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REZVANOV AND REZVANOVA v. RUSSIA - 12457/05 [2009] ECHR 1355 (24 September 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1355.html
Cite as:
[2009] ECHR 1355
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FIRST
SECTION
CASE OF REZVANOV AND REZVANOVA v. RUSSIA
(Application
no. 12457/05)
JUDGMENT
STRASBOURG
24 September 2009
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 Rezvanov and
Rezvanova 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 3 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 12457/05) 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 two Russian nationals, Mr Sultan Rezvanov and
Ms Shamsbanu Rezvanova (“the applicants”), on 25
March 2005.
The
applicants, who had been granted legal aid, were represented by Ms L.
Khamzayeva, a lawyer practising in Moscow. The Russian Government
(“the Government”) were represented by Ms V. Milinchuk,
former Representative of the Russian Federation at the European Court
of Human Rights.
On
1 September 2005 the Court decided to apply
Rule 41 of the Rules of Court and to grant priority treatment to
the application.
On
28 September 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 were born in 1941 and 1947 respectively and live in the
town of Urus-Martan, in the Chechen Republic.
The
applicants are husband and wife. They are the parents of Mr Akhmed
Rezvanov, born in 1984.
A. Disappearance of Akhmed Rezvanov
1. The applicants' account
At
about 7.15 a.m. on 10 December 2002 six armoured personnel carriers
(“APCs”) and two UAZ vehicles arrived at the applicants'
house at 6 Mayakovskiy Street, Urus-Martan. A group of armed men
in camouflage uniforms got off the vehicles and burst into the house.
The applicants assumed that they were federal servicemen.
Some
of the servicemen levelled machine guns at the second applicant and
asked her in unaccented Russian where the men of the house were. The
others searched the house and its annexes without producing any
warrant. Later the applicants discovered that the men had messed
everything up, broken some crockery, ripped bed-linen and scattered
flour all over the floor.
In
the meantime Akhmed Rezvanov was hiding in a wash-house annexed to
the house. At some point the servicemen threatened to blow up the
house. The first applicant asked them to wait, went to the wash-house
and convinced his son to come out of it. Akhmed Rezvanov went to the
courtyard; the armed men apprehended him and placed him in a
light-blue UAZ all-terrain vehicle («таблетка»)
with registration number 276 95-RUS. Then they seized some of
the applicants' belongings, including a leather jacket, a video
appliance, a pair of running shoes and a few more items. It appears
that at some point the men told the applicants that they were
servicemen of the department of the interior of the Zavodskoy
District. Then they got into the vehicles and drove away.
On
the same day the armed men apprehended two of the first applicant's
nephews, Abdula and Artur; they were released a few hours later and
returned home. Abdula and Artur told the applicants that following
their arrest they had been brought to the premises of the military
commander's office of the Urus-Martan District.
2. Information submitted by the Government
On
the morning of 10 December 2002 unidentified persons wearing
camouflage uniforms and armed with machine guns took Akhmed Rezvanov
away from the first applicant's house at 6 Mayakovskiy Street,
Urus-Martan. The same persons robbed the first applicant and took a
video appliance, a leather jacket, running shoes and some other
items.
B. Investigation into Akhmed Rezvanov's disappearance
1. The applicants' account
On 10 December 2002 the first applicant complained
about his son's abduction to the Urus-Martan Town Court and to the
prosecutor's office of the Urus-Martan District (“the district
prosecutor's office”). In his complaint the first applicant
mentioned that the armed men had told him that they belonged to the
department of the interior of the Zavodskoy District. He also
requested information on his son's whereabouts from the local
administration and the military commander's office of the Urus-Martan
District (“the military commander's office”), but to no
avail.
On
27 December 2002 the prosecutor's office of the Chechen Republic
forwarded the first applicant's complaint to the district
prosecutor's office.
On
16 January 2003 the Ministry of Justice of Ingushetia informed the
prosecutor's office of the Chechen Republic that they had received a
complaint from the first applicant and his brother. The letter read
as follows:
“According to the complainants, those who
apprehended A. Rezvanov identified themselves as the FSB [Federal
Security Service] officers and were [travelling] in two or three APCs
and an Ural vehicle. The convoy with the arrestee went to Grozny. The
detainee's relatives' complaints [lodged with] many authorities have
brought no positive results.”
By
decision of 16 January 2003 the district prosecutor's office admitted
the first applicant as a victim to the criminal proceedings in case
no. 34003 instituted on 31 January 2003 in relation to Akhmed
Rezvanov's kidnapping.
On
31 January 2003 the district prosecutor's office instituted an
investigation into Akhmed Rezvanov's kidnapping under Article 126 §
2 (“aggravated kidnapping”) and the theft of the
Rezvanovs' belongings under Article 162 § 2 (“aggravated
robbery”) of the Russian Criminal Code. The case was assigned
the number 34003.
