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UTSAYEVA AND OTHERS v. RUSSIA - 29133/03 [2008] ECHR 466 (29 May 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/466.html
Cite as:
[2008] ECHR 466
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FIRST
SECTION
CASE OF
UTSAYEVA AND OTHERS v. RUSSIA
(Application
no. 29133/03)
JUDGMENT
STRASBOURG
29 May
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 Utsayeva and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 6 May 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in application no. 29133/03 against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by eight Russian nationals, listed below.
The
applicants, who had been granted legal aid, were represented by
lawyers of the Stichting Russian Justice Initiative (“SRJI”),
an NGO based in the Netherlands with a representative office in
Russia.
The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights and subsequently by
their new representative, Mrs V. Milinchuk.
The
applicants alleged that their four relatives had disappeared after
being detained by State agents in June 2002.
By
a decision of 15 February 2007 the Court declared the applications
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
applicants are:
(1)
Mrs Satsita Utsayeva, born in 1954;
(2)
Mr Aslambek Utsayev, born in 1948;
(3)
Mrs Khava Muslimova, born in 1986;
(4)
Mrs Belita Dadyeva, born in 1952;
(5)
Mrs Yakhita Taysumova, born in 1985;
(6)
Mrs Zulay Abdulazimova, born in 1943;
(7)
Mrs Birlant Tovmerzayeva, born in 1943;
(8)
Mrs Larisa Tovmerzayeva, born in 1968.
They are Russian nationals and residents of the village
of Novye Atagi, Shali district, Chechnya.
The
facts of the case are linked to the application Imakayeva v.
Russia (no. 7615/02, ECHR 2006 ... (extracts)), in that
the four relatives of the applicants in the present case were
detained together with the husband of Marzet Imakayeva, Said-Magomed
Imakayev, on 2 June 2002 in the village of Novye Atagi (see below).
The facts of the present case, as submitted by the parties, may be
summarised as follows.
1. Detention of the applicants' relatives on 2 June
2002
The
applicants submitted that the village of Novye Atagi had been under
the firm control of the Russian military since early 2000. Military
checkpoints had been established at all roads leading into and out of
the village.
The
applicants submitted that early in the morning of 2 June 2002 a
convoy including at least six armoured personnel carriers (APCs) and
at least one other military vehicle - a UAZ all-terrain car -
conducted a “sweeping” operation in the village of Novye
Atagi. The local residents noted the hull numbers of three APCs: 569,
889 and 1252, and partially of the UAZ vehicle as “344”.
The hull numbers of the other vehicles were obscured. The servicemen
went to six houses during the operation and detained five men. The
applicants submitted numerous affidavits about the events of 2 June
2002, produced by the family members of the detained and the
neighbours. They also submitted a hand-drawn map of the village,
indicating the location of the roadblocks and of the houses of the
five persons detained on 2 June 2002.
(a) Detention of Islam Utsayev
The
first and second applicants are husband and wife. They were residents
of Grozny, but have lived for several years at 22 Nizhnya
Street, Novye Atagi, as internally displaced persons. Their son Islam
Utsayev, born in 1976, had lived with them in Novye Atagi since 1999.
He had previously been a student at the Grozny University
philological faculty, but in October 1999 he was seriously injured
during a rocket attack on the Grozny central market. Following that
injury he underwent several operations and left the university. He
worked as a car mechanic and supported his parents, who were
unemployed. The couple's second son had died during the hostilities
of 1994–1996, and a third son had been detained by security
services and ill-treated in 2001, following which he suffered from
poor health. The third applicant is Islam Utsayev's wife.
On
the morning on 2 June 2002 the first two applicants, Islam Utsayev
and his wife (the third applicant), their other son Bislan U. and his
wife Liza Kh., were at their home at 22 Nizhnya Street. At that time
the third applicant and Liza Kh. were both pregnant. It was still
dark outside and the family was sleeping when, at about 5.30 a.m., an
APC knocked down the fence and drove into the courtyard. A group of
about twenty heavily armed servicemen in uniform entered the house
and woke up the family. Four of the servicemen were masked, the rest
were not. The applicants described them as “contract soldiers”,
aged between 30 and 40. They had Slavic features and spoke unaccented
Russian. More servicemen remained outside on the hull of the APC,
while others took positions around the house.
Without
producing any warrant or explanation, the soldiers forced the Utsayev
family members into the courtyard and onto the ground. They
surrounded Islam Utsayev and beat him. The second and third
applicants were also beaten when they asked for explanations, and the
third applicant, Islam Utsayev's pregnant wife, submitted that she
had a miscarriage later that day. Islam Utsayev, who was taken from
his bed barefoot and wearing only a light T-shirt, was hooded, his
hands were tied behind his back and he was forced into an APC. The
first applicant tried to climb onto the APC to give her son footwear,
but was pushed away and hit by several soldiers. The soldiers fired
into the air from automatic rifles in order to scare away those
neighbours who tried to intervene.
In
support of their allegations the first and the second applicants
submitted detailed statements to the SRJI, produced in 2003 and in
March 2007. The third applicant also produced a statement in 2003. In
particular, they explained that the third applicant had been in the
first month of pregnancy and that after the miscarriage they had not
applied to any medical institution, nor had they complained anywhere
about this incident.
In
their observations the Government submitted that no information about
the alleged beatings of the second and third applicants or a
miscarriage by the third applicant had been recorded in the medical
institutions of the Shali district. They also stated that the third
applicant's current place of residence was unknown and that her
relatives had refused to give any evidence on the subject.
(b) Detention of Movsar Taysumov
The
fourth and fifth applicants are the mother and sister of Movsar
Taysumov, born in 1980. They lived at 1 Lenin Street in Novye Atagi.
Movsar Taysumov worked as a guard at the local school and was not
married. His brother Masud was killed by unknown persons in January
2002, along with two other men who had gone to gather firewood near
the river Argun. In May 2002 his father, the fourth applicant's
husband, died of a heart attack.
At
about 6 a.m. on the morning on 2 June 2002 the fourth applicant and
her son Movsar Taysumov were at their home when an APC pulled up
outside the house. The fourth applicant was at her morning prayers,
and her son Movsar was still asleep. The fifth applicant, Movsar's
sister, was in hospital for a check-up. Four men in green uniform
entered the house. They were not wearing masks and the fourth
applicant reported that they had Slavic features and spoke unaccented
Russian.
The
military did not introduce themselves or give reasons for the visit.
They woke up Movsar Taysumov and ordered him to dress quickly. They
said they needed to question him, collected his passport and took him
outside. The fourth applicant followed them and pleaded with them to
question her son at home. An officer told her that if he was innocent
he would soon return. The soldiers put Movsar Taysumov into an APC.
The fourth applicant tried to climb onto the hull, but the soldiers
swore at her and hit her with rifle butts until she fell. Several
neighbours tried to come closer and intervene, but soldiers who had
taken positions around the house shot in the air as a warning.
Once
Movsar Taysumov was inside, the APC drove further along Lenina
Street. The fourth applicant and her neighbours clearly noted its
hull number as 569. The fourth applicant followed it along the street
and witnessed from a distance how it stopped at the Tovmerzayevs'
house and how another person (Masud Tovmerzayev) was put into it. The
fourth applicant also noticed several other APCs along the street,
though she did not notice their numbers.
(c) Detention of Idris Abdulazimov
The
sixth applicant is the mother of Idris Abdulazimov, who was born in
1984. In 1997 he finished the seventh grade at school and thereafter
helped his mother around the house. They lived at 19 Lenina Street
with the sixth applicant's three other children.
On
2 June 2002 the sixth applicant, her daughter Louiza and three sons,
Akhmad, Vakhid and Idris, were sleeping at their home. At about
6 a.m. an APC stopped at their house and a group of about 30
military servicemen surrounded the house, about half of them wearing
masks. The applicant described them as heavily armed, wearing new
camouflage uniforms and speaking unaccented Russian. Approximately
ten servicemen entered the house, shouting and swearing. They pulled
the sixth applicant's three sons onto the floor and asked their
names. They then told Idris to dress. The applicant's oldest son
asked them to take him instead of his 18-old brother, but one of the
soldiers said “We don't need you”. They took Idris
Abdulazimov and placed him in an APC with an obscured number. The
applicant tried to get onto the APC, but her eldest son pulled her
off.
The
sixth applicant asked a soldier with Asian features on the hull of
the APC where they were going, and he responded that they were going
to the military commander's office. The APC drove along and stopped
by a house further down the street to detain another person who was
not at home. The sixth applicant followed the vehicle to the cemetery
at the end of the village and then returned home.
(d) Detention of Masud Tovmerzayev
The
seventh and eighth applicants are the mother and sister of Masud
Tovmerzayev, born in 1974. He was unmarried and had worked at a shoe
factory and at the market. They lived at 62 Lenina Street, together
with the seventh applicant's other children and grandchildren.
On
2 June 2002 the seventh and eighth applicants and Masud Tovmerzayev
were at home. At about 6 a.m. the applicants were awake, because
the seventh applicant was planning to go to town and had to catch a
bus; the eighth applicant had to take care of the family's cattle.
Masud Tovmerzayev was still in bed.
The
seventh applicant opened the gate and at that point an APC stopped
outside their house. The woman was surprised and asked them if they
were going to conduct a “sweeping” operation, but they
did not answer. One of the soldiers on the APC asked “Which
gate?” and another pointed to the applicant's. Immediately
20-25 armed servicemen entered the courtyard. The applicants and
neighbours described them as well armed and wearing green camouflage
uniforms; some of them were masked. The seventh applicant noted
several men with Asian features among the servicemen.
The
eighth applicant asked the seventh applicant to go into the house and
watch to ensure that the soldiers did not “plant”
anything there. The soldiers asked the eighth applicant where her
brother was and went to his room. One of them had a piece of paper
and asked her “Is that Masud?” When she answered in the
affirmative they put him on the floor and handcuffed him. One of the
servicemen asked about weapons, while others were searching the house
and the car. They then placed Masud Tovmerzayev in APC no. 569,
without permitting him to dress or to put on footwear, and drove
away. The neighbours were not allowed to approach because the
soldiers shot into the air. Masud Tovmerzayev's aunt, who came to the
house because of the noise and tried to intervene, was pulled by the
hair and hit by a soldier.
