BAILII
    British and Irish Legal Information Institute


    Freely Available British and Irish Public Legal Information

    [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

    European Court of Human Rights

    You are here: BAILII >> Databases >> European Court of Human Rights >> RUSLAN UMAROV v. RUSSIA - 12712/02 [2008] ECHR 589 (3 July 2008)
    URL: http://www.bailii.org/eu/cases/ECHR/2008/589.html
    Cite as: [2008] ECHR 589
    [New search] [Contents list] [Printable RTF version] [Help]





    FIRST SECTION







    CASE OF RUSLAN UMAROV v. RUSSIA


    (Application no. 12712/02)












    JUDGMENT




    STRASBOURG


    3 July 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 Ruslan Umarov v. Russia,

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

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

    Having deliberated in private on 12 June 2008,

    Delivers the following judgment, which was adopted on the last mentioned date:

    PROCEDURE

  1. The case originated in an application (no. 12712/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Ruslan Usmanovich Umarov (“the applicant”), on 15 February 2002.

  2. The applicant was represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their representative, Mrs V. Milinchuk.

  3. The applicant alleged that his relative had disappeared after being detained by servicemen in Chechnya on 27 May 2000. He complained under Articles 2, 3, 5, 8 and 13.

  4. On 15 December 2004 the Court decided to apply Rule 41 of the Rules of Court.

  5. By a decision of 8 February 2007, the Court declared the application partly admissible.

  6. 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.

    7. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  7. The applicant was born in 1942 and lives in Grozny.

    8. A. The applicant’s son’s apprehension

  8. At the material time the applicant lived with his family in his own house at 148 Klyuchevaya Street in the Staropromyslovskiy District of Grozny, in the residential quarter referred to by the local residents as Ivanovo. The applicant has two sons and two daughters. The oldest son, Magomed Umarov, born in 1975, was a fourth-year student at the Grozny Oil Institute. In November 1999 the applicant and his family left Grozny because of the shelling and lived in railway carriages in a camp for internally displaced persons in Ingushetia. In February 2000 the applicant’s mother died and he and his family came back to Chechnya to bury her. They then remained in Grozny.

  9. On 27 May 2000 at around 6 a.m., when the applicant and his family were asleep at home, a group of men in camouflage uniforms arrived in a Ural military vehicle at 148 Klyuchevaya Street. In his submissions before the Court the applicant also referred to statements of his neighbours to the effect that there had been another car in the street – a UAZ vehicle with the number 469. The men were armed with automatic firearms and some of them were masked. According to the applicant, they were federal servicemen, whilst the Government claimed that they were “unidentified persons”.

  10. The men entered the applicant’s house, having broken down the door. According to the applicant, the first man who entered the house was tall and had a bright complexion and blue eyes. The applicant found out later that the man’s name was Yuriy. The men spoke Russian without an accent. They threatened the applicant’s wife and daughters with firearms, swore at them and beat the applicant. They also searched the house. The men then dragged the applicant out to the courtyard, kicked him and beat him with rifle butts. There were about 30 masked men in the courtyard. The applicant enclosed statements of his wife and daughter corroborating his account of the events.

  11. Magomed Umarov slept in an extension to the house located in the same courtyard. He rushed out into the courtyard, screaming “Why are you beating him?” According to the applicant, the men seized him, beat him and threw him into the Ural truck in which they had arrived. The vehicle had no registration plates. The men then left. Magomed Umarov was not allowed to dress or to put shoes on. Later that day the men returned and collected his son’s passport and student identity card issued by the Grozny Oil Institute. The applicant has had no news of his son since then.

  12. The applicant’s brother immediately took him to Grozny hospital no. 3 where he underwent a medical examination and was diagnosed with bruises on his face, chest and feet and the fracture of two ribs. The applicant received first aid at the hospital and was then released.

  13. In the meantime the applicant’s neighbours noted that the Ural truck in which Magomed Umarov had been taken away bore the inscription “Maestro”. According to the applicant, the inscription indicated that the vehicle belonged to the Temporary Department of the Interior of the Staropromyslovskiy District (временный отдел внутренних дел Старопромысловского района – “the Staropromyslovskiy VOVD”). The Government claimed that the vehicle referred to by the applicant had not been listed among those belonging to the federal forces.

  14. The applicant’s relatives and neighbours went to the Staropromyslovskiy VOVD and to the local military commander’s office, which were only 100 metres away from the applicant’s house. The officials there did not tell them anything and advised them to apply to the Grozny prosecutor’s office (прокуратура г. Грозного).

    15. B. The search for Magomed Umarov and the authorities’ replies

  15. On the same day at about 9 a.m. the applicant and his relatives went to the Grozny prosecutor’s office. He met the Grozny prosecutor, B., and submitted a written complaint about the attack on his house, his beatings and his son’s detention. He requested that those responsible be identified and prosecuted and that his son’s whereabouts be established.

  16. According to the applicant, the prosecutor immediately summoned the head and senior officers of the Staropromyslovskiy VOVD and berated them in his presence for “dirty work in masks” and that during that meeting the deputy head of the Staropromyslovskiy VOVD warned the personnel of the VOVD about the events by telephone. After the meeting the prosecutor, a senior investigator from his office, the applicant and the others went to the Staropromyslovskiy VOVD and to the military commander’s office of the Staropromyslovskiy District.

  17. At the Staropromyslovskiy VOVD the applicant and his wife identified one of the servicemen who had beaten him that morning at his house. The officers of the Staropromyslovskiy VOVD explained to the prosecutor that they had conducted two “special operations” in the Ivanovo quarter that morning, but that they knew nothing about the Ural truck with an inscription “Maestro”. According to the applicant, the deputy military commander of the Staropromyslovskiy District who introduced himself as Valeriy invited the prosecutor, investigators and the identified officers from the Staropromyslovskiy VOVD for a separate talk, first on the spot and then at the location of the nearest military unit in the building of a local concert hall. They questioned the officers about what they had seen or heard that morning. Thereafter the prosecutor and the investigator assured the applicant that everything would be “sorted out” and left.

