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    You are here: BAILII >> Databases >> European Court of Human Rights >> MUSIKHANOVA AND OTHERS v. RUSSIA - 27243/03 [2008] ECHR 1600 (4 December 2008)
    URL: http://www.bailii.org/eu/cases/ECHR/2008/1600.html
    Cite as: [2008] ECHR 1600
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    FIRST SECTION









    CASE OF MUSIKHANOVA AND OTHERS v. RUSSIA


    (Application no. 27243/03)












    JUDGMENT



    STRASBOURG


    4 December 2008


    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 Musikhanova and Others v. Russia,

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

    Christos Rozakis, President,
     Anatoly Kovler,
     Elisabeth Steiner,
     Khanlar Hajiyev,
     Dean Spielmann,
     Sverre Erik Jebens,
     Giorgio Malinverni, judges,
    and Søren Nielsen, Section Registrar,

    Having deliberated in private on 13 November 2008,

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

    PROCEDURE

  1. The case originated in an application (no. 27243/03) 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 eleven Russian nationals listed in the annexed document (“the applicants”) on 11 July 2003.

  2. The applicants, who had been granted legal aid, were represented by lawyers of the Stichting Russian Justice Initiative (“the SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented first by Mr P. Laptev and then by Ms V. Milinchuk, both former Representatives of the Russian Federation at the European Court of Human Rights.

  3. The applicants alleged, in particular, that their relative had disappeared following his unacknowledged detention and that there had been no adequate investigation into the matter. They also complained of their mental suffering on account of these events and the lack of effective remedies in respect of those violations. They relied on Articles 2, 3, 5 and 13 of the Convention.

  4. On 29 August 2004 the President of the First Section decided to grant priority to the application under Rule 41 of the Rules of Court.

  5. By a decision of 10 July 2007 the Court declared the application partly admissible.

  6. The applicants and the Government each filed further written observations (Rule 59 § 1).

    7. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  7. The first two applicants are a married couple. They have four sons – the ninth, tenth and eleventh applicants and Mr Vakhid Vakhayevich Musikhanov, born in 1976. The latter was married to the third applicant and had four children with her – the fourth, fifth, sixth and seventh applicants (the youngest child was born a month after Vakhid Musikhanov's disappearance). The eighth applicant is the second applicant's sister.

  8. The applicants live in Urus-Martan, the Chechen Republic.

    9. A.  The facts

    1.  Detention of Vakhid Musikhanov

  9. On 9 November 2002, at around 2 or 3 a.m., a group of armed men wearing camouflage uniforms and masks forcibly entered a private house at 6 Kavkazskaya Street, in which Vakhid Musikhanov and his family lived. Vakhid Musikhanov's sister-in-law, Vakhid Musikhanov himself and all the other applicants, except for the second and eighth ones, were inside the house at that time. According to the applicants, the men who raided their house belonged to the Russian federal troops, since they spoke Russian without an accent and were able to circulate freely during the curfew. In the Government's submission, they were “unidentified persons in masks and camouflage uniforms armed with automatic firearms”.

  10. The men, who had machine guns and torches, did not produce their identity papers or any documents justifying their actions. They ordered everyone to lie down and searched the house. Then they blocked the women in one room and forced the Musikhanov men into another. The intruders ordered the Musikhanov men to remain silent and not to move and checked their identity documents. According to the tenth and eleventh applicants, when they moved slightly, the men hit them in the face with their machine guns and kicked them with the result that the eleventh applicant started bleeding.

  11. Having checked the documents, the intruders ordered Vakhid Musikhanov to get dressed and took him away. The first applicant attempted to prevent them from detaining her son, but the men said that he would come back as soon as he had showed them a certain building. They then jammed the front door shut from the outside with an iron bar. Several minutes later the eighth applicant, who lived next door, let them out. The applicants have had no news of Vakhid Musikhanov ever since.

    12. 2.  The applicants' search for Vakhid Musikhanov

  12. In the morning of 9 November 2002 the applicants went to the Urus-Martan district authorities (администрация Урус-Мартановского района) and the military commander's office of the Urus-Martan District (военная комендатура Урус-Мартановского района, “the Urus-Martan military commander's office”) and enquired after Vakhid Musikhanov. They received no substantive information.

  13. According to the second applicant, he requested his distant relative, who had acquaintances at the Urus-Martan military commander's office, to obtain information concerning the detention of his son. Several days later the relative told the second applicant that Vakhid Musikhanov had been apprehended on the basis of an anonymous letter, which had contained criminal charges against him, and was allegedly kept at the Urus-Martan military commander's office. The second applicant also talked to a certain local official who confirmed that Vakhid Musikhanov was detained at the Urus-Martan military commander's office. According to the SRJI, their organisation has at its disposal the personal data of the relative and the official.

  14. Since 9 November 2002 the first three applicants have repeatedly applied in person and in writing to various public bodies, including prosecutors at various levels, the President of Russia, the administrative authorities of Chechnya, the Urus-Martan military commander's office and the Urus-Martan Town Court. They have also applied in writing and visited a number of detention centres and prisons in the Northern Caucasus. The applicants were supported in their efforts by the SRJI. In their letters to the authorities, the applicants and the SRJI referred to the facts of Vakhid Musikhanov's detention and asked for assistance and details of the investigation. Mostly these enquiries remained unanswered, or only formal responses were given by which the applicants' requests were forwarded to various prosecutor's offices for examination.

    15. 3.  Official investigation

  15. On 15 November 2002 the prosecutor's office of the Urus-Martan District (прокуратура Урус-Мартановского района, “the Urus-Martan prosecutor's office”) instituted a criminal investigation into Vakhid Musikhanov's disappearance under Article 126 (2) of the Russian Criminal Code (kidnapping of two or more persons by a group using firearms). The file was given the number 61149.

  16. In the context of the above proceedings, the Urus-Martan prosecutor's office sent enquiries to heads of a number of State bodies, including the Urus-Martan military commander's office, military unit no. 6779, the Urus-Martan Division of the Chechen Department of the Federal Security Service of Russia (отдел УФСБ РФ по ЧР в Урус-Мартановском районе, “the Urus-Martan Division of the FSB”) and district offices of the interior in Chechnya. The respective officials were requested to verify whether their subordinates had ever arrested Vakhid Musikhanov and on what ground, whether criminal proceedings had ever been brought against Vakhid Musikhanov and whether any measure of restraint had been ordered in this connection. On 19 November 2002 the Urus-Martan prosecutor's office also asked the Ministry of the Interior whether Vakhid Musikhanov had any convictions.