On
31 March 2003 the district prosecutor's office suspended the
investigation in case no. 34003 for failure to identify those
responsible. On 1 April 2003 they notified the first applicant of the
decision and commented that, despite the suspension of the
proceedings, they had instructed the police to search for Akhmed
Rezvanov more vigorously.
On
7 April 2003 the first applicant requested the district prosecutor's
office to vigorously pursue the search for his son and reported that
one hour after the abduction an FSB officer had told him that Akhmed
Rezvanov had been taken to the Khankala military base by servicemen
of the Main Intelligence Department of the Ministry of Defence
(«ГРУ»).
On
28 April 2003 the first applicant requested the prosecutor's office
of the Chechen Republic to help him to establish his son's
whereabouts.
On 26 May 2003 the military prosecutor's office of
military unit no. 20102 (“the unit prosecutor's office”)
informed the first applicant that they had carried out an inquiry,
which had not established any traces of military personnel
implication in his son's kidnapping.
On 10 July 2003 the military prosecutor's office of
the United Group Alignment (“the UGA prosecutor's office”)
forwarded the first applicant's complaint to the unit prosecutor's
office and ordered that an inquiry be conducted into the possible
implication of military servicemen in Akhmed Rezvanov's kidnapping.
On
24 November 2003 the first applicant requested assistance in the
search for his son from the Administration of the Chechen Republic.
On
22 April 2004 the district prosecutor's office resumed the
investigation into Akhmed Rezvanov's kidnapping and notified the
first applicant accordingly.
On
11 May 2004 the Ministry of the Interior of the Chechen Republic
informed the second applicant that the search for her son was under
way.
2. Information submitted by the Government
On
31 January 2003 the district prosecutor's office instituted an
investigation in case no. 34003 under Articles 126 § 2 and 161 §
2 of the Russian Criminal Code.
On
unspecified dates the applicants were granted victim status in case
no. 34003.
On an unspecified date the first applicant was
questioned and stated that at about 7 a.m. on 10 December 2002 he had
been awakened by knocking at his door. He had opened the door and
seen around eighty or ninety men in camouflage uniforms armed with
machine guns; some of them had worn masks. He had also noticed six
APCs and two UAZ vehicles. One of the armed men had demanded the
first applicant's identity papers, checked them out and returned
them. Another man had said that someone had been hiding in a
wash-house in the courtyard. The armed men had surrounded the house
and told the first applicant that they would shoot unless the person
in the wash-house surrendered. The first applicant had replied that
it was his son. Having obtained permission, the first applicant had
entered the wash-house and seen his son armed with a Makarov pistol
and a grenade. Akhmed Rezvanov had said that he had been planning to
blow himself up. The first applicant had convinced his son to give
him the pistol and the grenade and had stepped outside. He had given
the arms to the men. Then they had searched Akhmed Rezvanov, put a
plastic bag on his head and taken him away. The first applicant had
not seen his son since then. On the same day two of the first
applicant's nephews had been arrested and then released two hours
later. During the arrest of Akhmed Rezvanov the armed men had
searched the house, ruined some furniture, crockery and clothing and
stolen a video appliance, a leather jacket, running shoes and other
items. The first applicant also stated that he did not wish to study
the case-file upon its completion.
The
second applicant was questioned on an unspecified date and made a
deposition identical to that of her husband.
On unspecified dates the first applicant's nephews,
Abdula and Artur, were questioned as witnesses. They stated that at
about 7 a.m. on 10 December 2002 around twenty masked men in
camouflage uniforms and armed with machine guns had entered Abdula
and Artur's house, demanded their identity papers and taken them to
the courtyard. The armed men had tied Abdula and Artur's arms,
blindfolded them and put them in a car. The witnesses did not know
the make of the car. After a journey of some twenty minutes the armed
men had taken Abdula and Artur out of the car and led them
downstairs. The detained men had been questioned about Akhmed
Rezvanov. Then they had again been placed in the car and driven for
forty minutes. The armed men had taken Abdula and Artur out of the
car, untied their arms and ordered them to sit still for twenty
minutes. When the car drove off, the two men took the blindfolds off
their eyes and realised that they were in a farm near Urus-Martan.
Then they returned home and learned of Akhmed Rezvanov's abduction.
On an unspecified date Mr G., the applicants'
neighbour, was questioned as a witness and stated that at 7.20 a.m.
on 10 December 2002, while at home, he had heard voices coming from
the outside. He had looked out of the window and seen armed men in
masks and camouflage uniforms. Mr G. had tried to step outside but
the armed men had told him not to do so. Later Mr G. had found out
that those men had taken Akhmed Rezvanov away.