  18. The applicant returned home and learnt that on the same morning two other men had been detained in their quarter, the M. brothers. They were released four days later, apparently for a ransom, and told the applicant that they had been detained in a ground pit together with the applicant’s son. There had been ten persons in the pit. The M. brothers told him that they had been brought there with bags over their heads, but believed that it was at the Khankala military base, the headquarters of the Russian military in Chechnya, because they could hear helicopters landing and taking off, and because they had crossed some railway lines on the way. Furthermore, when Magomed Umarov and two other persons had been taken out of the pit, somebody said: “Take them to the Khankala post!”. Twelve days later another young man who had been detained in a Grozny suburb on 25 May 2000 and then released met with the applicant and told him that he had been detained with his son in a pit in terrible conditions and that his son had asked him to do everything possible for his release.

  19. The applicant continued the search for his son. On numerous occasions, both in person and in writing, he applied to prosecutors at various levels, to the Ministry of the Interior, to courts and the administrative authorities in Chechnya and beyond. In dozens of letters addressed to the authorities the applicant stated the facts of his son’s detention and asked for assistance and details on the investigation. He also wrote about his son’s alleged detention at the Khankala military base, referring to the witnesses who had been released, allegedly, for a ransom. Most of the letters were submitted by the applicant during his visits to officials in an attempt to find out Magomed Umarov’s whereabouts. The applicant has submitted copies of some of those letters to the Court. The applicant was given hardly any substantive information concerning his son’s disappearance and the investigation into these events. On several occasions he received copies of letters by which his requests had been forwarded to the different prosecutors’ services.

  20. According to the applicant, during his visits to the prosecutors’ offices he had received hints on several occasions that he should not complain about his son’s abduction, but should rather, like the relatives of those who had been released, seek “middlemen” who could help him find his son, and that otherwise his son could “disappear”. The applicant allegedly tried to act through “middlemen” but failed.

  21. On 28 May 2000 a number of residents of the Staropromyslovskiy District signed a petition addressed to the military commanders of the Staropromyslovskiy District and of Chechnya, with a copy to the Russian President. They complained of a “bullying attitude” on the part of the military stationed in the Staropromyslovskiy District, which included systematic and open extortion of money, cigarettes and alcohol at check-points, disregard of traffic regulations by the drivers of large military vehicles, random shooting and shelling both day and night and robbery and beatings during so-called “sweeping” operations. They referred, in particular, to the beating of the applicant and his son on 27 May 2000 and the absence of information about the latter’s whereabouts since his apprehension.

  22. In a letter of 16 June 2000 the applicant requested the military commander of Chechnya to assist him in locating his son. The commander replied that the Grozny prosecutor’s office (прокуратура г. Грозного) and the Staropromyslovskiy VOVD were responsible for investigating the applicant’s allegations. He further informed the applicant that following the residents’ petition of 28 May 2000 the superiors of the local detachments of the Ministry of the Interior had discussed the issues raised and increased control over their staff at check-points.

  23. On 9 September 2000 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики – “the Republican prosecutor’s office”) informed the applicant that on 30 May 2000 the Grozny prosecutor’s office had opened a criminal investigation into his son’s abduction and that the criminal case file had been assigned the number 12050.

  24. On 19 September 2000 the head of the criminal investigation service of the Chechen Department of the Interior informed the applicant that his letter of 27 June 2000 had been forwarded to the Staropromyslovskiy VOVD for the purposes of organising the search for his son.

  25. By letter of 25 October 2000 the Republican prosecutor’s office forwarded the applicant’s complaint to the Grozny prosecutor’s office “for examination”.

  26. On 14 November 2000 the Supreme Court of the Chechen Republic forwarded the applicant’s complaint concerning the inefficiency of the investigation into his son’s disappearance to the Republican prosecutor’s office.

  27. On 15 November 2000 and 12 February 2001 the applicant complained to the military prosecutor of the Chechen Republic (военный прокурор Чеченской Республики) about the attack on his house, his beatings and his son’s detention, as well as of inefficiency in the investigation and asked for help in finding his son.

  28. On 27 November 2000 the Republican prosecutor’s office informed the applicant that following his complaint “the decision to suspend investigation was quashed and the case file remitted for further investigation with instructions to take more active steps”. The letter did not indicate the date on which the decision to suspend the investigation had been taken or the date on which the proceedings had been resumed and contained no other details.

  29. By letter of 30 November 2000 the Republican prosecutor’s office referred the applicant’s complaint concerning his son’s detention and disappearance to the Grozny prosecutor’s office.

  30. On 19 December 2000 the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) referred the applicant’s complaint to the Grozny Temporary Office of the Interior (временный отдел внутренних дел г. Грозного). The letter stated that there had been no grounds to send the applicant’s complaint to the military prosecutor’s office of military unit no. 20102 since it had not been established that military personnel had been involved in the abduction of the applicant’s son.

  31. On 21 December 2000 the applicant wrote to the Memorial Human Rights Centre and to the Russian Commissioner for Human Rights.

  32. According to the applicant, in late February 2001 he found out that there were a number of unidentified corpses in the premises of a nearby railway station. The applicant went there and saw around 60 bodies that had been taken from the mass grave near the village of Dachnoye. Some of them showed signs of torture, their legs and hands were tied with iron wire. One of the corpses resembled that of the applicant’s son, as it had clothes similar to those Magomed Umarov had been wearing on the day of his detention. The applicant, however, was unable to identify the body, as its head was missing. He felt unwell and left. The next day the applicant returned with his wife to study the body, but was unable to find it. He was told that the corpses had been taken to another village, situated 15-20 km way from Grozny. The applicant went there and was informed that the remains had been photographed and then buried. The applicant looked through the photographs but did not find the headless body.

  33. By letter of 1 April 2001 the Grozny prosecutor’s office informed the applicant that they had studied his complaint, quashed the decision to suspend the criminal investigation and remitted the case for further investigation. The letter did not indicate the date on which the decision to suspend the investigation had been taken or the date on which the proceedings had been resumed and contained no other details.

  34. On 29 May 2001 the Republican prosecutor’s office replied to the applicant’s complaint, stating that the decision to suspend the investigation had been quashed and the case had been remitted for further investigation. The investigation was being supervised by the Republican prosecutor’s office. The letter did not indicate the date on which the decision to suspend the investigation had been taken or the date on which the proceedings had been resumed and contained no other details.

  35. In a letter of 19 June 2001 the applicant requested the Republican prosecutor’s office to question the investigator from the Grozny prosecutor’s office, who had been present on 27 May 2000 during the questioning at the Staropromyslovskiy VOVD and the military commander’s office of the Staropromyslovskiy District, about the identity of the servicemen and the content of their statements made on that day.