(e) Detention of Said-Magomed Imakayev
Finally,
at around 6.20 a.m. on 2 June 2002 servicemen on APCs 889 and 1252
and UAZ 344 drove to Ordzhonikidze Street, two blocks away from the
Tovmerzayevs' house. At 11 Ordzhonikidze Street they detained
Said-Magomed Imakayev, husband of Marzet Imakayeva. After the stop at
the Imakayevs' house the APCs and other military vehicles left Novye
Atagi. Some of the military vehicles apparently drove towards Grozny,
while others went in the direction of the 70th regiment stationed
near Shali. The families of the five men detained on 2 June 2002 in
Novye Atagi have had no news of them since.
(f) The Government's account
In
their observations the Government did not dispute most of the facts
as presented by the applicants. They accepted as established that “on
2 June 2002 at about 5.30 a.m. unidentified persons wearing
camouflaged uniforms and masks and armed with automatic weapons,
supported by armoured vehicles, arrived in Novye Atagi and detained
Utsayev I.A., Taysumov M.M., Abdulazimov I.A., Tovmerzayev M.E. and
Imakayev S.-M.U. These men were subsequently taken by the
unidentified persons in an unknown direction.”
2. Search and investigation into the “disappearances”
Immediately
after the detention of their family members the applicants started to
search for them. The search was primarily carried out by the mothers
of the detained men, together with Marzet Imakayeva, the applicant in
application no. 7615/02. On numerous occasions, both in person and in
writing, they applied to prosecutors at various levels, to the
Ministry of the Interior, to the Special Envoy of the Russian
President in the Chechen Republic for rights and freedoms, to
military commanders, the Federal Security Service (FSB), to the
administrative authorities in Chechnya, to the media and to public
figures. The applicants also personally visited detention centres,
police stations, military bases and prisons in Chechnya as well as
further afield in the Northern Caucasus.
On
2 June 2002, immediately after the arrests, the four mothers,
together with Marzet Imakayeva and Abdula D., the head of the Novye
Atagi administration, drove in the Abdulazimovs' family minibus to
Shali, the district centre, to inquire about the whereabouts of their
relatives. At the military commander's office in Shali the applicants
unsuccessfully sought to meet with the commander, General N. They
were told by the staff at the military commander's office that they
had not received any detainees that morning. They received a similar
answer at the police station.
The
next day, on 3 June 2002, the applicants again travelled to Shali.
Abdula D., the head of the village administration, was permitted to
meet with General N., who allegedly confirmed to him that the men had
been detained at the military commander's office and would be
released in three days.
Having
waited for three days, the applicants again visited the commander's
office in Shali, accompanied by the head of the village
administration. About ten days later the commander's office staff
denied that the detainees had been there.
At
some point in August 2002 the applicants managed to meet with General
N., who denied that his servicemen had participated in a military
operation in Novye Atagi on the date in question. At that time the
applicants spotted APC no. 569 in the courtyard of the
commander's office. At their insistence the commander questioned the
driver of the vehicle about the events of 2 June 2002. The driver
confirmed that two men had been detained and driven away in the APC
on 2 June 2002, but claimed that they had been handed over to other
military servicemen at a checkpoint.
The
applicants unsuccessfully tried to meet with the officers of the
military prosecutor's office in Shali in order to have the drivers of
the APCs and other servicemen questioned.
In
addition to personal visits, the applicants addressed numerous
letters to the prosecutors and other authorities, in which they set
out the facts of their relatives' detention and asked for assistance
and details about the investigation. The applicants have submitted
copies of the more or less standard letters they wrote.
The
applicants received hardly any substantive information from official
bodies about the investigation into the disappearances. On several
occasions they were sent copies of letters forwarding their requests
to the different prosecutors' services. Below is a summary of letters
retained by the applicants and the replies they received from the
authorities.
(a) Correspondence maintained by the first applicant
On
3 June 2002 the first applicant wrote to the head of the Shali
district administration in relation to Islam Utsayev's detention and
requested assistance in finding him. She also mentioned the “rough”
treatment meted out to herself and other family members in the course
of her son's arrest.
Either
on the same day or immediately after, in three identically worded
complaints, the applicant wrote to the military commander of the
Shali district General N., the military prosecutor of the Shali
district and the head of the Shali temporary district police
department (VOVD).
On
5 June 2002 the first applicant wrote to the military prosecutors of
military units nos. 20116 and 20102, based in Shali and Khankala
(Grozny), stating details of her son's detention and requesting their
help in finding him. Also on 5 June 2002 the first applicant wrote a
similar letter to the head of the Novye Atagi village administration,
Abdula D.
On
8 June 2002 the first applicant wrote to the State Duma member for
Chechnya and to the Special Envoy of the Russian President in the
Chechen Republic for rights and freedoms.
On
20 June 2002 the first applicant wrote a complaint to the Shali
district prosecutor's office (“the district prosecutor's
office”), with copies to the head of administration of Chechnya
and the commander of the federal forces in Chechnya. She stated the
facts of her son's detention and asked for assistance in finding him.
She submitted that the servicemen had thrown her son on the floor and
taken him away undressed, beaten her husband on the head with a rifle
butt and had treated the women of the house “rudely and
incorrectly”.
On
1 July 2002 the applicant received a reply from the member of the
State Duma for Chechnya, in which he informed her that her letter had
been forwarded to the Chechnya Prosecutor's Office and that he would
try to establish whether her son had been detained by the
authorities.
On
17 September 2002 the first applicant again wrote to the military
prosecutor of military unit no. 20116 and the heads of
administration of Novye Atagi and the Shali district, with requests
for information about Islam Utsayev.
On
30 September 2002 the district prosecutor office informed the
applicant that the investigation into her son's kidnapping had been
suspended. The letter did not give reasons for the suspension, but
informed her that she could appeal against the decision to the
district prosecutor or to a сourt.
On
3 October 2002 the first applicant received a copy of a letter from
the Chechnya Prosecutor's Office, forwarding her compliant to the
district prosecutor's office.
On
7 October 2002 the Chechnya Prosecutor's Office informed the first
applicant that the investigation into her son's kidnapping had been
suspended on 30 September 2002 due to a failure to identify the
culprits (Article 208 part 1 of the Code of Criminal Procedure). The
applicant was invited to address further queries to the district
prosecutor's office.
On
9 October and on 23 October 2002 the district prosecutor's office
acknowledged receipt of the applicant's complaints and informed her
that the investigation into Islam Utsayev's “disappearance”
had been suspended.
On
14 November 2002 the Chief Military Prosecutor's Office requested the
military prosecutor's office of the United Group Alignment in the
Northern Caucasus (UGA) to investigate the “disappearance”
of the first applicant's son and of the other men detained on 2 June
2002.
On
5 March 2003 the applicant submitted a complaint (dated 10 December
2002) to the military prosecutor of the UGA, summarising the facts of
her son's disappearance and the efforts to find him and requesting
assistance.
On
6 February 2003 the Chechnya Prosecutor's Office forwarded complaints
by three applicants (Mrs Utsayeva, Mrs Tovmerzayeva and Mrs
Abdulazimova) to the district prosecutor's office. On 12 February and
14 March 2003 the three women were informed by the district
prosecutor's office that their complaints would be looked into.
On
28 February 2003 the Chechnya Prosecutor's Office informed the first
applicant that they had forwarded her letter to the military
prosecutor of the UGA. The letter stated that investigation file
no. 59140 had been sent to the military prosecutor's office on
29 October 2002.
In
March 2003 the Government of Chechnya twice informed the first
applicant that her complaints had been forwarded to the military
prosecutors, to the Chechnya Prosecutor's Office and to the local
department of the Ministry of the Interior.
On
19 April 2003 the first applicant asked the district prosecutor's
office to give her an update on the progress of the investigation and
to grant her victim status in the proceedings.
On
25 April 2003 the military prosecutor of the UGA forwarded the
applicant's complaint to the military prosecutor of military unit no.
20116.
On
23 May 2003 the Chechnya Ministry of the Interior replied to the
deputy head of the investigative department of the Southern Federal
Circuit, stating that the criminal case opened into Islam Utsayev's
disappearance had been forwarded to the military prosecutors on 1
August 2002.
On
27 May 2003 the military prosecutor of military unit no. 20102
informed the first applicant that the materials of the case file did
not prove the involvement of military servicemen in the crime under
investigation.
On
2 June, 6 June and 25 June 2003 the Chechnya Prosecutor's Office
informed the applicant in similarly worded letters that the decision
of 30 September 2002 to suspend the investigation into her son's
kidnapping had been quashed and that the investigation had been
reopened on 29 May 2003.
On
18 June 2003 the military commander of the Shali district informed
the applicant that the district prosecutor's office was investigating
her son's “disappearance”.
On
12 August 2003 the military prosecutor of military unit no. 20116
replied to the first applicant's complaints of December 2002 and
March and May 2003. The letter stated that the criminal investigation
opened in relation to the kidnapping of four men in June 2002 was
pending with that office. The letter did not say whether the
investigation was suspended or ongoing, but invited the applicant to
come to the office to take part in procedural steps and to obtain
access to the case file. The letter also stated that no evidence had
been obtained which could link the kidnapping to any military
servicemen.
At
some point the applicant wrote to the all-Russian NTV channel,
addressing their programme “Attention: Search!” She asked
the journalists to help in finding her son Islam Utsayev. In reply
the NTV stated that work in Chechnya was too dangerous for
journalists.
(b) Correspondence maintained by the fourth applicant
On
2 July 2002 the fourth applicant received a copy of a letter from the
military prosecutor of military unit no. 20116 to the Chechnya
Prosecutor's Office, stating that there was no evidence to conclude
that the criminal acts in question had been committed by UGA
servicemen.
