British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
KHAMILA ISAYEVA v. RUSSIA - 6846/02 [2008] ECHR 1897 (02 June 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/1897.html
Cite as:
[2008] ECHR 1897
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIRST
SECTION
CASE OF
KHAMILA ISAYEVA v. RUSSIA
(Application
no. 6846/02)
JUDGMENT
STRASBOURG
15
November 2007
FINAL
02/06/2008
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 Khamila Isayeva v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 23 October 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 6846/02) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Ms Khamila Aliyevna Isayeva
(“the applicant”), on 28 December 2001.
The
applicant, who had been granted legal aid, was represented by lawyers
of Stichting Russian Justice Initiative (“SRJI”), an NGO
based in the Netherlands with a representative office in Russia. The
respondent Government are represented by Mr P. Laptev, Representative
of the Russian Federation at the European Court of Human Rights.
The
applicant alleged, in particular, that her husband disappeared
following his apprehension by Russian servicemen in the Chechen
Republic. She relied on Articles 2, 3, 5, 6 and 13.
On
29 August 2004 the Court decided to apply Rule 41 of the Rules of
Court.
By
a decision of 24 October 2006, the Court declared the application
admissible.
The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1961. She was a resident of
the village of Alkhan-Kala (also known as Yermolovka) in the Grozny
District, and currently lives in Grozny, Chechnya.
A. The facts
1. Background to the case
The
applicant and her husband, Mr Sultan Isayev, born in 1961, lived in
the village of Alkhan-Kala in the Grozny District. They have four
children. The applicant is a bookkeeper and her husband was a welder
by profession. He served in the Soviet army and became a commander of
a tank platoon. From the middle of the 1990s he worked in
construction as a bricklayer, and as a mechanic. In the 1990s Mr
Sultan Isayev underwent two surgical operations, on his bowels and
for appendicitis, and was in need of another one, on his spine, but
could not afford it.
In
early October 1999 the Russian Government launched a
counter-terrorist operation in the Chechen Republic.
In
November 1999 the applicant and her family went to Ingushetia, where
they stayed in the village of Voznesenskoye. Mr Sultan Isayev's
parents remained in Alkhan-Kala in their house at 65
Zheleznodorozhnaya Street.
On
27 April 2001 the applicant's husband returned to Alkhan-Kala to
visit his parents and stayed at their house, as he had regularly done
before. The applicant and their children remained in Voznesenskoye,
and therefore she did not witness the events relating to her
husband's arrest.
2. Events of 29 April 2001
(a) Detention of the applicant's husband
On
29 April 2001 the Russian military conducted a special (“sweeping”)
operation involving several armoured personnel carriers (APCs) and
military helicopters in the village of Alkhan-Kala.
On
29 April 2001 Mr Sultan Isayev went to visit his parents' neighbours,
the Magomadovs, at 63 Zheleznodorozhnaya Street. Together with the
owner of the house, they were taking a steam bath in the Magomadovs'
bathhouse, a small building located in the courtyard of the house.
Mr
Sultan Isayev's father was in his house at
65 Zheleznodorozhnaya
Street, when at about 1.30 p.m. he saw around eight or ten heavily
armed soldiers in the street. He was standing at the open gates of
his house and asked them if they wanted to check inside. In reply
they ordered him to get inside and fired in front of his feet. He
obeyed and noticed that the soldiers then proceeded to the
Magomadovs' house down the street, where his son was. Mr Sultan
Isayev's father described the events as follows:
“Having entered my house, I began watching through
the window into the street. Two APCs drove up to the same house where
my son was bathing... About ten more people came out of the APCs; two
of them stayed in the street and the rest went into the courtyard.
There were about fifteen people. About half an hour later they came
out quickly, and I saw two civilians, that is, the owner of the
house, Mr Sherip Magomadov, who was dressed, and my son, who was
half-naked, being shoved into the APC.
In the hands of a senior [serviceman] I noticed two or
three passports. I recognised the dark blue cover of my son's
passport among them.
When they drove off, I immediately ran to the house
where my son had been, and there I saw the broken door to the
bathhouse and my son's clothes – his jumper, shirt, trousers
and shoes. The owner of the house wasn't there; things were strewn
all over the place, on the floor.”
The
applicant submitted several statements by neighbours who confirmed
that about twenty armed soldiers who had arrived in two APCs had
burst into the Magomadovs' house and detained the owner and Mr Sultan
Isayev, who had been taken naked from the bathhouse. One of the
neighbours stated that she had seen a man running away from the
federal soldiers who had entered the Magomadovs' house and the
soldiers pursuing the man and then detaining three men in the house.
The witnesses also testified that they had heard shooting while the
men were being detained.
According
to the Government, on 29 April 2001 the federal forces conducted a
special operation in Alkhan-Kala. During that operation a group of
unidentified armed men arrived at the Magomadovs' house at
63 Zheleznodorozhnaya Street, put the applicant's husband and
two other persons into APCs and took them away in an unknown
direction.
In
total ten men, aged between 25 and 45, were detained and taken away
in Alkhan-Kala on 29 April 2001. The severely mutilated body of one
of them was found two weeks later, whilst all the others have
remained missing ever since.
(b) Media reports
On
1 May 2001 the Agence France-Presse news agency, referring to
information from the Russian ITAR-TASS news agency, reported:
“Russian forces said ... they had wiped out a
rebel unit led by warlord Arbi Barayev, one of the most ruthless
gangs fighting in Chechnya. ... Seven rebels were killed and 20
arrested in the operation, in which the Russian forces surrounded the
village of Yermolovka where the Barayev rebels were holed up. ... The
unit was wiped out ... after several days of fighting and Barayev,
27, fled.”
The
bulletin of the United Group Alignment of the Federal Forces (UGA) in
Chechnya reported that at the beginning of May 2001 “during an
operation in the vicinity of Alkhan-Kala special forces [had]
severely mauled the 'Barayev fighters' and [that] a large group of
'brothers-in-arms' of the murderer [had been] detained and active
members of the gang [had been] liquidated.”
3. The applicant's search for Mr Sultan Isayev
On
29 April 2001 relatives of the detained men went to the office of the
local military commander, who told them that the soldiers under his
command had not taken part in the “sweeping-up” operation
and that he had no information about the detainees. According to the
applicant, the local military commander had taken no part in the
planning or conduct of the operation, and it had been most likely
that he himself had been detained by the federal military who had
come to conduct it. Soon after the events the military commander had
been transferred away from Alkhan-Kala.
On
2 May 2001 the applicant, who was then in Ingushetia, learnt of her
husband's detention and immediately went to Chechnya to search for
him.
She
coordinated her efforts with the relatives of the other men who had
disappeared. On numerous occasions, both in person and in writing,
she applied to the prosecutors at various levels, the Ministry of the
Interior, the administrative authorities in Chechnya, the Special
Representative of the Russian President for Rights and Freedoms in
the Chechen Republic, and to media and public figures. In her letters
the applicant stated the facts of Mr Sultan Isayev's detention and
asked for assistance and for details of the investigation.
The
applicant was given hardly any substantive information from official
bodies about the investigation into Mr Sultan Isayev's disappearance.
On several occasions she and the relatives of the other detainees
received copies of letters stating that their requests had been
forwarded to different prosecutors' services.
On
around 2 May 2001 the applicant went to the office of the mayor of
Grozny and met with the deputy mayor, Mr Musa Dzhabrailov. According
to the applicant, this official, who had claimed that he was an
officer of the Federal Security Service (FSB), had been aware of the
circumstances of her husband's detention, as, having heard her
husband's name, he had allegedly cried out that, indeed, that man had
been “the one with a can of beer in a bathhouse”. The
applicant submitted that the deputy mayor had stated that criminal
proceedings had been instituted in connection with the organisation
of an illegal armed group and that her husband had been arrested in
the context of those proceedings. He had also referred to a certain
investigator who had been in charge of the investigation in the
proceedings, but refused to disclose the investigator's name. The
deputy mayor had further told the applicant that the detainees were
being held at Khankala, the main Russian military base in Chechnya.
He had allegedly assured her that her husband and six or seven others
would be released once the mayor of Grozny came back after 10 May
2001.
Thereafter
the applicant went to Alkhan-Kala and met her father-in-law, who,
with other relatives of the missing persons, had hired a bus and
travelled around visiting various officials in an attempt to find out
about the detainees.
On
15 May 2001 the applicant was in Alkhan-Kala during another
“sweeping-up” operation. The soldiers told the women in
the village that there was a corpse in the river, and one of the
women recognised a body which had no head and one leg as that of her
son, Mr Aburakhman Lorsanov, who had been detained on 29 April 2001.
She identified him by the clothes he had been wearing on the day of
his arrest. He was buried two days later, without a medical or
forensic examination. The applicant submitted that the body had had
several stab and gunshot wounds.