  17. On 20 and 23 November 2002 respectively the Urus-Martan Division of the FSB and military unit no. 6779 replied that their officers had not apprehended Vakhid Musikhanov and had no information as to his whereabouts. The Urus-Martan military commander's office never answered.

  18. On 4 December 2002 and 1 January 2003 respectively the Urus-Martan district office of the interior and the Shatoyskiy district office of the interior answered that their officers had never detained Vakhid Musikhanov and that he was not among their detainees. According to the applicants, the Urus-Martan prosecutor's office informed them later that all the other district offices of the interior in Chechnya had provided identical replies.

  19. On 20 December 2002 the prosecutor's office of the Chechen Republic (прокуратура Чеченской Республики, “the republican prosecutor's office”) referred the second applicant's application concerning the abduction of his son to the Urus-Martan prosecutor's office “for investigation”. In reply, on 25 December 2002 the Urus-Martan prosecutor's office stated that criminal case no. 61149 had been opened in connection with the abduction of Vakhid Musikhanov by “unknown armed men wearing camouflage uniforms”.

  20. By a decision of 15 January 2003 the Urus-Martan prosecutor's office acknowledged the first applicant as a victim in criminal case no. 61149.

  21. On 21 January 2003 the Urus-Martan prosecutor's office notified the first applicant that the criminal proceedings instituted in connection with her son's abduction had been adjourned since the alleged perpetrators could not be found.

  22. On 3 February 2003, in reply to a query from the Urus-Martan prosecutor's office, the Urus-Martan district office of the interior stated that Vakhid Musikhanov's whereabouts could not be established and that the search was in progress.

  23. In a letter of 6 March 2003 the republican prosecutor's office informed the second applicant that the criminal proceedings in case no. 61149 had been resumed on 26 February 2003 and that the term for the preliminary investigation had been extended until 26 March 2003. The letter also stated that the republican prosecutor's office was closely supervising the investigation.

  24. On 1 April 2003 the Administration of the Chechen Republic (Администрация Чеченской Республики) referred the second applicant's complaint about the disappearance of his son to the republican prosecutor's office and a military prosecutor's office.

  25. On 3 April 2003 the Urus-Martan prosecutor's office notified the first applicant that the criminal investigation into Vakhid Musikhanov's abduction had been suspended for failure to identify the culprits, but that the search for him was nevertheless under way.

  26. In a letter of 5 April 2003 the military prosecutor of the United Group Alignment (военная прокуратура Объединенной группы войск) transmitted the second applicant's application to the military prosecutor of military unit no. 20102 (военная прокуратура – войсковая часть 20102).

  27. On 7 April 2003 the second applicant requested the Urus-Martan prosecutor's office to notify him of the latest developments in criminal case no. 61149 and to grant the status of victims to him and to the third applicant. In reply, in a letter of 18 April 2003, the Urus-Martan prosecutor's office outlined the main procedural steps taken in the context of the criminal proceedings in case no. 61149 and informed the second applicant that they had been suspended on 26 March 2003, as those responsible had not been identified.

  28. On 25 April 2003 the republican prosecutor's office, in reply to a query from the second applicant, repeated that the investigation into his son's abduction had been suspended on 15 January 2003 for failure to identify the alleged perpetrators and that the search for Vakhid Musikhanov was in progress.

  29. In a letter of 15 May 2003 the Urus-Martan prosecutor's office informed the third applicant that, although all the necessary investigative measures were being taken to find her husband and the persons who had abducted him, those measures had not yielded any results so far.

  30. On 18 June 2003 the first applicant enquired of the Urus-Martan prosecutor's office whether the second and third applicants had the status of victims in criminal case no. 61149. In a letter of 20 June 2003 the Urus-Martan prosecutor's office informed her that she had been acknowledged as a victim in the said case and therefore had a right to access the case file. The letter provided no information as to whether the second and third applicants had ever been granted the status of victims in the above case.

  31. According to the first applicant, she accessed the case file in July 2003 and found that it contained only a transcript of her interview, queries sent by the Urus-Martan prosecutor's office to various law-enforcement bodies and replies from some of those bodies.

  32. On 3 July 2003, in reply to the complaint lodged by the third applicant on 27 March 2003, the Urus-Martan military commander's office informed her that her allegations of the abduction of her husband had been investigated and that their office possessed no information concerning her husband's whereabouts, the grounds for his detention or the identities of the perpetrators.

  33. On 5 November 2003 the SRJI applied to the Urus-Martan prosecutor's office for information on the developments in criminal case no.61149 and requesting it to resume the proceedings. On 27 November 2003 the republican prosecutor's office replied that the preliminary investigation had been suspended on 26 March 2003, since no culprits had been identified, and that the search for Vakhid Musikhanov continued.

  34.   Between 26 March 2003 and 9 August 2005 the proceedings remained suspended and it does not appear that there were any developments in the case.

  35.   On 7 June 2005 the present application was communicated to the Government.

  36. In a letter of 9 August 2005 the Urus-Martan prosecutor's office notified the first applicant that the preliminary investigation in case no. 61149 had been resumed on the same date.

  37. Referring to the information provided by the Prosecutor General's Office, the Government submitted that the third applicant's written complaint concerning her husband's abduction had been received by the Urus-Martan prosecutor's office on 10 November 2002 and the criminal proceedings in the above connection had been instituted on 15 November 2002, under Article 126 (2) of the Russian Criminal Code (aggravated kidnapping). The investigation had then been suspended on 15 January and 26 March 2003 and 9 September 2005 and resumed on 26 February 2003, 9 August and 21 October 2005, but had so far failed to identify those responsible.

  38. According to the Government, the investigating authorities questioned the first and the third applicants on 26 November 2002 and granted the status of victim to the first applicant on 15 January 2003. The second applicant was questioned as a witness on 26 or 28 February 2003. In addition to the first three applicants, the authorities also questioned two neighbours of the Musikhanov family. It does not appear that any other witnesses were questioned in the course of the investigation.