On
16 July 2002 the district prosecutor's office informed the fourth
applicant that an investigation had been opened by their office,
under Article 126 part 2 of the Criminal Code, in relation to the
kidnapping of Movsar Taysumov.
On
25 July and 10 September 2002 the Chechnya Government informed the
fourth applicant that her complaints had been forwarded to the
district prosecutor's office.
On
16 September 2002 the district prosecutor's office informed the
applicant that the investigation into her son's kidnapping (file
no. 59155) had been suspended. The letter did not give reasons
for the suspension, but informed her that she could appeal against
the decision to the Shali District Prosecutor or to a сourt.
On
2 October 2002 the military prosecutor for the Northern Caucasus
Military Circuit forwarded the applicant's complaint to the military
prosecutor of military unit no. 20116.
On
15 November the district prosecutor's office informed the fourth
applicant that her complaint of 12 November 2002 about her son's
disappearance could not be considered, because it had not been signed
by her. The applicant was invited to the prosecutor's office to
obtain information concerning the criminal investigation.
On
5 March 2003 the applicant's complaint dated 15 December 2002 was
accepted by the military prosecutor of the UGA. The complaint
summarised the applicant's efforts to find her son and requested
urgent assistance.
On
19 February 2003 the district prosecutor's office informed the fourth
applicant, in reply to a request from Amnesty International made on
her behalf, that criminal case no. 59155 had been opened by that
office in relation to her son's kidnapping. All necessary and
possible measures had been taken, but on 15 September 2002 the
investigation had been suspended due to the failure to identify the
culprits. The letter further informed the applicant that measures to
find her son were continuing and that she could challenge the
decision to suspend the investigation.
On
26 March 2003 the military prosecutor of military unit no. 20116
informed the fourth applicant that troops under their jurisdiction
had not detained her son. The letter advised her to approach the
local police.
On
5 April 2003 the applicant complained to the district prosecutor's
office. She stated that she had not received any information about
the course of the investigation and requested updated information
about its progress, and asked that she be granted victim status.
On
15 April 2003 the district prosecutor's office informed the fourth
applicant that criminal case no. 59155 had been suspended.
Actions aimed at locating Movsar Taysumov's whereabouts would
continue. The applicant was also informed that she had been granted
victim status.
On
an unspecified date Abdula D., the head of the Novye Atagi village
administration, addressed the Special Envoy of the Russian President
in the Southern Federal Circuit, asking him to intervene and help to
find Movsar Taysumov.
On
25 November 2004 the fourth applicant was granted victim status in
criminal investigation no. 59155 into her son's abduction.
(c) Correspondence maintained by the sixth applicant
On
5 June 2002 the sixth applicant prepared a letter to the military
prosecutor of military unit no. 20116 about the detention of her
son, Idris Abdulazimov. The complaint was submitted on 19 June 2002.
On
5 June 2002 the sixth applicant complained about her son's detention
and requested his release and information about his whereabouts from
the district prosecutor's office, the military commander and the head
of the VOVD.
On
2 July 2002 the sixth applicant received a copy of the letter from
the military prosecutor of military unit no. 20116 to the Chechnya
Prosecutor's Office, which stated that there was no evidence to
conclude that the criminal acts had been committed by UGA servicemen.
On
16 July 2002 the district prosecutor's office informed the applicant
that an investigation had been opened by their office in relation to
the kidnapping of her son under Article 126 part 2 of the Criminal
Code.
On
8 August 2002 the applicant was informed by the district prosecutor's
office that the file number allocated to the investigation into her
son's kidnapping was 59159.
On
23 August 2002 the Chechnya Prosecutor's Office forwarded the
applicant's complaint to the district prosecutor's office.
On
3 September 2002 the Chechnya Government informed the sixth applicant
that her complaints had been forwarded to the Chechnya Department of
the Interior, the district prosecutor's office and the VOVD, the
military prosecutor's office and the Chechnya Prosecutor's Office.
On
4 September 2002 the district prosecutor's office informed the
applicant that they were investigating criminal case no. 59159
and taking steps to establish her son's whereabouts.
On
16 September 2002 the district prosecutor's office informed the sixth
applicant that the investigation into her son's kidnapping had been
suspended.
On
2 October 2002 the military prosecutor for the Northern Caucasus
military circuit forwarded the applicant's complaint to the military
prosecutor of military unit no. 20116.
On
22 November 2002 the military prosecutor of military unit no. 20116
informed the applicant that they had requested information about
Idris Abdulazimov from the Chechnya department of the FSB, the
commander of the UGA and the head of the operative headquarters for
coordination of the anti-terrorist operation in the Northern
Caucasus.
On
16 January 2003 the Chechnya department of the FSB replied to the
applicant that they had no information about the whereabouts or
activities of her son. It further informed the applicant that her
complaint had been forwarded to the military prosecutors.
On
6 February 2003 the Chechnya Prosecutor's Office forwarded complaints
by three applicants (Mrs Utsayeva, Mrs Tovmerzayeva and Mrs
Abdulazimova) to the district prosecutor's office. On 12 February and
14 March 2003 the three women were informed by that office that
their complaints would be taken into account.
On
5 April 2003 the applicant wrote to the district prosecutor's office.
She stated that she had not received any reliable information about
the course of the investigation, requested updated information about
its progress and asked that she be granted victim status.
On
6 June 2003 the district prosecutor informed the sixth applicant that
the criminal investigation into the kidnapping of her son had been
suspended. Actions aimed at locating Mr Abdulazimov's whereabouts
were continuing.
On
an unspecified date Abdula D., the head of the Novye Atagi village
administration, addressed the Special Envoy of the Russian President
in the Southern Federal Circuit, asking him to intervene and help
find the sixth applicant's son.
(d) Correspondence maintained by the seventh
applicant
On
2 July 2002 the seventh applicant received a copy of a letter from
the military prosecutor of military unit no. 20116 to the Chechnya
Prosecutor's Office, stating that there was no evidence to conclude
that the criminal acts had been committed by UGA servicemen.
On
16 July 2002 the district prosecutor's office informed the applicant
that an investigation had been opened by their office, under Article
126 part 2 of the Criminal Code, in relation to the kidnapping of
Masud Tovmerzayev.
On
2 August 2002 the district prosecutor's office informed the applicant
that a criminal investigation into her son's kidnapping had been
opened under file no. 59154.
On
4 September 2002 the Chechnya Prosecutor's Office informed the
seventh applicant that the district prosecutor's office was
investigating criminal case no. 59154 and taking steps to
establish her son's whereabouts.
On
10 September 2002 the Government of Chechnya informed the seventh
applicant that her complaints had been forwarded to the district
prosecutor's office.
On
16 September and on 23 September 2002 the district prosecutor's
office informed the seventh applicant that the investigation into her
son's kidnapping had been suspended and that she could appeal against
the decision to a prosecutor or to the court.
On
17 September 2002 the applicant wrote to the head of the Novye Atagi
administration and asked for his help in finding her son.
On
2 October 2002 the military prosecutor for the Northern Caucasus
military circuit forwarded the seventh applicant's complaint to the
military prosecutor of military unit no. 20116.
On
6 November 2002 the military prosecutor of military unit no. 20116
informed the seventh applicant that they were not aware of Masud
Tovmerzayev's detention and had not issued any documents in that
respect. The letter further stated that a question about the
applicant's son's whereabouts had been put to the UGA headquarters
and that she should contact the local department of the interior in
connection with all issues related to the search for the missing
persons.
On
16 January 2003 the Chechnya department of the FSB replied to the
applicant that they had no information about the whereabouts of her
son. It further informed the applicant that her complaint had been
forwarded to the military prosecutors.
On
6 February 2003 the Chechnya Prosecutor's Office forwarded complaints
by three applicants (Mrs Utsayeva, Mrs Tovmerzayeva and Mrs
Abdulazimova) to the district prosecutor's office. On 12 February and
14 March 2003 the three women were informed by that office that
their complaints would be taken into account.
On
5 March 2003 the seventh applicant's letter, bearing the date of 5
June 2002, was accepted by the military prosecutor of the UGA. The
letter stated the circumstances of her son's detention and requested
information about his whereabouts and the reasons for his detention.
On
5 April 2003 the applicant wrote to the district prosecutor's office.
She stated that she had not received any reliable information about
the course of the investigation, requested updated information about
its progress and asked to be granted victim status.
On
16 April 2003 the district prosecutor's office responded that the
investigation in criminal case no. 59154 had been suspended.
On
an unspecified date Abdula D., the head of the Novye Atagi
administration, addressed the Special Envoy of the Russian President
in the Southern Federal Circuit, asking him to intervene and help in
finding the seventh applicant's son.
(e) Summary of the above proceedings
The
applicants were thus informed that criminal investigations had been
opened in respect of the kidnappings of their relatives: no. 59176
in respect of Islam Utsayev, no. 59155 in respect of Movsar
Taysumov, no. 59159 in respect of Idris Abdulazimov and
no. 59154 in respect of Masud Tovmerzayev. From the letters
received from the different authorities, the applicants could also
understand that at some point the investigations were joined under
no. 59140, initially opened in relation to the kidnapping of
Said-Magomed Imakayev. The applicants were not informed by the
prosecutors which steps had been taken in order to find their
relatives, nor were they allowed access to the case files. In June
2003 the first applicant was informed by the Chechnya Prosecutor's
Office that the decision to suspend the investigation into her son's
kidnapping had been quashed and that the investigation had been
reopened. None of the applicants have received information on the
progress of the investigation since that date.
The
applicants also understood that in October 2002 the investigation had
been transferred from the district prosecutor's office to the
military prosecutors. At some subsequent point the case file was
returned to the district office. However in August 2003 the military
prosecutor of military unit no. 20116 invited the first
applicant to visit the office and informed her that the file was with
them. The letter did not indicate whether the proceedings were
pending or suspended at that time.