On
an unspecified date Mr Sh. was questioned as a witness and stated
that on 29 January 2003 he had been arrested for storage of explosive
materials and weapons that he had obtained from Akhmed Rezvanov.
The investigators questioned fifteen residents of
Mayakovskiy Street in Urus-Martan who stated that they had no
information on Akhmed Rezvanov's abduction.
Law-enforcement agencies of the Chechen Republic
reported to the district prosecutor's office that Akhmed Rezvanov had
not been arrested or kept in detention facilities in the Chechen
Republic and that no charges had been brought against him. They also
pointed out that federal forces had not carried out any special
operations in the Urus-Martan District on 10 December 2002.
An
UAZ vehicle with registration number 276-95 was not listed in the
register of the State Traffic Inspection of the Ministry of the
Interior of the Chechen Republic.
On
31 March 2003 the investigation in case no. 34003 was suspended for
failure to identify those responsible. The second applicant was
served with the decision on 3 June 2003.
On
22 April 2004 the district prosecutor's office quashed the decision
of 31 March 2003 and resumed the investigation.
On
an unspecified date the investigation was suspended and then resumed
on 10 June 2004. On 10 July 2004 it was again suspended.
The
investigation in case no. 34003 was repeatedly suspended and then
resumed following the quashing of decisions on suspension by higher
prosecutors.
On
25 October 2007 the Investigating Committee of the Russian
Prosecutor's Office in the Chechen Republic resumed the investigation
in case no. 34003.
The
Government submitted that the investigation had failed to establish
the perpetrators and was still in progress. Involvement of the
federal military in the crime had not been proven.
Despite
specific requests by the Court, the Government did not disclose most
of the documents from the investigation file in case no. 34003,
providing only a few copies of the district prosecutor's office's
decisions and notifications to the applicants. They 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 files contained information of a military nature
and personal data concerning witnesses or other participants in
criminal proceedings.
II. RELEVANT DOMESTIC LAW
For
a summary of relevant domestic law see Akhmadova and Sadulayeva v.
Russia (no. 40464/02, §§ 67-69, 10 May 2007).
THE LAW
I. The government's
objection regarding non-exhaustion of domestic remedies
A. The parties' submissions
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 Akhmed Rezvanov had
not yet been completed. It was also open to the applicants to
complain of the inactivity of the investigators to courts or higher
prosecutors' offices or to lodge civil claims for damages, which they
had failed to do.
The
applicants contested that objection. They 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, 18
December 1996, §§ 51-52, Reports of Judgments and
Decisions 1996-VI, 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 Cennet Ayhan and
Mehmet Salih Ayhan, cited above, § 65).
The
Court notes that the Russian legal system provides in principle two
avenues of recourse for 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 on the part 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,
§§ 119-21, 24 February 2005). In the light of the
above, the Court confirms that the applicants were not obliged to
pursue civil remedies.
As
regards criminal law remedies provided for by the Russian legal
system, the Court observes that the applicants complained to the law
enforcement agencies immediately after the disappearance of Akhmed
Rezvanov. The investigation into his kidnapping has been under way
since 31 January 2003. The applicants and the Government dispute the
effectiveness of this investigation.
The Court considers that this part of the Government's
objection raises issues concerning the effectiveness of the
investigation which are closely linked to the merits of the
applicants' complaints. Thus, it decides to join this objection to
the merits of the case and considers that the issue falls to be
examined below under Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicants complained that Akhmed Rezvanov had disappeared following
his arrest by Russian servicemen and that the domestic authorities
had failed to carry out an effective investigation into the
kidnapping. They relied on Article 2 of the Convention, which 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. Arguments of the parties
The
Government argued that there was no convincing evidence that Akhmed
Rezvanov was dead. Neither was it proven that he had been arrested by
State servicemen. None of the witnesses had claimed to have noticed
any insignia on the camouflage uniforms of the armed men, which
proved that they could not be members of the military.
The
letters by the Deputy Prosecutor of the Chechen Republic and the
Ministry of Justice of Ingushetia submitted by the applicants did not
prove military implication in the crime but merely restated the
wording of the applicants' complaints without reaching any
conclusions as to the perpetrators' identities.
The
applicants' allegations that Akhmed Rezvanov had been arrested by FSB
servicemen and brought to the military commander's office were
speculative. The Government also pointed out that Abdula and Artur
had not claimed before the domestic authorities that they had been
kept in the military commander's office. Furthermore, the first
applicant had initially claimed that the armed men had identified
themselves as servicemen of the department of the interior of the
Zavodskoy District but later alleged that they had been FSB
servicemen, which proved the unreliability of his statements.
