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TAKHAYEVA AND OTHERS v. RUSSIA - 23286/04 [2008] ECHR 852 (18 September 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/852.html
Cite as:
[2008] ECHR 852
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FIRST
SECTION
CASE OF TAKHAYEVA AND OTHERS v. RUSSIA
(Application
no. 23286/04)
JUDGMENT
STRASBOURG
18
September 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 Takhayeva and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 28 August 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 23286/04) 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 five Russian nationals (“the
applicants”), on 26 April 2004.
The
applicants, who had been granted legal aid, were represented by
lawyers of the Stichting Russian Justice Initiative (“the
SRJI”), an NGO based in the Netherlands with a representative
office in Moscow. The Russian Government (“the Government”)
were represented by Mr P. Laptev, the Representative of the
Russian Federation at the European Court of Human Rights, and
subsequently by their Representative, Mrs V. Milinchuk.
On
1 September 2005 the Court decided to apply Rule 41 of the Rules of
Court.
On
9 March 2007 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants are:
1) Ms
Rabu Mutushovna Takhayeva, who was born in 1959;
2) Mr
Khashim Nurdinovich Takhayev, who was born in 1952;
3) Ms
Zaira Khashimovna Takhayeva, who was born in 1977;
4) Mr
Islam Sultanovich Tumanov, who was born in 1998, and
5) Ms
Razet Zayndiyevna Terkibayeva, who was born in 1934.
The
applicants live in the village of Mesker-Yurt, in the Shalinskiy
District of the Chechen Republic.
The
first and second applicants are married. They are the parents of Mr
Ayub Khashidovich Takhayev, born in 1982, and the third applicant.
The fourth applicant is the third applicant’s son and Ayub
Takhayev’s nephew. The fifth applicant is Ayub Takhayev’s
grandmother.
A. Disappearance of Ayub Takhayev
1. The applicants’ account
On
the night of 13 November 2002 the first, second, third and fourth
applicants, Ayub Takhayev and his grandfather slept in their family
home at 42 Shkolnaya Street, Mesker-Yurt. The house had a common
courtyard with three other houses inhabited by the applicants’
relatives. The fifth applicant slept in one of those houses.
(a) Abduction of Ayub Takhayev
At
about 2.40 a.m. on 13 November 2002 the first applicant heard a noise
coming from the courtyard. She looked out of the window and saw about
ten to fifteen men wearing camouflage uniforms. A group of about five
men headed towards the applicants’ house and entered without
identifying themselves. They were armed with machine guns and
grenades. All but one of them wore masks. The unmasked man had Slavic
features. The first applicant assumed that the men belonged to the
Russian military.
The
servicemen ordered the second applicant to rise, took him into the
corridor, forced him down onto the floor, tied his arms behind his
back and hit him several times. In the meantime they locked Ayub
Takhayev’s grandfather in one of the rooms.
Then
the men entered the room where Ayub Takhayev and the third applicant
were sleeping and woke them up with torch lights. They shouted at
Ayub Takhayev to get up and kicked him; then they took him to the
kitchen and forced him down onto the floor.
The
intruders kept the first and third applicants locked in their rooms.
When the first applicant tried to break through the door, one of the
servicemen entered her room and pushed her in the chest so that she
fell down. Then the servicemen locked the first, third and fourth
applicants in one room. The women cried and begged them not to take
Ayub Takhayev away. The fourth applicant was scared and cried. The
servicemen ordered the third applicant to calm the child down and
demanded the identity papers of the second applicant and Ayub
Takhayev. The unmasked man with Slavic features shouted at the women
and gave orders to the other men in Russian. The first applicant gave
the men two internal passports; they took away the one belonging to
Ayub Takhayev.
As
the servicemen were leaving, they ordered everyone to stay indoors,
threatening to blow up the house, and took Ayub Takhayev with them.
The second applicant enquired as to where his son would be taken, but
received no answer. Instead he was told he should thank the armed men
for not taking him as well.
When
the first and third applicants managed to open the locked door and
leave their room, they ran out into the street and saw that the armed
men had left. Then they went back inside and untied the second
applicant.
Early
in the morning on 13 November 2002 the second applicant found tracks
left by an armoured personnel carrier (“APC”) about
100 metres from his house. Some neighbours confirmed that they
had seen an APC on the night of 13 November 2002.
(b) The fifth applicant’s account
On
the night of 13 November 2002 the fifth applicant heard a noise
outside and went out into the courtyard. Two men pointed machine guns
at her and ordered her to stand still and keep quiet. She realised
that the noise had been caused by the men’s attempts to break
the door down. The armed men did not allow the fifth applicant to go
back inside the house although it was cold outside and she was
wearing only a nightgown. The fifth applicant heard the armed men
speaking Russian without an accent. One of them stood behind the
fifth applicant’s back with his machine gun pointed at her.
After ten or fifteen minutes the armed men ordered the fifth
applicant to go back inside the house. She did so and then watched
through the window as the men ran out of the courtyard into the
street.
(c) Subsequent events
At about 4 a.m. on 14 November 2002 the first and
second applicants saw four APCs driving down their street. Then they
heard screaming coming from their neighbours’ house. In the
morning of 14 November 2002 the applicants learnt that two men,
Mr V.M. and Mr Kh.M., had been taken away from their neighbours’
home by armed men in APCs. Mr V.M. and Mr Kh.M. went missing.