(f) Information provided by the Government
In
their observations submitted in December 2004 the Government did not
dispute the information concerning the apprehension and investigation
into the kidnapping of Islam Utsayev, Movsar Taysumov, Idris
Abdulazimov and Masud Tovmerzayev. Referring to the information
obtained from the General Prosecutor's Office, the Government stated:
“On 2 June 2002 at about 5.30 a.m. unidentified
persons wearing camouflaged uniforms and masks and armed with
automatic weapons, supported by armoured vehicles, had arrived to
Novye Atagi and detained Utsayev I.A., Taysumov M.M., Abdulazimov
I.A., Tovmerzayev M.E. and Imakayev S.-M.U. These men were
subsequently taken by the unidentified persons to an unknown
direction.
On 28 June, 15 July and 31 July 2002 the Shali district
prosecutor's office opened five criminal investigation files into the
kidnappings: nos. 59176, 59155, 59159, 59154 and 59140 under Article
126 part 2 (a) and (g) of the Criminal Code.
Criminal investigation file no. 59140 concerning
the kidnapping of Imakayev S.-M.U. had been transferred for
investigation to the military prosecutor of the UGA.”
The
Government also stated that the investigation had not confirmed the
involvement of federal servicemen in the kidnapping of the
applicants' relatives. The indicated APC hull numbers were not listed
in the relevant registers. The investigations were adjourned and
reopened on several occasions and were most recently resumed on
30 September 2004. Their progress was monitored by the General
Prosecutor's Office.
In
their additional Memorandum submitted in April 2005 the Government
submitted further details of the investigations. They stated that
criminal case file no. 59176 had been opened on 31 July
2002 into the kidnapping of Islam Utsayev. On the same day the first
applicant had been questioned and granted victim status. She was
again questioned on 22 June 2003, 30 August 2003 and 18 October
2004. The second applicant was questioned on 18 October 2004 and
confirmed the circumstances of his son's detention. Two neighbours
were questioned but could not indicate the identity of the
kidnappers. The site of the crime was inspected at some point, but no
relevant evidence was discovered.
According
to the Government, criminal case file no. 59155 into the
abduction of Movsar Taysumov was opened on 15 June 2002. The fourth
applicant was questioned on 16 July 2002, 30 August 2003 and 18
October 2004. She was also granted victim status. In September 2004
two neighbours were questioned by the local police, but they were not
aware of the identity of the perpetrators of the crime.
The
Government further specified that on 15 July 2002 criminal
investigation file no. 59159 had been opened into the abduction
of Idris Abdulazimov. The sixth applicant was questioned on 16 July
2002 and 27 September 2004. She was also granted victim status
in the proceedings. Three of her neighbours and the former military
commander of the Shali district, General N., had also been
questioned. An inspection of the site of the crime had taken place,
but had produced no results.
Finally,
they submitted that on 15 July 2002 criminal case no. 59140
[this should probably be no. 59154] had been opened into the
abduction of Masud Tovmerzayev. The seventh and eighth applicants
were questioned and granted victim status on 16 July 2002 and 18
November 2004 respectively. The investigation also questioned five of
their neighbours and relatives, the head of the Novye Atagi
administration, General N. and a serviceman from the military
commander's office. An inspection of the site of the crime had
produced no results.
No
other witnesses to the crimes were identified by the investigation.
According
to the Government, in the period 2002-2004 a number of information
requests were forwarded to the relevant bodies concerning special
operations carried out by the military forces. Despite these efforts,
no information was obtained which would imply that the four men had
been detained by federal forces. Their names were not found in the
registers of persons detained on suspicion of committing a criminal
offence or arrested by way of administrative procedure.
The
Government conceded that the four investigations had been repeatedly
suspended and reopened, on account of a failure to identify the
culprits. They alleged that the victims had been informed of all the
decisions made. The proceedings in criminal case no. 59176 had been
reopened on 24 March 2005 and, in criminal cases nos. 59154,
59155 and 59159 – on 1 April 2005.
In
their latest submissions of June 2007 the Government informed the
Court that on 6 May 2005 criminal investigation files nos. 59176,
59154, 59155 and 59159 had been joined under no. 59176. The
reason for the joinder was the establishment by the investigation of
the fact that Mr Utsayev, Mr Abdulazimov, Mr Tovmerzayev and Mr
Taysumov had been kidnapped by the same group of unidentified
persons, who had travelled around in an APC with hull number 569.
The
Government also submitted that the investigation had been reopened on
8 December 2006. In December 2006 and January 2007 the investigators
questioned four female witnesses and the first, second and sixth
applicants, who had victim status in the criminal proceedings. The
Government also stated that in December 2006 the investigation
requested the Ministry of Defence and the Ministry of the Interior to
submit information from their archives about the participation of
their personnel in the special operation in Novye Atagi on 2 June
2002.
Among
the documents submitted by the Government, in a decision of 8
December 2006 the deputy prosecutor of Chechnya ordered that the
proceedings be reopened and summarised the information available by
that date. According to that document, the investigation had
established that the four men had been kidnapped by a group of
unidentified persons who had used an APC with hull number 569 and
three other APCs.
On
the same day the prosecutor issued written directions for the
investigation. The prosecutor ordered that the bullets and cartridges
left behind when the kidnappers had shot in the air to prevent
relatives from interfering with the abduction be found, and that
ballistic and other expert reports be carried out. He also ordered
that information be collected about any special identification marks
on the bodies of the missing men, so that a search could be organised
through the register of unidentified corpses. He further directed
information to be collected from the FSB central archives about the
special operations carried out in Novye Atagi in June 2002; for it to
be confirmed whether the APC with hull number 569 had indeed been
attached to the Shali military commander's office and the crew of
that vehicle to be questioned. The document referred to a witness
statement by D. who had served in June 2002 in the military
commander's office of Shali district and who had been a crew member
of APC 569. According to the prosecutor, D. testified that in early
June 2002 he and other members of the crew had been involved, using
the APC, in a special operation in Novye Atagi and had detained three
civilians. After their arrests he had returned to the military
commander's office. The three detainees had been taken in three other
APCs towards the village of Belgotoy. In view of this testimony, the
prosecutor ordered that N., the military commander of Shali district,
be questioned and that all details relevant to the special operation
of 2 June 2002 in Novye Atagi be obtained from him (establishment of
the units that had carried out the special operation, identification
and questioning of the officers-in-charge; finding the persons who
had been in charge of the detainees and establishing where they had
been taken). The document concluded by stating that if sufficient
evidence of the involvement of military servicemen in the abduction
was obtained, the investigation should be transferred to the military
prosecutor's office.
On
16 January 2007 the district prosecutor's office decided not to open
a criminal investigation into an allegation by the sixth applicant
that money and jewellery had been stolen from her home. The decision
stated that, in her application of 5 June 2002, the sixth
applicant had alleged that during the arrest of her son Idris
Abdulazimov the perpetrators had also taken money and valuables. On
16 January 2007 the sixth applicant was questioned and stated that
the money and valuables had been found afterwards, but that she had
forgotten to inform the investigation of this. On this basis the
investigator ordered not to open criminal proceedings into the theft.
The decision was countersigned by the sixth applicant.
On
20 January 2007 the investigation was adjourned. On 11 May 2007 it
was again reopened with instructions to carry out the steps as listed
in the prosecutor's decision of 8 December 2006.
Despite
specific requests by the Court on two occasions, the Government did
not submit copies of the documents to which they referred, providing
only several copies of decisions to suspend and resume the
investigation and to grant victim status, all issued after December
2006, as well as copies of several notifications to the relatives of
the adjournment and reopening of the proceedings. Relying on the
information obtained from the Prosecutor General's Office, the
Government stated that the investigation was in progress and that
disclosure of the documents would be in violation of Article 161 of
the Code of Criminal Procedure, since the file contained information
of a military nature and personal data concerning the witnesses or
other participants of criminal proceedings.
3. Information concerning the kidnapping of
Said-Magomed Imakayev
Marzet
Imakayeva, the wife of Said-Magomed Imakayev, the fifth man detained
on 2 June 2002 in Novye Atagi, applied to the European Court of Human
Rights (see Imakayeva v. Russia, no. 7615/02, 9 November
2006). Within these proceedings the Government first denied that
Said-Magomed Imakayev had been apprehended by law-enforcement or
security bodies and suggested that he had been abducted by members of
a terrorist organisation with a view to discrediting the federal
forces.
Later
both parties submitted to the Court that on 9 July 2004 the criminal
investigation into the abduction of Said-Magomed Imakayev had been
closed on the ground that no criminal offence had been committed. On
9 July 2004 the applicant's victim status in the criminal proceedings
related to the kidnapping of her husband was withdrawn. She was
informed at that stage that her husband had been detained by military
servicemen and he had been subsequently released. The detention had
been carried out in accordance with the Federal Law on the
Suppression of Terrorism and the Federal Law on the Federal Security
Service. According to the Government, on 2 June 2002 military
servicemen, acting in accordance with section 13 of the
Suppression of Terrorism Act, had detained Said-Magomed Imakayev on
suspicion of involvement in one of the bandit groups active in the
district. However, his involvement had not been established, and he
had been transferred to the head of the Shali administration (who had
subsequently died) with a view to being returned home. Thus, no
abduction had been committed and the actions of the servicemen who
had detained Mr Imakayev had not constituted any offence. Mr
Imakayev's further absence from his place of residence was not
connected to his detention by military servicemen, so the applicant
had suffered no pecuniary or non-pecuniary damage. The Government did
not submit any documents of substance from the investigation file
concerning Said-Magomed Imakayev's abduction.
In
its judgment the Court found it established to the standard of proof
“beyond reasonable doubt” that Said-Magomed Imakayev had
been detained by the security forces on 2 June 2002. No records had
been drawn up in respect of his detention, questioning or release.
After that date he “disappeared” and his family had had
no news of him. He could thus be presumed dead following
unacknowledged detention and the responsibility for his death lay
with the State.
4. Alleged harassment of the applicants
In
August 2004 the applicants informed the Court about two incidents in
respect of the second applicant. According to the applicants'
representatives, on 4 July 2004 and 30 July 2004 a large group of
military personnel arrived at the first and second applicants' house
at 22 Nizhnya Street in Novye Atagi. On both occasions the
servicemen arrived in the early hours of the morning in several APCs,
broke into the house without identifying themselves or giving any
reasons for the intrusion, conducted an unsanctioned search and
confiscated a number of items.
