessary steps would be taken. However, in the end of November 2009 the investigators again suspended the proceedings without having taken the remedial measures and without informing the applicant of their failure to take those steps (see paragraphs 28 and 33 above).
110. In such a situation, even if the applicant were to appeal against the investigators’ actions at a later date, taking into account that the proceedings were ongoing for several months, it is highly questionable whether his appeal would have been able to redress the defects in the investigation by bringing them to the attention of a domestic court. In this connection, the Court reiterates that the authorities cannot leave it to the initiative of the next-of-kin to request particular lines of inquiry or investigative procedures (see, mutatis mutandis, İlhan, cited above, § 63): they must show their commitment to take all steps of their own motion and to demonstrate that they have taken the reasonable steps available to them to secure the evidence. Any deficiency in the investigation which undermines its ability to establish the identity of the person responsible will risk falling below this standard (see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII, and Tanrikulu, cited above, § 109).
111. However, the materials in the Court’s possession reveal that crucial investigative steps which should have been taken as soon as the relevant information had been obtained were never taken in spite of the supervisors direct orders to this end (see paragraphs 27, 28 and 34 above). This failure to act in a timely manner led to unnecessary protractions and a loss of time because steps which could have yielded results were not taken. Therefore, it is highly doubtful that any appeals by the applicant against the investigators’ decisions would have had any prospects of spurring the progress of the investigation or effectively influencing its conduct. Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances and dismisses their objection as regards the applicant’s failure to exhaust domestic remedies within the context of the criminal investigation.
112. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Mr Rustam Kagirov, in breach of Article 2 in its procedural aspect.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
113. The applicant relied on Article 3 of the Convention, submitting that as a result of his brother’s disappearance and the State’s failure to investigate it properly, he had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
114. The Government disagreed with these allegations.
115. The applicant maintained his submissions.
B. The Court’s assessment
116. Referring to its settled case-law, the Court reiterates that, where a person has been abducted by State security forces and has subsequently disappeared, his or her relatives can claim to be victims of treatment contrary to Article 3 of the Convention on account of the mental distress caused by the “disappearance” of their family member and the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Kurt v. Turkey, 25 May 1998, §§ 130-34, Reports 1998-III, and Timurtaş v. Turkey, no. 23531/94, §§ 96-98, ECHR 2000-VI).
117. Turning to the circumstances of the present case, the Court notes that the applicant is the brother of Mr Rustam Kagirov. Accordingly, it has no doubt that he has indeed suffered from serious emotional distress following the disappearance of his brother.
118. The Court notes that it has already found violations of Article 3 of the Convention in respect of relatives of missing persons in a series of cases concerning the phenomenon of “disappearances” in the Chechen Republic (see, for example, Luluyev and Others v. Russia, no. 69480/01, §§ 117-18, ECHR 2006-XIII (extracts); Khamila Isayeva v. Russia, no. 6846/02, §§ 143-45, 15 November 2007; and Kukayev v. Russia, no. 29361/02, §§ 107-10, 15 November 2007). It is noteworthy, however, that in those cases the State was found to be responsible for the disappearance of the applicants’ relatives. In the present case, by contrast, it has not been established to the required standard of proof “beyond reasonable doubt” that the State authorities were implicated in Mr Rustam Kagirov’s disappearance (see paragraph 92 above). In these circumstances the Court considers that the case is distinguishable from those mentioned above and, therefore, concludes that the State cannot be held responsible for the applicant’s mental distress caused by the commission of the crime itself.
119. Furthermore, in the absence of a finding of State responsibility for the disappearance of Mr Rustam Kagirov, the Court is not persuaded that the investigating authorities’ conduct, albeit negligent to the extent that it has breached Article 2 in its procedural aspect, could have in itself caused the applicant mental distress in excess of the minimum level of severity which is necessary in order to consider treatment as falling within the scope of Article 3 (see, for a similar situation, Khumaydov and Khumaydov v. Russia, no. 13862/05, §§ 130-31, 28 May 2009, and Zakriyeva and Others v. Russia, no. 20583/04, §§ 97-98, 8 January 2009).
120. The Court therefore finds no violation of Article 3 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
121. The applicant contended that Mr Rustam Kagirov had been detained in violation of the guarantees contained in Article 5 of the Convention, which reads, in so far as relevant as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
A. The parties’ submissions
122. The Government asserted that no evidence had been obtained by the investigators to confirm that Mr Rustam Kagirov had been deprived of his liberty by State agents in breach of the guarantees set out in Article 5 of the Convention.
123. The applicant reiterated the complaint.
B. The Court’s assessment
124. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others, cited above, § 122).
125. Nevertheless, the Court has not found it established “beyond reasonable doubt” that Mr Rustam Kagirov was arrested by State agents (see paragraph 92 above). Nor is there in such circumstances any basis to presume that he was ever placed in unacknowledged detention under their control (see Tovsultanova, cited above, § 111, and Shafiyeva, cited above, § 110).