  36. In letters of 24 August and 13 September 2001 the Republican prosecutor’s office instructed the Grozny prosecutor’s office to take more active steps in investigating Magomed Umarov’s disappearance.

  37. On 9 October 2001 the applicant wrote to the Republican prosecutor’s office, with a copy to the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic. The applicant complained that the investigation into his son’s abduction had been inadequate and plagued with shortcomings, that those responsible had not been identified so far despite compelling evidence exposing them and that he had never been notified of any steps taken during the investigation or of its progress.

  38. On 22 October 2001 the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic informed the applicant that his letter of 9 October 2001 had been forwarded to the Prosecutor General’s Office.

  39. In November 2001 the Republican prosecutor’s office informed the applicant that the decision to suspend the investigation of the criminal case concerning his son’s abduction had been quashed and that the ongoing investigation was supervised by them. The letter contained no further details.

  40. On 18 December 2001 the Grozny prosecutor’s office replied to the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic, with a copy to the applicant, that on 30 May 2000 the Grozny prosecutor’s office had opened a criminal investigation into the abduction of Magomed Umarov and the infliction of injuries on the applicant. On 30 July 2001 the investigation had been suspended owing to failure to identify the alleged perpetrators. The letter further stated that on 14 December 2001 the Republican prosecutor’s office had quashed that decision and remitted the file for further investigation and that measures aimed at establishing Magomed Umarov’s whereabouts and identifying those responsible were being taken.

  41. In a letter of 25 December 2001 the Republican prosecutor’s office informed the applicant that the investigation into his son’s disappearance was currently under way.

  42. On 19 March 2002 the Southern Federal Circuit Department of the Prosecutor General’s Office (Управление Генеральной прокуратуры РФ в Южном федеральном округе) forwarded the applicant’s complaint about the inadequate investigation into his son’s disappearance to the Republican prosecutor’s office and ordered them to submit before 1 April 2002 information regarding the investigation.

  43. On 23 May 2002 the Republican prosecutor’s office informed the applicant that the decision of 28 January 2001 to suspend proceedings in criminal case no. 12050 had been quashed and the investigation re-opened.

  44. By letter of 6 June 2002 the Southern Federal Circuit Department of the Prosecutor General’s Office transmitted the applicant’s complaint to the Republican prosecutor’s office.

  45. In a letter of 10 June 2002 the Republican prosecutor’s office stated that the applicant’s complaint of 29 May 2000 had been left without examination, as it had contained no new arguments other than those which had previously been examined and replied to.

  46. On 25 June 2002 the Republican prosecutor’s office informed the applicant that they had taken up the case opened in connection with the injuries inflicted on him and the disappearance of his son.

  47. By letter of 21 October 2002 the Chechen Department of the Interior informed the applicant’s wife that all necessary measures aimed at establishing Magomed Umarov’s whereabouts and identifying those involved in his abduction were being taken.

  48. On 21 August 2003 the prosecutor’s office of the Staropromyslovskiy District (прокуратура Старопромысловского района г. Грозного – “the Staropromyslovskiy prosecutor’s office”) notified the applicant that the proceedings in criminal case no. 12050 had been suspended on 30 August 2002 and then resumed on 18 August 2003. In a letter of 27 January 2004 they further informed the applicant that the proceedings had been adjourned on 3 September 2003 in view of the failure to establish the alleged perpetrators.

    49. C.  Official investigation

  49. The Government submitted, with reference to the information provided by the Prosecutor General’s Office, the following information concerning the investigation into the events of 27 May 2000.

  50. On 30 May 2000 the Grozny prosecutor’s office instituted criminal proceedings in connection with the infliction of bodily injuries on the applicant and the abduction of his son, under Articles 126 (2) (aggravated abduction) and 286 (3) (aggravated abuse of power) of the Russian Criminal Code. The case file was assigned the number 12050.

  51. The investigating authorities took a number of steps during the investigation. In particular, on 23 June 2000 the applicant underwent a forensic medical examination which established abrasions and bruises on his face, chest and left foot. In the Government’s submission, those injuries had “caused no harm to the applicant’s health”.

  52. The applicant was granted victim status on 30 May 2000 and questioned on that date and on 27 February 2001. His numerous requests were included in the case file. The applicant’s wife was interviewed on 21 June 2001.

  53. On 24 March 2001 and 18 January 2002 the investigators questioned one of the M. brothers, who had also been detained on 27 May 2000. M. stated that at around 5 a.m. on the date in question he had been abducted from his house in Klyuchevaya Street by unidentified masked men in camouflage uniforms and armed with automatic firearms, taken outside Grozny and put in a pit approximately two metres deep. In the pit he had seen Magomed Umarov who had then been taken away.

  54. On 28 March 2001 the Grozny prosecutor’s office received information to the effect that the personnel of the Staropromyslovskiy VOVD had not carried out any operations in the vicinity of Klyuchevaya Street on 27 May 2000.

  55. On 6 November 2001 the investigators questioned the military commander of the Staropromyslovskiy District, who stated that his office had been organised on 22 June 2000 to replace the temporary military commander’s office and that he had no information regarding documents of the temporary commander’s office.

  56. On 23 September 2003, 19 and 29 January and 18, 20 and 24 June 2005 the investigating authorities also questioned ten other witnesses, who “gave no information relevant for establishing the circumstances of Magomed Umarov’s abduction”.

  57. According to the Government, in the context of the investigation into the applicant’s beatings and his son’s disappearance, the investigators inspected the scene of the incident at 148 Klyuchevaya Street on 14 October 2004 and 27 June 2005, but those inspections “brought no positive results”.

  58. During the investigation, the Chechen Department of the Federal Security Service of Russia (Управление Федеральной службы безопасности РФ по Чеченской Республике) submitted information to the effect that Magomed Umarov had never participated in illegal armed formations.

  59. The investigating authorities sent a number of queries concerning the operation of 27 May 2000, those responsible for the abduction of the applicant’s son, or those who had information about the events of 27 May 2000, to various official bodies and sought lists of persons who had been serving in the Staropromyslovskiy VOVD in May 2000. They also checked registers of unidentified corpses, medical establishments and detention centres so as to establish whether Magomed Umarov was listed or kept there, but to no avail.

  60. On 18 June 2005 the investigating authorities questioned K. A., apparently the applicant’s neighbour, who submitted that on the day of Magomed Umarov’s abduction he had seen two Ural vehicles and men wearing camouflage uniform near the Umarov household. He had learnt about the abduction later.