The
Government further pointed out that various groups of Ukrainian
mercenaries had committed crimes in the territory of the Chechen
Republic and emphasised that the fact that the perpetrators had
Slavic features and spoke Russian did not prove their attachment to
the Russian military. They also observed that a considerable quantity
of weaponry and military vehicles, including APCs, had been stolen by
illegal armed groups from Russian depots in the 1990s and that anyone
could purchase camouflage uniforms.
The
Government emphasised that Akhmed Rezvanov had been armed and
inferred from his intention to blow himself up that he had been
afraid of members of illegal armed groups to whom he had been
supplying firearms. They referred to Mr Sh.'s deposition that he had
obtained weapons from the applicants' son. The Government also
asserted that State agents had had no reasons to abduct Akhmed
Rezvanov as they would rather use him as a prosecution witness to
convict insurgents.
In
sum, the Government insisted that the involvement of State agents in
Akhmed Rezvanov's kidnapping had not been proven beyond reasonable
doubt.
The
Government further argued that the investigation into the kidnapping
had been effective and was pending before an independent State
agency. The applicants had been informed of progress in the
investigation in due course. Repeated suspensions and resumptions of
the investigation only showed that the proceedings were ongoing and
the requisite investigative measures had been taken.
The
applicants maintained that it was beyond reasonable doubt that the
men who had arrested Akhmed Rezvanov had been State agents because
the perpetrators had been travelling in APCs, which could only be
used by State agencies. They further complained that the
investigation into the kidnapping of their son had been protracted
and ineffective.
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. The Court has already found that the
Government's objection concerning the alleged non-exhaustion of
criminal domestic remedies should be joined to the merits of the
complaint (see paragraph 51 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 Akhmed Rezvanov
i. Establishment of the facts
The
Court reiterates that, in the light of the importance of the
protection afforded by Article 2, it must subject deprivations
of life to the most careful scrutiny, taking into consideration not
only the actions of State agents but also all the surrounding
circumstances. Detained persons are in a vulnerable position and the
obligation on the authorities to account for the treatment of a
detained individual is particularly stringent where that individual
dies or disappears thereafter (see Orhan v. Turkey, no.
25656/94, § 326, 18 June 2002). Where the events in question lie
wholly or in large part within the exclusive knowledge of the
authorities, as in the case of persons under their control in
detention, strong presumptions of fact will arise in respect of
injuries and death occurring during that detention. Indeed, the
burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII,
and Çakıcı v. Turkey [GC], no. 23657/94,
§ 85, ECHR 1999 IV).
The
Court observes that it has developed a number of general principles
relating to the establishment of disputed facts, in particular when
faced with allegations of disappearance under Article 2 of the
Convention (for a summary of these, see Bazorkina v. Russia,
no. 69481/01, §§ 103-09, 27 July 2006). The Court also
notes that the conduct of the parties when evidence is being obtained
has to be taken into account (see Ireland v. the United
Kingdom, 18 January 1978, § 161, Series A no. 25).
The
Court notes that, despite its requests for a copy of the entire
investigation file into the kidnapping of Akhmed Rezvanov, the
Government refused to produce the majority of the case materials on
the grounds that they were precluded from providing them by Article
161 of the Code of Criminal Procedure. The Court observes that in
previous cases it has 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 the foregoing and bearing in mind the principles referred to
above, the Court finds that it can draw inferences from the
Government's conduct in this respect.
The
applicants alleged that the persons who had taken Akhmed Rezvanov
away on 10 December 2002 were State agents.
Their
hypothesis is confirmed by witness statements of the first
applicant's nephews who had been taken away by a group of armed men
and questioned about Akhmed Rezvanov (see paragraph 30 above), as
well as by the statement of Mr G., who had seen the armed men in
front of the applicants' house on 10 December 2002 (see paragraph 31
above).
The
Government suggested that Akhmed Rezvanov's kidnappers could be
insurgents or mercenaries. However, this allegation was not specific
and they did not submit any material to support it. The Court would
stress in this regard that the evaluation of the evidence and the
establishment of the facts is a matter for the Court, and it is
incumbent on it to decide on the evidentiary value of the documents
submitted to it (see Çelikbilek v. Turkey,
no. 27693/95, § 71, 31 May 2005). The Court
considers that the fact that Akhmed Rezvanov had been armed at the
time of his arrest does not in itself prove that he had supplied
weapons to illegal armed groups. Furthermore, according to the
Government, no criminal proceedings had been instituted against
Akhmed Rezvanov by the time of his abduction (see paragraph 34
above).
In
the Court's view the fact that immediately after the abduction the
first applicant asserted that the armed men had identified themselves
as servicemen of the department of the interior of the Zavodskoy
District and later reportedly stated that those men had said they
belonged to the FSB does not render his account of events less
plausible.