After
15 May 2001 a number of relatives of those detained on 29 April
2001 wrote to the Prosecutor General. They referred to the discovery
of Mr Aburakhman Lorsanov's body, asked for news of their missing
family members and requested that an investigation of the arrests be
carried out.
Later
in May 2001 the relatives liaised with a person whom the applicant
identified as a “middleman from Khankala”, the main
federal military base in Chechnya, and offered to pay money for the
release of the detained men. He was assisted by three other persons,
whom the applicant also called “middlemen”.
According
to the applicant, the middleman from Khankala confirmed that the
persons detained on 29 April 2001 were being held at the military
base and suggested that the relatives should collect 1,000 United
States dollars (USD) per detainee to have them released. According to
the applicant, during the negotiations the relatives had also paid
1,000 Russian roubles per day to the middleman, who had allegedly
given the money to the guards of the detainees. Some time later he
had said to the applicant and other relatives that he had been unable
to arrange for their family members' release. Three weeks later the
relatives had offered USD 1,500 per person to the same men and four
weeks later one of the middlemen had brought news that Mr Sultan
Isayev and Mr Sherip Magomadov would soon be released.
At
the end of May 2001 the applicant and other relatives finally
received confirmation from one of the middlemen, hired a bus and went
to a pre-arranged location. According to the applicant, in view of
the fact that rumours of the deal had been circulating, the
prosecutor of the Chechen Republic and two investigators had come to
the same place and the deal had been called off on account of this
“publicity”. The “middleman from Khankala”
had been arrested, but had been released several days later and had
refused to be involved in the negotiations any further, having stated
that the detainees had, in any event, been transferred to another
place. One of the other middlemen had allegedly been killed several
days later when his car had been shot at on a road.
4. Official investigation
On
4 May 2001 the Grozny District Prosecutor's Office instituted a
criminal investigation into the disappearance of ten persons in
Alkhan-Kala, including the applicant's husband, under Article 127 §
2 (d) and (f) of the Russian Criminal Code (unlawful deprivation of
liberty of two or more persons committed with the use of arms). The
case file was registered as no. 19051.
On
13 May 2001 the military prosecutor's office of military unit
no. 20102 in Khankala stated in reply to a request from the
Grozny District Prosecutor's Office that no special operations had
been conducted by the forces of the Ministry of Defence or the
Ministry of the Interior on 29 April 2001, and that the persons
listed in the request had not been detained.
On
3 June 2001 the Grozny District Prosecutor's Office requested the
nationwide Russian RTR channel to provide it with a copy of the news
programme of 30 April 2001, which had reported on the operation of
29 April 2001 in Alkhan-Kala.
On
22 June 2001 the relatives of the detainees again wrote to the
Prosecutor General. They referred to the news programmes that had
announced that a special operation had taken place in Alkhan-Kala at
the end of April and that General Baranov had been promoted and
decorated for its success. They also enquired about the latest
developments in the investigation.
On
23 June 2001 the Prosecutor's Office of the Chechen Republic replied
to a request from the Special Envoy of the Russian President for
Rights and Freedoms in the Chechen Republic concerning the ten
persons detained in Alkhan-Kala. The letter stated that a criminal
investigation had been opened by the Grozny District Prosecutor's
Office and that all measures were being taken to identify those
responsible and to locate the whereabouts of the kidnapped persons.
On
1 August 2001 the head of the Alkhan-Kala administration, Ms Malika
Umazheva, wrote to the head of the UGA. She stated that on
28 and
29 April 2001 there had been a special (“sweeping-up”)
operation in the village, as a result of which several houses had
been blown up and a number of men had been detained and taken away.
She listed the numbers of the six APCs that had participated in the
operation. She further stated that two weeks after the detention the
body of one of the detainees had been discovered in the river, while
the others had disappeared. She asked for assistance in finding the
detainees. Malika Umazheva was killed in her house on 29 November
2002 by unidentified gunmen
On
3 September 2001 the Prosecutor General's Office replied to one of
the relatives of the missing men that the investigation was being
supervised by its department in the Southern Federal Circuit.
In
September 2001 the 12th Interim Report by the Secretary General of
the Council of Europe on the situation in Chechnya (SG/Inf (2002) 29)
stated that “in the case of the disappearance of ten citizens
of the village of Alkhan-Kala during the mop-up operation from 19-21
April 2001, the head of the local administration had requested from
the military prosecutor information about the stage of the
investigations, without success”. According to the applicant,
there was a mistake in the dates of the operation given in the
report.
On
4 October 2001 the applicant received a copy of a letter from the
Prosecutor's Office of the Chechen Republic addressed to the Grozny
District Prosecutor's Office, in which the latter was instructed to
conduct an additional investigation in criminal case no. 19051,
opened in relation to the unlawful detention of several residents of
Alkhan-Kala. A criminal case file containing 123 pages was listed as
an attachment.
On
15 October 2001 the applicant wrote a letter to the Prosecutor's
Office of the Chechen Republic in which she restated in detail the
circumstances of her husband's arrest. She asked for a criminal case
to be opened in relation to Mr Sultan Isayev's disappearance and for
information as to his whereabouts.
In
a decision of 18 October 2001 the Oktyabrskiy District Court of
Grozny established as a legal fact that the applicant's husband had
been missing since 29 April 2001.
On
22 October 2001 the Prosecutor's Office of the Chechen Republic
replied to the applicant that a criminal case had been opened and was
being investigated by the Grozny District Prosecutor's Office. The
letter contained no further details.
On
24 October 2001 the applicant was informed in a letter from the
Government of the Chechen Republic that following her complaint the
Chechen Department of the Interior had been instructed to take all
measures necessary to establish Mr Sultan Isayev's whereabouts.
On
31 October 2001 the applicant contacted the Chechen Department of the
FSB, asking for help to locate her husband. She referred to the
statements of the deputy mayor of Grozny, Mr Dzhabrailov, to the
effect that he was an FSB officer and was aware of the criminal case
in connection with her husband's detention.
On
6 November 2001 the Chechen Department of the FSB replied to the
applicant that it had no information about the ten missing persons
and that Mr Musa Dzhabrailov was not one of its officers.
On
3 December 2001 the Special Representative of the Russian President
for Rights and Freedoms in the Chechen Republic requested information
on the applicant's behalf about the investigation from the
Prosecutor's Office.
In
April 2002 Human Rights Watch issued a report entitled “Last
Seen...: Continued 'Disappearances' in Chechnya”. It contained
an account of the detention and disappearance of several men from
Alkhan-Kala and referred to the absence of any results from an
allegedly pending investigation.
On
8 September 2002 the criminal proceedings in case no. 19051 were
suspended on the ground that it was impossible to identify the
perpetrators.
On
9 October 2002 the Grozny District Prosecutor's Office issued the
applicant with a certificate in which she was described as a victim
in criminal case no. 19051, opened in connection with her
husband's disappearance on 29 April 2001. According to the
applicant, no formal decision granting her victim status had been
taken.
On
15 February 2003 the applicant wrote to the Grozny District
Prosecutor's Office, the Chechen Republic Prosecutor's Office, the
Prosecutor General's Office, the Grozny District military commander's
office and the Federal Department for Rights and Freedoms in
Chechnya. She stated that her husband had been taken away during a
“sweeping-up” operation on 29 April 2001 and that the
criminal proceedings instituted in that connection had been suspended
on two occasions. The applicant also requested the public bodies
concerned to assist her in her continued search for her husband.
In
a letter of 18 March 2003 the Prosecutor's Office of the Chechen
Republic informed the applicant that on 4 May 2001 the Grozny
District Prosecutor's Office had instituted criminal proceedings in
connection with “the unlawful detention by servicemen of the
federal forces” of a number of residents of Alkhan-Kala,
including Mr Sultan Isayev, “during a special operation”.
The letter further stated that the investigating authorities had been
unable to establish which State agencies had participated in the
detention of the villagers and that the investigation had therefore
been adjourned on 8 September 2002; however, on 26 February 2003 it
had been resumed and at present measures were being taken to find the
missing persons and to identify those responsible. The letter then
invited the applicant to apply to the Grozny District Prosecutor's
Office for explanations concerning the investigation.
On
5 April 2003 the applicant applied in writing to the Prosecutor's
Office of the Chechen Republic asking to be granted victim status.
On
17 April 2003 the SRJI requested the Grozny Prosecutor's Office on
the applicant's behalf to provide information concerning the results
of the investigation following its reopening on 26 February 2003. It
also requested that the applicant be sent a copy of a decision
declaring her to be a victim. In the absence of a reply, the request
was sent again on 26 June and 27 August 2003.