  61. On 20 June 2005 the investigating authorities questioned I. H., apparently also a neighbour, who submitted that he had learnt about Magomed Umarov’s abduction from other neighbours.

  62. On 24 June 2005 the investigating authorities questioned T. M., the applicant’s neighbour. She submitted that at approximately 4 a. m. she had heard the sound of engines and had gone outside. Near 148 Klyuchevaya Street she had seen servicemen in camouflage uniform and had returned home. Later she had learnt that the servicemen had taken Magomed Umarov with them.

  63. On 18 August 2006 the investigating authorities questioned S. B., on 26 August 2006 they questioned F.D. and on 4 September 2006 S.-E. M., but those individuals submitted that they knew nothing about Magomed Umarov’s abduction. It is not clear who they were and why their statements could have been relevant.

  64. According to the Government’s submission, the investigation had been suspended and resumed on eighteen occasions, but had failed to date to identify the alleged perpetrators or to establish Magomed Umarov’s whereabouts. After the most recent resumption on 21 April 2007 the investigation was being carried out by the Staropromyslovskiy District Prosecutor’s Office and supervised by the Prosecutor General’s Office.

    65. D. Proceedings against law-enforcement officials

  65. In June 2001 the applicant lodged a complaint against the inactivity of the military and law-enforcement authorities, during the investigation into his son’s abduction and his own beatings, with the Staropromyslovskiy District Court of Grozny. In August 2001 the applicant was summoned to that court, which at the time was situated in the village of Beno-Yurt in the Nadterechny District of Chechnya, about 100 kilometres from Grozny. According to the applicant, during a meeting a judge asked him to withdraw his complaint, and then promised to help him obtain free legal aid in the proceedings. The judge allegedly explained to him that his complaint could not be examined because he had not indicated the names and positions of the officials against whom he complained. She also told him that the court would issue a procedural decision rejecting his complaint.

  66. On 18 September 2001 the applicant wrote to the Staropromyslovskiy District Court. He enquired whether he could benefit from legal aid in his case and whether the aforementioned procedural decision had been issued and requested the court to furnish him with a copy of it. He received no reply to that letter.

  67. On 1 November 2001 the applicant wrote to the President of the Supreme Court of the Chechen Republic, complaining about the lack of progress in his case lodged in June 2001 with the Staropromyslovskiy District Court.

  68. On 5 December 2001 the applicant received a letter from the Staropromyslovskiy District Court, in which the judge informed him that, upon his request, his submissions to that court had been forwarded to the “Novaya Gazeta” newspaper and suggested that he contact a journalist from that newspaper. According to the applicant, he had never given his consent to the transfer of his submissions to the said newspaper.

  69. On 23 January 2002 the applicant addressed a letter to the Supreme Court of Russia. He complained about the failure to act on the part of the Staropromyslovskiy District Court and the Supreme Court of the Chechen Republic. He also complained about the inefficiency of the investigation and referred to the fact that five investigators had been in charge of the case. He stated that all his complaints had been forwarded to the Grozny prosecutor’s office with the result that the criminal investigation file consisted almost entirely of his own complaints to various authorities. It appears that the applicant received no answer to that letter.

    70. E.  The Court’s request to submit the investigation file

  70. Despite specific requests made by the Court on several occasions, the Government did not submit a copy of the investigation file concerning the abduction of Magomed Umarov. They submitted case-file material on 44 pages, which contained mostly decisions on suspension and resumption of the investigation and records of interviews with the applicant and another witness. Copies of those records were of very poor quality and almost illegible. 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 in criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file and to transmit it to others”.

    71. II.  RELEVANT DOMESTIC LAW

  71. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (the new CCP).

  72. Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.

  73. Article 161 of the new CCP stipulates that evidence from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator, but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of participants in criminal proceedings without their permission.

    74. THE LAW

    I.  THE GOVERNMENT’S PRELIMINARY OBJECTION

    A.  Arguments of the parties

  74. The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the disappearance of Magomed Umarov had not yet been completed. They further argued that it had been open to the applicant to lodge complaints with a court about the allegedly unlawful detention of his son.

  75. The applicant contested that objection. He stated that the criminal investigation had proved to be ineffective and that his complaints to that effect, including the application to the court, had been futile. He also alleged the existence of an administrative practice of non-investigation of crimes committed by State servicemen in Chechnya and referred to the other cases concerning such crimes reviewed by the Court, and also to reports of various NGOs and international bodies. This, in his view, had rendered any potentially effective remedies inadequate and illusory in his case.

    76. B.  The Court’s assessment

  76. 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 an existing summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73-74, 12 October 2006).

  77. Inasmuch as the Government’s preliminary objection concerns the applicant’s failure to complain of his son’s unlawful detention, the Court observes that after he was taken away by armed men on 27 May 2000, the applicant actively attempted to establish his whereabouts and applied to various official bodies, whereas the authorities denied that they had ever detained Magomed Umarov. In such circumstances, and in particular in the absence of any proof to confirm the very fact of the detention, even assuming that the remedy referred to by the Government was accessible to the applicant, it is more than questionable whether a complaint to a court about the unacknowledged detention of the applicant’s son by the authorities would have had any prospects of success. Moreover, the Government have not demonstrated that the remedy indicated by them would have been capable of providing redress in the applicant’s situation, namely that it would have led to the release of Magomed Umarov or the identification and punishment of those responsible.

  78. Inasmuch as the Government’s objection relates to the fact that the domestic investigation is still pending, the Court observes that the applicant complained to the law enforcement authorities immediately after the detention of Magomed Umarov and that an investigation was subsequently opened. The applicant and the Government dispute the effectiveness of this investigation. The Court considers that this limb of the Government’s preliminary objection raises issues which are closely linked to the merits of the applicant’s complaints. Thus, it finds that this matter falls to be examined below under the substantive provisions of the Convention (see paragraphs 109-110 below).

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

  79. The applicant complained under Article 2 of the Convention that his son had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads:

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

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

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

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

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

    A.  Alleged violation of Magomed Umarov’s right to life

    1.  Arguments of the parties

  80. The applicant maintained his complaint and argued that his son had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for several years.

  81. The Government referred to the fact that the investigation had obtained no evidence to the effect that this person was dead, or that representatives of the federal forces had been involved in his abduction or alleged killing.

    82. 2.  The Court’s assessment

    (a)  General principles

  82. In cases in which there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. When, as in the instant case, the respondent Government have exclusive access to information able to corroborate or refute the applicants’ allegations, any lack of cooperation by the Government without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005 ...).