126. The Court, therefore, finds no violation of Article 5 of the Convention on account of unacknowledged detention of Mr Rustam Kagirov.
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
127. The applicant complained that he had been deprived of effective remedies in respect of the alleged violations, contrary to Article 13 of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties’ submissions
128. The Government contended that the applicant had had effective remedies at his disposal as required by Article 13 of the Convention, and that the authorities had not prevented him from using them. He had had an opportunity to challenge any acts or omissions on the part of the investigating authorities in court or to bring civil claims for damages. In sum, the Government submitted that there had been no violation of Article 13.
129. The applicant reiterated the complaint.
B. The Court’s assessment
130. The Court observes that the complaint made by the applicant under this Article has already been examined in the context of Article 2 of the Convention. Having regard to the finding of a violation of Article 2 in its procedural aspect (see paragraph 112 above), the Court considers that, whilst the complaint under Article 13 taken in conjunction with Article 2 is admissible, there is no need for a separate examination of this complaint on its merits (see, Shaipova and Others v. Russia, no. 10796/04, § 124, 6 November 2008 and Shafiyeva, cited above, § 114 ).
VII. ALLEGED VIOLATION OF ARTICLE 38 OF THE CONVENTION
131. The applicant submitted that the Government’s refusal to disclose the contents of the investigation file on the abduction of Mr Rustam Kagirov would give rise to the violation of Article 38 of the Convention, which reads:
“The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.”
132. The Court reiterates that it is of utmost importance for the effective operation of the system of individual petition instituted by Article 34 that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu, cited above, § 70, and Velikova v. Bulgaria, no. 41488/98, § 77, ECHR 2000-VI). This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. A failure on a Government’s part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicants’ allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 of the Convention (see Medova v. Russia, no. 25385/04, § 76, 15 January 2009, and Timurtaş, cited above, §§ 66 and 70).
133. Turning to the present case, the Court notes that upon the Court’s second request for the entire contents of the investigation file Government produced a copy of its contents on 1133 pages reflecting the investigative steps taken by the domestic authorities. The Court also notes the Government’s submission concerning the limited number of documents furnished upon the Court’s first request to this end (see paragraph 15 above).
134. Having regard to the above the Court finds that the information furnished by the Government in the present case was sufficient to examine the application. There has accordingly been no failure to comply with Article 38 of the Convention.
VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
135. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
136. The applicant did not claim pecuniary damage. As for non-pecuniary damage, he left the determination of the amount of the compensation to the Court.
137. The Government submitted that finding a violation of the Convention would be adequate just satisfaction in the applicant’s case.
138. The Court has found a violation of the procedural aspect of Article 2 of the Convention on account of the ineffective investigation into the disapperance of the applicant’s brother. The Court thus accepts that he has suffered non-pecuniary damage. It awards the applicant 20,000 euros (EUR) plus any tax that may be chargeable thereon.
B. Costs and expenses
139. The applicant was represented by EHRAC/Memorial. His aggregate claim in respect of costs and expenses related to the legal representation amounted to 1,322 pounds sterling (GBP) (approximately 1,700 euros (EUR)) with the following breakdown of costs:
a) GBP 450 for three hours of legal work by United Kingdom-based lawyer Mr William Bowring at a rate of GBP 150 per hour;
b) GBP 487 for translation costs; and
c) GBP 385 for administrative costs and expenses.
The applicant submitted copies of invoices with breakdowns of the costs incurred.
140. The Government disputed the reasonableness of and justification for the amounts claimed under this heading. In particular, they stated that the documents submitted by the applicant did not demonstrate “involvement of any English-speaking lawyer or organisation located in the United Kingdom” and invited the Court to reject this part of the claim as irrelevant.
141. The Court has to establish first whether the costs and expenses indicated by the applicant’s representatives were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220).
142. Having regard to the details of the information submitted by the applicant, the Court is satisfied that it reflects the necessary expenses actually incurred by the applicant’s representatives.
143. However, the Court notes that in respect of most of the alleged violations, the Court has found no breach of the Convention. Thus, having regard to this, and to the details of the claims submitted by the applicant, the Court awards him the amount of EUR 1,000 together with any value-added tax that may be chargeable to the applicant, the net award to be paid into the representatives’ bank account in the UK, as identified by the applicant.
C. Default interest
144. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Dismisses the Government’s preliminary objection concerning the exhaustion of criminal domestic remedies;
2. Holds that there has been no violation of Article 2 of the Convention in its substantive limb in respect of Mr Rustam Kagirov;
3. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Mr Rustam Kagirov disappeared;
4. Holds that there has been no violation of Article 3 of the Convention in respect of the applicant;
5. Holds that there has been no violation of Article 5 of the Convention in respect of Mr Rustam Kagirov;
6. Holds that no separate issue arises under Article 13 of the Convention in conjunction with Article 2 of the Convention;
7. Holds that there has been no failure to comply with Article 38 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be paid into her representatives’ bank account in the United Kingdom;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 23 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Elisabeth Steiner