On
an unspecified date the investigation into the disappearance of Mr
Sultan Isayev and several other residents of Alkhan-Kala was
suspended; it was resumed on 24 April 2003.
On
6 May 2003 the Chechen Republic Prosecutor's Office referred the
applicant's query to the Grozny District Prosecutor's Office,
informed her of the latest decision to resume the investigation and
stated that the search for the men detained on 29 April 2001 and
those involved in that offence was currently under way.
On
26 June and 2 and 27 August 2003 the applicant and the SRJI, on her
behalf, requested the Grozny District Prosecutor's Office to grant
the applicant victim status and to update her on the results of the
investigation.
In
a letter of 22 September 2003 the Chechen Republic Prosecutor's
Office notified the applicant that the criminal proceedings in case
no. 19051 had been resumed on 17 September 2003 and that the
investigation was being carried out by the Chechen Republic
Prosecutor's Office. The letter also stated that on 31 July 2003
victim status had been granted to the applicant's father-in-law, that
she herself had never requested to be declared a victim in the case
and that she should apply to the same prosecutor's office so that a
decision on granting victim status could be taken.
On
31 October 2003 the applicant requested the Chechen Republic
Prosecutor's Office to grant her victim status in criminal case
no. 19051. In reply, the prosecutor's office stated in a letter
of 11 December 2003 that she should report in person to the
Chechen Republic Prosecutor's Office so that she could be declared a
victim, and that the criminal proceedings in case no. 19051 had
been adjourned on account of the failure to identify the
perpetrators, but that the search for her husband was in progress.
According
to the applicant, throughout the investigation she had received only
two summons from the Grozny District Prosecutor's Office, dated 15
and 18 October 2002, although she had repeatedly visited the
prosecutor's office on her own initiative. She submitted that during
her visits she had unsuccessfully requested to be granted victim
status.
In
January 2004, upon receipt of the letter of 11 December 2003, the
applicant had visited the Chechen Republic Prosecutor's Office and
requested to be declared a victim. She had allegedly been told that
the investigator in charge was absent and that no other person had
the power to take such a decision. The applicant had visited the
Chechen Republic Prosecutor's Office again in February 2004 and
talked to the investigator in charge. The latter had allegedly
refused to grant her victim status, referring to the fact that the
criminal case concerning her husband's disappearance had been
transferred to the military prosecutor's office of military unit
no.
20102 in Khankala. The investigator had allegedly refused to inform
the applicant of the date of the transfer or to issue her with any
document attesting to her visit.
In
late April or early May 2004 the applicant went to the military
prosecutor's office of military unit no. 20102. According to the
applicant, officials from that prosecutor's office had at first
refused to talk to her or let her in. Some time later the applicant
had been allowed to enter the premises of the military prosecutor's
office and had managed to talk to Colonel Evgeniy Poddubny, an
assistant prosecutor from the military prosecutor's office attached
to the UGA. According to the applicant, Colonel Poddubny had
expressed surprise that she had not yet been recognised as a victim
in case no. 19051 and had stated that it was now 2004, whereas the
criminal proceedings had been instituted in 2001, and it was
therefore highly unlikely that she would now be granted victim status
or that the investigating authorities would be able to identify those
involved in Mr Sultan Isayev's abduction, given that the term of
those persons' military service in Chechnya had expired long ago and
they had left for their permanent place of service. Then Colonel
Poddubny, at the applicant's request, wrote on a piece of paper that
the case file had been received by the military prosecutor's office
of the UGA on 8 April 2004. The applicant furnished the Court with a
copy of that statement.
The
applicant had also submitted a written request to the registry of the
prosecutor's office to be granted victim status and to be updated on
the results of the investigation. She stated that she had been told
that a reply would be sent to her place of work, but she had not
received any letters to date. During their conversation Colonel
Poddubny had stated that the applicant should have been grateful that
she had met him at the prosecutor's office, because no other official
would have given her any explanations, and because he would help her
out of the premises. He had also stated that she had been lucky to
enter the premises of the military prosecutor's office but would also
need luck to get out, and that next time it would be better if she
refrained from coming to Khankala. Colonel Poddubny then ordered
another officer to accompany the applicant out of the territory of
Khankala and to report back to him afterwards.
The
applicant stated that she was afraid to visit the military
prosecutor's office of military unit no. 20102 ever again, even
though she had not received any letters from it informing her of the
investigation.
The
Government submitted the following information concerning the
progress of the investigation.
On
30 April 2004 the investigation was again suspended since it had been
impossible to find those responsible for the offence. It was
subsequently resumed on 22 November 2004.
On
6 December 2004 the Prosecutor's Office of the Chechen Republic
took up the case. On the same date the investigator ordered the
seizure of certain documents from the archives of the FSB, the
Ministry of the Interior, the Ministry of Defence and of unspecified
other documents which related to the special operation conducted in
Alkhan-Kala between
28 and 29 April 2001 and to the persons
detained.
On
7 December 2004 the investigator instructed the Moscow city military
prosecutor and the military prosecutor of Podolsk garrison to seize
the documents. The prosecutors were also instructed to question
former serviceman L. (the Government submitted neither his full name
nor why his statements could be relevant) and servicemen of military
unit no. 74507 about their participation in the special operation.
On
8 December 2004 the investigating authorities watched the tape
submitted by the RTR TV channel with their report of 30 April 2001.
The report provided no new information about the special operation in
Alkhan-Kala.
On
8 and 20 December 2004 the investigator instructed the Military
Prosecutor's Office of the UGA, the Chief Military Prosecutor and the
Military Prosecutor of the North Caucasus Military District to
question the servicemen of military unit no. 74507.
On
18 December 2004 the Military Prosecutor's Office of the
Vladikavkazsky Garrison questioned U. (the Government submitted
neither his full name nor exact position held). U. stated that the
division he had been in charge of had sealed off Alkhan-Kala and had
remained outside its limits. He had no information about any
detention of the village's residents.
On
22 December 2004 the Prosecutor's Office of the Kamyshinskiy Garrison
questioned S. and K., who provided no relevant information (the
Government submitted neither their full names nor anything about
their identity).
On
23 December 2004 the Chechen Republic Prosecutor's Office questioned
E., a resident of Alkhan-Kala, whose son had been detained on 29
April 2001 along with the other nine persons. He submitted that he
had received information that his son had been held in a correctional
facility. However, on investigation by the authorities the
information proved to be incorrect.
On
6 January 2005 the investigation was suspended because of the failure
to identify any person to be charged with the offence.
The
applicant submitted that on 16 May 2005 she had sent identical
applications to the President and the Prime Minister of the Chechen
Republic asking for assistance in establishing her husband's
whereabouts. On 20 June 2005 she was informed that her application to
the President had been forwarded to the military prosecutor of the
UGA.
On
26 July 2005 the prosecutor's office of military unit no. 20102 sent
a response to the applicant. The response stated that criminal case
no. 19051, on unlawful deprivation of her husband's liberty by
unidentified armed men, had been opened on 4 May 2001. Should it be
established that servicemen had been involved in the crime, the
applicant would be notified immediately. The applicant was further
advised to address all queries concerning the investigation to the
Gudermes Prosecutor's Office.
According
to the Government, on 27 December 2006 the Chechen Republic
Prosecutor's Office quashed the decision of 6 January 2005 and
resumed the investigation.
It
is not clear whether the applicant was eventually granted victim
status in the criminal proceedings.
5. The Court's request to submit the investigation file
When
the application was communicated to the respondent Government the
Court requested it to submit a copy of the entire investigation file
no. 19051. However, despite the specific request from the Court the
Government did not submit any documents from the file in case no.
19051, having quoted the reply from the Prosecutor General's Office
to the effect 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 and other participants in the criminal
proceedings.
On
24 October 2006 the Court declared the application admissible and
reiterated its request for a copy of the investigation file no.
19051. The Court also requested information on the progress of the
investigation after November 2004.
In
response, the Government submitted an update of the investigation but
no documents from the investigation file. They reiterated that
disclosure of the documents would violate Article 161 of the Code of
Criminal Procedure since the file contained information related to
military operations as well as personal data of participants in the
criminal proceedings.
B. Documents submitted by the parties
1. Documents submitted by the applicant
(i) Witness statements
The
applicant submitted the following witness statements concerning the
events of 29 April 2001: witness statement by Mr Sultan Isayev's
father concerning the arrest of his son on 29 April 2001, the
relevant part of which is quoted in paragraph 13 above. Also provided
were witness statements by Mr S. Kh., Ms A. and Ms S., who
resided at Zheleznodorozhnaya Street in Alkhan-Kala and were
neighbours of Mr Sultan Isayev and Mr Sherip Magomadov, and witness
statements by Mr S. Kh., Mr Kh. Kh. and Ms L. Sh.,
residents of Zheleznodorozhnaya Street in Alkhan-Kala.