At 6.15 a.m. on 15 November 2002 the fifth applicant
saw four APCs arriving in Mesker-Yurt. Later the applicants found out
that on that night another villager, Mr A.I., had been abducted. Mr
A.I. went missing.
2. Information submitted by the Government
At
about 2.45 a.m. on 13 November 2002 unidentified persons armed with
machine guns and wearing camouflage uniforms entered the house at 42
Shkolnaya Street, Mesker-Yurt, the Shali District, in the Chechen
Republic, kidnapped Ayub Takhayev and took him away in an unknown
direction.
B. The search for Ayub Takhayev and the investigation
1. The applicants’ account
From
13 November 2002 onwards the applicants contacted, both in person and
in writing, various official bodies. They described in detail the
circumstances of their relative’s disappearance and asked for
assistance in establishing his whereabouts and fate. In particular,
they applied to the prosecutors’ offices at different levels,
the military commander’s office of the Shali District, the
Shali District Department of the Interior, the Russian State Duma,
the Special Envoy of the Russian President in
Chechnya for Rights and Freedoms, the Russian President’s
Commission on Human Rights and the
Administration of the Chechen Republic. Most of the complaints were
filed by the first applicant, apparently on behalf of the whole
family. The applicants retained copies of some of these
complaints and submitted them to the Court. The official bodies
forwarded the majority of the complaints to the prosecutors’
offices for investigation.
On
the morning of 13 November 2002 the applicants wrote to the
prosecutor’s office of the Shali District (“the district
prosecutor’s office”). They complained about their
relative’s abduction but did not challenge, as such, the
intrusion into their home.
On
21 November 2002 the district prosecutor’s office instituted an
investigation into Ayub Takhayev’s disappearance under Article
126 § 2 of the Russian Criminal Code (aggravated kidnapping).
The case file was given number 59259.
On
22 November 2002 the first applicant requested the district
prosecutor’s office to help her to establish her son’s
whereabouts.
On
23 November 2002 the first applicant was granted victim status in
case no. 59259.
On
29 December 2002 the prosecutor’s office of the Chechen
Republic forwarded the first applicant’s complaint to the
district prosecutor’s office.
On
21 January 2003 the investigation in case no. 59259 was suspended for
failure to identify the alleged perpetrators.
On
25 March 2003 the military prosecutor’s office of military unit
no. 20116 informed the first applicant of the outcome of the
inquiry conducted at her request. The inquiry had established that
military personnel had not been implicated in Ayub Takhayev’s
disappearance.
On
8 April 2003 the first applicant wrote to the district prosecutor’s
office and the prosecutor’s office of the Chechen Republic
enquiring about progress in the investigation into her son’s
disappearance and requesting to be granted victim status. On 11 April
2003 the district prosecutor’s office acknowledged receipt of
her letter but did not reply as to the substance.
On
30 July 2003 the first applicant again wrote to the district
prosecutor’s office repeating the request of 8 April 2003.
On
15 August 2003 the prosecutor’s office of the Chechen Republic
ordered the district prosecutor’s office to rescind the
decision of 21 January 2003 on suspension of the investigation
and informed the first applicant that the investigation had been
opened on 21 November 2002 and then suspended on 21 January
2003.
On
20 August 2003 the South Federal Circuit Department of the Prosecutor
General’s Office informed the first applicant that her
complaint had been forwarded to the prosecutor’s office of the
Chechen Republic.
On
22 August 2003 the district prosecutor’s office rescinded the
decision of 21 January 2003 and resumed the proceedings in case
no. 59259.
In a letter of 25 August 2003 the district
prosecutor’s office informed the first applicant that the
investigation in case no. 59259 had been resumed and that the search
for Ayub Takhayev was currently under way. They further stated that
the investigating authorities had checked detention centres and had
requested various law enforcement agencies to establish the
identities of those responsible for the kidnapping and those in
charge of the special operation conducted in Mesker-Yurt on 13
November 2002, but those requests had remained unanswered and had
been repeated. The first applicant was also asked to ensure that
witnesses of the kidnapping visit the district prosecutor’s
office and make statements.
On
18 September 2003 the prosecutor’s office of the Chechen
Republic informed the first applicant that the district prosecutor’s
office had resumed the investigation on 22 August 2003.
On
19 September 2003 the military prosecutor of the United Group
Alignment informed the first applicant that there were no grounds to
presume any kind of implication of Russian federal troops in her
son’s kidnapping.
On
21 February 2005 the first applicant requested the district
prosecutor’s office to update her on progress in the
investigation into her son’s kidnapping.
On
14 April 2006 the district prosecutor’s office informed the
first applicant that her complaint to the prosecutor’s office
of the Chechen Republic had been included in the case file and that
the investigation had been suspended on 3 July 2005.
On
31 May 2007 the prosecutor’s office of the Chechen Republic
informed the first applicant that Ayub Takhayev had been kidnapped by
“unidentified men armed with machine guns and wearing
camouflage uniforms who had arrived in APCs”. They also noted
that the investigation in case no. 59259, suspended on 3 July 2005,
had been resumed on 8 May 2007 and was under way.
After
the investigation resumed in May 2007, the investigators visited the
applicants’ house and questioned the first, second, third and
fifth applicants, as well as the applicants’ neighbours.