According
to the applicants, on 4 July 2004 the servicemen severely beat the
second applicant, who is a pensioner and disabled (he is blind in one
eye), on his head and torso, knocking him unconscious. They also
threatened to shoot the first applicant, her daughter-in-law and
two-year old granddaughter. When leaving they took with them
household items of some value and a copy of the application to the
Court, as well as a file containing correspondence with various
authorities maintained by the first applicant in relation to her
son's disappearance.
The
second applicant submitted that he had been severely physically
traumatised by the beatings and had difficulty in walking. He
submitted that he had visited three hospitals where doctors performed
X-rays and confirmed concussions to the ribs and spinal column, but
refused to issue him with any medical documents, fearing reprisals.
The first applicant also submitted that immediately after the
incident she had applied to the prosecutor's office, but they refused
to accept her complaint or to conduct an investigation into it.
On
30 July 2004 the masked servicemen who arrived at the Utsayevs'
family house again searched the house, hit the second applicant in
the back several times, dragged him into the garden and dropped him
face down.
On
18 August 2004 the Court, in accordance with Rule 40 of the Rules of
Court, gave notice of the application and of the complaint about
harassment to the Russian Government. In their observations the
Government stated that a prosecutor's check had been conducted into
these complaints. Within this check the first and the second
applicants had been questioned but denied that they had submitted
such complaints to the European Court. They allegedly stated that on
the said dates military servicemen had conducted an identity check in
their house, but that no unlawful actions had been committed. On 8
November 2004 the district prosecutor's office refused to initiate
criminal proceedings due to an absence of corpus delicti. The
Government did not submit any documents relating to these
proceedings.
In
her submissions of March 2005 the fourth applicant alleged that a
number of checks had been carried at her house in December 2004 by
security servicemen, who failed to identify themselves or to present
her with reasons for the searches.
II. RELEVANT DOMESTIC LAW
For
a summary of the relevant domestic law see Akhmadova and
Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May
2007.
THE LAW
I. COMPLIANCE WITH THE SIX-MONTH RULE
A. General principles
The Court reiterates at the outset that, pursuant to
Article 35 § 1 of the Convention, it may only deal with a matter
within a period of six months from the final decision in the process
of exhaustion. If no remedies are available or if they are judged to
be ineffective, the six-month period in principle runs from the date
of the act complained of (see Hazar and Others v. Turkey
(dec.), nos. 62566/00 et seq., 10 January 2002). Special
considerations may apply in exceptional cases where an applicant
first avails himself of a domestic remedy and only at a later stage
becomes aware, or should have become aware, of the circumstances
which make that remedy ineffective. In such a situation, the
six-month period may be calculated from the time when the applicant
becomes aware, or should have become aware, of those circumstances
(see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28
May 2002).
The Court further points out that it is not open to
it to set aside the application of the six-month rule solely because
a respondent Government have not made a preliminary objection based
on that rule, since the said criterion, reflecting as it does the
wish of the Contracting Parties to prevent past events being called
into question after an indefinite lapse of time, serves the interests
not only of respondent Governments but also of legal certainty as a
value in itself. It marks out the temporal limits of the supervision
carried out by the organs of the Convention and signals to both
individuals and State authorities the period beyond which such
supervision is no longer possible (see Walker v. the United
Kingdom (dec.), no. 34979/97, ECHR 2000-I).
B. Application in the present case
1. Complaint under Article 3 brought by the first,
second and third applicants
In so far as the complaint brought by the first,
second and third applicants concerns the beating of Islam Utsayev and
ill-treatment of the third applicant on 2 June 2002, the Court notes
that from the materials in its possession it does not appear that the
first, second and third applicants attempted to raise these issues
properly before the domestic authorities. The Court further finds it
unnecessary to determine whether the first, second and third
applicants had effective remedies in respect of the violations
alleged, since, even assuming that in the circumstances of the
present case no such remedies were available to them, the events
complained of took place on 2 June 2002, whereas their
application to this Court was lodged more than six months later on
29 August 2003.
It follows that the complaint brought by the first,
second and third applicants concerning the beating of Islam Utsayev
and the alleged ill-treatment of the third applicant was lodged out
of time, and the Court is therefore unable to take cognisance of its
merits.
2. Complaint under Article 8
The applicants alleged that the searches carried out
at their houses on 2 June 2002 were illegal and constituted a
violation of their right to respect for their home. In this respect
the Court also notes that from the materials in its possession it
does not appear that the applicants attempted to raise these issues
properly before the domestic authorities. As stated above, the Court
finds it unnecessary to determine whether they had effective remedies
in respect of the violation alleged, since, even assuming that in the
circumstances of the present case no such remedies were available to
them, the events complained of took place on 2 June 2002, whereas
their application to this Court was lodged on 29 August 2003.
It follows that the complaint brought by the
applicants concerning the illegal searches at their homes was lodged
out of time, and the Court is therefore unable to take cognisance of
its merits.
II. THE GOVERNMENT'S PRELIMINARY OBJECTION AS TO
EXHAUSTION OF DOMESTIC REMEDIES
A. Submissions by the parties
The
Government contended that the application should be declared
inadmissible as the applicants had failed to exhaust the domestic
remedies available to them. With reference to the Constitution and
other domestic legal instruments, the Government argued that it had
been open to the applicants to lodge complaints with the courts in
various regions of Russia or directly with the Supreme Court
concerning the allegedly unlawful detention of their relatives or the
actions or omissions of the investigating or other law-enforcement
authorities, but that they had not availed themselves of that remedy.
The Government enclosed a number of letters from various regional
courts, stating that the applicants had never lodged any such
complaints with the courts in question.
The
applicants contested the Government's objection. They claimed that an
application to a civil court would not be an effective remedy against
the type of violations alleged. As to criminal-law remedies, the
applicants argued that they had repeatedly applied to law-enforcement
bodies, including various prosecutors, and had attempted to
participate in the investigation. This avenue, however, had proved
futile.
B. The Court's assessment
In
the present case, the Court took no decision about the exhaustion of
domestic remedies at the admissibility stage, having found that this
question was too closely linked to the merits. It will now proceed to
examine the arguments of the parties in the light of the provisions
of the Convention and its relevant practice (for a relevant summary,
see Estamirov and Others v. Russia, no. 60272/00, § 73-74,
12 October 2006).
The
Court notes that the Russian legal system provides, in principle, two
avenues of recourse for the victims of illegal and criminal acts
attributable to the State or its agents, namely civil and criminal
remedies.
As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, the
Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention. A civil
court is unable to pursue any independent investigation and is
incapable, without the benefit of the conclusions of a criminal
investigation, of making any meaningful findings regarding the
identity of the perpetrators of fatal assaults or disappearances,
still less of establishing their responsibility (see Khashiyev and
Akayeva v. Russia, nos. 57942/00 and 57945/00,
§§ 119-121, 24 February 2005, and Estamirov and
Others, cited above, § 77). In the light of the above,
the Court confirms that the applicants were not obliged to pursue
civil remedies. The preliminary objection in this regard is thus
dismissed.
As
regards criminal-law remedies, the Court observes that the applicants
complained to the law-enforcement authorities immediately after the
detention of their relatives and that an investigation has been
pending since 2002. The applicants and the Government dispute the
effectiveness of this investigation.
The
Court considers that this limb of the Government's preliminary
objection raises issues concerning the effectiveness of the criminal
investigation which are closely linked to the merits of the
applicants' complaints. Thus, it considers that these matters fall to
be examined below under the substantive provisions of the Convention.
III. THE COURT'S ASSESSMENT OF THE EVIDENCE AND THE
ESTABLISHMENT OF THE FACTS
A. The parties' arguments
In
the applicants' opinion, it was beyond reasonable doubt that the men
who had apprehended and taken away their four relatives on 2 June
2002 had represented the federal forces. In support of their
complaint they referred to the evidence that was not challenged by
the Government. They referred to the official acknowledgement of
detention of Said-Magomed Imakayev and argued that their relatives
had been detained within the same security operation. They underlined
the non-disputed involvement of armoured vehicles, one of which had
been later spotted by them at the local military commander's office,
and which could not have been available to illegal armed groups. They
questioned the credibility of the Government's assertion to the
effect that the APCs' hull numbers were not included in the relevant
registers, given that the Government had failed to explain how they
had reached this conclusion and the absence of any relevant documents
(see paragraph 109 above).
The
Government submitted that on 2 June 2002 unidentified masked men in
camouflage uniforms and armed with machine guns had abducted Islam
Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev.
They further contended that the investigation into the crime was
pending, that there was no evidence that the armed men had been State
agents and that there were therefore no grounds for holding the State
liable for the alleged violations of the applicants' rights. They
further argued that there was no convincing evidence that the
applicants' relatives were dead, given that their whereabouts had not
been established and their bodies had not been found.
B. Article 38 § 1 (a) and consequent
inferences drawn by the Court
The
Court reiterates that it is of the utmost importance for the
effective operation of the system of individual petition instituted
under Article 34 of the Convention that States should furnish all
necessary facilities to make possible a proper and effective
examination of applications (see Tanrıkulu
v. Turkey [GC], no. 23763/94, § 70,
ECHR 1999 IV). This
obligation requires the Contracting States to furnish all necessary
facilities to the Court, whether it is conducting a fact-finding
investigation or performing its general duties as regards the
examination of applications. Failure on a Government's part to submit
such information which is in their hands, without a satisfactory
explanation, may not only give rise to the drawing of inferences as
to the well-foundedness of the applicant's allegations, but may also
reflect negatively on the level of compliance by a respondent State
with its obligations under Article 38 § 1 (a)
of the Convention (see Timurtaş v. Turkey, no.
23531/94, § 66, ECHR 2000-VI).