  39. According to the Government, the investigators had on numerous occasions sent queries to various State bodies. In particular, on 19 November 2002 the investigator in charge had requested information concerning Vakhid Musikhanov's whereabouts from the Urus-Martan Division of the Federal Security Service, the military commander's office of the Urus-Martan District and the head of the temporary department of the State bodies and the units of the Russian Ministry of the Interior in Chechnya. The replies from the said agencies were received on 24 and 25 November 2005, stating that the applicant's relative had never been detained by any of them, that no special operations had been carried out in his regard or criminal proceedings brought against him. On 20 November 2002 the investigator in charge sent similar queries to various offices of the interior of the Chechen Republic. Between 20 November 2002 and 1 January 2003 he received replies identical to those mentioned above.

  40. On 26 March 2003 the investigating authorities sent queries to the head of the United Group Alignment and the military commander's office of the Russian Ministry of Defence concerning the possible implication of military personnel in the detention of the applicants' relative. The Government did not specify whether any reply had followed. They stated that the possible involvement of federal military personnel in Vakhid Musikhanov's disappearance had been investigated, but no evidence proving such involvement had been obtained.

  41. In the period between 12 and 24 August 2005 the investigator in charge also requested district and town prosecutors in Chechnya to submit information concerning unidentified corpses so as to establish whether Vakhid Musikhanov's body could be found among them. Also, between 25 August and 7 September 2005 the investigator in charge sent queries to various detention centres in the regions adjacent to the Chechen Republic as to whether Vakhid Musikhanov was listed among their detainees. It is unclear whether any of the above queries were answered.

    42. 4.  The applicants' applications to a court

  42. On 25 November 2002 the third applicant applied to the Urus-Martan Town Court seeking to have the whereabouts of her husband established. It does not appear that this request was answered.

  43. On 20 August 2003 the SRJI, acting on the applicants' behalf, requested the President of the Urus-Martan Town Court to inform the third applicant whether her application of 25 November 2002 had been examined and, if so, what the results of that examination were. It is unclear whether any reply followed.

  44. On 10 December 2003 the Urus-Martan Town Court, upon the third applicant's request, certified the fact that her husband, Vakhid Musikhanov, was a missing person, having confirmed that the latter had disappeared after having been abducted by “unknown armed men” on 9 November 2002.

    45. B.  The Court's requests for the investigation file

  45. In June 2005, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in criminal case no. 61149 that had been opened into the abduction of Vakhid Musikhanov. Relying on the information obtained from the Prosecutor General's Office, the Government replied that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data concerning the witnesses], and without the right to make copies of the case file or transmit it to others”. In October 2005 the Court reiterated its request and suggested that Rule 33 § 3 of the Rules of Court be applied. In reply, the Government submitted several documents but refused to produce the entire investigation file for the aforementioned reasons.

  46. Overall, the Government submitted 17 documents, which included:

    47. (a)  a list of documents contained in the file of criminal case no. 61149, from which it can be ascertained that the file comprised at least 132 document running to 150 pages;

    (b)  a procedural decision of 15 November 2002 to institute criminal proceedings in connection with Vakhid Musikhanov's disappearance;

    (c)  a decision of 15 January 2003 declaring the first applicant a victim in case no. 61149;

    (d)  procedural decisions suspending and reopening the investigation in case no. 61149;

    (e)  an investigator's decision of 9 August 2005 to resume case no. 61149;

    (f)  letters informing the first and second applicants of the suspension and re-opening of the investigation in criminal case no. 61149.

  47. On 10 July 2007 the application was declared partly admissible. At that stage the Court once again invited the Government to submit the investigation file and to provide information concerning the progress of the investigation after October 2005. In reply, the Government refused to submit any documents from the case file other than those produced earlier and remained silent as regards the Court's question concerning the progress in the investigation.

    48. II.  RELEVANT DOMESTIC LAW

  48. For a summary of the relevant domestic law see Kukayev v. Russia, no. 29361/02, §§ 67-69, 15 November 2007.

    49. THE LAW

    I.  THE GOVERNMENT'S PRELIMINARY OBJECTION

    A.  Submissions by the parties

  49. The Government disputed the admissibility of the application on the ground of the applicants' alleged failure to exhaust the domestic remedies available to them. They argued that the investigation had not been completed yet and that, in accordance with Article 125 of the Russian Code of Criminal Procedure, it had been open to the applicants to lodge court complaints about the actions or omissions of the investigating or other law-enforcement authorities, but they had not availed themselves of that remedy.

  50. The applicants contested the Government's objection. They stated that an administrative practice consisting in the authorities' continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya rendered any potentially effective remedies inadequate and illusory in their case. In this connection they relied on applications submitted to the Court by other individuals claiming to be victims of similar violations, and on documents by human rights NGOs and the Council of Europe. The applicants also contended that they had not been obliged to pursue the remedy invoked by the Government since its effectiveness in their situation had been rather doubtful. They insisted that they had exhausted all possible remedies but that these had proved futile.

    51. B.  The Court's assessment

  51. The Court notes that, in its decision of 10 July 2007, it considered that the question of exhaustion of domestic remedies was closely linked to the substance of the present application and that it should be joined to the merits. It will now proceed to assess the parties' arguments in the light of the Convention provisions and its relevant practice.

  52. 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. There is no obligation to have recourse to remedies which are inadequate or ineffective. 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 applicants' complaints and offered reasonable prospects of success (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996 VI, pp. 2275-76, §§ 51-52; Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996 IV, p. 1210-11, § 65-68; and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64-65, 27 June 2006).

  53. In the present case, as to the Government's argument that the investigation was still in progress and that the applicants had not complained to a court about the actions or omissions of the investigating or other law-enforcement authorities during the investigation in accordance with Article 125 of the Russian Code of Criminal Procedure, the Court firstly observes that the Government did not indicate which particular actions or omissions of the investigators the applicants should have challenged before a court. It further considers that this limb of the Government's preliminary objection raises issues which are closely linked to the question of the effectiveness of the investigation, and it would therefore be appropriate to address the matter in the examination of the substance of the applicants' complaints under Article 2 of the Convention.