According to the first applicant, it was the first time the
investigators had visited the village of Mesker-Yurt since the summer
of 2003.
2. Information submitted by the Government
The
investigation in case no. 59259 did not establish any involvement of
special units of law enforcement and security forces in the
kidnapping of Ayub Takhayev.
The
law enforcement agencies of the Chechen Republic did not institute
any criminal proceedings against Ayub Takhayev.
According
to the district department of the interior and the military
commander’s office, Ayub Takhayev was not arrested; none of the
detachments of the military commander’s office had left their
premises at the time of his abduction.
The
investigators sent requests for information to the Department of the
Federal Security Service of the Chechen Republic and the military
prosecutor’s office of the United Group Alignment. The
information received in reply confirmed that Ayub Takhayev had not
been arrested or charged with any crime.
Requests
for information were also sent to remand prisons in the Chechen
Republic, the Stavropol Region and other adjacent regions of Russia.
In
numerous letters of recommendation Ayub Takhayev was described in a
positive manner, which proved that the institution of criminal
proceedings against him was improbable.
Ayub
Takhayev was not admitted to the Central Hospital of the Shali
District.
The
investigation had not identified the perpetrators and was currently
under way. Investigative measures aimed at resolving Ayub Takhayev’s
kidnapping were being taken.
Despite
specific requests by the Court the Government did not disclose any
documents from the investigation file in case no. 59259. 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 the criminal proceedings.
II. RELEVANT DOMESTIC LAW
Article 125 of the Russian Code of Criminal Procedure
2001 (“CCP”) provides that the decision of an
investigator or prosecutor to dispense with or terminate criminal
proceedings, and other decisions and acts or omissions which are
liable to infringe the constitutional rights and freedoms of the
parties to criminal proceedings or to impede citizens’ access
to justice, may be appealed against to a district court, which is
empowered to examine the lawfulness and grounds of the impugned
decisions.
Article
161 of the CCP establishes
the rule that data from the preliminary investigation cannot be
disclosed. Part 3 of the same Article provides that information
from the investigation file may be divulged with the permission of a
prosecutor or investigator and only in so far as it does not infringe
the rights and lawful interests of 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.
Article
1069 of the Russian Civil Code provides that damage sustained by an
individual because of unlawful actions or inaction of State and
municipal agencies or their officials is to be indemnified by a State
or municipal treasury.
THE LAW
I. The government’s
objection AS TO ABUSE OF PETITION
The
Government submitted that the application had not been lodged in
order to restore the allegedly violated rights of the applicants. The
actual object and purpose of the application was clearly of a
political nature as the applicants wanted to “incriminate the
Russian Federation of allegedly adopting a policy of violating human
rights in the Chechen Republic”. They concluded that the
application should be dismissed pursuant to Article 35 § 3
of the Convention.
53. The
Court considers that the Government may be understood to be
suggesting that there was an abuse of the right of petition on the
part of the applicants. It observes in this respect that the
complaints the applicants brought to its attention concerned genuine
grievances. Nothing in the case file reveals any appearance of abuse
of their right of individual petition. Accordingly, the Government’s
objection must be dismissed.
II. The government’s
objection AS TO non-exhaustion of domestic remedies
A. The parties’ submissions
The
Government contended that the application should be declared
inadmissible for non-exhaustion of domestic remedies. They submitted
that the investigation into the disappearance of Ayub Takhayev had
not yet been completed. They further argued that it had been open to
the applicants to lodge court complaints about the allegedly unlawful
detention of their relative or to challenge in court any actions or
omissions of the investigating or other law enforcement authorities,
but that the applicants had not availed themselves of that remedy.
They also argued that it had been open to the
applicants to bring civil claims for damages pursuant to Article 1069
of the Civil Code which theybut
they had failed to do so.
The
applicants stated that the criminal investigation had proved to be
ineffective.
B. The Court’s assessment
The
Court reiterates that the rule of exhaustion of domestic remedies
under Article 35 § 1 of the Convention obliges applicants to use
first the remedies which are available and sufficient in the domestic
legal system to enable them to obtain redress for the breaches
alleged. The existence of the remedies must be sufficiently certain
both in theory and in practice, failing which they will lack the
requisite accessibility and effectiveness. Article 35 §
1 also requires that complaints intended to be brought subsequently
before the Court should have been made to the appropriate domestic
body, at least in substance and in compliance with the formal
requirements and time-limits laid down in domestic law and, further,
that any procedural means that might prevent a breach of the
Convention should have been used. However, there is no obligation to
have recourse to remedies which are inadequate or ineffective (see
Aksoy v. Turkey, judgment of 18 December 1996, Reports of
Judgments and Decisions 1996 VI, pp. 2275-76, §§
51-52; Akdivar and Others v. Turkey, judgment of 16 September
1996, Reports of Judgments and Decisions 1996 IV,
p. 1210, §§ 65-67; and Cennet Ayhan and Mehmet
Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June
2006).
It
is incumbent on the respondent Government claiming non-exhaustion to
indicate to the Court with sufficient clarity the remedies to which
the applicants have not had recourse and to satisfy the Court that
the remedies were effective and available in theory and in practice
at the relevant time, that is to say that they were accessible, were
capable of providing redress in respect of the applicant’s
complaints and offered reasonable prospects of success (see Akdivar
and Others, cited above, p. 1211, § 68, or Cennet
Ayhan and Mehmet Salih Ayhan, cited above, § 65).