In
the present case the applicants alleged that their relatives had been
illegally arrested by the authorities and had then disappeared. They
also alleged that no proper investigation has taken place. In view of
these allegations, the Court asked the Government to produce
documents from the criminal investigation file opened in relation to
the kidnapping. The evidence contained in that file was regarded by
the Court as crucial to the establishment of the facts in the present
case.
In
their submissions the Government confirmed that on 2 June 2002 Islam
Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev had
been taken away from their houses by unknown armed men, after which
there had been no news of them. However, they argued that the
perpetrators of this crime had not been found. They refused to
disclose most of the documents of substance from the criminal
investigation file, relying on Article 161 of the Code of Criminal
Procedure.
The
Court notes that the Government did not request the application of
Rule 33 § 2 of the Rules of Court, which permits a
restriction on the principle of the public character of documents
deposited with the Court for legitimate purposes, such as the
protection of national security and the private life of the parties,
as well as the interests of justice. The Court further notes that it
has already found on a number of occasions that the provisions of
Article 161 of the Code of Criminal Procedure do not preclude
disclosure of documents from a pending investigation file, but rather
set out a procedure for and limits to such disclosure (see Mikheyev
v. Russia, no. 77617/01, § 104, 26 January
2006, and Imakayeva, cited above, § 123). For these
reasons the Court considers the Government's explanation insufficient
to justify the withholding of the key information requested by the
Court.
Referring
to the importance of a respondent Government's cooperation in
Convention proceedings, the Court notes that there has been a breach
of the obligations laid down in Article 38 § 1 (a)
of the Convention to furnish all necessary facilities to the Court in
its task of establishing the facts.
C. The Court's evaluation of the facts
The
Court observes that it has developed a number of general principles
relating to the establishment of facts in dispute, in particular when
faced with allegations of disappearance under Article 2 of the
Convention (for a summary of these, see Bazorkina v. Russia,
no. 69481/01, §§ 103-109, 27 July 2006). The Court
also notes that the conduct of the parties when evidence is being
obtained has to be taken into account (see Ireland v. the
United Kingdom, cited above, pp. 64-65, § 161). In view of
this and bearing in mind the principles referred to above, the Court
finds that it can draw inferences from the Government's conduct in
respect of the well-foundedness of the applicants' allegations. The
Court will thus proceed to examine crucial elements in the present
case that should be taken into account when deciding whether Islam
Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev can
be presumed dead and whether their deaths can be attributed to the
authorities.
The
applicants alleged that the persons who had taken the four men away
had been State agents. The Government did not dispute any of the
factual elements underlying the application and did not provide
another explanation of the events.
The
Court notes that the applicants' version of the events is supported
by the witness statements collected by the applicants and by the
investigation. The applicants and the neighbours stated that the
perpetrators had acted in a manner similar to that of a security
operation – they had checked the residents' passports, and they
had spoken Russian among themselves and to the residents. Most
importantly, the witnesses referred to the use of military vehicles
such as APCs, which could not have been available to paramilitary
groups, and had even noted their hull numbers. In their applications
to the authorities the applicants consistently maintained that Islam
Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev had
been detained by unknown servicemen and requested that the
investigation look into that possibility.
The
domestic investigation also accepted these factual assumptions as
presented by the applicants and took steps to check the involvement
of law-enforcement bodies in the arrests. The investigation was
unable to establish which precise military or security units had
carried out the operation, but it does not appear that any serious
steps were taken for that purpose (see below).
Finally,
the Court notes that the parties agree that the applicants' four
relatives had been detained together with Said-Magomed Imakayev. It
has already been established by the Court that Said-Magomed Imakayev
was detained by military servicemen on suspicion of involvement in
illegal armed groups, that he was delivered to the Shali district
department of the FSB and that he had subsequently “disappeared”
(see paragraph 125 above). The Court found it established that
Said-Magomed Imakayev could be presumed dead and that his death is
attributable to the Russian State (see Imakayeva, cited above,
§§ 135 and 156).
The
Court observes that where the applicant makes out a prima facie
case and the Court is prevented from reaching factual conclusions
owing to the lack of such documents, it is for the Government to
argue conclusively why the documents in question cannot serve to
corroborate the allegations made by the applicants, or to provide a
satisfactory and convincing explanation of how the events in question
occurred. The burden of proof is thus shifted to the Government and
if they fail in their arguments, issues will arise under Article 2
and/or Article 3 (see Toğcu v. Turkey, no. 27601/95,
§ 95, 31 May 2005, and Akkum and Others v. Turkey,
no. 21894/93, § 211, ECHR 2005 II).
Taking
into account the above elements, the Court is satisfied that the
applicants have made a prima facie case that their four
relatives were detained by State servicemen. The Government's
statement that the investigation did not find any evidence to support
the involvement of the special forces in the abduction is
insufficient to discharge them from the above-mentioned burden of
proof. Drawing inferences from the Government's failure to submit the
documents which were in their exclusive possession or to provide
another plausible explanation of the events in question, the Court
considers that Islam Utsayev, Movsar Taysumov, Idris Abdulazimov and
Masud Tovmerzayev were arrested at their homes by State servicemen in
the course of an unacknowledged security operation.
There
has been no reliable news of the applicants' relatives since 2 June
2002. Their names have not been found in the official records of any
detention facilities. Finally, the Government did not submit any
explanation as to what had happened to them after their arrest.
The
Court notes with great concern that a number of cases have come
before it which suggest that the phenomenon of “disappearances”
is well known in Chechnya (see, among others, Bazorkina, cited
above; Imakayeva, cited above; Luluyev and Others v.
Russia, no. 69480/01, ECHR 2006 ... (extracts);
Baysayeva v. Russia, no. 74237/01, 5 April 2007;
Akhmadova and Sadulayeva v. Russia, no. 40464/02, 10 May
2007; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July
2007). A number of international reports point to the same
conclusion. The Court has already found that, in the context of the
conflict in Chechnya, when a person is detained by unidentified
servicemen without any subsequent acknowledgment of the detention,
this can be regarded as life-threatening. The absence of Islam
Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev or
of any news of them for more than five years supports this
assumption. For the above reasons the Court considers that it has
been established beyond reasonable doubt that the four men must be
presumed dead.
The
Court has already noted above that it has been unable to benefit from
the results of the domestic investigation on account of the
Government's failure to disclose most of the documents from the file.
Nevertheless, it is clear that the investigation did not identify the
perpetrators of the kidnapping. As follows from the documents
submitted by the Government, as late as December 2006 and January
2007, four and a half years after the crime had occurred and the
investigation had been opened, the most basic investigation steps
related to the establishment of the identity of the perpetrators,
personal details of the victims and the identification of the
military vehicles involved had not been taken (see paragraphs 120 and
122 above).
Furthermore,
in a case involving disappearance, the Court finds it particularly
regrettable that there should have been no thorough investigation of
the relevant facts by the domestic prosecutors or courts. The few
documents submitted by the Government from the investigation file
opened by the district prosecutor do not suggest any progress in more
than five years and, if anything, show the incomplete and inadequate
nature of those proceedings. This is particularly striking in view of
the substantial body of evidence relating to the participation of
vehicles and servicemen available to the investigation. The
authorities' behaviour in the face of the applicants'
well-substantiated complaints gives rise to a strong presumption of
at least acquiescence in the situation and raises strong doubts as to
the objectivity of the investigation carried out by the district
prosecutor's office.
For
the above reasons the Court reiterates that Islam Utsayev, Movsar
Taysumov, Idris Abdulazimov and Masud Tovmerzayev must be presumed
dead following their unacknowledged detention by State servicemen.
The Court also finds it established that no proper investigation into
the abduction took place, which contributed to the eventual
disappearance of the applicants' four relatives.
IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicants complained under Article 2 of the Convention that their
relatives had disappeared after having been detained by Russian
servicemen and that the domestic authorities had failed to carry out
an effective investigation of the matter. Article 2 reads:
“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 Islam
Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev
The
applicants maintained their complaint and argued that their relatives
had been detained by State servicemen and should be presumed dead in
the absence of any reliable news of them for several years.
The
Government referred to fact that the investigation had obtained no
evidence to the effect that these persons were dead, or that
representatives of the federal power structures had been involved in
their abduction or alleged killing.
Article
2, which safeguards the right to life and sets out the circumstances
when deprivation of life may be justified, ranks as one of the most
fundamental provisions in the Convention, to which no derogation is
permitted. Together with Article 3, it enshrines one of the basic
values of the democratic societies making up the Council of Europe.
The circumstances in which a deprivation of life may be justified
must therefore be strictly construed. The object and purpose of the
Convention as an instrument for the protection of individual human
beings also requires that Article 2 be interpreted and applied so as
to make its safeguards practical and effective (see McCann and
Others v. the United Kingdom, judgment of 27 September 1995,
Series A no. 324, pp. 45-46, §§ 146-147). In the light of
the importance of the protection afforded by Article 2, the Court
must subject deprivation of life to the most careful scrutiny, taking
into consideration not only the actions of State agents but also all
the surrounding circumstances (see, among other authorities, Avşar,
cited above, § 391).
The
Court has already found it established that the applicants' four
relatives must be presumed dead following their unacknowledged arrest
by State servicemen and that the deaths can be attributed to the
State. In the absence of any justification in respect of the use of
lethal force by State agents, the Court finds that there has been a
violation of Article 2 in respect of Islam Utsayev, Movsar Taysumov,
Idris Abdulazimov and Masud Tovmerzayev.
B. The alleged inadequacy of the investigation into the
abduction of Islam Utsayev, Movsar Taysumov, Idris Abdulazimov and
Masud Tovmerzayev
The
applicants stated that the investigation into the disappearances had
been inadequate and ineffective. They noted that they were unaware of
any meaningful steps taken by the law-enforcement bodies to resolve
the abductions. They referred to the delays in taking the most
trivial steps, such as granting victim status to them and other
family members. In support of their argument regarding the
inefficiency of the investigation, the applicants also referred to
the Government's refusal to submit any documents from the files in
the criminal cases concerning their relatives' disappearance.