    54. II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

  54. The applicants complained of a violation of the right to life in respect of their relative, Vakhid Musikhanov. They submitted that the circumstances of his disappearance and the long period during which his whereabouts could not be established indicated that Vakhid Musikhanov had been killed by the federal forces. The applicants also complained that no effective investigation had been conducted into the matter. They relied on Article 2 of the Convention, which reads as follows:

    55. “1.  Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

    2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

    (a)  in defence of any person from unlawful violence;

    (b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

    (c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

    A.  Alleged failure to protect the right to life

    1.  Submissions by the parties

  55. The applicant argued that it was beyond reasonable doubt that the men who had apprehended and taken away their relative on 9 November 2002 had represented federal forces, and that, following this apprehension, Vakhid Musikhanov had been under the control of the State. The applicants also claimed that their relative had been apprehended in life-endangering circumstances, since it was widespread practice in Chechnya that people apprehended by State agents were deprived of their lives immediately, or shortly after being apprehended, rather than being taken to detention centres. They also pointed out that the Government had failed to give any plausible explanation as regards Vakhid Musikhanov's fate. The applicants thus argued that the fact that Vakhid Musikhanov remained missing for several years proved that he had been killed, and that therefore there had been a violation of Article 2 of the Convention on that account.

  56. The Government relied on the information provided by the Prosecutor General's Office and argued that the Russian authorities were not responsible for the actions of unidentified persons who had abducted Vakhid Musikhanov. In their submission, there was no evidence in the materials of the criminal investigation file that representatives of the federal forces or security agencies had been stationed, or that any special operations had been carried out, in the vicinity of the Musikhanov family's home during the relevant period. The Government also argued that the second applicant had never informed the investigating authorities about his conversations with local officials who had allegedly confirmed the fact of Vakhid Musikhanov's detention (see paragraph 13 above). The Government insisted that until the circumstances of his abduction, and the identity of the persons involved, had been established, there were no grounds to claim that Vakhid Musikhanov's right to life secured by Article 2 of the Convention had been breached by the State. They submitted to that end that members of illegal armed formations within the territory of the Chechen Republic resorted to various methods of concealing the facts of their participation in such groups and recruitment of new members, such as “deliberate dissemination of false information concerning their disappearance from the places of their permanent residence and the implication of federal forces in such disappearance”. Moreover, the aforementioned false information was also used by “representatives of international terrorist organisations, leaders of illegal armed groups and their emissaries abroad for the purpose of propaganda against the State agencies of Russia”.

    57. 2.  The Court's assessment

  57. The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. It has held on many occasions that, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. The obligation on the authorities to account for the treatment of an individual within their control is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey, no. 25656/94, § 326, 18 June 2002, and the authorities cited therein). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999 IV).

  58. In the present case, the Court observes that although the Government denied the State's responsibility for the abduction and disappearance of the applicants' relative, they acknowledged the specific facts underlying the applicants' version of events. In particular, it is common ground between the parties that Vakhid Musikhanov was abducted from his home by men in masks and camouflage uniforms armed with automatic firearms during the night hours of 9 November 2002. It has therefore first to be established whether the armed men belonged to the federal forces.

  59. The Court notes at the outset that despite its repeated requests for a copy of the investigation file concerning the abduction of Vakhid Musikhanov, the Government refused to produce it, referring to Article 161 of the Russian Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by it (see, for example, Imakayeva v. Russia, no. 7615/02, §  123, ECHR 2006 ... (extracts)). In view of the foregoing and bearing in mind the principles cited above, the Court finds that it can draw inferences from the Government's conduct in this respect.

  60. It further considers that the applicants presented a coherent and consistent picture of their relative's detention on 9 November 2002. The applicants, most of them being eyewitnesses to the incident in question, stated that the perpetrators had acted in a manner similar to that of a security operation. In particular, they had arrived in a group in the night hours, had checked the identity papers of the men living in the house and searched the house. Also, the intruders had spoken Russian without an accent. In the Court's opinion, the fact that a group of armed men in camouflage uniforms were able to move freely during the curfew and to apprehend a person at his home in a town area strongly supports the applicants' allegation that they were representatives of the federal forces.

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

  62. Taking into account the above elements, the Court is satisfied that the applicants have made out a prima facie case that their relative was detained by State agents. The Government's statement that the investigation did not find any evidence to support the allegation of involvement of personnel of federal military forces or security agencies in the abduction is insufficient to relieve them of the above-mentioned burden of proof. The Court is also sceptical about the Government's suggestion of the possible implication of illegal fighters in the abduction of Vakhid Musikhanov, given that this allegation was not specific and was not supported by any materials. Drawing inferences from the Government's failure to submit the documents from the criminal investigation file which were in their exclusive possession or to provide another plausible explanation of the events in question, the Court finds it established that Vakhid Musikhanov was arrested on 9 November 2002 by State agents.

  63. The Court further notes that there has been no reliable news of the applicants' relative since that date. His name has not been found in any official records of detention facilities. The domestic investigation into Vakhid Musikhanov's disappearance, which has dragged on for several years, has not made any meaningful findings regarding his fate. Lastly, the Government did not submit any explanation as to what had happened to him after he had been apprehended.

  64. Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, for example, Imakayeva, cited above, and Luluyev and Others v. Russia, no. 69480/01, ECHR 2006 ...(extracts)), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgement of the detention, this can be regarded as life-threatening. The absence of Vakhid Musikhanov or any news of him for six years corroborates this assumption. In the light of these considerations and having regard to the particular circumstances of the case, and more specifically the considerable lapse of time since the day on which Vakhid Musikhanov went missing, the Court finds that he must be presumed dead following unacknowledged detention by State agents.

  65. In the absence of any plausible explanation on the part of the Government as to the circumstances of Vakhid Musikhanov's death, the Court further finds that the Government have not accounted for the death of the applicants' relative during his detention and that the respondent State's responsibility for this death is therefore engaged.