The
Court also emphasises that APCs, unlike regular civilian vehicles,
could not normally be owned by private individuals. It takes note of
the Government's allegation that the APCs, as well as weaponry and
camouflage uniforms, were probably stolen by insurgents from Russian
arsenals in the 1990s. Nonetheless it considers it very unlikely that
several stolen armoured military vehicles carrying a considerable
number of armed men in camouflage uniforms could have passed through
Russian military checkpoints to enter Urus-Martan and then moved
freely about the town without being noticed.
It
is noteworthy that the domestic investigators accepted factual
assumptions as presented by the applicants and looked at the
possibility of military implication in the crime (see paragraphs 21
and 22 above).
The
Court further takes note of the Government's assertion that Abdula
and Artur, the first applicant's nephews, did not inform the
investigators that they had been kept in premises used by the
military commander's office. However, it is unable to verify whether
the two men indeed omitted to inform the domestic authorities of it
because the Government failed to provide a transcript of their
interviews with the investigators. In any event, the Court does not
deem it necessary to establish whether Akhmed Rezvanov was brought to
the military commander's office upon his abduction, since it
considers that the fact that a large group of armed men in uniform
equipped with military vehicles was able to move freely through
Urus-Martan and to arrest Akhmed Rezvanov at his home strongly
supports the applicants' version of State servicemen's involvement in
their son's kidnapping.
The
Court observes that where the applicants make 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 show conclusively
why the documents in question cannot serve to corroborate the
allegations made by the applicants, or to provide a satisfactory and
convincing explanation of how the events in question occurred. The
burden of proof is thus shifted to the Government and if they fail in
their arguments, issues will arise under Article 2 and/or Article 3
(see Toğcu v. Turkey, no. 27601/95, § 95,
31 May 2005, and Akkum and Others v. Turkey, no. 21894/93,
§ 211, ECHR 2005 II).
Taking into account the above elements, the Court is
satisfied that the applicants have made a prima facie case that
Akhmed Rezvanov was taken away by State servicemen. The Government's
statement that the investigation did not find any evidence pointing
to 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 of the events in question, the Court
considers that Akhmed Rezvanov was abducted from his family home by
State servicemen during an unacknowledged security operation.
There
has been no reliable news of Akhmed Rezvanov since 10 December
2002. His name has not been found in any official detention
facilities' records. The Government did not submit any explanation as
to what had happened to him after that day.
Having
regard to the previous cases concerning disappearances of people in
the Chechen Republic which have come before the Court (see, for
example, Luluyev and Others v. Russia, no. 69480/01,
ECHR 2006 ... ), it 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
Akhmed Rezvanov or any news of him for more than six years
corroborates this assumption.
Accordingly, the Court finds it established that on 10
December 2002 Akhmed Rezvanov was abducted by State servicemen and
that he must be presumed dead following his abduction.
ii. The State's compliance with Article 2
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 (see McCann and
Others v. the United Kingdom, 27 September 1995, § 147,
Series A no. 324).
The Court has already found it established that Akhmed
Rezvanov must be dead (see paragraph 77 above). Noting that the
authorities do not rely on any ground of justification in respect of
use of lethal force by State servicemen, it considers that
responsibility for his death lies with the respondent Government.
Accordingly,
the Court finds that there has been a violation of Article 2 of the
Convention in respect of Akhmed Rezvanov.
(b) The alleged inadequacy of the
investigation
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 Kaya v. Turkey, 19 February 1998, § 86,
Reports 1998 I). The essential purpose of such an
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, be accessible to the victim's family, be
carried out with reasonable promptness and expedition, be effective
in the sense that it is capable of leading to a determination of
whether or not the force used in such cases was lawful and justified
in the circumstances, and afford a sufficient element of public
scrutiny of the investigation or its results (see Hugh Jordan v.
the United Kingdom, no. 24746/94, §§ 105-09, ECHR
2001 III (extracts), and Douglas-Williams v. the United
Kingdom (dec.), no. 56413/00, 8 January 2002).
In
the present case, the kidnapping of Akhmed Rezvanov was investigated.
The Court must assess whether that investigation met the requirements
of Article 2 of the Convention.
The
Court notes at the outset that the majority of the documents from the
investigation remain undisclosed by the Government. It therefore has
to assess the effectiveness of the investigation on the basis of the
few documents submitted by the parties and the sparse information on
its progress presented by the Government.
The
Court first notes that the authorities were immediately made aware of
the kidnapping of Akhmed Rezvanov through the applicants' submissions
(see paragraph 13 above). However, the investigation into the murder
was instituted on 31 January 2003, that is, more than six weeks after
the abduction. Such a lengthy delay was in itself liable to affect
the investigation of the kidnapping in life-threatening
circumstances, where crucial action has to be taken in the first days
after the event.