According
to Mr S. Kh's statement, a “sweeping-up” operation was
conducted in the village on that date. The operation involved five
helicopters and twenty APCs. He could hear shooting all day and
several houses were blown up by the federal forces. When the shooting
came closer to their street, everybody tried to hide in their
basements. Mr Sherip Magomadov's mother hid in the same basement as
Mr S. Kh. She said that her son was taking a bath and did not know
about the “sweeping-up” operation. When she (apparently
with the mother of Mr Sultan Isayev) tried to approach their sons,
the servicemen fired at their feet and ordered them to leave, so they
had to return to the basement. When the servicemen left, those who
were hiding went to the bathhouse, but neither Mr Sultan Isayev nor
Mr Sherip Magomadov were there, only their clothes were left. Then
their relatives and neighbours went to the local military commander's
office, where they were told that Sultan and Sherip had been taken to
Khankala and that after enquiries they would be back tomorrow.
According
to Ms A.'s statement, around 12 noon on 29 April 2001 she saw two
APCs going down their street. They stopped at the Magomadovs' gate.
Through the fence, behind which she was hiding with her sister, she
saw eighteen servicemen getting out of the APCs. Her sister then saw
three men being shoved into the APC. After the servicemen had left,
it appeared that they had taken with them Mr Sultan Isayev, Mr Sherip
Magomadov and another villager who escaped later.
According
to Ms S.'s statement, a “sweeping-up” operation was
conducted in the village on 29 April 2001. When two APCs appeared in
their street and started shooting, all the women and children ran to
hide in their basements. She did not head to the basement because her
baby was in her house. Instead, she hid behind a fence. Through the
fence she saw about twenty armed servicemen breaking into her
neighbours' house and smashing everything inside. Then they threw Mr
Sultan Isayev and
Mr Sherip Magomadov out of the bathhouse and,
kicking them, shoved them into the APC. Other men were also taken by
the servicemen during the operation.
According to Mr S. Kh., Mr Kh. Kh. and Ms L. Sh., after Mr Sultan
Isayev had arrived at Alkhan-Kala on 27 April 2001 to visit his
parents he had been apprehended by federal servicemen during a
special operation on 29 April 2001 along with several other
villagers and the reasons for the apprehension had not been stated.
The statements were verified by the Head of the Administration of
Alkhan-Kala on 15 October 2001.
(ii) Applications to State authorities and
their responses
The
applicant submitted copies of her applications to various State
authorities and of their responses referred to in the Facts section
above.
(iii) Other documents
The
applicant submitted copies of the media reports referred to in
paragraphs 17-18 above. She also submitted reports concerning the
situation in the Chechen Republic at the relevant period by the
Secretary General of the Council of Europe, Memorial Human Rights
Centre and Human Rights Watch.
2. Documents submitted by the Government
The
Government enclosed a number of letters from various courts in
Russia, stating that the applicant had never lodged any complaints
about the allegedly unlawful detention of her husband or challenged
in court any actions or omissions of the investigating or other
law-enforcing authorities.
II. RELEVANT DOMESTIC LAW
Until
1 July 2002 criminal-law matters were governed by the 1960 Code of
Criminal Procedure of the RSFSR (Russian Soviet Federative Socialist
Republic). On 1 July 2002 the old Code was replaced by the Code of
Criminal Procedure of the Russian Federation.
Article
161 of the new Code of Criminal Procedure establishes the rule that
data from the preliminary investigation cannot be disclosed. Part 3
of the same Article provides that information from the investigation
file may be divulged with the permission of a prosecutor or
investigator and only in so far as it does not infringe the rights
and lawful interests of the participants in the criminal proceedings
and does not prejudice the investigation. It is prohibited to divulge
information about the private life of the participants in the
criminal proceedings without their permission.
Article
46 of the Russian Constitution guarantees to everybody judicial
protection of their rights and freedoms. It further provides that
decisions and actions (or inaction) of bodies of State authority and
local self-government, public associations and officials may be
appealed against to a court.
The
Law on Complaints to Courts against Actions and Decisions Violating
the Rights and Freedoms of Citizens (as revised by the Federal Law of
14 December 1995) provides that any citizen has the right to lodge a
complaint with a court when he or she considers that his or her
rights have been infringed by an unlawful action or decision of a
State agency, local self-government body or an institution,
enterprise or association, non-governmental organisation or official
or State employee. Complaints may be lodged either directly with a
court or with a higher State agency, which must review the complaint
within one month. If the complaint is rejected by the latter or there
has been no response on its part, the person concerned has the right
to bring the matter before a court.
Under
section 5 of the Law on Operational Search Activities, an individual
who considers that his rights and freedoms have been violated by the
bodies carrying out the operational search activities can complain of
those actions to a higher body carrying out the operational search
activities, a prosecutor or a court.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION AS TO EXHAUSTION
OF DOMESTIC REMEDIES
A. The parties' submissions
The
Government contended that the application should be declared
inadmissible as the applicant had failed to exhaust the domestic
remedies available to her. With reference to Article 46 of the
Russian Constitution, section 5 of the Law on Operational Search
Activities and the Law on Complaints to Courts against Actions and
Decisions Violating the Rights and Freedoms of Citizens, the
Government argued that it had been open to the applicant to lodge
complaints in courts in various regions of Russia or directly in the
Supreme Court of Russia about the allegedly unlawful detention of her
husband or about the actions or omissions of the investigating or
other law-enforcement authorities, but she had not availed herself of
that remedy. The Government enclosed a number of letters from various
higher courts in Russia stating that the applicant had never lodged
any such complaints with the courts in question. They also argued
that the authorities had twice invited the applicant to visit the
Chechen Republic Prosecutor's Office with a view to granting her
victim status, but the applicant had failed to appear.
The
applicant disputed the Government's objection. She 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 her case.
In this connection she 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
applicant contended that, in any event, she had repeatedly applied to
law-enforcement bodies, including various prosecutors, and had
actively participated in the investigation. This avenue, however, had
proved futile, given that the criminal investigation had by now been
pending for over six years but had failed to identify those involved
in the illegal detention and disappearance of Mr Sultan Isayev
despite compelling evidence confirming the involvement of federal
servicemen. The applicant also argued that the Government had failed
to demonstrate that a court complaint against the actions or
omissions of the investigating authorities would have been an
effective remedy in her situation. She stated that under domestic law
a court, in examining such a complaint, could order the investigating
authorities to resume the investigation or to take certain
investigative measures. In this connection she pointed out that the
investigation into her husband's abduction had been resumed on
several occasions following her complaints to higher prosecutors;
however, so far it had produced no results. The applicant therefore
argued that court complaints against the investigators would not have
changed the situation, and therefore she had been under no obligation
to make use of that remedy. She also referred to the Court's
established case-law to the effect that, in any event, the
authorities had to carry out the investigation of their own motion
once the matter had come to their attention, without leaving it to
the initiative of the next of kin to take responsibility for the
conduct of any investigative procedures. The applicant also denied
the Government's allegation that she had failed to appear at the
Chechen Republic Prosecutor's Office and that this had prevented the
investigators from granting her the victim status. She contended that
on numerous occasions she had written to, and visited in person,
various prosecutors' offices in Chechnya but had never been granted
victim status.
B. The Court's assessment
The
Court notes that, in its decision of 24 October 2006, it considered
that the question of exhaustion of domestic remedies was closely
linked to the substance of the applicant's complaints and that it
should be joined to the merits.
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. Article 35 § 1 also
requires that complaints intended to be brought subsequently before
the Court should have been made to the appropriate domestic body, at
least in substance and in compliance with the formal requirements and
time-limits laid down in domestic law and, further, that any
procedural means that might prevent a breach of the Convention should
have been used. However, there is no obligation to have recourse to
remedies which are inadequate or ineffective (see Aksoy v. Turkey,
judgment of 18 December 1996, Reports of Judgments and Decisions
1996 VI, pp. 2275-76, §§ 51-52; Akdivar and
Others, cited above, p. 1210, §§ 65-67; and,
most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey,
no. 41964/98, § 64, 27 June 2006).
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, cited above, p. 1211, § 68,
or Cennet Ayhan and Mehmet Salih Ayhan, cited above, § 65).
Inasmuch
as the Government's preliminary objection concerns the applicant's
failure to complain of her husband's unlawful detention, the Court
observes that after he was taken away by armed men on 29 April 2001,
the applicant actively attempted to establish his whereabouts and
applied to various official bodies (see paragraphs 19-29 above),
whereas the authorities denied that they had ever detained Mr Sultan
Isayev (see paragraph 31 above). In such circumstances, and in
particular in the absence of any proof to confirm the very fact of
the detention, even assuming that the remedy referred to by the
Government was accessible to the applicant, it is more than
questionable whether a court complaint of the unacknowledged
detention of the applicant's husband by the authorities would have
had any prospects of success. Moreover, the Government have not
demonstrated that the remedy indicated by them would have been
capable of providing redress in the applicant's situation, namely
that it would have led to the release of Mr Sultan Isayev and the
identification and punishment of those responsible.