The
Government claimed that the investigation of the disappearance of the
applicants' four relatives met the Convention requirement of
effectiveness, as all measures envisaged in national law were being
taken to identify the perpetrators.
The
Court has on many occasions stated that the obligation to protect the
right to life under Article 2 of the Convention also requires by
implication that there should be some form of effective official
investigation when individuals have been killed as a result of the
use of force. It has developed a number of guiding principles to be
followed for an investigation to comply with the Convention's
requirements (for a summary of these principles see Bazorkina,
cited above, §§ 117-119).
In
the present case, an investigation into the abductions was carried
out. The Court must assess whether that investigation met the
requirements of Article 2 of the Convention.
The
Court notes at the outset that most of the documents from the
investigation were not disclosed by the Government. It therefore has
to assess the effectiveness of the investigation on the basis of the
few documents submitted by the parties and the information about its
progress presented by the Government.
Turning
to the facts of the case, it has already established that no proper
investigation has taken place into the disappearance of Islam
Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev.
The following considerations are particularly relevant in assessing
the applicants' complaint under the positive obligation of Article 2.
The
Court notes that the authorities were immediately aware of the crime
through the applicants' submissions. The investigations were opened
in June and July 2002. However, despite the fact that the applicants
brought their complaints collectively and complained about the
kidnappings of their relatives by the same group of persons, the
investigations were only joined in May 2005. It appears that, as a
result, a number of crucial steps were delayed and were eventually
taken only after the communication of the complaint to the respondent
Government, or not at all.
In
particular, the Court notes that, as it appears from the decisions of
the Chechnya prosecutor of December 2006 and January 2007, four and a
half years after the beginning of the proceedings the investigation
was still being requested to take such basic steps as identifying the
provenance of the APC with a known hull number and questioning the
district military commander about the units and officers involved in
the special operation of 2 June 2002 (see paragraphs 120 and 122
above).
It
is obvious that these measures, if they were to produce any
meaningful results, should have been taken immediately after the
crime was reported to the authorities, and as soon as the
investigation commenced. These delays, for which there has been no
explanation in the instant case, not only demonstrate the
authorities' failure to act of their own motion but also constitute a
breach of the obligation to exercise exemplary diligence and
promptness in dealing with such a serious crime (see Paul and
Audrey Edwards v. the United Kingdom, no. 46477/99, § 86,
ECHR 2002-II).
The
Court also notes that although the applicants were eventually granted
victim status, they were only informed of the adjournment and
reopening of the proceedings, and not of any other significant
developments. Accordingly, the investigators failed to ensure that
the investigation received the required level of public scrutiny, or
to safeguard the interests of the next of kin in the proceedings.
Finally,
the Court notes that the investigation was adjourned and resumed
several times and that on a number of occasions the supervising
prosecutors criticised deficiencies in the proceedings and ordered
remedial measures; however, it appears that these instructions were
not complied with.
In
the light of the foregoing, the Court dismisses the Government's
preliminary objection as regards the applicants' failure to exhaust
domestic remedies within the context of the criminal investigation,
and holds that the authorities failed to carry out an effective
criminal investigation into the circumstances surrounding the
disappearance of Islam Utsayev, Movsar
Taysumov, Idris Abdulazimov and Masud Tovmerzayev, in breach of
Article 2 in its procedural aspect.
V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants claimed that as a result of their close relatives'
disappearance and the State's failure to investigate those events
properly, they had endured mental suffering in breach of Article 3 of
the Convention. The second applicant also submitted that he had been
ill-treated during the arrest of his son Islam Utsayev. Article 3
reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government disagreed with these allegations and argued that the
investigation had not established that State agents had participated
in the detention of the applicants' relatives. The Government further
contended that there was no evidence that Islam Utsayev had been
subjected to treatment prohibited by Article 3 of the Convention.
A. The violation of Article 3 in respect of the
applicants in connection with their relatives' disappearance
The Court observes that the question whether a member
of the family of a “disappeared person” is a victim of
treatment contrary to Article 3 will depend on the existence of
special factors which give the suffering of the 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 Imakayeva, cited
above, § 164).
In
the present case the Court notes that the applicants are the parents,
wife and sisters of the disappeared men. They were eyewitnesses to
the arrests, during which some of them tried to interfere and were
forcibly prevented from doing so. For more than five years they have
not had any news of their close relatives. During this period the
applicants have applied to various official bodies with enquiries
about their family members, both in person and in writing. Despite
their attempts, the applicants have never received any plausible
explanation or information as to what became of their relatives
following their detention on 2 June 2002. The responses received by
the applicants mostly denied that the State was responsible for the
arrests or simply informed them that an investigation was ongoing.
The Court's findings under the procedural aspect of Article 2 are
also of direct relevance here.
In
view of the above, the Court finds that the applicants suffered, and
continue to suffer, distress and anguish as a result of the
disappearance of their four close relatives and their inability to
find out what happened to them. The manner in which their complaints
have been dealt with by the authorities must be considered to
constitute inhuman treatment contrary to Article 3.
B. The alleged ill-treatment of the second applicant
In
so far as the second applicant complained about alleged ill-treatment
during Islam Utsayev's arrest, the Court reiterates that allegations
of ill-treatment must be supported by appropriate evidence. To assess
this evidence, the Court adopts the standard of proof “beyond
reasonable doubt” but adds that such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact (see Ireland v. the
United Kingdom, cited above, pp. 64-65, § 161 in
fine).
The
Court has found it established that Islam Utsayev was detained on 2
June 2002 by State agents. It has also found that, in view of all the
known circumstances, he can be presumed dead and that the
responsibility for his death lies with the State authorities (see
paragraphs 154-165 above).
The
Court notes that the fact that the second applicant was beaten during
his son's arrest was confirmed by witness statements, including those
of the first and the third applicants. The applicants also
systematically informed the investigating authorities of the attack
on him, having stated in their complaints that the second applicant
had been struck by the kidnappers. In these circumstances, the Court
finds it established that the second applicant was beaten and injured
by the same persons who had taken away Islam Utsayev and whom it has
found above to be State agents. Despite that, it does not appear that
he was granted victim status within the proceedings related to the
kidnapping of his son. For reasons similar to those set out above in
relation to the procedural aspect of Article 2, the investigation was
not able to identify these persons and no one has been charged with
any crime.
The
Court therefore concludes that the second applicant suffered inhuman
treatment contrary to Article 3 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicants further stated that Islam Utsayev, Movsar Taysumov, Idris
Abdulazimov and Masud Tovmerzayev had been detained in violation of
the guarantees of Article 5 of the Convention, which, in so far as
relevant, 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:...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
In
the Government's opinion, no evidence was obtained by the
investigators to confirm that the four men were detained in breach of
the guarantees set out in Article 5 of the Convention. They were not
listed among the persons kept in detention centres.
The
Court has previously noted the fundamental importance of the
guarantees contained in Article 5 to secure the right of individuals
in a democracy to be free from arbitrary detention. It has also
stated that unacknowledged detention is a complete negation of these
guarantees and discloses a very grave violation of Article 5 (see
Çiçek v. Turkey, no. 25704/94, § 164,
27 February 2001, and Luluyev, cited above, § 122).
The Court has found it established that Islam
Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev
were detained by State servicemen on 2 June 2002 and have not been
seen since. Their detention was not acknowledged, was not logged in
any custody records and there exists no official trace of their
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
applicants' complaints that their relatives 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 the
applicants' relatives against the risk of disappearance.
Consequently,
the Court finds that Islam Utsayev, Movsar Taysumov, Idris
Abdulazimov and Masud Tovmerzayev were held in unacknowledged
detention without any of the safeguards contained in Article 5. This
constitutes a particularly grave violation of the right to liberty
and security enshrined in Article 5 of the Convention.
VII. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicants stated that they had been deprived of access to a court,
contrary to the provisions of Article 6 of the Convention, the
relevant parts of which provide:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
The
Government disputed this allegation.
The
Court finds that the applicants' complaint under Article 6 concerns
essentially the same issues as those discussed under the procedural
aspect of Article 2 and under Article 13. It should also be noted
that the applicants submitted no information to prove their alleged
intention to apply to a domestic court to claim compensation. In
these circumstances, the Court finds that no separate issues arise
under Article 6 of the Convention.
VIII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants complained that they had been deprived of effective
remedies in respect of the aforementioned violations, contrary to
Article 13 of the Convention, which provides:
“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 contended that the applicants had had effective remedies
at their disposal as required by Article 13 of the Convention and
that the authorities had not prevented them from using them. In
particular, the applicants had had an opportunity to appeal against
the actions or omissions of the investigating authorities in court.
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,
§§ 161-162, ECHR 2002-IV, 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 Khashiyev and Akayeva,
cited above, § 183).
It
follows that in circumstances where, as here, the criminal
investigation into the violent death was ineffective and the
effectiveness of any other remedy that may have existed, including
civil remedies, was consequently undermined, the State has failed in
its obligation under Article 13 of the Convention.
Consequently,
there has been a violation of Article 13 in conjunction with Articles
2 and 3 of the Convention.
As
regards Article 5 of the Convention, the Court refers to its findings
of a violation of this provision set out above. In the light of this
it considers that no separate issues arise in respect of Article 13
read in conjunction with Article 5 of the Convention, which itself
contains a number of procedural guarantees related to the lawfulness
of detention.
IX. 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
1. The applicants' claims
The applicants claimed damages in respect of the lost
wages of their relatives from the time of their arrests and
subsequent disappearances. They submitted that, although they could
not obtain any official information about the earnings of their four
relatives prior to their disappearance, it was reasonable to suppose
that they would have found a job and earned at least some income.
They referred to Article 1086 of the Civil Code, which stipulated
that the estimate of earnings lost as a result of the impairment of
health should be calculated on the basis of the “subsistence
level” determined by the law for the able-bodied population of
Russia. Taking the official figures for subsistence level adjusted
for inflation, they calculated the amounts which, in their view, each
of the disappeared persons could have earned. The applicants also
based their calculations on the Ogden Actuarial Tables used to
calculate personal injury and fatal accidents in the United Kingdom,
with reference to the absence of any equivalent methods of
calculation in Russia. They referred to the customary practice among
Chechen people for sons to provide material support not only for
their own families, but also for their parents and unmarried sisters.