The
Court further points out that the information on the course of the
investigation into the kidnapping of Akhmed Rezvanov at its disposal
is highly inadequate. It observes that the applicants, who themselves
were not updated on progress in the case, could not provide it with a
list of investigative measures taken by the domestic authorities.
The
Government, in their turn, vaguely referred to investigative steps
taken to solve the kidnapping of Akhmed Rezvanov. In particular, they
stated that a number of witnesses were questioned (see paragraphs 28
– 33 above). However, they did not mention when those
interviews had taken place and did not provide any further details
enabling the Court to assess their effectiveness.
Furthermore,
a number of important investigative steps were never conducted. For
instance, it does not appear that such a basic measure as the
inspection of the crime scene has ever been taken. Moreover, nothing
in the materials at the Court's disposal warrants the conclusion that
the investigators tried to question servicemen of the military
commander's office, the FSB or the department of the interior of the
Zavodskoy District. They made no attempts to find the APCs described
by the applicants or to identify their owners.
Accordingly,
the Court considers that the domestic investigative authorities
demonstrably failed to act of their own motion and breached their
obligation to act with exemplary diligence and promptness in dealing
with such a serious crime as kidnapping (see Öneryıldız
v. Turkey [GC], no. 48939/99, § 94, ECHR 2004 XII).
The
Court also notes that the applicants were not promptly informed of
significant developments in the investigation and considers therefore
that 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 (see
Oğur v. Turkey
[GC], no. 21594/93, § 92, ECHR 1999 III).
Lastly,
the Court notes that the investigation into the kidnapping of Akhmed
Rezvanov was repeatedly suspended and then resumed, which led to
lengthy periods of inactivity on the part of the investigators when
no proceedings were pending. Owing to the Government's failure to
submit the entire case-file, the Court is unable to establish the
exact time-line of the investigation. However, it is clear that no
proceedings were pending between 31 March 2003 and 22 April 2004,
that is, for more than a year. Such handling of the investigation
could only have had a negative impact on the prospects of identifying
the perpetrators and establishing the fate of the applicants' son.
Having
regard to the limb of the Government's objection that was joined to
the merits of the application, in so far as it concerns the fact that
the domestic investigation is still pending, the Court notes that the
investigation, having been repeatedly suspended and resumed and
plagued by inexplicable delays, has been ongoing for more than six
years and has produced no tangible results. Accordingly, the Court
finds that the remedy relied on by the Government was ineffective in
the circumstances and rejects their objection in this part.
The
Government also mentioned that the applicants had the opportunity to
apply for judicial review of the decisions of the investigating
authorities in the context of exhaustion of domestic remedies and to
complain to higher prosecutors. The Court observes that, owing to the
time that had elapsed since the events complained of, certain
investigative steps that ought to have been carried out much earlier
could no longer be usefully conducted. The Court finds therefore that
it is highly doubtful that the remedies relied on by the Government
would have had any prospects of success and considers that they were
ineffective in the circumstances of the case. It thus rejects the
Government's objection in this part as well.
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 Akhmed Rezvanov, in
breach of Article 2 of the Convention in its procedural aspect.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants complained that the armed men who searched their house on
10 December 2002 had treated them rudely and inconsiderately. They
further submitted that, as a result of their son's disappearance and
the State's failure to investigate it properly, they had endured
severe mental suffering. The applicants relied on Article 3 of the
Convention, which 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
applicants had not been subjected to inhuman or degrading treatment
prohibited by Article 3 of the Convention.
The
applicants maintained their complaints.
B. The Court's assessment
1. Admissibility
(a) The complaint concerning the armed
men's behaviour during the search
The Court reiterates at the
outset that in order to fall under Article 3 of the Convention
ill-treatment must be at least marginally severe (see Ireland
v. the United Kingdom, cited above §
162). It considers that the way the applicants were treated by
the State servicemen who came to their home on 10 December 2002
could indeed have been disagreeable and inconsiderate. However, the
Court is not persuaded that it amounted to
treatment exceeding the minimum level of severity to be in breach of
Article 3 of the Convention.
98. It follows that this
part of the complaint under Article 3 of the Convention
is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
(b) The
complaint concerning the applicants' mental suffering
The
Court notes that this part of the complaint under Article 3 of the
Convention 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 applicants a
dimension and character distinct from the emotional distress which
may be regarded as inevitably caused to relatives of a victim of a
serious human rights violation. Relevant elements will include the
proximity of the family tie, the particular circumstances of the
relationship, the extent to which the family member witnessed the
events in question, the involvement of the family member in the
attempts to obtain information about the disappeared person and the
way in which the authorities responded to those enquiries. The Court
would further emphasise that the essence of such a violation does not
mainly lie in the fact of the “disappearance” of the
family member but rather concerns the authorities' reactions and
attitudes to the situation when it is brought to their attention. It
is especially in respect of the latter that a relative may claim
directly to be a victim of the authorities' conduct (see Orhan v.