The
Court first notes, having regard to the Government’s objection
concerning the applicants’ failure to complain of their
relative’s unlawful detention to the domestic authorities, that
after Ayub Takhayev had been taken away by armed men, the applicants
actively attempted to establish his whereabouts and applied to
various official bodies, whereas the authorities denied
responsibility for the detention of the missing person. 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 applicants, it is
more than questionable whether a court complaint about the
unacknowledged detention of Ayub Takhayev 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 applicants’ situation,
namely that it would have led to the release of Ayub Takhayev and the
identification and punishment of those responsible (see Musayeva
and Others v. Russia, no. 74239/01, § 69, 26 July 2007).
Accordingly, the Government’s objection concerning
non-exhaustion of domestic remedies in respect of Ayub Takhayev’s
unlawful deprivation of liberty must be dismissed.
As
to the alleged violation of Ayub Takhayev’s right to life, 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
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 v. Russia,
no. 60272/00, § 77, 12 October 2006). In the light of
the above, the Court confirms that the applicants were not obliged to
pursue civil remedies. The Government’s objection in this
regard is thus dismissed.
As
regards criminal criminal law remedies provided for by the Russian
legal system, the Court observes that the applicants complained to
the law law enforcement authorities immediately after the abduction
of their relative and that the criminal proceedings have been pending
since 21 November 2002. The applicants and the Government
disagree about the effectiveness of the investigation of the
kidnapping.
Furthermore, the Court considers that the Government’s
objection raises issues concerning the effectiveness of the
investigation which are closely linked to the merits of the
applicants’ complaints under Article 2. Thus, it considers that
these matters fall to be examined below under that provision of the
Convention.
III. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE
ESTABLISHMENT OF THE FACTS
A. The parties’ submissions
The
applicants maintained that it was beyond reasonable doubt that the
men who had taken away Ayub Takhayev had been State agents. In
support of that affirmation they referred to the following facts. The
armed men who had abducted Ayub Takhayev had moved freely around the
village in APCs, vehicles that were only in the possession of the
military. They had spoken Russian without an accent, which proved
that they were not of Chechen origin. The applicants also pointed out
that the ground given for the Government’s refusal to submit
the file in criminal case no. 59259 was that it contained
“information of a military nature disclosing the location and
nature of actions by military and special security forces”.
The
Government submitted that unidentified armed men had kidnapped Ayub
Takhayev. They further contended that the investigation of the
incident was pending, that there was no evidence that the 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’ relative was dead.
B. The Court’s evaluation of the facts
(a) General principles
In
cases in which there are conflicting accounts of events, the Court is
inevitably confronted when establishing the facts with the same
difficulties as those faced by any first-instance court. When, as in
the instant case, the respondent Government have exclusive access to
information able to corroborate or refute the applicants’
allegations, any lack of cooperation by the Government without a
satisfactory explanation may give rise to the drawing of inferences
as to the well-foundedness of the applicant’s allegations (see
Taniş and Others v. Turkey, no. 65899/01, § 160,
ECHR 2005 ...).
The
Court points out that a number of principles have been developed in
its case-law when it is faced with the task of establishing facts on
which the parties disagree. As to the facts that are in dispute, the
Court reiterates its jurisprudence confirming the standard of proof
“beyond reasonable doubt” in its assessment of evidence
(see Avşar v. Turkey, no. 25657/94, § 282,
ECHR 2001 VII (extracts)). Such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact. In this context, the
conduct of the parties when evidence is being obtained has to be
taken into account (see Taniş and Others, cited
above, § 160).
The
Court is sensitive to the subsidiary nature of its role and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Nonetheless, where allegations are made under Articles 2
and 3 of the Convention the Court must apply a particularly thorough
scrutiny (see, mutatis mutandis, Ribitsch v. Austria,
4 December 1995, Series A no. 336, § 32; and Avşar
v. Turkey, cited above, § 283) even if certain
domestic proceedings and investigations have already taken place.
Where
the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, such as in cases where
persons are under their control in custody, strong presumptions of
fact will arise in respect of injuries and death occurring during
that detention. Indeed, the burden of proof may be regarded as
resting on the authorities to provide a satisfactory and convincing
explanation (see Tomasi v. France, 27 August 1992, Series
A no. 241-A, pp. 40-41, §§ 108-11; Ribitsch, cited
above, § 34; and Selmouni v. France [GC], no. 25803/94, §
87, ECHR 1999-V).
These
principles apply also to cases in which, although it has not been
proved that a person has been taken into custody by the authorities,
it is possible to establish that he or she entered a place under
their control and has not been seen since. In such circumstances, the
onus is on the Government to provide a plausible explanation of what
happened on the premises and to show that the person concerned was
not detained by the authorities, but left the premises without
subsequently being deprived of his or her liberty (see Taniş
and Others, cited above, § 160).
Finally,
when there have been criminal proceedings in the domestic courts
concerning those same allegations, it must be borne in mind that
criminal-law liability is distinct from international-law
responsibility under the Convention. The Court’s competence is
confined to the latter. Responsibility under the Convention is based
on its own provisions, which are to be interpreted and applied on the
basis of the objectives of the Convention and in light of the
relevant principles of international law. The responsibility of a
State under the Convention, for the acts of its organs, agents and
servants, is not to be confused with the domestic legal issues of
individual criminal responsibility under examination in the national
criminal courts. The Court is not concerned with reaching any
findings as to guilt or innocence in that sense (see Avsar,
cited above, § 284).