To
the extent that the Government argued that the applicant had not
complained to a court about the actions or omissions of the
investigating or other law-enforcing authorities, the Court notes
that the Government referred to a number of domestic legal
instruments which guarantee the right to appeal against actions or
omissions of State authorities and officials to a court.
Inasmuch
as this limb of the Government's preliminary objection concerns
complaints that might be lodged by the applicant outside the
framework of criminal proceedings, the Government have submitted
neither any evidence that this remedy was accessible to the applicant
in practice nor any explanation as to how it could have provided the
applicant with adequate redress. Therefore, the Government have not
substantiated their contention that the remedy the applicant had
allegedly failed to exhaust was an effective one.
Inasmuch
as this limb of the Government's preliminary objection concerns
complaints that might be lodged by the applicant within criminal
proceedings, the Court notes that the accessibility and prospects of
success of this remedy largely depended on whether the applicant had
been duly informed about the progress of the investigation. The Court
considers that these issues are closely linked to the question of the
effectiveness of the investigation, and therefore it would be
appropriate to address the matter in the examination of the substance
of the applicant's complaints under Article 2 of the Convention
(see paragraph 135 below).
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicant complained that Article 2 of the Convention had been
violated in respect of Mr Sultan Isayev. She submitted that the
circumstances of his detention, the absence of any news of him ever
since and the discovery two weeks later of the body of one of the
persons detained with him, showing signs of a violent death,
indicated that he too had been killed by the federal forces. She
further claimed that there had been a violation of Article 2 in
its procedural aspect since no effective investigation had been
carried out into the circumstances of her husband's detention and
disappearance.
Article 2
of the Convention provides:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. The alleged violation of the right to life of Mr
Sultan Isayev
1. Arguments of the parties
The
applicant argued that it was beyond reasonable doubt that the men who
had apprehended and taken away her husband on 29 April 2001 had
represented federal forces, since the fact that those forces had
carried out a special operation in Alkhan-Kala on the date in
question had been confirmed by eyewitness statements submitted by the
applicant and acknowledged by the Government in their observations.
The applicant accordingly argued that following his arrest, Mr Sultan
Isayev had been under the control of the State. She claimed that the
Government's argument that Mr Sultan Isayev was not listed among
those being held in detention centres merely proved that her
husband's life had been endangered after he had been arrested, 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.
The
applicant thus stressed that her husband had been apprehended in
life-endangering circumstances and argued, relying on Article 2 of
the Convention, that the fact that he had remained missing since 29
April 2001 proved that he had been killed. She also claimed that the
special operation carried out on the aforementioned date had not been
properly planned and supervised by the authorities to ensure that it
met the requirements of Article 2 of the Convention.
The
Government submitted that on 29 April 2001 federal forces had
conducted a special operation in Alkhan-Kala aimed at the detention
of members of illegal armed gangs. On that date, during the daytime,
a group of unidentified armed persons had gone to 63
Zheleznodorozhnaya Street and taken away Mr Sultan Isayev, Mr Sherip
Magomadov and Mr Kh. They had also apprehended seven other residents
of the village. However, the investigation into those events was
still pending and, until the circumstances of Mr Sultan Isayev's
disappearance had been established by the investigating authorities,
there were no grounds for claiming that his right to life had been
breached by State agents.
The
Government further argued that only actual killing could be regarded
as deprivation of life for the purposes of Article 2 of the
Convention and that there were no grounds to believe that Mr Sultan
Isayev or any other residents of Alkhan-Kala detained on 29 April
2001 were in fact dead, given that their deaths had not been
confirmed by courts in accordance with domestic law.
2. The Court's assessment
(a) General principles
In
cases in which there are conflicting accounts of events, the Court is
inevitably confronted when establishing the facts with the same
difficulties as those faced by any first-instance court. When, as in
the instant case, the respondent Government have exclusive access to
information able to corroborate or refute the applicants'
allegations, any lack of cooperation by the Government without a
satisfactory explanation may give rise to the drawing of inferences
as to the well-foundedness of the applicant's allegations (see Taniş
and Others v. Turkey, no. 65899/01, § 160, ECHR 2005 ...).
The
Court points out that a number of principles have been developed in
its case-law when it is faced with a task of establishing facts on
which the parties disagree. As to the facts that are in dispute, the
Court reiterates its jurisprudence confirming the standard of proof
“beyond reasonable doubt” in its assessment of evidence
(see Avşar v. Turkey,
no. 25657/94, § 282,
ECHR 2001 VII (extracts)). Such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact. In this context, the
conduct of the parties when evidence is being obtained has to be
taken into account (see Taniş and Other, cited
above, § 160).
The
Court is sensitive to the subsidiary nature of its role and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Nonetheless, where allegations are made under Articles 2
and 3 of the Convention the Court must apply a particularly thorough
scrutiny (see, mutatis mutandis, Ribitsch v. Austria,
4 December 1995, Series A no. 336, § 32, and Avşar v.
Turkey, cited above, § 283) even if certain domestic
proceedings and investigations have already taken place.
Where
the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, such as in cases where
persons are under their control in custody, 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 Tomasi v. France, 27 August 1992, Series
A no. 241-A, pp. 40-41, §§ 108-11; Ribitsch, cited
above, § 34; and Selmouni v. France [GC], no. 25803/94,
§ 87, ECHR 1999-V).
These
principles apply also to cases in which, although it has not been
proved that a person has been taken into custody by the authorities,
it is possible to establish that he or she entered a place under
their control and has not been seen since. In such circumstances, the
onus is on the Government to provide a plausible explanation of what
happened on the premises and to show that the person concerned was
not detained by the authorities, but left the premises without
subsequently being deprived of his or her liberty (see Taniş,
cited above, § 160).
Finally,
when there have been criminal proceedings in the domestic courts
concerning those same allegations, it must be borne in mind that
criminal-law liability is distinct from international-law
responsibility under the Convention. The Court's competence is
confined to the latter. Responsibility under the Convention is based
on its own provisions, which are to be interpreted and applied on the
basis of the objectives of the Convention and in light of the
relevant principles of international law. The responsibility of a
State under the Convention, for the acts of its organs, agents and
servants, is not to be confused with the domestic legal issues of
individual criminal responsibility under examination in the national
criminal courts. The Court is not concerned with reaching any
findings as to guilt or innocence in that sense (see Avsar,
cited above, § 284).
(b) Establishment of the facts
The
applicant alleged that on 29 April 2001 her husband, Mr Sultan
Isayev, had been apprehended by Russian servicemen and then
disappeared. She invited the Court to draw inferences as to the
well-foundedness of her allegations from the Government's failure to
provide the documents requested from them. The applicant supported
her allegations with statements by six witnesses, including her
husband's father and five other residents of Alkhan-Kala. The
witnesses provided a coherent account of the special operation
conducted in the village on 29 April 2001 and stated that Mr Sultan
Isayev had been apprehended by the servicemen involved in the
operation. According to statements from three eyewitnesses, they had
seen Mr Sultan Isayev being shoved into an APC by Russian servicemen.
The
Government confirmed that a special operation had been carried out in
Alkhan-Kala on 29 April 2001 aimed at the detention of members of
illegal armed gangs. They also did not deny that Mr Sultan Isayev had
been abducted by unknown armed men on the same date. However, the
Government referred to the absence of conclusions from the pending
investigation and denied that the State was responsible for the
disappearance of the applicant's husband.
The
Court notes that despite its repeated requests for a copy of the
investigation file into the abduction of Mr Sultan Isayev, the
Government produced no documents from the case file at all. The
Government referred to Article 161 of the Code of Criminal Procedure.
The Court observes that in previous cases it has already found this
explanation insufficient to justify the withholding of key
information requested by the Court (see Imakayeva v. Russia,
no. 7615/02, § 123, ECHR 2006 ... (extracts)).
In
view of this and bearing in mind the principles cited above, the
Court finds that it can draw inferences from the Government's conduct
in this respect. It considers that the applicant has presented a
coherent and convincing picture of her husband's detention on 29
April 2001. Even though she herself was not an eyewitness to the
events, she collected statements from six witnesses which refer to
the involvement of the military or security forces in the abduction.