Turkey, no. 25656/94, § 358, 18 June 2002).
101. The
Court notes that the applicants have not had any reliable information
on the fate of their son for more than six years. During this period
the applicants have applied to various official bodies with enquiries
about Akhmed Rezvanov, both in writing and in person. Despite these
attempts, they have never received any plausible explanation or
information as to what became of him. The Court's findings under the
procedural aspect of Article 2 of the Convention are also of direct
relevance here.
In
view of the above, the Court finds that the applicants suffered
distress and anguish as a result of the disappearance of their son
and their inability to find out what happened to him. The manner in
which their complaints have been dealt with by the authorities must
be considered to constitute inhuman treatment contrary to Article 3.
The
Court therefore concludes that there has been a violation of Article
3 of the Convention in respect of the applicants.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicants complained that Akhmed Rezvanov 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
The
Government submitted that no evidence had been obtained by the
investigators to confirm that Akhmed Rezvanov was deprived of 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 Akhmed
Rezvanov was abducted by State servicemen on 10 December 2002. 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 records noting such matters as the name of the detainee, the date,
time and location of detention, reasons for it 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).
In
view of the foregoing, the Court finds that Akhmed Rezvanov 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.
V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicants complained that following his disappearance Akhmed
Rezvanov would not have had a fair trial should any criminal charges
have been brought against him. They invoked Article 6 of the
Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
The
Court finds that Akhmed Rezvanov can not be considered a “victim”
of the alleged violation of the right to fair trial since there is no
evidence to suggest that any criminal charges have been brought
against him.
It follows that this complaint is incompatible
ratione personae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4 thereof.
VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
The applicants claimed that the intrusion by the
Russian military into their house on 10 December 2002 and the ensuing
search had been unlawful and had infringed their right to respect for
their home, private and family life, as guaranteed by Article 8 of
the Convention. The applicants further complained that the seizure of
their belongings during the search on 10 December 2002 had not been
justified under Article 1 of Protocol No. 1 to the Convention.
Those Articles, in so far as relevant, read as follows:
Article 8
“1. Everyone has the right to respect
for his private and family life, 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.”
Article 1 of Protocol
No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. The parties' submissions
The Government denied that the State was responsible
for the alleged breaches of Article 8 and Article 1 of Protocol No. 1
and insisted that the unidentified armed men who had broken into the
applicants' house were not State agents. They further claimed that
the actions of those men had been qualified as robbery under national
laws and that criminal proceedings had been brought in this
connection.
The applicants maintained their complaints under
Article 8 of the Convention and Article 1 of Protocol No. 1.
B. The Court's assessment
1. Admissibility
The
Court notes that these complaints are not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that the complaints are not inadmissible on any other
grounds and must therefore be declared admissible.
2. Merits
The Court has found above that the men who took
Akhmed Rezvanov away on 10 December 2002 were State agents (see
paragraph 74 above). It observes that although the Government denied
their responsibility for the alleged violations of the applicants'
rights under Article 8 and Article 1 of Protocol No. 1, they conceded
that the men who had abducted Akhmed Rezvanov had entered the
applicants' house and taken away the video appliance, the leather
jacket, the running shoes and other items.
The Government did not call into question the
applicants' ownership of the property in issue, nor dispute the
argument that the persons referred to had entered the house against
the applicants' will. The Court is therefore satisfied that the
actions of the aforementioned men constituted an interference with
the applicants' right to respect for their home secured by Article 8
of the Convention and their property rights under Article 1 of
Protocol No. 1. The Court further notes the absence of any
justification on the part of the State for its agents' actions in
that regard. It accordingly finds that there has been a violation of
the applicants' right to respect for their home under Article 8 of
the Convention and their property rights under Article 1 of Protocol
No. 1.
VIII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants complained that they had been deprived of effective
remedies in respect of the alleged violations above, contrary to
Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
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 could also have complained to courts or higher prosecutors
or claimed civil damages, but had failed to do so. 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
In
so far as the complaint under Article 13 concerns the existence of a
domestic remedy in respect of the complaints under Article 3
concerning the inconsiderate behaviour of the State servicemen
towards the applicants and under Article 6, the Court notes that they
have been declared inadmissible in paragraphs 98 and 113
above, respectively. Accordingly, the applicants did
not have “arguable claims” of a violation of substantive
Convention provisions in this respect and, therefore, Article 13 of
the Convention is inapplicable.
It
follows that these parts of the complaint under Article 13 of the
Convention are incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 35 §
3 and must be rejected in accordance with Article 35 § 4
thereof.