  66. Accordingly, there has been a violation of Article 2 of the Convention in this connection.

    67. B.  Alleged inadequacy of the investigation

    1.  Submissions by the parties

  67. The applicants contended that the authorities had failed in their obligation to carry out an effective investigation into the circumstances of their relative's disappearance. They argued that the investigation had fallen short of the requirements of domestic law and Convention standards. In particular, it had been pending for several years but had not brought any tangible results so far, having been repeatedly suspended and reopened. The applicants contended that the main investigative actions had been taken only after the communication of the present application to the respondent Government on 7 June 2005. Furthermore, the investigating authorities had failed to inform the applicants about the decisions concerning the adjournment and reopening of the investigation or its progress and had not granted the first applicant the status of victim of a crime until 15 January 2003, that is, two months after the criminal proceedings had been instituted. The applicants also insisted that the authorities had failed to take all possible measures to establish the identity of the alleged perpetrators, and, in particular, had not checked the possible involvement of federal military personnel in their relative's abduction. In support of their argument regarding the inefficiency of the investigation, they also referred to the Government's refusal to submit a copy of the file in the criminal case concerning Vakhid Musikhanov's disappearance.

  68. The Government claimed that the investigation into the disappearance of the applicants' relative met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify those responsible.

    69. 2.  The Court's assessment

  69. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force, in particular by agents of the State. The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur v. Turkey [GC], no. 21594/93, § 88, ECHR 1999 III). In particular, there is an implicit requirement of promptness and reasonable expedition (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, § 102-04, and Mahmut Kaya v. Turkey, no. 22535/93, ECHR 2000-III, §§ 106-07). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in maintaining public confidence in the maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Shanaghan v. the United Kingdom, no. 37715/97, §§ 91-92, 4 May 2001).

  70. In the instant case, the Court observes that some degree of investigation was carried out into the disappearance of the applicants' relative. It must assess whether that investigation met the requirements of Article 2 of the Convention. The Court notes in this connection that its knowledge of the criminal proceedings at issue is rather limited in view of the respondent Government's refusal to submit the investigation file (see paragraphs 45-47 above). Drawing inferences from the respondent Government's conduct when evidence was being obtained (see Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp.64-65, § 161), the Court will assess the merits of this complaint on the basis of the available information in the light of these inferences.

  71. The Court notes that, as acknowledged by the Government, the domestic authorities received the third applicant's written complaint concerning her husband's abduction on 10 November 2002 (see paragraph 37 above). However, the criminal proceedings in this connection were not instituted until six days later, on 15 November 2002. While this delay, in itself, was not very long, the Court, having regard to the absence of any explanations by the Government in this respect, cannot accept that it was justified in a situation where prompt action was vital.

  72. The Court further notes that the Government did not indicate which particular measures the authorities had taken to investigate the disappearance of the applicants' relative, apart from questioning the first three applicants and their two neighbours as witnesses or sending queries to State bodies. It does not appear that any meaningful efforts were made to investigate the possible involvement of federal servicemen or officers of security agencies in the disappearance of Vakhid Musikhanov. In particular, it does not appear, and the Government did not submit any reliable information or documents in this regard, that the scene of the incident was ever inspected, or that any fair attempts were made to find any other witnesses, or to establish whether at the relevant period any special operations had been carried out, or any units of the federal armed forces or security agencies had been stationed in the vicinity of the Musikhanov family's home. The Court also notes that replies to requests sent by the investigators to various State bodies were either received after an inordinate delay, for example the request of 19 November 2002 was only answered on 24 and 25 November 2005 (see paragraph 39 above), or were apparently not received at all (see paragraphs 40-41 above).

  73. The Court further notes an inexplicable delay in granting the status of victim to the first applicant. Whilst the investigation was commenced on 15 November 2002, it was not until 15 January 2003 that the first applicant was declared a victim in the case, which afforded her minimum guarantees in the criminal proceedings. It appears that before the said decision was taken the applicants were not duly informed of the progress in the investigation.

  74. Lastly, the Court observes that the investigation remained pending from November 2002 until March 2003, when it was suspended for over two years and not resumed until August 2005. The Government did not advance any explanation for such a considerable period of inactivity. After it was resumed, the investigation was ongoing at least until October 2005. Between November 2002 and October 2005 it was adjourned and reopened on at least four occasions. The Court also notes that despite its specific request, the Government provided no information regarding any progress in the investigation after October 2005.

  75. The Court thus notes, in respect of the Government's argument concerning the applicants' alleged failure to appeal to a court against the actions or omissions of the investigators under Article 125 of the Russian Code of Criminal Procedure, that in a situation where the effectiveness of the investigation was undermined from a very early stage by the authorities' failure to take necessary and urgent investigative measures, and where the investigation was repeatedly stayed and reopened it is highly doubtful that the remedy invoked by the Government would have had any prospects of success. Moreover, the Government have not demonstrated that this remedy would have been capable of providing redress in the applicants' situation – in other words, that it would have rectified the shortcomings in the investigation and would have led to the identification and punishment of those responsible for the disappearance of their relative. The Court thus considers that in the circumstances of the case it has not been established with sufficient certainty that the remedy advanced by the Government would have been effective within the meaning of the Convention. The Court finds that the applicants were not obliged to pursue that remedy, and that this limb of the Government's preliminary objection should therefore be dismissed.

  76. In the light of the foregoing, and with regard to the inferences drawn from the respondent Government's submission of evidence, the Court further concludes that the authorities failed to carry out a thorough and effective investigation into the circumstances surrounding the disappearance of Vakhid Musikhanov. It accordingly holds that there has been a violation of Article 2 of the Convention on that account.

    77. III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

  77. The applicants complained that they had suffered severe mental distress and anguish in connection with the disappearance of their close relative and on account of the State's failure to conduct a thorough investigation in this respect. They referred to Article 3 of the Convention, which provides as follows:

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

  78. The applicants maintained that they had endured severe mental suffering falling within the scope of Article 3 of the Convention in view of the State's indifference to their relative's disappearance and its repeated failure to inform them of the progress in the investigation.

  79. The Government submitted that “the materials of the criminal case do not make it possible to assess the degree of the applicants' mental suffering”, that the domestic authorities had not taken any actions aiming at “humiliating, punishing or torturing” the applicants, and that therefore Article 3 of the Convention was inapplicable in the applicants' situation.