(b) Establishment of the facts
The
Court notes that despite its requests for a copy of the investigation
file into the abduction of Ayub Takhayev, the Government produced no
documents from the case file. The Government referred to Article 161
of the Code of Criminal Procedure. The Court observes that in
previous cases it has already found this explanation insufficient to
justify the withholding of key information requested by the Court
(see Imakayeva v. Russia, no. 7615/02, § 123, ECHR
2006 ... (extracts)).
In
view of this and bearing in mind the principles 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 the applicants’ relative can be presumed dead and
whether his death can be attributed to the authorities.
The
applicants alleged that the persons who had apprehended Ayub Takhayev
on 13 November 2002 had been State agents.
The
Court notes that this allegation is supported by the witness
statements collected by the applicants. It finds that the fact that a
large group of armed men in uniform, equipped with military armoured
vehicles, was able to move freely around the village at night and
proceeded to check identity papers and apprehend several persons at
their homes strongly supports the applicants’ allegation that
these were State servicemen.
According
to the applicants, three other villagers of Mesker-Yurt were abducted
in circumstances similar to those of their relative’s
kidnapping (see paragraphs 17 and 18 above). The Court considers that
such a series of events bears strong resemblance to a special
operation carried out by law enforcement agencies or the military.
However, it cannot clarify whether the investigators have ever tried
to establish any possible links between the abductions owing to the
Government’s failure to produce a copy of the investigation
file.
The
Court observes that where the applicant makes out a prima facie
case and the Court is prevented from reaching factual conclusions
owing to a lack of 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).
Taking
into account the above elements, the Court is satisfied that the
applicants have made out a prima facie case that Ayub Takhayev was
apprehended 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 kidnapping 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 Ayub Takhayev was apprehended on 13 November 2002
by State servicemen during an unacknowledged security operation.
There
has been no reliable news of Ayub Takhayev since the date of the
kidnapping. His name has not been found in any official detention
facilities’ records. The Government have not submitted any
explanation as to what happened to him after his abduction.
Having
regard to previous cases concerning disappearances of people in
Chechnya which have come before the Court (see, among others,
Bazorkina v. Russia, no. 69481/01, 27 July 2006; Imakayeva,
cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR
2006 ... (extracts); Baysayeva v. Russia, no. 74237/01, 5
April 2007; and Alikhadzhiyeva v. Russia, no. 68007/01, 5
July 2007), 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 Ayub
Takhayev or of any news of him for more than five years supports this
assumption.
Accordingly,
the Court finds that the evidence available permits it to establish
to the requisite standard of proof that Ayub Takhayev must be
presumed dead following his unacknowledged detention by State
servicemen.
IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicants complained under Article 2 of the Convention that their
relative 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:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. The parties’ submissions
The
Government contended that the domestic investigation had obtained no
evidence to the effect that Ayub Takhayev was dead or that any
servicemen of the federal law-enforcement agencies had been involved
in his kidnapping or alleged killing. The Government noted that the
applicants had reported Ayub Takhayev’s kidnapping to the
district prosecutor’s office only on 20 November 2002 and that
the investigation had been opened on the following day. They further
claimed that the investigation into the kidnapping of the applicants’
relative met the Convention requirement of effectiveness, as all
measures envisaged in national law were being taken to identify the
perpetrators.
The
applicants argued that Ayub Takhayev had been detained by State
servicemen and should be presumed dead in the absence of any reliable
news of him for several years. The applicants also argued that the
investigation had not met the requirements of effectiveness and
adequacy as required by the Court’s case-law on Article 2. The
applicants invited the Court to draw conclusions from the
Government’s unjustified failure to submit the documents from
the case file to them or to the Court.
B. The Court’s assessment
1. Admissibility
The
Court considers, in the light of the parties’ submissions, that
the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. Further, the Court has already found that the Government’s
objection concerning the alleged non-exhaustion of domestic remedies
provided for by criminal law should be joined to the merits of the
complaint (see paragraph 62 above). The complaint under Article 2 of
the Convention must therefore be declared admissible.
2. Merits
(a) The alleged violation of the right to
life of Ayub Takhayev
The
Court reiterates that Article 2, which safeguards the right to life
and sets out the circumstances when deprivation of life may be
justified, ranks as one of the most fundamental provisions in the
Convention, from which no derogation is permitted. In the light of
the importance of the protection afforded by Article 2, the Court
must subject deprivation of life to the most careful scrutiny, taking
into consideration not only the actions of State agents but also all
the surrounding circumstances (see, among other authorities, McCann
and Others v. the United Kingdom, judgment of 27 September
1995, Series A no. 324, pp. 45-46, §§ 146-147, and Avşar,
cited above, § 391).
The
Court has already found it established that Ayub Takhayev must be
presumed dead following his unacknowledged detention by State
servicemen and that his death 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 Ayub Takhayev.
(b) The alleged inadequacy of the
investigation of the kidnapping
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).
In
the present case the kidnapping of Ayub Takhayev was investigated.
The Court must assess whether the investigation met the requirements
of Article 2 of the Convention.