  83. The Court points out that a number of principles have been developed in its case-law when it is faced with a task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001 VII). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others, cited above, § 160).

  84. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, Series A no. 336, § 32, and Avşar v. Turkey, cited above, § 283) even if certain domestic proceedings and investigations have already taken place.

  85. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, such as in cases where persons are under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Tomasi v. France, 27 August 1992, Series A no. 241-A, pp. 40-41, §§ 108-11; Ribitsch, cited above, § 34; and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).

  86. These principles apply also to cases in which, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible explanation of what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty (see Taniş, cited above, § 160).

    87. (b)  Establishment of the facts

  87. The applicant alleged that on 27 May 2000 his son, Magomed Umarov, had been apprehended by Russian servicemen and then disappeared. He invited the Court to draw inferences as to the well-foundedness of his allegations from the Government’s failure to provide the documents requested from them. The applicant relied on statements by several witnesses, including his wife, daughter and neighbours, who were eyewitnesses to the apprehension, and of several detainees held together with his son but later released. The witnesses provided a coherent account of the events and stated that Magomed Umarov had been apprehended by the servicemen involved in the operation.

  88. The Government did not deny that Magomed Umarov had been abducted by unknown armed men on the same date. However, they referred to the absence of conclusions from the pending investigation and denied that the State was responsible for the disappearance of the applicant’s son.

  89. The Court notes that despite its repeated requests for a copy of the investigation file concerning the abduction of Magomed Umarov, the Government have failed to produce it. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, §  123, ECHR 2006 ... ).

  90. In view of the foregoing and bearing in mind the principles cited above, the Court finds that it can draw inferences from the Government’s conduct in this respect. It considers that the applicant has presented a coherent and convincing picture of his son’s detention on 27 May 2000. He was himself an eyewitness to the events and relied on statements by other eyewitnesses, collected by the applicant himself and by the investigation, including his daughter, wife and neighbours, which referred to the involvement of the military or security forces in the abduction. The applicant and the other witnesses stated that the perpetrators had acted in a manner similar to that of a security operation – they had checked the residents’ identification papers and had spoken Russian without any accent. Furthermore, the applicant and his wife had identified one of the men involved in the abduction at the Staropromyslovskiy VOVD. The applicant referred also to the fact that several other residents had been apprehended on that date. Some of them were released later and stated that they had been held together with Magomed Umarov in a pit in Khankala, and when the latter had been taken out of the pit together with two other persons, they had heard somebody saying “Take them to the Khankala post!”. In his applications to the authorities the applicant consistently maintained that his son had been detained by unknown servicemen and requested the investigation to look into that possibility.

  91. The Court finds that the fact that a large group of armed men in uniform, equipped with military vehicles and able to move freely through military roadblocks, proceeded to check identity papers and apprehend several persons at their homes in a town area strongly supports the applicant’s allegation that these were State servicemen. It further notes that after eight years the domestic investigation had produced no tangible results.

  92. 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 applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005 II).

  93. Taking into account the above elements, the Court is satisfied that the applicant has made a prima facie case that his son was 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 for the events in question, the Court considers that Magomed Umarov was apprehended on 27 May 2000 at his house in Grozny by State servicemen during an unacknowledged security operation.

  94. The Court further notes that there has been no reliable news of the applicant’s son since 27 May 2000. His name has not been found in any official records of detention facilities. Lastly, the Government did not submit any explanation as to what had happened to him after his apprehension.

  95. Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, for example, Imakayeva, cited above, and Luluyev and Others v. Russia, no. 69480/01, ECHR 2006 ... ), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgement of the detention, this can be regarded as life-threatening. The absence of Magomed Umarov or any news of him for over eight years corroborates this assumption. Furthermore, the Government have failed to provide any explanation of Magomed Umarov’s disappearance and the official investigation into his abduction, dragging on for eight years, has produced no tangible results.

  96. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that on 27 May 2000 Magomed Umarov was apprehended by State servicemen and that he must be presumed dead following his unacknowledged detention.

    97. (c)  The State’s compliance with Article 2

  97. Article 2, which safeguards the right to life and sets out the circumstances in which deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-147, and Avşar, cited above, § 391).

  98. The Court has already found it established that the applicant’s son must be presumed dead following unacknowledged apprehension by State servicemen. Noting that the authorities do not rely on any ground of justification in respect of the use of lethal force by their agents, it follows that liability for his presumed death is attributable to the respondent Government.

  99. Accordingly, the Court finds that there has been a violation of Article 2 in respect of Magomed Umarov.

    100. B.  The alleged inadequacy of the investigation into the abduction

    1.  Arguments of the parties

  100. The applicant further argued that the investigation in the present case had fallen short of the requirements of domestic law and Convention standards. He pointed out that even though he had immediately notified the authorities of Magomed Umarov’s detention, no urgent measures to establish his whereabouts, or to identify those who had detained him, had followed and the investigation had not been commenced before 30 May 2000, that is to say three days after his son’s detention. Since then the investigation had been pending but had not brought any tangible results so far, having been repeatedly suspended and reopened. Moreover, the investigating authorities had failed to undertake a number of essential actions, namely to verify the statements of the witnesses who had been kept in the same pit as the applicant’s son, to inspect the territory of the military base of Khankala and question those in command there, to notify the applicant of the unidentified bodies on the premises of the railway station and invite him to inspect them. The applicant also pointed out that the scene of the incident at his house had not been inspected until several years later. The authorities had also failed to inform the applicant about the progress of the investigation or of the investigative measures that had been taken. On the contrary, the applicant had in fact been prompted to carry out the investigation himself and to inform the authorities of his findings, in particular, those regarding the military “Ural” vehicle in which his son had been taken away on 27 May 2000. The applicant’s numerous complaints and queries had been forwarded to prosecutors without being examined on the merits.

  101. The Government claimed that the investigation into the disappearance of the applicant’s son met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. They alleged also that the applicant’s submissions before the investigating authorities had been either inconsistent or incomplete. In particular, he had not mentioned the UAZ vehicle with the number 469 and the fact that the armed men had returned for his son’s passport and student identity card and had not specified with sufficient precision where the inscription “Maestro” had been placed on the Ural vehicle.

    102. 2.  The Court’s assessment

  102. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-109, 4 May 2001, and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).