The
Court observes that the Government did not deny that Mr Sultan
Isayev had been abducted by armed men and, at the same time,
confirmed that a special operation had been conducted in the village
on the date of his abduction. The fact that a large group of armed
men in uniform, equipped with military vehicles, proceeded in broad
daylight to apprehend several persons at their homes in a village
during a special operation conducted by the State's forces strongly
supports the applicant's allegation that these were State servicemen.
In
the circumstances of the present case and having regard to the fact
that after six years the domestic investigation produced no tangible
results, the Court is not satisfied that the explanations furnished
by the Government are sufficient to cast reasonable doubt on the
applicant's allegations.
Accordingly,
the Court finds that the evidence available permits it to establish
to the requisite standard of proof that on 29 April 2001 Mr Sultan
Isayev had been apprehended by State servicemen.
(c) The State's compliance with Article 2
The
Court takes note of the applicant's submission that, in the
circumstances, her husband should be presumed dead and of the
Government's argument that his death has not been confirmed by
domestic courts and, therefore, there are no grounds for such
presumption.
The
Court observes that there has been no reliable news of the
applicant's husband since 29 April 2001. Having regard to its finding
in paragraph 119 above that Mr Sultan Isayev had been apprehended by
State servicemen, the Court notes that his name was not found in any
of the detention facilities records. Furthermore, the Government did
not submit any plausible explanation as to what happened to him after
his detention.
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 Mr Sultan Isayev or any
news of him for over six years corroborates this assumption, which is
further marginally supported by the fact that one of the villagers
who had also disappeared during the special operation, was found dead
two weeks later (see paragraph 25 above). Furthermore, the Government
have failed to provide any explanation of Mr Sultan Isayev's
disappearance and the official investigation into his abduction,
dragging on for more than six years, has produced no tangible
results.
For
the above reasons the Court considers that Mr Sultan Isayev must be
presumed dead following his unacknowledged detention. Consequently,
the responsibility of the respondent State is engaged. Noting that
the authorities do not rely on any ground of justification in respect
of the use of lethal force by their agents, it follows that liability
for his presumed death is attributable to the respondent Government.
Accordingly,
there has been a violation of Article 2 on that account in respect of
Mr Sultan Isayev.
B. The alleged inadequacy of the investigation into Mr
Sultan Isayev's abduction
1. Arguments of the parties
The
applicant claimed that the authorities had failed in their obligation
to carry out an effective investigation into the circumstances of her
husband's disappearance. She argued that the investigation had fallen
short of the requirements of domestic law and the Convention
standards. In particular, it had been pending for over six years but
had not achieved any tangible results so far, having been repeatedly
suspended and reopened. Furthermore, the investigating authorities
had failed to inform the applicant of the decisions to adjourn and
reopen the investigation, or of its progress. Throughout the
investigation the applicant had requested to be granted crime victim
status, but had received no replies to those requests. In support of
her argument regarding the inefficiency of the investigation, the
applicant also referred to the Government's refusal to submit a copy
of the file of the criminal case concerning her husband's
disappearance. In her observations submitted after the Court's
decision as to the admissibility of the application the applicant
contended that she still had not been granted the victim status.
The
Government conceded that the investigation in the present case had
been suspended and resumed on several occasions and had not yet
identified the perpetrators, but argued, relying on the opinion of
the Prosecutor General's Office, that the investigation had met the
Convention requirement of effectiveness. In their observations
submitted after the Court's decision as to the admissibility of the
application the Government noted that the applicant, as a victim in
the criminal proceedings, could have had access to those materials of
the case that could have been made available to her at that stage of
the investigation. They submitted no documents to support that the
applicant had been granted victim status.
2. The Court's assessment
(a) General principles
The
obligation to protect the right to life under Article 2 of the
Convention, read in conjunction with the State's general duty under
Article 1 of the Convention to “secure to everyone within
[its] jurisdiction the rights and freedoms defined in [the]
Convention”, also requires by implication that there should be
some form of effective official investigation when individuals have
been killed as a result of the use of force (see, mutatis
mutandis, McCann and Others cited above, p. 49, §
161, and Kaya v. Turkey, judgment of 19 February 1998,
Reports 1998-I, p. 329, § 105). The essential
purpose of such investigation is to secure the effective
implementation of the domestic laws which protect the right to life
and, in those cases involving state agents or bodies, to ensure their
accountability for deaths occurring under their responsibility. What
form of investigation will achieve those purposes may vary in
different circumstances. However, whatever mode is employed, 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 İlhan
v. Turkey [GC] no. 22277/93, § 63, ECHR
2000-VII).
For
an investigation into alleged unlawful killing by state agents to be
effective, it may generally be regarded as necessary for the persons
responsible for and carrying out the investigation to be independent
from those implicated in the events (see, for example, Güleç
v. Turkey judgment of 27 July 1998, Reports 1998-IV,
§§ 81-82). The investigation must also be effective in
the sense that it is capable of leading to a determination of whether
the force used in such cases was or was not justified in the
circumstances (see, for example, Kaya, cited above, p. 324,
§ 87) and to the identification and punishment of those
responsible (see 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, including, inter alia,
eyewitness testimony (see, for example, Tanrıkulu
v. Turkey [GC], no. 23763/94,
§ 109, ECHR 1999 IV).
Any deficiency in the investigation which undermines its ability to
establish the cause of death or the person responsible will risk
falling below this standard.
In
this context, there must also be an implicit requirement of
promptness and reasonable expedition. 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 (see
Tanrikulu,cited above, § 109).
Furthermore,
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 victim's next of
kin 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, § 148, ECHR 2001 III).
(b) Application in the present case
The
Court observes that the investigation into Mr Sultan Isayev's
disappearance following his apprehension on 29 April 2001, opened on
4 May 2001, was plagued by inexplicable failures to perform the
most essential tasks in a situation where prompt action was vital. It
appears that the applicant's relatives and villagers who had
witnessed Mr Sultan Isayev being apprehended by armed servicemen were
not questioned at all. The investigating authorities questioned some
servicemen, although from the information provided by the Government
it is not clear how their statements could have been relevant for the
investigation. At the same time it appears that no servicemen
directly involved in the special operation in Alkhan-Kala on 29 April
2001 were questioned. These failures alone compromised the
effectiveness of the investigation and could not but have had a
negative impact on the prospects of arriving at the truth. It appears
that no real effort was made by the authorities to identify the units
that had participated in the operation and ultimately the whereabouts
and fate of Mr Sultan Isayev.
As
to the manner in which the investigation was conducted, the Court
notes that in a period of six years it was adjourned and reopened at
least four times. It is not clear whether the applicant was granted
victim status in the proceedings. The Government contended that she
had been, however, no documents were submitted to support that. In
any event, the applicant was not duly informed of the progress of the
investigation. Almost no information concerning the investigative
actions was provided to her and she was informed about suspensions
and resumptions of the investigation either with significant delay or
not at all.
Having
regard to the limb of the Government's preliminary objection that was
joined to the merits of the complaint, the Court observes that the
applicant, having no access to the case file and not being properly
informed of the progress of the investigation, could not have
effectively challenged actions or omissions of investigating
authorities before a court. Furthermore, taking into account that the
effectiveness of the investigation had already been undermined in its
early stages by the authorities' failure to take necessary and urgent
investigative measures, it is highly doubtful that the remedy relied
on would have had any prospects of success. Accordingly,
the Court finds that the remedy relied on by the Government was
ineffective in the circumstances and dismisses their preliminary
objection as regards the applicant's failure to exhaust domestic
remedies within the context of the criminal investigation.
In
the light of the foregoing, the Court finds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the disappearance and presumed death of Mr
Sultan Isayev. Accordingly, there has been a violation of Article 2
on this account also.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant submitted that she had reasons to believe that
Mr
Sultan Isayev had been subjected to treatment contrary to Article 3
of the Convention following his arrest and that there had been no
effective investigation into the matter. The applicant also
complained that she had suffered severe mental distress and anguish
amounting to ill-treatment falling within the scope of Article 3 of
the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Alleged violation of Article 3 in respect of Mr
Sultan Isayev
1. Arguments of the parties
In
her submissions made before the Court's decision as to the
admissibility of the application the applicant maintained that there
were serious reasons to believe that her husband had been ill-treated
after being apprehended. She further stated that the authorities had
failed to investigate her allegation that her husband had been
ill-treated.
In
her submissions made after the Court had declared the application
admissible the applicant stated that she did not insist on the
Court's examination of her complaint under Article 3 of the
Convention in relation to her husband.
The
Government contended that there was no evidence that Mr Sultan
Isayev had been subjected to treatment prohibited by Article 3 of the
Convention. In their view, the investigation had not breached the
requirements of that provision.
2. The Court's assessment
Having
regard to the applicant's submission made after the Court's decision
as to the admissibility of the application, the Court does not
consider it necessary to examine the complaint under Article 3 of the
Convention in relation to Mr Sultan Isayev.