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

  81. In the present case, the Court observes that the missing person was a son of the first two applicants, the husband of the third applicant, the father of the fourth to seventh applicants, a nephew of the eighth applicant and a brother of the ninth to eleventh applicants. The Court notes, first of all, that the seventh applicant was born a month after Vakhid Musikhanov's disappearance and therefore clearly cannot claim to be a victim of the alleged violation of Article 3. It further observes that the remaining applicants, save for the second and eighth, witnessed their relative's detention on 9 November 2002. On the other hand, it appears that it was only the first three applicants who made various petitions and enquiries to the domestic authorities in connection with Vakhid Musikhanov's disappearance. No evidence has been submitted to the Court that any other family members were involved in the search for Vakhid Musikhanov (see, by contrast, Luluyev and Others, cited above, § 112). In such circumstances, the Court, while accepting that the events of 9 November 2002 might have been a source of considerable distress to the fourth to sixth and eighth to eleventh applicants, is nevertheless unable to conclude that their mental suffering was distinct from the inevitable emotional distress in a situation such as in the present case and that it was so serious that it fell within the ambit of Article 3 of the Convention.

  82. As regards the first three applicants, the Court observes that during the six years that Vakhid Musikhanov has remained missing they have insistently applied to various official bodies with enquiries about him, both in writing and in person. Despite their attempts, the applicants have never received any plausible explanation or information as to what became of their family member following his kidnapping. The responses received by the applicants mostly denied that the State was responsible for his arrest or simply informed them that an investigation was ongoing. The Court's findings under the procedural aspect of Article 2 are also of direct relevance here.

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

  84. The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the first, second and third applicants. It further finds that there has been no violation of Article 3 of the Convention in respect of the fourth to eleventh applicants.

    85. IV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

  85. The applicants maintained that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrariness, had been violated in respect of Vakhid Musikhanov. Article 5, in its relevant part, provides as follows:

    86. “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.”

  86. The applicants argued that Vakhid Musikhanov's detention had not satisfied any of the conditions set out in Article 5 of the Convention, had had no basis in national law and had not been in accordance with a procedure established by law or been formally registered.

  87. In the Government's submission, there was no evidence to confirm that the applicants' relative had been detained in breach of the guarantees set out in Article 5 of the Convention. Vakhid Musikhanov was not listed among the persons being kept in detention centres and his right to liberty has not been breached by the Russian authorities.

  88. The Court has frequently emphasised the fundamental importance of the guarantees contained in Article 5 for securing the rights of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. In that context, it has repeatedly stressed that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrary detention. To minimise the risks of arbitrary detention, Article 5 provides a corpus of substantive rights intended to ensure that the act of deprivation of liberty is amenable to independent judicial scrutiny and secures the accountability of the authorities for that measure. The unacknowledged detention of an individual is a complete negation of these guarantees and discloses a most grave violation of Article 5 (see, among other authorities, Çakıcı, cited above, § 104).

  89. It has been established above that Vakhid Musikhanov was detained on 9 November 2002 by State agents and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court's practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).

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

  91. Consequently, the Court finds that Vakhid Musikhanov was held in unacknowledged detention in complete disregard of the safeguards enshrined in Article 5, and that this constitutes a particularly grave violation of his right to liberty and security enshrined in Article 5 of the Convention.

    92. V.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

  92. The applicants alleged that they had no effective remedies in respect of their complaints under Articles 2, 3 and 5, contrary to Article 13 of the Convention, which reads as follows:

    93. “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.”

  93. The applicants claimed that in their case the domestic remedies usually available had proved to be ineffective, given that the investigation had been pending for over three years without any progress and that all their applications to public bodies had remained unanswered or had only produced standard replies.

  94. The Government contended that the applicants had had effective domestic remedies, as required by Article 13 of the Convention, and the Russian authorities had not prevented them from using those remedies. They submitted that the investigation into the abduction of the applicants' relative had been instituted subsequently and “the relatives of the missing person were declared victims and received reasoned replies to all their requests made in the context of the investigation”. They also argued that, in accordance with Article 125 of the Russian Code of Criminal Procedure, it had been open to the applicants to lodge a court complaint in respect of the actions of the investigating authorities or, if the applicants had considered that any action or omission of public officials had caused them damage, to seek compensation for that damage in court by virtue of the relevant provisions of the Russian Civil Code. In support of that argument, the Government referred to a decision of the Supreme Court of the Republic of Karachayevo-Cherkessia dated 19 October 2004 by which a plaintiff had been awarded a certain amount in respect of non-pecuniary damage inflicted by the unlawful actions of a prosecutor's office. The Government did not enclose a copy of that decision.

  95. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by acts or omissions by the authorities of the respondent State (see Aksoy, cited above, § 95).

  96. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002-IV; Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998 VIII, § 117; and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State's obligation under Article 2 to conduct an effective investigation (see Orhan, cited above, § 384).

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

  98. The Court has held in a number of similar cases that in circumstances where, as in the present case, the criminal investigation into the death was ineffective (see paragraph 76 above) and the effectiveness of any other remedy that may have existed, including the civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention (see, among other authorities, Musayeva and Others v. Russia, no. 74239/01, § 118, 26 July 2007, or Kukayev, cited above, § 117). It therefore rejects the Government's argument that the applicants had effective remedies under the criminal or civil law and finds that there has been a violation of Article 13 of the Convention in connection with Article 2 of the Convention.

  99. As regards the complaint under Article 13 in conjunction with Article 3 of the Convention, in so far as it was submitted by the first three applicants, the Court notes that it has found above that they endured severe mental suffering on account of, inter alia, the authorities' inadequate investigation into their relative's disappearance (see paragraphs 82-83 above). It has also found a violation of Article 13 of the Convention in connection with Article 2 of the Convention on account of the lack of effective remedies in a situation, such as the applicants' one, where the investigation was ineffective. Having regard to these findings, the Court is of the opinion that the complaint under Article 13 in conjunction with Article 3, in so far as it was submitted by the first three applicants, is subsumed by those under Article 13 in conjunction with Article 2 of the Convention. It therefore does not consider it necessary to examine the complaint under Article 13 in connection with Article 3 of the Convention.

  100. As regards the complaint under Article 13 in conjunction with Article 3, in so far as it was submitted by the remaining applicants, the Court refers to its finding above that there has been no violation of Article 3 in respect of the fourth to eleventh applicants. In the absence of an “arguable claim” of a violation of a substantive Convention provision, the Court finds that there has been no violation of Article 13 in this respect either.