The applicants made the following claims under this heading.
(a) Claims brought by the first, second
and third applicants
The
first and second applicants claimed a total of 631,867 Russian
roubles (RUB) under this heading (17,306 euros (EUR)).
They
claimed that they had both been pensioners at the time of Islam
Utsayev's disappearance and could claim 40% of their son's income,
calculated on the basis described above for the period they both
remained alive, and on 30% of his income for the years when Islam
Utsayev would have supported only the first applicant.
The
third applicant claimed RUB 503,013 (EUR 13,781), which
constituted 30% of her husband's income calculated in accordance with
the above formulae.
(b) Claims brought by the fourth and fifth applicants
The
fourth applicant claimed RUB 483,085 (EUR 13,234), which
corresponded to 30% of her son's income, calculated as explained
above (in paragraph 208).
The
fifth applicant submitted that, as his unmarried sister, she too
could count on Movsar Taysumov's income. She stipulated that 20% of
his earnings up to the end of 2007, calculated as stated above, would
constitute RUB 38,364 (EUR 1,051).
(c) Claims brought by the sixth applicant
The
sixth applicant is the mother of the disappeared Idris Abdulazimov.
She claimed that she could count on 30% of his income and that this
sum would constitute RUB 373,043 (EUR 10,217), based on the
above calculations.
(d) Claims brought by the seventh and eighth
applicants
The
seventh applicant claimed that she could claim 30% of her son's
income, calculated as described above. She thus claimed RUB 369,888
(EUR 10,128).
The
eighth applicant submitted that her brother would have supported her
financially until her marriage in 2006 and that she could have
claimed 20% of Masud Tovmerzayev's eventual earnings. Applying the
method of calculations described above, the eighth applicant sought
RUB 21,500 (EUR 589) as compensation for non-pecuniary
damage.
2. The Government's position
The
Government regarded these claims as based on suppositions and
unfounded. They noted, in particular, that the applicants did not
submit any proof of their relatives' earnings and therefore any
amounts in this respect were unsubstantiated. They also stressed that
the traditions invoked by the applicants could not be a legitimate
source of awarding income and that they had no enforceable right to
claim any part of their relatives' earnings solely on that basis.
3. The Court's assessment
The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicant and the violation of the
Convention, and that this may, in an appropriate case, include
compensation in respect of loss of earnings. Having regard to its
above conclusions, it finds that there is a direct causal link
between the violation of Article 2 in so far as the applicants
complain about the disappearance of their sons and husband and the
loss by them of the financial support which they could have provided
(see, among other authorities, Çakıcı v.
Turkey [GC], no. 23657/94, ECHR 1999-IV; Imakayeva,
cited above, § 213). As to the claim brought by the fifth
and eighth applicants in respect of their disappeared brothers' loss
of future earnings, the Court notes that it has not been proven that
they suffered the pecuniary loss alleged. The Court does not find it
appropriate in the circumstances of this case to make any award to
the fifth and eighth applicants under this head.
Having
regard to the applicants' submissions, the fact that none of the
disappeared men was receiving a salary at the time of their
disappearance and the principles summarised above, the Court awards
the following amounts, plus any tax that may be chargeable thereon:
(a)
EUR 8,000 to the first and second applicants jointly;
(b)
EUR 5,000 to the third applicant;
(c)
EUR 8,000 to the fourth applicant;
(d)
EUR 8,000 to the sixth applicant; and
(e)
EUR 8,000 to the seventh applicant.
B. Non-pecuniary damage
1. The applicant's claims
The
applicants claimed that they had been victims of the suffering
endured as a result of the loss of their sons, husbands and brothers,
the indifference shown by the authorities towards them and the
failure to provide any information about the fate of their close
relatives. They made the following requests for compensation in
respect of non-pecuniary damage:
- the
first applicant claimed EUR 50,000;
- the
second applicant claimed EUR 50,000;
- the
third applicant claimed EUR 50,000;
- the
fourth applicant claimed EUR 50,000;
- the
fifth applicant claimed EUR 30,000;
- the
sixth applicant claimed EUR 50,000;
- the
seventh applicant claimed EUR 50,000;
- the
eighth applicant claimed EUR 30,000.
2. The Government's position
The
Government found the amounts claimed to be exaggerated.
3. The Court's assessment
The
Court has found violations of Articles 2, 5 and 13 of the Convention
on account of the unacknowledged detention and disappearance of the
applicants' four family members. The applicants themselves have been
found to have been victims of a violation of Article 3 of the
Convention. In addition, the Court found that the second applicant
had been subjected to beatings in violation of Article 3 of the
Convention. The Court thus accepts that each of the applicants has
suffered non-pecuniary damage which cannot be compensated for solely
by the findings of violations. Acting on an equitable basis, taking
into account the degree of relationships between the applicants and
the disappeared men and mindful of previous awards made in comparable
cases (see Imakayeva, cited above, § 216;
Alikhadzhiyeva, cited above § 111), the Court awards
the following sums to the applicants, plus any tax that may be
chargeable thereon:
(a)
EUR 40,000 to the first, second and third applicants jointly;
(b)
EUR 5,000 to the second applicant;
(c)
EUR 40,000 to the fourth and fifth applicant jointly;
(d)
EUR 40,000 to the sixth applicant;
(e)
EUR 40,000 to the seventh and eighth applicants jointly.
C. Costs and expenses
The
applicants were represented by the SRJI. They submitted an itemised
schedule of costs and expenses that included research and interviews
in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the
drafting of legal documents submitted to the Court and the domestic
authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR
150 per hour for SRJI senior staff. They claimed reimbursement of
certain amounts for translation of documents, international postal
costs, and office and administrative expenses. The aggregate claim in
respect of costs and expenses related to the applicants' legal
representation amounted to EUR 13,935.
The
Government did not dispute the details of the calculations submitted
by the applicants, but contended that the sum claimed was excessive
for legal representation rates applicable in Russia. They also
objected to the representatives' request to transfer the award for
legal representation directly into their account in the Netherlands.
The
Court has to establish first whether the costs and expenses indicated
by the applicants were actually incurred and, second, whether they
were necessary (see McCann and Others, cited above, §
220).
The
Court notes that, under contracts entered into by the first, fourth,
sixth and eighth applicants, they 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. Having regard to the rates for the work of the SRJI lawyers
and senior staff and to the administrative costs, the Court is
satisfied that these rates are reasonable and reflect the expenses
actually incurred by the applicants' representatives.
Further,
it has to be established whether the costs and expenses incurred for
legal representation were necessary. The Court notes that this case
was rather complex and required a certain amount of research and
preparation, especially in view of the number of applicants and the
number of persons who had disappeared.
Finally,
the Court notes that it is its standard practice to rule that awards
in relation to costs and expenses are to be paid directly into the
applicant's representatives' accounts (see, for example, Toğcu,
cited above, § 158; Nachova and Others v. Bulgaria [GC],
nos. 43577/98 and 43579/98, § 175, ECHR 2005 VII;
and Imakayeva, cited above).
Having regard to the details of the claims submitted
by the applicants, the Court awards them the amount as claimed, less
EUR 715 received by way of legal aid from the Council of Europe,
together with any value-added tax that may be chargeable, the net
award to be paid into the representatives' bank account in the
Netherlands, as identified by the applicants.
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
Holds that it is unable to consider the merits
of the first, second and third applicants' complaint under Article 3
of the Convention concerning the ill-treatment sustained by Islam
Utsayev and the third applicant on 2 June 2002, and the merits
of the applicants' complaints under Article 8 concerning searches
carried out in their homes on 8 June 2002, as they have been lodged
out of time;
Dismisses the Government's preliminary objection
as to non-exhaustion of domestic remedies;
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 there has been a violation of
Article 2 of the Convention in respect of Islam Utsayev, Movsar
Taysumov, Idris Abdulazimov and Masud Tovmerzayev;
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 the
applicants' four relatives had disappeared;
Holds that there has been a violation of
Article 3 of the Convention in respect of the applicants in
respect of the disappearance of their close relatives;
Holds that there has been a violation of
Article 3 of the Convention in respect of the second applicant
on account of the ill-treatment sustained by him on 2 June 2002;
Holds that there has been a violation of
Article 5 of the Convention in respect of Islam Utsayev, Movsar
Taysumov, Idris Abdulazimov and Masud Tovmerzayev;
Holds that no separate issues arise under
Article 6 of the Convention;
Holds that there has been a violation of
Article 13 of the Convention in respect of the alleged
violations of Articles 2 and 3 of the Convention;
Holds that no separate issues arise under
Article 13 of the Convention in respect of the alleged violations of
Article 5;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts:
(i)
in respect of pecuniary damage, the sums indicated below to be
converted into Russian roubles at the date of settlement: EUR 8,000
(eight thousand euros) to the first and second applicants jointly;
EUR 5,000 (five thousand euros) to the third applicant;
EUR 8,000 (eight thousand euros) to the fourth applicant;
EUR 8,000 (eight thousand euros) to the sixth applicant; and
EUR 8,000 (eight thousand euros) to the seventh applicant;
(ii)
in respect of non-pecuniary damage, the sums indicated below to be
converted into Russian roubles at the date of settlement: EUR 40,000
(forty thousand euros) to the first, second and third applicants
jointly; EUR 5,000 (five thousand euros) to the second
applicant; EUR 40,000 (forty thousand euros) to the fourth and
fifth applicant jointly; EUR 40,000 (forty thousand euros) to
the sixth applicant; EUR 40,000 (forty thousand euros) to the
seventh and eighth applicants jointly;
(iii) EUR 13,220
(thirteen thousand two hundred twenty euros) in respect of costs and
expenses, to be paid into the 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 unanimously the remainder of the
applicants' claim for just satisfaction.
Done in English, and notified in writing on 29 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President