  103. Turning to the facts of the case, the Court notes that the authorities were immediately made aware of the crime by the applicant’s submissions. The investigation was opened on 30 May 2000, three days after the apprehension. On the same date the applicant was granted victim status and questioned. However, it appears that after that 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.

  104. In particular, the Court notes that one of the M. brothers, who stated that he had been held in the same pit as the applicant, was questioned for the first time almost a year after the events and it appears that his brother was not questioned at all. Likewise, the military commander of the Staropromyslovskiy District was questioned more than a year after Magomed Umarov’s abduction. He submitted that he had no information about the events in question since his office had replaced the temporary military commander’s office as of 22 June 2000. However, no explanation was provided to the Court as to what precluded the investigating authorities from questioning officers of the temporary office while it had still been in operation. Furthermore, the investigating authorities questioned the applicant’s wife and neighbours about the circumstances of Magomed Umarov’s apprehension respectively one year and five years after the events. The Court finds it particularly appalling that the crime scene was examined four and five years after the events, when such an inspection was clearly futile.

  105. 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).

  106. A number of essential steps were never taken. Most notably, it does not appear that the investigating authorities tried to find out whether any special operations had been carried out in Grozny on the date in question. Furthermore, it appears that the investigation did not take measures to verify whether Magomed Umarov had been held in Khankala. In particular, they had neither inspected the territory of the military base, nor questioned officers in command there.

  107. The Court also notes that even though the applicant was granted victim status, he was not informed of significant developments in the investigation apart from several decisions on its suspension and resumption. 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.

  108. Finally, the Court notes that the investigation was adjourned and resumed as many as eighteen times and that on several occasions the supervising prosecutors criticised deficiencies in the proceedings and ordered remedial measures, but it appears that these instructions were not complied with.

  109. Having regard to the limb of the Government’s preliminary objection that was joined to the merits of the complaint, inasmuch as it concerns the fact that the domestic investigation is still pending, the Court notes that the authorities’ failure to take necessary and urgent investigative measures undermined the effectiveness of the investigation in its early stages. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection.

  110. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Magomed Umarov, in breach of Article 2 under its procedural head. Accordingly, there has been a violation of Article 2 on this account also.

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

  111. The applicant further relied on Article 3 of the Convention, submitting that he and his son had been beaten by servicemen and that no effective investigation had been carried out on that account. He alleged furthermore that his son had been subjected to ill-treatment after his apprehension as well. The applicant also claimed that as a result of his son’s disappearance and the State’s failure to investigate those events properly, he had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:

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

  112. The applicant submitted that there was sufficient evidence to conclude that his son had been subjected to ill-treatment during and after his apprehension. He also maintained his complaints that he himself had been beaten by servicemen and had endured mental suffering as a result of his son’s disappearance.

  113. The Government disagreed with these allegations and argued that the investigation had not established that the applicant had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.

    114. A. Alleged ill-treatment of the applicant’s son

  114. In so far as the applicant complained about alleged ill-treatment of his son at the time of the apprehension, 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).

  115. The Court has found it established that Magomed Umarov was detained on 27 May 2000 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 paragraph 96 above). The Court notes, however, that the applicant’s allegation of his son having been beaten during his apprehension is supported only by the applicant’s own statement. Furthermore, the exact way in which Magomed Umarov died and whether he was subjected to ill-treatment while in detention have not been established.

  116. Since the information before it does not enable the Court to find beyond all reasonable doubt that the applicant’s son was subjected to ill-treatment, the Court cannot conclude that there has been a violation of Article 3 of the Convention on this account.

    117. B. Violation of Article 3 in respect of the applicant

    1.  Alleged beating by servicemen

    (a)  Compliance with Article 3 of the Convention

  117. In so far as the applicant complains that he was beaten by servicemen on 27 May 2000, the Court observes that he corroborated his allegations by statements from his wife and daughter who eyewitnessed the beating and a medical certificate of 27 May 2000, which stated that he had bruises on his face, chest and feet and two fractured ribs.

  118. It further notes the Government’s submission that the domestic investigation had not established that the applicant had been subjected to inhuman or degrading treatment. The Court observes, however, that despite its repeated requests the Government refused to provide a copy of the investigation file, having failed to adduce sufficient reasons for the refusal (see paragraph 89 above) and finds that it can draw inferences from the Government’s conduct in this respect.

  119. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, § 52).

  120. The Court has found it established that the applicant’s son was apprehended on 27 May 2000 by State agents. The evidence submitted corroborates that during his son’s apprehension the applicant was beaten and sustained the injuries recorded in the medical certificate issued on the same date. The Court considers that this treatment reached the threshold of “inhuman and degrading”.

  121. Therefore, there has been a violation of Article 3 of the Convention in respect of the applicant on account of the ill-treatment by the servicemen.

    122. (b)  Effective investigation

  122. The Court notes that the applicant raised the complaint concerning ill-treatment by State servicemen during his son’s apprehension before the investigating authorities. On 20 June 2000, in the course of the investigation, he underwent a forensic medical examination which established abrasions and bruises on his face, chest and left foot. However, after eight years the domestic investigation produced no tangible results.

  123. For the reasons stated above in paragraphs 101-109 in relation to the procedural obligation under Article 2 of the Convention, the Court concludes that the Government have failed to conduct an effective investigation into the ill-treatment of the applicant.

  124. Accordingly, there has been a violation of Article 3 also in this respect.

    125. 2.  Mental suffering

  125. 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).

  126. In the present case the Court notes that the applicant is the father of the individual who has disappeared. He was an eyewitness to the apprehension, during which the applicant himself was beaten and injured. For more than eight years he has not had any news of his son. During this period the applicant has applied to various official bodies with enquiries about him, both in writing and in person. Despite his attempts, the applicant has never received any plausible explanation or information as to what became of his son following his apprehension. The responses received by the applicant mostly denied that the State was responsible for the detention or simply informed him that an investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.

  127. In view of the above, the Court finds that the applicant suffered, and continues to suffer, distress and anguish as a result of the disappearance of his son and his inability to find out what happened to him. The manner in which his complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3.

  128. The Court therefore concludes that there has been a violation of Article 3 of the Convention also in respect of the applicant on account of his mental suffering.

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

  129. The applicant further stated that Magomed Umarov had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant, as follows:

    130. “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.”

  130. The applicant claimed that his son’s detention had not satisfied any of the conditions set out in Article 5 of the Convention, had had no basis in national law and had not been in accordance with a procedure established by law or been formally registered.