B. Alleged violation of Article 3 in respect of the
applicant
1. Arguments of the parties
The
applicant also maintained that she had endured severe mental
suffering falling within the scope of Article 3 of the Convention in
view of the State's indifference to her husband's disappearance and
its repeated failure to inform her of the progress in the
investigation.
The
Government contended that there was no evidence that the applicant
had been subjected to treatment prohibited by Article 3 of the
Convention.
2. The Court's assessment
The Court reiterates that the question whether a
member of the family of a “disappeared person” is a
victim of treatment contrary to Article 3 will depend on the
existence of special factors which give the suffering of the
applicant a dimension and character distinct from the emotional
distress which may be regarded as inevitably caused to relatives of a
victim of a serious human-rights violation. Relevant elements will
include the proximity of the family tie, the particular circumstances
of the relationship, the extent to which the family member witnessed
the events in question, the involvement of the family member in the
attempts to obtain information about the disappeared person and the
way in which the authorities responded to those enquiries. The Court
would further emphasise that the essence of such a violation does not
mainly lie in the fact of the “disappearance” of the
family member but rather concerns the authorities' reactions and
attitudes to the situation when it is brought to their attention. It
is especially in respect of the latter that a relative may claim
directly to be a victim of the authorities' conduct (see Orhan v.
Turkey, no. 25656/94, § 358, 18 June 2002 and Bitiyeva
and X v. Russia, nos. 57953/00 and 37392/03, § 152,
21 June 2007).
In
the present case, the Court notes that the applicant is the wife of
the individual who has disappeared, Mr Sultan Isayev. For more than
six years she has not had any news of him. During this period the
applicant has applied to various official bodies with enquiries about
her husband, both in writing and in person. Despite her attempts, the
applicant has never received any plausible explanation or information
as to what became of her husband following his detention on 29 April
2001. The responses received by the applicant mostly denied the
State's responsibility for his arrest or simply informed her that an
investigation was ongoing. The Court's findings under the procedural
aspect of Article 2 are also of direct relevance here
(see
paragraphs 131-34 above).
As
an additional element contributing to the applicant's sufferings, the
Court notes the authorities' unjustified delay in granting her victim
status (see paragraph 132 above), the sparse information she received
about the investigation throughout the domestic proceedings and lack
of access to the case file even during the proceedings in this Court.
It follows that the applicant's uncertainty about the fate of Mr
Sultan Isayev was aggravated by her exclusion from monitoring the
progress of the investigation.
In
view of the above, the Court finds that the applicant suffered, and
continues to suffer, distress and anguish as a result of the
disappearance of her husband and her inability to find out what
happened to him. The manner in which her complaints have been dealt
with by the authorities must be considered to constitute inhuman
treatment contrary to Article 3.
The
Court therefore concludes that there has been a violation of Article
3 of the Convention in respect of the applicant.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicant submitted that Mr Sultan Isayev had been subjected to
unacknowledged detention, in violation of the principles defined by
Article 5 of the Convention, which provides:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a
person for non-compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation 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;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
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.”
The
Government submitted that no evidence had been obtained to confirm
that the applicant's husband had been detained in breach of the
guarantees set out in Article 5 of the Convention. Mr Sultan Isayev
was not listed among the persons being kept in detention centres.
The
applicant maintained that Mr Sultan Isayev'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.
The
Court has previously noted the fundamental importance of the
guarantees contained in Article 5 for securing the right of
individuals in a democracy to be free from arbitrary detention. It
has also stated that unacknowledged detention is a complete negation
of these guarantees and discloses a very grave violation of Article 5
(see Çiçek v. Turkey, no. 25704/94, § 164,
27 February 2001, and Luluyev, cited above, § 122).
The Court has found it established that Mr Sultan
Isayev was detained by State servicemen on 29 April 2001 during a
security operation in Alkhan-Kala and has not been seen since. His
detention 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).
The
Court further considers that the authorities should have been more
alert to the need for a thorough and prompt investigation of the
applicant's complaints that her husband 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 Mr Sultan Isayev against
the risk of disappearance.
Consequently,
the Court finds that Mr Sultan Isayev was held in unacknowledged
detention without any of the safeguards contained in Article 5.
Accordingly, there has been a violation of the right to liberty and
security enshrined in Article 5 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant also alleged that she had had no access to a court,
contrary to Article 6 § 1 of the Convention, as she had been
unable to bring a civil action for compensation for her husband's
disappearance since the investigation had produced no results.
Article 6 § 1 of the Convention reads, in so far as relevant, as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
1. Arguments of the parties
In
her submissions made before the Court's decision as to the
admissibility of the application the applicant averred that she was
unable to seek compensation in court for her husband's unlawful
detention until the investigation into the events had been completed,
a fact which, in her view, breached her right of access to a court
under Article 6 § 1 of the Convention.
In
her submissions made after the Court had declared the application
admissible the applicant stated that she did not insist on the
Court's examination of her complaint under Article 6 of the
Convention.
The
Government contended that the applicant had had access to a court, as
required by Article 6 § 1 of the Convention.
2. The Court's assessment
Having
regard to the applicant's submission made after the Court's decision
as to the admissibility of the application, the Court does not
consider it necessary to examine the complaint under Article 6 of the
Convention.
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION READ
IN CONJUNCTION WITH ARTICLES 2, 3 AND 5
The
applicant complained that she had had no effective remedy in respect
of the violations alleged under Articles 2, 3 and 5 of the
Convention. She referred to Article 13 of the Convention, which
provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government disagreed. They stated that the applicant had had access
to effective domestic remedies as required by Article 13 of the
Convention. They submitted that the applicant had received reasoned
replies to all her requests concerning the progress of the
investigation and had been duly informed of all decisions to suspend
and resume the investigation.
The
applicant insisted that in her case the domestic remedies usually
available had proved to be ineffective, given that the investigation
had been pending for about six years without any progress, that she
had never been granted victim status and that all her applications to
public bodies had remained unanswered or had only produced standard
replies.
The
Court reiterates that Article 13 of the Convention guarantees the
availability at the national level of a remedy to enforce the
substance of the Convention rights and freedoms in whatever form they
might happen to be secured in the domestic legal order. Given the
fundamental importance of the right to protection of life, Article 13
requires, in addition to the payment of compensation where
appropriate, a thorough and effective investigation capable of
leading to the identification and punishment of those responsible for
the deprivation of life and infliction of treatment contrary to
Article 3, including effective access for the complainant to the
investigation procedure leading to the identification and punishment
of those responsible (see Anguelova v. Bulgaria, no. 38361/97,
§§ 161-62, ECHR 2002-IV; Assenov and Others,
judgment of 28 October 1998, Reports 1998-VIII, p. 3293,
§ 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,
and Khashiyev and Akayeva, cited above, § 183).
In
view of the Court's above findings with regard to Article 2,
this complaint is 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 applicant should accordingly have been able to avail herself 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.
It
follows that in circumstances where, as here, the criminal
investigation into a person's disappearance and death has been
ineffective and the effectiveness of any other remedy that may have
existed, including the civil remedies suggested by the Government,
has consequently been undermined, the State has failed in its
obligation under Article 13 of the Convention.
Consequently,
there has been a violation of Article 13 of the Convention in
conjunction with Article 2 of the Convention.
As
regards the applicant's reference to Article 3 of the Convention, the
Court notes that it has found a violation of the above provision on
account of the applicant's mental suffering as a result of the
disappearance of her husband, her inability to find out what had
happened to him and the way the authorities had handled her
complaints. However, the Court has already found a violation of
Article 13 of the Convention in conjunction with Article 2 of the
Convention on account of the authorities' conduct that led to the
suffering endured by the applicant. The Court considers that, in the
circumstances, no separate issue arises in respect of Article 13 in
connection with Article 5 of the Convention.
As
regards the applicant's reference to Article 5 of the Convention, the
Court notes that according to its established case-law the more
specific guarantees of Article 5 §§ 4 and 5, being a lex
specialis in relation to Article 13, absorb its requirements
(see Dimitrov v. Bulgaria (dec.), no. 55861/00, 9 May
2006) and in view of its above findings of a violation of Article 5
of the Convention on account of Mr Sultan Isayev's unacknowledged
detention, the Court considers that no separate issue arises in
respect of Article 13 read in conjunction with Article 5 of the
Convention in the circumstances of the present case.
VII. OBSERVANCE OF Article 34 and ARTICLE 38 § 1 (a)
of the convention
The
applicant argued that the Government's failure to submit the
documents requested by the Court at the communication stage disclosed
a failure to comply with their obligations under Article 34 and
Article 38 § 1 (a) of the Convention. The
relevant parts of those Articles provide:
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;
...”