The
Court notes at the outset that all the documents from the
investigation file 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 applicants and the scarce
information about its progress presented by the Government.
The
Court notes that the authorities were immediately made aware of the
crime by the applicants’ submissions. The investigation in case
no. 59259 was instituted eight days after Ayub Takhayev’s
abduction. The Court is not persuaded by the Government’s
argument that the delay in instituting the criminal proceedings was a
result of the applicants’ failure to lodge a complaint with the
district prosecutor’s office immediately after the incident.
The Government did not dispute that the applicants had reported Ayub
Takhayev’s abduction to the police in the morning of
13 November 2002. In such circumstances the Court considers that
the applicants were not obliged to lodge their complaints directly
with the district prosecutor’s office. Once the law enforcement
authorities were duly and promptly made aware of the crime, it was
incumbent on them to organise co-operation between the various State
agencies in such a manner that would guarantee the effectiveness of a
criminal investigation. Therefore, in the Court’s opinion, the
investigating authorities failed to promptly commence the
investigation of the kidnapping in life-threatening circumstances,
where crucial action has to be taken in the first days after the
event.
As it can be seen from the letter of the district prosecutor’s
office of 25 August 2003, the investigators attempted to obtain
information on the special operation carried out in Mesker-Yurt in
November 2002 and the identities of those in charge of it from the
military and law enforcement agencies (see paragraph 33 above). It
appears that their attempt was futile.
The
Court notes that it appears that the applicants and their neighbours
were questioned for the first time only in 2007, that is, five years
after the incident. Furthermore, it appears that the investigating
authorities have not questioned any servicemen of law enforcement
agencies or the military at all. These failures alone compromised the
effectiveness of the investigation and could not but have had a
negative impact on the prospects of arriving at the truth. It appears
that no real effort was made by the authorities to establish the
whereabouts and fate of Ayub Takhayev.
As
to the manner in which the investigation was conducted, the Court
notes that in a period of five years it was suspended and resumed a
number of times. There were lengthy periods of inactivity and, in
particular, no proceedings whatsoever were pending between 3 July
2005 and 8 May 2007.
The
Court also notes that even though the first applicant was granted
victim status in case no. 59259, she was only informed of some
decisions on the suspension and resumption 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.
The
Government mentioned the possibility for the applicants to apply for
judicial review of the decisions of the investigating authorities in
the context of exhaustion of domestic remedies. The Court observes
that the applicants, having no access to the case file and not being
properly informed of the progress of the investigation, could not
have effectively challenged the actions or omissions of the
investigating authorities before a court. Furthermore, taking into
account that the effectiveness of the investigation had already been
undermined in its early stages by the authorities’ failure to
take necessary and urgent investigative measures, it is highly
doubtful that the remedy relied on would have had any prospects of
success. Accordingly, the Court finds that the remedy relied on by
the Government was ineffective in the circumstances and rejects their
preliminary objection as regards the applicants’ failure to
exhaust domestic remedies within the context of the criminal
investigation.
In
the light of the foregoing, the Court holds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the disappearance of
Ayub Takhayev, in breach of Article 2 in its procedural
aspect.
V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants relied on Article 3 of the Convention, submitting that as
a result of Ayub Takhayev’s disappearance and the State’s
failure to investigate it properly, they had endured mental suffering
in breach of Article 3 of the Convention. Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
The
Government disagreed with these allegations and argued that the
investigation had not established that the applicants had been
subjected to inhuman or degrading treatment prohibited by Article 3
of the Convention. They also insisted that the investigative
authorities had replied to the applicants’ queries with due
diligence.
The
applicants maintained their submissions.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
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 close
relatives of the missing person who witnessed his abduction. For more
than four years they have not had any news of Ayub Takhayev. During
this period the applicants have applied to various official bodies
with enquiries about Ayub Takhayev, both in writing and in person.
Despite their requests, they have never received any plausible
explanation or information as to what became of Ayub Takhayev
following his abduction. The responses received by the applicants
mostly denied that the State was responsible for the abduction 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 have suffered
distress and anguish as a result of the disappearance of their close
relative and the inability to find out what happened to him. The
manner in which their complaints have been dealt with by the
authorities must be considered to constitute inhuman treatment
contrary to Article 3.
The
Court therefore concludes that there has been a violation of Article
3 of the Convention in respect of the applicants.
VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicants further stated that Ayub Takhayev had been detained in
violation of the guarantees of Article 5 of the Convention, which
reads, in so far as relevant:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. The parties’ submissions
In
the Government’s opinion, no evidence was obtained by the
investigators to confirm that Ayub Takhayev had been deprived of his
liberty in breach of the guarantees set out in Article 5 of the
Convention.
The
applicants reiterated the complaint.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that the complaint is not inadmissible on any other grounds and
must therefore be declared admissible.
2. Merits
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 Ayub Takhayev was
apprehended by State servicemen on 13 November 2002 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).
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 relative had been detained
and taken away in life-threatening circumstances. However, the
Court’s findings above in relation to Article 2 and, in
particular, the conduct of the investigation, leave no doubt that the
authorities failed to take prompt and effective measures to safeguard
him against the risk of disappearance.
In
view of the foregoing, the Court finds that Ayub Takhayev 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.
VII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicants complained, relying on Article 8 of the Convention, that
their house was unlawfully searched on the night of 13 November 2002.