  131. In the Government’s opinion, no evidence was obtained by the investigators to confirm that Magomed Umarov had been detained in breach of the guarantees set out in Article 5 of the Convention. He was not listed among the persons kept in detention centres, and there was no information that any decision ordering his remand in custody had ever been taken in this connection.

  132. 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).

  133. The Court has found it established that Magomed Umarov was detained by State servicemen on 27 May 2000 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).

  134. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicant’s complaints that his son 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 him against the risk of disappearance.

  135. Consequently, the Court finds that Magomed Umarov was 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.

    136. V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

  136. The applicant alleged that the disappearance of his son after his apprehension by the State authorities had caused him distress and anguish which had amounted to a violation of his right to family life guaranteed by Article 8 of the Convention, which provides:

    137. “1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

    2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

  137. The applicant maintained that the disappearance of his son had breached his right to respect for his private and family life.

  138. The Government argued that those complaints were unfounded.

  139. The Court observes that these complaints concern the same facts as those examined under Articles 2 and 3 and, having regard to its conclusion under these provisions, considers it unnecessary to examine them separately.

    140. VI.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

  140. The applicant complained that he had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:

    141. “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.”

  141. The applicant alleged that in his case the domestic remedies usually available had proved to be ineffective, given that the investigation had been pending for several years without any progress and that all his applications to public bodies, including his complaint to a court against the investigating authorities’ inactivity, had remained unanswered or had only produced standard replies.

  142. The Government contended that the applicant had had effective remedies at his disposal as required by Article 13 of the Convention and that the authorities had not prevented him from using them.

  143. 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).

  144. It follows that in circumstances where, as here, a criminal investigation into 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.

  145. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention, and with Article 3 of the Convention in respect of the applicant’s ill-treatment by the servicemen.

  146. In so far as the complaint under Article 13 concerns the existence of a domestic remedy in respect of the complaint under Article 3 that Magomed Umarov had been ill-treated during and after his apprehension by State agents, the Court notes that the complaint under Article 3 was found unsubstantiated under this head in paragraphs 113-115 above. Accordingly, the applicant did not have an “arguable claim” of a violation of a substantive Convention provision and, therefore, Article 13 of the Convention is inapplicable.

  147. As regards the violation of Article 3 of the Convention found on account of the applicant’s mental suffering as a result of the disappearance of his son, his inability to find out what had happened to him and the way the authorities had handled his complaints, the Court notes that it has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention on account of the authorities’ conduct that led to the suffering endured by the applicant. The Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in connection with Article 3 of the Convention.

    148. 148.  As regards the applicant’s reference to Article 5 of the Convention, the Court notes that according to its established case-law the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and in view of its above findings of a violation of Article 5 of the Convention on account of unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case.

  148. As for the complaint under Article 13 in conjunction with Article 8, the Court notes that in paragraph 138 above it found that no separate issue arose under that provision. Therefore, it considers that no separate issue arises under Article 13 in this respect either.

    149. VII.  OBSERVANCE OF Article 34 and ARTICLE 38 § 1 (a) of the convention

  149. The applicant argued that the Government’s failure to submit the documents requested by the Court at the communication stage disclosed a failure to comply with their obligations under Article 34 and Article 38 § 1 (a) of the Convention. The relevant parts of those Articles provide:

    150. Article 34

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

    Article 38

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

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

    ...”

  150. The applicant invited the Court to conclude that the Government’s refusal to submit a copy of the entire investigation file in response to the Court’s requests was incompatible with their obligations under Article 38 of the Convention. In his view, through their handling of the Court’s request for documents, the Government had additionally failed to comply with their obligations under Article 34 of the Convention.

  151. The Government reiterated that the submission of the case file would be contrary to Article 161 of the Code of Criminal Procedure. They also pointed out that it had been suggested that a Court delegation have access to the file at the place where the preliminary investigation was being conducted. The Government further maintained that there was no breach of the applicant’s rights under Article 34 of the Convention since his application had been accepted for examination by the Court. As for the relevant domestic proceedings, he could have access to those materials of the investigation that could be produced to him at the present stage and, upon the completion of the investigation, to all the materials contained in the case file.

  152. The Court reiterates that proceedings in certain types of applications do not in all cases lend themselves to a rigorous application of the principle whereby a person who alleges something must prove that allegation and that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications.

  153. This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. It is inherent in the proceedings relating to cases of this nature, where individual applicants accuse State agents of violating their rights under the Convention, that in certain instances it is only the respondent State that has access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information which is in their possession without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention. In a case where the application raises issues as to the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of the facts and their absence may prejudice the Court’s proper examination of the complaint both at the admissibility and at the merits stage (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 71, ECHR 1999-IV).

  154. The Court notes that despite its repeated requests for a copy of the investigation file opened into the disappearance of the applicant’s son, the Government refused to produce such a copy, invoking Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this reference insufficient to justify refusal (see, among other authorities, Imakayeva, cited above, § 123).

  155. Referring to the importance of a respondent Government’s cooperation in Convention proceedings, and mindful of the difficulties associated with the establishment of facts in cases of such a nature, the Court finds that the Government fell short of their obligations under Article 38 § 1 of the Convention because of their failure to submit copies of the documents requested in respect of the disappearance of Magomed Umarov.

  156. In view of the above finding, the Court considers that no separate issues arise under Article 34.

    157. VIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

  157. Article 41 of the Convention provides:

    158. “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

  158. The applicant claimed that he had sustained damage in respect of the lost wages of his son following his apprehension and subsequent disappearance. The applicant claimed a total of 32,215.99 pounds sterling (GBP) under this head (approximately 39,880.58 euros (EUR)).

  159. He claimed that Magomed Umarov had been employed as a security guard in an enterprise for an annual wage equivalent to 2,400 United States dollars (approximately EUR 1,503). The applicant provided a certificate from Magomed Umarov’s employer confirming the amount of the wages. He submitted that he and his wife were financially dependent on their son and would have benefited from his financial support in the amount of USD 63,497.67 (approximately EUR 39,792). His calculations were based on the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary’s Department in 2004 (“Ogden tables”).

  160. The Government regarded these claims as unfounded. They argued that the applicant presented no evidence of either the amount of his son’s earnings or of the fact that he had been financially dependent on him.