  101. Finally, as regards the applicants' reference to Article 5 of the Convention, the Court refers to its findings of a violation of this provision set out above. It considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention, which itself contains a number of procedural guarantees related to the lawfulness of detention.

    102. VI.  COMPLIANCE WITH ARTICLES 34 AND 38 § 1 (a) OF THE CONVENTION

  102. The applicants complained that the Government's refusal to submit the file in criminal case no. 61149 was in breach of the State's obligations under Article 34 and Article 38 § 1 (a) of the Convention. The relevant parts of these Articles provide:

    103. Article 34

    “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

    Article 38

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

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

    ...”

  103. The applicants invited the Court to conclude that the Government's refusal to submit a copy of the entire investigation file in response to the Court's requests was incompatible with their obligations under Articles 34 and  38 § 1 (a) of the Convention.

  104. The Government reiterated that the submission of the entire case file would be contrary to Article 161 of the Russian Code of Criminal Procedure. They also submitted that they had taken into account the possibility to request confidentiality under Rule 33 of the Rules of Court, but noted that the Court provided no guarantees that once in receipt of the investigation file, the applicants or their representatives would not disclose these materials to the public. In the Government's submission, the absence of any sanctions against the applicants for a disclosure of confidential information and materials meant that there were no guarantees that they would comply with the Convention and the Rules of Court.

  105. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999 IV). 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. 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 applicant's allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention (see Timurtaş v. Turkey, no.  3531/94, § 66, ECHR 2000-VI). In a case where the application raises issues of the effectiveness of an investigation, the documents of the criminal investigation are fundamental to the establishment of the facts and their absence may prejudice the Court's proper examination of the complaint both at the admissibility stage and at the merits stage (see Tanrıkulu, cited above, § 70).

  106. The Court observes that it has on several occasions requested the Government to submit a copy of the file on the investigation opened in connection with the disappearance of the applicants' relative. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case. In reply, the Government produced only copies of procedural decisions instituting, suspending or reopening criminal proceedings, copies of an investigator's decision to resume the criminal case and letters informing the applicants of the suspension and reopening of the criminal proceedings in the case. Relying on Article 161 of the Russian Code of Criminal Procedure, they refused to submit any other documents, such as transcripts of witness interviews, reports on investigative and other actions,.

  107. The Court further notes that the Government did not request the application of Rule 33 § 2 of the Rules of Court, which permits a restriction on the principle of the public character of the documents deposited with the Court for legitimate purposes, such as the protection of national security and the private life of the parties, and the interests of justice. The Court further notes that the provisions of Article 161 of the Code of Criminal Procedure, to which the Government referred, do not preclude disclosure of the documents from the file of an ongoing investigation, but rather set out the procedure for and limits to such disclosure. The Government failed to specify the nature of the documents and the grounds on which they could not be disclosed (see, for similar conclusions, Mikheyev v. Russia, no. 77617/01, § 104, 26 January 2006). The Court also notes that in a number of comparable cases that have been reviewed by the Court, the Government submitted documents from the investigation files without reference to Article 161 (see, for example, Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 46, 24 February 2005, or Magomadov and Magomadov v. Russia, no. 68004/01, §§ 36 and 82, 12 July 2007), or agreed to produce documents from the investigation files even though they had initially invoked Article 161 (see Khatsiyeva and Others v. Russia, no. 5108/02, §§ 62-63, 17 January 2008). For these reasons, the Court considers the Government's explanations concerning the disclosure of the case file insufficient to justify withholding the key information requested by the Court.

  108. Having regard to the importance of cooperation by the respondent Government in Convention proceedings and the difficulties associated with the establishment of the facts in cases such as the present one, the Court finds that the Russian Government fell short of their obligations under Article 38 § 1 (a) of the Convention on account of their failure to submit copies of the documents requested in respect of the disappearance of the applicants' relative.

  109. In view of the above finding, the Court considers that no separate issue arises under Article 34 of the Convention.

    110. VII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

  110. Article 41 of the Convention provides:

    111. “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

    A.  Damage

    1.  Pecuniary damage

  111. The third to seventh applicants alleged that they had lost the financial support which Vakhid Musikhanov could have provided for them. They indicated that Vakhid Musikhanov had intended to start working in a local police office in a position similar to that of the ninth applicant. They submitted a certificate which had been issued in June 2007 and stated that the ninth applicant's wage for May 2007 was equal to 11,904 Russian roubles (RUB) (approximately 330 euros (EUR)). The third to seventh applicants argued that Vakhid Musikhanov's monthly wage would have equalled that amount. They further claimed that, collectively, they could have counted on 70 per cent of Vakhid Musikhanov's earnings and thus would have benefited from his financial support in the amount of RUB 2,400,874.45 (approximately EUR 67,000). The applicants based their calculations on the aforementioned certificate and the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary's Department in 2004 (“the Ogden tables”), in the absence of any equivalent methods of calculation in Russia.

  112. The Government contested the applicants' claims under this head as unsubstantiated, arguing that at the time of his disappearance the applicants' relative had been unemployed.

  113. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in appropriate cases, include compensation in respect of loss of earnings (see, among other authorities, Çakıcı, cited above, § 127). It further finds that there is a direct causal link between the violation of Article 2 in respect of the applicants' relative and the loss by the third to seventh applicants of the financial support which he could have provided for them. The Court is not convinced, however, that the amount claimed is reasonable given, in particular, that Vakhid Musikhanov had not been employed at the time of his disappearance, but had only intended to start working. Having regard to these considerations, the Court awards the applicants jointly the total amount of EUR 15,000 in respect of pecuniary damage, plus any tax that may be chargeable to them on that amount.

    114. 2.  Non-pecuniary damage

  114. As regards non-pecuniary damage, the applicants claimed that they had suffered severe emotional distress, anxiety and trauma as a result of their relative's disappearance and on account of the indifference demonstrated by the Russian authorities during the investigation into these events. The applicants sought the overall amount of EUR 226,000, which comprised the following claims:

    115. (i)  the first and second applicants each claimed EUR 30,000 in respect of non-pecuniary damage caused by the loss of their son;

    (ii)  the third applicant claimed EUR 50,000 in respect of non-pecuniary damage sustained as a result of the loss of her husband;

    (iii)  the fourth, fifth, sixth and seventh applicants each claimed EUR 25,000 in respect of non-pecuniary damage caused by the loss of their father;

    (iv)  the eighth applicant claimed EUR 1,000 in respect of non-pecuniary damage caused by the loss of her nephew;

    (v)  the ninth, tenth and eleventh applicants each claimed EUR 5,000 in respect of non-pecuniary damage sustained as a result of the loss of their brother.