The
applicant invited the Court to conclude that the Government had
failed in their obligations under Article 38 because of their refusal
to submit the documents from the investigation file in response to
the Court's requests at the communication stage. In her view, through
their handling of the Court's request for documents, the Government
had additionally failed to comply with their obligations under
Article 34.
The
Government reiterated that the submission of the case file would be
contrary to Article 161 of the Code of Criminal Procedure. They
further stated that the documents sent to the Court earlier contained
information concerning procedural steps of the investigation
sufficient for examination of the case.
The
Court reiterates that proceedings in certain types of applications do
not in all cases lend themselves to a rigorous application of the
principle whereby a person who alleges something must prove that
allegation and that it is of the utmost importance for the effective
operation of the system of individual petition instituted under
Article 34 of the Convention that States should furnish all necessary
facilities to make possible a proper and effective examination of
applications.
This
obligation requires the Contracting States to furnish all necessary
facilities to the Court, whether it is conducting a fact-finding
investigation or performing its general duties as regards the
examination of applications. It is inherent in the proceedings
relating to cases of this nature, where individual applicants accuse
State agents of violating their rights under the Convention, that in
certain instances it is only the respondent State that has access to
information capable of corroborating or refuting these allegations. A
failure on a Government's part to submit such information which is in
their possession without a satisfactory explanation may not only give
rise to the drawing of inferences as to the well-foundedness of the
applicant's allegations, but may also reflect negatively on the level
of compliance by a respondent State with its obligations under
Article 38 § 1 (a) of the Convention. In a
case where the application raises issues of the effectiveness of the
investigation, the documents of the criminal investigation are
fundamental to the establishment of the facts and their absence may
prejudice the Court's proper examination of the complaint both at the
admissibility and at the merits stage (see Tanrıkulu,
cited above, § 70).
The
Court recalls that it has on several occasions requested the Russian
Government to submit a copy of the investigation file opened into the
disappearance of the applicant's husband. The evidence contained in
the file was regarded by the Court as crucial for the establishment
of the facts in the present case. It also reiterates that it found
the reasons given by the Government for their refusal to disclose the
documents requested to be inadequate (see paragraph 115 above).
Referring
to the importance of a respondent Government's cooperation in
Convention proceedings and mindful of the difficulties associated
with the establishment of facts in cases of such a nature, the Court
finds that the Government fell short of their obligations under
Article 38 § 1 of the Convention because of their
failure to submit copies of the documents requested in respect of Mr
Sultan Isayev's disappearance.
In
view of the above finding, the Court considers that no separate
issues arise under Article 34.
VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
The
applicant claimed damages in respect of Mr Sultan Isayev's lost wages
from the time of his arrest and subsequent disappearance. She claimed
a total of 849,664 Russian roubles (RUB) under this head
(approximately 24,260 euros (EUR)).
She
claimed that although her husband had been temporarily unemployed at
the time, under domestic legislation she and her dependent children
would be entitled to compensation for loss of earnings caused by the
death of the breadwinner unemployed at the relevant time, of an
amount equal to five times the minimum wage. The applicant submitted
calculations of the amounts she assumed to be due up to 2021, when
her youngest daughter comes of age.
The
Government regarded the claim as excessive and based on conjecture.
The
Court points out 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 for loss of earnings (see, among other authorities,
Çakici, cited above). Having regard to its above
conclusions, there is indeed a direct causal link between the
violation of Article 2 in respect of the applicant's husband and
the loss by the applicant of the financial support which he could
have provided for her. The Court finds that the loss of earnings also
applies to dependants and considers it reasonable to assume that the
applicant's husband would eventually have had some earnings and that
the applicant would have benefited from these. Having regard to the
applicant's submissions, the Court awards her EUR 15,000 in
respect of pecuniary damage, plus any tax that may be chargeable on
that amount.
B. Non-pecuniary damage
The
applicant claimed EUR 80,000 in respect of non-pecuniary damage
for the suffering she had endured as a result of the loss of her
husband, the indifference shown by the authorities towards her and
the failure to provide any information about the fate of her
relative.
The
Government found the amount claimed to be excessive.
The
Court has found a violation of Articles 2, 5 and 13 of the Convention
on account of the unacknowledged detention and death of the
applicant's husband. The applicant herself has been found to have
been a victim of a violation of Article 3 of the Convention in
relation to the emotional distress and anguish she endured.
Furthermore, the Court has found that the Government have not
complied with Article 38 § 1 of the Convention, having failed to
submit copies of the documents requested in respect of the
applicant's husband's disappearance. The Court thus accepts that the
applicant has suffered non-pecuniary damage which cannot be
compensated for solely by the findings of violations. It awards the
applicant EUR 35,000, plus any tax that may be chargeable thereon.
C. Costs and expenses
The
applicant was represented by 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 SRJI lawyers and EUR
150 per hour for SRJI senior staff. The aggregate claim in respect of
costs and expenses related to the applicant's legal representation
amounted to EUR 14,739.25, which comprised:
EUR
125 for the preparation of documents submitted to domestic
authorities in relation to the present proceedings;
EUR
6,750 for the preparation of the initial application;
EUR
290 for translation of the initial application;
EUR
6,900 for the preparation and translation of additional submissions,
including the applicant's reply to the Government's observations;
EUR
220.87 for postal expenses;
EUR 964.25
(corresponding to 7% of the legal fees) for administrative costs,
such as telephone, fax and e-mail, photocopying and paper expenses
and other.
The
Government did not dispute the details of the calculations submitted
by the applicant, but contended that the sum claimed was excessive,
taking into account the average advocate's fees in Russia. They
further pointed out that the applicant had not enclosed any documents
supporting the amount claimed.
According
to the Court's case-law, an applicant is entitled to reimbursement of
their costs and expenses only in so far as it has been shown that
these have been actually and necessarily incurred and were reasonable
as to quantum (see McCann and Others, cited above, §
220).
The
Court notes that, under a contract entered into by the applicant in
October 2006, she agreed to pay the SRJI's representative the costs
and expenses incurred for representation before the Court, subject to
delivery by the Court of a final judgment concerning the present
application and to payment by the Russian Federation of the legal
costs should these be granted by the Court. The applicant enclosed an
invoice from the SRJI for the amount of EUR 14,739.25 with the
billing sheet, the invoice for the translating services and DHL
invoices relating to correspondence with the Court. Having regard to
the rates for the work of the SRJI lawyers and senior staff, the
Court is satisfied that these rates are reasonable and reflect the
expenses actually incurred by the applicant in relation to the legal
services. It is further satisfied that the translation and postal
expenses, supported by relevant documents, were also actually
incurred. However, no documents were enclosed to support the amount
claimed in relation to administrative costs.
Further,
the Court has to establish whether the costs and expenses incurred
for legal representation were necessary and reasonable. The Court
notes that this case was relatively complex and required a
substantial amount of research and preparation. It notes, however,
that the case involved very little documentary evidence, in view of
the Government's refusal to submit the case file. The Court thus
doubts that research was necessary to the extent claimed by the
representative.
Having
regard to the details of the claims submitted by the applicant and
acting on an equitable basis, the Court awards her EUR 8,000, less
EUR 715 received by way of legal aid from the Council of Europe,
together with any value-added tax that may be chargeable.
D. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the Government's preliminary
objection;
Holds that there has been a violation of
Article 2 of the Convention in respect of Mr Sultan Isayev;
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 Sultan
Isayev disappeared;
Holds that there is no need to examine the
complaint under Article 3 of the Convention in respect of Mr
Sultan Isayev;
Holds that there has been a violation of
Article 3 of the Convention in respect of the applicant;
Holds that there has been a violation of
Article 5 of the Convention in respect of Mr Sultan Isayev;
Holds that there is no need to examine the
complaint under Article 6 of the Convention;
Holds that there has been a violation of
Article 13 of the Convention in respect of the alleged violation
of Article 2 of the Convention;
Holds that no separate issues arise under
Article 13 of the Convention in respect of the alleged violations of
Articles 3 and 5;
Holds that there has been a failure to comply
with Article 38 § 1 (a) of the Convention in that the
Government have refused to submit documents requested by the Court;
Holds that no separate issues arise under
Article 34 of the Convention;
Holds
(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, to be converted into Russian roubles at the
date of settlement:
(i) EUR
15,000 (fifteen thousand euros) in respect of pecuniary damage;
(ii) EUR
35,000 (thirty-five thousand euros) in respect of non-pecuniary
damage;
(iii) EUR
7,285 (seven thousand two hundred and eighty five euros) in respect
of costs and expenses, to be paid to the applicant's representatives'
bank account in the Netherlands;
(iv) any
tax that may be chargeable 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;
Dismisses the remainder of the applicant's
claim for just satisfaction.
Done in English, and notified in writing on 15 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