  161. 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, where appropriate, entail compensation in respect of loss of earnings. Furthermore, under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”.  Having regard to its above conclusions, the Court finds that there is a direct causal link between the violation of Article 2 in respect of the applicant’s son and the loss by the applicant of the financial support which he could have provided. The Court further notes that the applicant submitted a certificate to justify the amount of his son’s earnings. The Court cannot, however, take into account the applicant’s claim in respect of his wife since she is not an applicant in the present case.

  162. Having regard to the applicant’s submissions, the Court awards EUR 15,000 to the applicant in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

    163. B.  Non-pecuniary damage

  163. The applicant claimed EUR 100,000 in respect of non-pecuniary damage for the suffering he had endured as a result of the loss of his son, the indifference shown by the authorities towards him and the failure to provide any information about his son’s fate.

  164. The Government found the amounts claimed exaggerated.

  165. The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicant’s relative. The applicant himself has been found to have been victim of a violation of Article 3 of the Convention. The Court thus accepts that he has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicant EUR 40,000, plus any tax that may be chargeable thereon.

    166. C.  The applicant’s request for an investigation

  166. The applicant also requested, referring to Article 41 of the Convention, that “an independent investigation which, would comply with the requirements of the Convention, be conducted into his son’s disappearance”. He relied in this connection on the cases of Assanidze v. Georgia ([GC], no. 71503/01, §§ 202-203, ECHR 2004-II) and Tahsin Acar v. Turkey ((preliminary objection) [GC], no. 26307/95, § 84, ECHR 2003-VI).

  167. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (restitutio in integrum). However, its judgments are essentially declaratory in nature and, in general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see, among other authorities, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; Akdivar and Others v. Turkey (Article 50), judgment of 1 April 1998, Reports 1998-II, pp. 723-24, § 47; and Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 25, § 58). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1) (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no. 330-B, pp. 58-59, § 34).

  168. In the Court’s opinion, the present case is distinguishable from those referred to by the applicant. In particular, the Assanidze judgment ordered the respondent State to secure the applicant’s release so as to put an end to the violations of Article 5 § 1 and Article 6 § 1, whereas in the Tahsin Acar judgment the effective investigation was mentioned in the context of the Court’s examination of the respondent Government’s request for the application to be struck out on the basis of their unilateral declaration. The Court further notes its above finding that in the present case the effectiveness of the investigation had already been undermined at its early stages by the domestic authorities’ failure to take meaningful investigative measures (see paragraphs 103-106 above). It is therefore very doubtful that the situation existing before the breach could be restored. In such circumstances, having regard to the established principles cited above and the Government’s argument that the investigation is currently under way, the Court finds it most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention.

    169. D.  Costs and expenses

  169. The applicant was represented by lawyers from the NGO EHRAC/Memorial Human Rights Centre. The aggregate claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR 6,075 and GBP 1,036.70. They submitted the following breakdown of costs:

    170. (a)  EUR 1,800 for 72 hours of research in Chechnya and Ingushetia at a rate of EUR 25 per hour;

    (b)  EUR 225 in travel expenses for the field workers;

    (c)  EUR 4,050 for 74 hours of drafting legal documents submitted to the Court and the domestic authorities at a rate of EUR 50 per hour by the lawyers in Moscow;

    (d)  450 pounds sterling (GBP) for 4 hours and 30 minutes of legal work by a United Kingdom-based lawyer at a rate of GBP 100 per hour;

    (e)  GBP 426,70 for translation costs, as certified by invoices; and

    (f)  GBP 160 for administrative costs.

  170. The Government did not dispute the details of the calculations submitted by the applicant, but pointed out that he had not enclosed documents to show that he had actually paid the amounts claimed. They also argued that according to the EHRAC/Memorial charter documents they could not have provided services on a commercial basis.

  171. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).

  172. The Court notes that the applicant produced invoices from translators for the total amount of GBP 426,70 (approximately EUR 528). It notes that the applicant neither submitted any documents in support of his claim for administrative costs nor any invoices to support the amounts claimed for lawyers’ fees. The Court observes, however, that in February 2002 the applicant gave authority to the lawyers of the Memorial Human Rights Centre and the European Human Rights Advocacy Centre to represent his interests in the proceedings before the Court and that these lawyers acted as the applicant’s representatives throughout the procedure. Furthermore, the applicant enclosed calculations of the lawyers’ fees submitted by his representatives. Having regard to the details of the information, the Court is satisfied that it reflects the expenses actually incurred by the applicant’s representatives.

  173. Further, it has to be established whether the costs and expenses incurred for legal representation were necessary and reasonable. The Court notes that this case was relatively complex and required a substantial amount of research and preparation.

  174. Having regard to the details of the claims submitted by the applicant, the Court awards him the amount of EUR 7,200, together with any value-added tax that may be chargeable to the applicant, the net award to be paid into the representatives’ bank account in the United Kingdom, as identified by the applicant.

    175. E.  Default interest

  175. 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.

    176. FOR THESE REASONS, THE COURT UNANIMOUSLY

  176. Dismisses the Government’s preliminary objection;


  177. Holds that there has been a violation of Article 2 of the Convention in respect of Magomed Umarov;


  178. 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 Magomed Umarov disappeared;


  179. Holds that there has been no violation of Article 3 of the Convention in respect of Magomed Umarov;


    180. 5.  Holds that there has been a violation of Article 3 of the Convention in respect of the applicant on account of the ill-treatment by servicemen;


  180. Holds that there has been a violation of Article 3 of the Convention in respect of the failure to conduct an effective investigation into the ill-treatment of the applicant;


  181. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant on account of his mental suffering;


  182. Holds that there has been a violation of Article 5 of the Convention in respect of Magomed Umarov;


    183. 9.  Holds that there has been a violation of Article 13 of the Convention as regards the alleged violations of Article 2 of the Convention, and of Article 3 of the Convention in respect of the applicant on account of the ill-treatment;


    10.  Holds that no separate issues arise under Article 13 of the Convention as regards the alleged violations of Article 3 in respect of the applicant on account of mental suffering and of Articles 5 and 8;


  183. 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;


  184. Holds that no separate issues arise under Article 34 of the Convention;


  185. Holds

    186. (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)  EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the applicant, to be converted into Russian roubles at the rate applicable at the date of settlement;

    (ii)  EUR 40,000 (forty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement;

    (iii)  EUR 7,200 (seven thousand two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representatives’ bank account in the United Kingdom;

    (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;


  186. Dismisses the remainder of the applicant’s claim for just satisfaction.

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

    Søren Nielsen Christos Rozakis
    Registrar President


About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010