  115. The Government considered the applicants' claims to be excessive and unsubstantiated.

  116. The Court observes that it has found a violation of Articles 2, 5 and 13 of the Convention on account of the unlawful detention and disappearance of the applicants' relative, the ineffective investigation into the matter and the absence of effective remedies to secure domestic redress for those violations. It has also found a violation of Article 3 of the Convention on account of the mental suffering endured by the first, second and third applicants and a violation of Article 38 § 1 (a) of the Convention on account of the Government's failure to submit the materials requested by the Court. The applicants must have suffered anguish and distress as a result of all these circumstances, which cannot be compensated by a mere finding of a violation. Having regard to these considerations, the Court awards, on an equitable basis, EUR 15,000 to the first and second applicants jointly, EUR 20,000 to the third, fourth, fifth, sixth and seventh applicants jointly, and EUR 1,000 to each of the eighth, ninth, tenth and eleventh applicants, plus any tax that may be chargeable to the applicants on these amounts.

    117. B.  Costs and expenses

  117. The applicants were represented by lawyers from the SRJI. They submitted a schedule of costs and expenses that included research and interviews in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for the SRJI lawyers and EUR 150 per hour for the SRJI senior staff. The aggregate claim in respect of costs and expenses related to the applicants' legal representation amounted to EUR 10,535.94, comprising EUR 8,900 for 67 hours spent by the SRJI staff on preparing and representing the applicants' case, EUR 968.50 for translation expenses, EUR 26.44 for international courier post to the Court and EUR 623 for administrative costs (7% of legal fees).

  118. The Government pointed out that the applicants were only entitled to reimbursement of costs and expenses that had actually been incurred and were reasonable. They also noted that two of the SRJI's lawyers who had signed the applicants' observations on the merits had not been named in the powers of attorney.

  119. The Court notes that the applicants issued a power of attorney in respect of the SRJI. It is satisfied that the lawyers indicated in their claim formed part of the SRJI staff. Accordingly, the objection must be dismissed.

  120. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 XI). It notes that this case has been relatively complex and has required a certain amount of research work. On the other hand, once the preparation of the initial submissions had been completed, the work did not involve a large number of documents and the Court therefore doubts whether at its later stages the case required the amount of research and preparation claimed by the applicants' representatives.

  121. In these circumstances, having regard to the details of the claims submitted by the applicants, the Court awards them the reduced amount of EUR 8,000, less the EUR 850 already received by way of legal aid from the Council of Europe, together with any tax that may be chargeable to the applicants. The amount awarded shall be payable to the representative organisation directly.

    122. C.  Default interest

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

    123. FOR THESE REASONS, THE COURT UNANIMOUSLY

  123. Dismisses the Government's preliminary objection;


  124. Holds that there has been a violation of Article 2 of the Convention as regards the disappearance of Vakhid Musikhanov;


  125. Holds that there has been a violation of Article 2 of the Convention on account of the authorities' failure to carry out an adequate and effective investigation into the circumstances surrounding the disappearance of Vakhid Musikhanov;


  126. Holds that there has been a violation of Article 3 of the Convention on account of the mental suffering endured by the first, second and third applicants because of their relative's disappearance and the lack of an effective investigation into the matter;


  127. Holds that there has been no violation of Article 3 of the Convention in respect of the fourth to eleventh applicants;


  128. Holds that there has been a violation of Article 5 of the Convention in respect of Vakhid Musikhanov;


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


  130. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violation of Articles 3 in respect of the first, second and third applicants on account of mental suffering and in respect of the alleged violation of Article 5 of the Convention;


  131. Holds that there has been no violation of Article 13 of the Convention as regards the alleged violation of Article 3 of the Convention in respect of the fourth to eleventh applicants;


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


  133. Holds

    134. (a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, all of which, save for those payable into the bank in the Netherlands, are to be converted into Russian roubles at the rate applicable at the date of settlement:

    (i)  EUR 15,000 (fifteen thousand euros) to the third, fourth, fifth, sixth and seventh applicants jointly in respect of pecuniary damage;

    (ii)  EUR 15,000 (fifteen thousand euros) to the first and second applicants jointly, EUR 20,000 (twenty thousand euros) to the third, fourth, fifth, sixth and seventh applicants jointly, and EUR 1,000 (one thousand euros) to each of the eighth, ninth, tenth and eleventh applicants in respect of non-pecuniary damage;

    (iii)  EUR 7,150 (seven thousand one hundred and fifty euros) in respect of costs and expenses, to be paid in euros into the bank account in the Netherlands indicated by the applicants' representative;

    (iv)  any tax, including value-added tax, that may be chargeable to the applicants on the above amounts;

    (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;


  134. Dismisses the remainder of the applicants' claim for just satisfaction.

    135. Done in English, and notified in writing on 4 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Søren Nielsen Christos Rozakis
    Registrar President



    ANNEX


    LIST OF APPLICANTS :

    1. Ms Yakhita Ibragimovna Musikhanova, born in 1951,

    2. Mr Vakha Idisovich Musikhanov, born in 1949,

    3. Ms Luiza Iznorovna Umysheva (Musikhanova), born in 1975,

    4. Ms Markha Vakhidovna Musikhanova, born in 1995,

    5. Ms Seda Vakhidovna Musikhanova, born in 1997,

    6. Mr Nokha Vakhidovich Musikhanov, born in 2001,

    7. Mr Naib Vakhidovich Musikhanov, born in 2002,

    8. Ms Asiyat Idisovna Musikhanova, born in 1953,

    9. Mr Valid Vakhayevich Musikhanov, born in 1980,

    10. Mr Roman Vakhayevich Musikhanov, born in 1983,

    11. Mr Timur Vakhayevich Musikhanov, born in 1986.



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