Article 8 of the Convention, in so far as relevant, provides:
“1. Everyone has the right to respect
for ... his home ...
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.”
114. The Court reiterates
that while, in accordance with Article 35 § 1 of the Convention,
those seeking to bring their case against the State before the Court
are required to use first the remedies provided by the national legal
system, there is no obligation under the said provision to have
recourse to remedies which are inadequate or ineffective. 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.), no. 62566/00 et seq., 10 January 2002). There is no evidence
that the applicants properly raised before the domestic authorities
their complaints alleging a breach of their right to respect for
their home. But even assuming that in the circumstances of the
present case no remedies were available to the applicants, the events
complained of took place on 13 November 2002,
whereas their application was lodged on 26 April 2004.
The Court thus concludes that this part of the application was lodged
outside the six-month limit (see Musayeva
and Others v. Russia
(dec.), no. 74239/01, 1 June 2006; and Ruslan
Umarov v. Russia
(dec.), no. 12712/02, 8 February 2007).
115. It follows that this
part of the application was lodged out of time and must be rejected
in accordance with Article 35 §§ 1 and 4 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, taken in conjunction with Articles 2, 3 and 5 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.”
A. The parties’ submissions
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. The
applicants had not brought any complaints in relation to Ayub
Takhayev’s kidnapping to courts of the Chechen Republic,
Kabardino-Balkaria and Ingushetia or to the courts of the Stavropol,
Krasnodar and Rostov Regions. Furthermore, the applicants could have
brought civil claims for damages pursuant to Article 1069 of the
Civil Code. In sum, the Government submitted that there had been no
violation of Article 13.
The
applicants reiterated the complaint.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
The
Court reiterates that Article 13 of the Convention guarantees the
availability at 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. According to the
Court’s settled case-law, the effect of Article 13 of the
Convention is to require the provision of a remedy at national level
allowing the competent domestic authority both to deal with the
substance of a relevant Convention complaint and to grant appropriate
relief, although Contracting States are afforded some discretion as
to the manner in which they comply with their obligations under this
provision. However, such a remedy is only required in respect of
grievances which can be regarded as “arguable” in terms
of the Convention (see, among many other authorities, Halford v.
the United Kingdom, judgment of 25 June 1997, Reports of
Judgments and Decisions 1997 III, p. 1020, § 64).
As
regards the complaint of lack of effective remedies in respect of the
applicants’ complaint under Article 2, the Court emphasises
that, given the fundamental importance of the right to protection of
life, Article 13 requires, in addition to the payment of
compensation where appropriate, a thorough and effective
investigation capable of leading to the identification and punishment
of those responsible for the deprivation of life, including effective
access for the complainant to the investigation procedure leading to
the identification and punishment of those responsible (see Anguelova
v. Bulgaria, no. 38361/97, §§ 161-162, ECHR
2002-IV, 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).
In
view of the Court’s above findings with regard to Article 2,
this complaint is clearly “arguable” for the purposes of
Article 13 (see Boyle and Rice v. the United Kingdom, judgment
of 27 April 1988, Series A no. 131, § 52). The
applicants should accordingly have been able to avail themselves of
effective and practical remedies capable of leading to the
identification and punishment of those responsible and to an award of
compensation for the purposes of Article 13.
It
follows that in circumstances where, as here, the criminal
investigation into the disappearance of Ayub Takhayev has been
ineffective and the effectiveness of any other remedy that may have
existed, including civil claims for damages, has consequently been
undermined, the State has failed in its obligation under Article 13
of the Convention.
Consequently,
there has been a violation of Article 13 of the Convention in
conjunction with Article 2 of the Convention.
As
regards the applicants’ reference to Article 3 of the
Convention, the Court notes that it has found a violation of the
above provision on account of the applicants’ mental suffering
as a result of the disappearance of Ayub Takhayev, their inability to
find out what happened to him and the way the authorities handled
their complaints. However, the Court has already found a violation of
Article 13 of the Convention in conjunction with Article 2 of the
Convention on account of the authorities’ conduct that led to
the suffering endured by the applicants. The Court considers that, in
the circumstances, no separate issue arises in respect of Article 13
in connection with Article 3 of the Convention.
As
regards the applicants’ reference to Article 5 of the
Convention, the Court reiterates 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 as a result 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.
IX. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
In
their initial application form the applicants complained that they
had been discriminated against in the enjoyment of the Convention
rights, arguing that the violations complained of had taken place
because of their residence in Chechnya and their ethnic background as
Chechens. This was contrary to Article 14 of the Convention, which
reads as follows:
“The enjoyment of the right and freedoms set forth
in [the] Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a national
minority, property, birth or other status.”
In
the observations on admissibility and merits of 11 September
2007 the applicants stated that they no longer wished their complaint
under Article 14 of the Convention to be examined.
The
Court, having regard to Article 37 of the Convention, finds that the
applicants do not intend to pursue this part of the application,
within the meaning of Article 37 § 1 (a). The Court also finds
no reasons of a general character, affecting respect for human rights
as defined in the Convention, which require the further examination
of the present complaints by virtue of Article 37 § 1 of
the Convention in fine (see Stamatios Karagiannis
v. Greece, no. 27806/02, § 28, 10 February
2005).
It
follows that this part of the application must be struck out in
accordance with Article 37 § 1 (a) of the Convention.
X. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
The
first and second applicants claimed damages in respect of the lost
wages of their son from the time of his kidnapping. They submitted
that, even though Ayub Takhayev was unemployed at the time of his
arrest, it was reasonable to suppose that he would have found a job
and earned at least the official minimum wage. The first and second
applicants insisted that each of them would have received 20 % of
their son’s earnings. The first and second applicants claimed
387,430.40 and 295,035.67 Russian roubles (RUB), respectively
(approximately 10,760 and 8,200 euros (EUR)).
The
Government regarded these claims as unfounded.
The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicant and the violation of the
Convention. 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”.
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 respect of the applicants’
son and the loss by the applicants of the financial support which he
could have provided. Having regard to the applicants’
submissions and the fact that Ayub Takhayev was not employed at the
time of his apprehension, the Court awards EUR 3,000 to the
first and second applicants jointly in respect of pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Non-pecuniary damage
The
first, second and third applicants claimed EUR 25,000 each in
respect of non-pecuniary damage for the suffering they had endured as
a result of the loss of their family member, the indifference shown
by the authorities towards them and the failure to provide any
information about the fate of their close relative. The fourth and
fifth applicants claimed EUR 5,000 each under this heading.
The
Government found the amounts claimed exaggerated.
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
applicants’ relative. The applicants themselves have been found
to have been victims of a violation of Article 3 of the Convention.
The Court thus accepts that they have suffered non-pecuniary damage
which cannot be compensated for solely by the findings of violations.
It awards the first and second applicants EUR 25,000 jointly, the
third and fourth applicants EUR 5,000 jointly and the fifth
applicant EUR 5,000, plus any tax that may be chargeable thereon.
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,
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, totalling EUR 6,300. They also claimed administrative
expenses in the amount of 7 % of the above amount. The applicants
claimed RUR 1,662.89 in translation fees and EUR 55.15 in
international courier mail fees. The aggregate claim in respect of
costs and expenses related to the applicants’ legal
representation amounted to EUR 7,245.33.
The
Government pointed out that the applicants were only entitled to
reimbursement of costs and expenses that had actually been incurred
and had been reasonable. They also noted that two of the SRJI’s
lawyers who had signed the applicants’ observations on
admissibility and merits had not been named in the powers of
attorney.
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).
Having
regard to the details of the information submitted by the applicants,
the Court is satisfied that these rates are reasonable. Turning to
the Government’s argument concerning the number of lawyers who
signed the applicants’ observations, it points out that the
powers of attorney were issued first and foremost in the name of the
SRJI, not in that of its employees, and, accordingly, the NGO had a
right to assign any of its collaborators to deal with the applicants’
case. Therefore, the Court finds no ground of objection.
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. It notes at the same time that, due to the application
of Article 29 § 3 in the present case, the applicants’
representatives submitted their observations on admissibility and
merits in one set of documents. The Court thus doubts that legal
drafting was necessarily time-consuming to the extent claimed by the
representatives. Moreover, the case involved little documentary
evidence, in view of the Government’s refusal to submit the
case file. The Court thus doubts that research was necessary to the
extent claimed by the representatives.
Having
regard to the details of the claims submitted by the applicants and
acting on an equitable basis, the Court awards them the amount of EUR
4,500, less EUR 850 received by way of legal aid from the Council of
Europe, together with any value-added tax that may be chargeable to
the applicants, 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
Decides to strike the application out of its
list of cases in accordance with Article 37 § 1 (a) of the
Convention in so far as it concerns the applicants’ complaint
under Article 14 of the Convention;
Dismisses the Government’s objection as to
the abuse of the right of petition;
Dismisses the Government’s objection as to
non-exhaustion of civil domestic remedies, as well as non-exhaustion
of domestic remedies in respect of Ayub Takhayev’s unlawful
deprivation of liberty;
Decides to join to the merits the
Government’s objection as to non-exhaustion of criminal
domestic remedies and rejects it;
Declares the complaints under Articles 2, 3, 5
and 13 of the Convention admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
2 of the Convention in respect of Ayub Takhayev;
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 Ayub Takhayev
disappeared;
Holds that there has been a violation of Article
3 of the Convention in respect of the applicants;
Holds that there has been a violation of Article
5 of the Convention in respect of Ayub Takhayev;
Holds that there has been a violation of
Article 13 of the Convention in respect of the alleged violation of
Article 2 of the Convention;
Holds that no separate issues arise under
Article 13 of the Convention in respect of the alleged violations of
Articles 3 and 5;
Holds
(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 3,000
(three thousand euros) in respect of pecuniary damage to the first
and second applicants jointly, to be converted into Russian roubles
at the rate applicable at the date of settlement,
plus any tax that may be chargeable on this amount;
(ii) EUR 25,000
(twenty-five thousand euros) to the first and second applicants
jointly, EUR 5,000 to the third and fourth applicants jointly and EUR
5,000 to the fifth applicant in respect of non-pecuniary damage, to
be converted into Russian roubles at the rate applicable at the date
of settlement, plus any tax that may be
chargeable on these amounts;
(iii) EUR 3,650
(three thousand six hundred and fifty euros) in respect of costs and
expenses, to be paid into the representatives’ bank account in
the Netherlands, plus any tax that may be
chargeable to the applicants;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 18 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President