The
Court notes that the remaining complaints under Article 13 are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds and must therefore be declared admissible.
2. Merits
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. According to
the Court's settled case-law, the effect of Article 13 of the
Convention is to require the provision of a remedy 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 Halford v. the United Kingdom, 25 June
1997, § 64, Reports 1997 III).
As
regards the complaint of the lack of effective remedies in respect of
the 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, §§ 161-62, ECHR
2002-IV). 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, 27
April 1988, § 52, Series A no. 131). 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 the applicants' son has been
ineffective and the effectiveness of any other remedy that may have
existed, including civil remedies suggested by the Government, has
consequently been undermined, the State has failed in its obligation
under Article 13 of the Convention.
Consequently,
there has been a violation of Article 13 in conjunction with Article
2 of the Convention.
In
so far as the complaint under Article 13 concerns the existence of a
domestic remedy in respect of the complaint concerning the
applicants' mental suffering, the Court notes that it has found a
violation of Article 3 on this account. 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 conjunction with
Article 3 of the Convention.
132. 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
the above findings of a violation of Article 5 of the Convention
resulting in unacknowledged detention, the Court considers that no
separate issue arises in respect of Article 13 in conjunction with
Article 5 of the Convention.
Lastly, as to the applicants' complaint under Article
13 in conjunction with Article 8 and Article 1 of Protocol No. 1, the
Court considers that in a situation where the authorities denied
their involvement in the alleged intrusion into the applicants' house
and the taking of their belongings and where the domestic
investigation does not appear to have made any meaningful findings on
this matter, the applicants did not have any effective domestic
remedies in respect of the alleged violations of their rights secured
by Article 8 of the Convention and Article 1 of Protocol No. 1
to the Convention. Accordingly, there has been a violation on that
account.
IX. APPLICATION OF ARTICLE
41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
The
applicants claimed damages in respect of the lost wages of their son.
Although he had been unemployed, the applicants assumed that
eventually he would have earned at least the minimum monthly wage.
The first applicant claimed in total 69,000 Russian roubles (RUB)
(1,865 euros (EUR)) and the second applicant claimed RUB 103,500 (EUR
2,797). Moreover, the applicants claimed EUR 10,000 as compensation
for the damage caused by the search of 10 December 2002. They did not
provide any documents or calculations to substantiate their claims in
this regard.
The
Government regarded these claims as unfounded and unsubstantiated.
The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicants 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 first notes that compensation for pecuniary damage may be
awarded in respect of loss of earnings. The Court considers 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. The Court finds
it reasonable to assume that Akhmed Rezvanov would eventually have
had some earnings. Having regard to the applicants' submissions and
the fact that Akhmed Rezvanov was not employed at the time of his
disappearance, the Court finds it appropriate to award EUR 1,500
to the applicants jointly in respect of pecuniary damage, plus any
tax that may be chargeable thereon.
The
Court further notes that the applicants failed to substantiate their
claims as regards the damage caused by the search of their house and
thus makes no award in this respect.
B. Non-pecuniary damage
The
applicants claimed compensation in respect of non-pecuniary damage
for the suffering they endured as a result of the loss of their son
and the indifference shown by the authorities towards them. The
applicants claimed EUR 100,000 each under this head.
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 disappearance of the applicants' son. The
applicants themselves have been found to have been victims of
violations of Articles 3 and 8 of the Convention, as well as of
Article 1 of Protocol No. 1. The Court thus accepts that they have
suffered non-pecuniary damage which cannot be compensated for solely
by the findings of violations. It thus awards the applicants EUR
40,000 jointly in respect of non-pecuniary damage, plus any tax that
may be chargeable thereon.
C. Costs and expenses
The
applicants also claimed a total of EUR 4,800 to be paid to their
lawyer who had prepared their application form and observations on
the admissibility and merits of the case. They failed to produce any
documents or invoices to confirm that the amounts claimed had been
paid to the representative.
The
Government indicated that the applicants had not shown that the
expenses claimed for legal representation had actually been incurred.
The
Court may make an award in respect of costs and expenses in so far as
they were actually and necessarily incurred (see Bottazzi
v. Italy [GC], no. 34884/97,
§ 30, ECHR 1999 V). Given that the applicants failed
to submit any evidence to justify their costs and expenses related to
the legal representation, it makes no award under this head.
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 join to the merits the
Government's objection as to non-exhaustion of criminal domestic
remedies and rejects it;
Declares admissible the complaints under
Articles 2, 5 and 8 of the Convention, the complaint under Article 3
concerning the applicants' mental suffering, the complaint under
Article 1 of Protocol No. 1, the complaints under Article 13 in
conjunction with Articles 2, 5 and 8, as well as the complaint under
Article 13 in conjunction with the complaint concerning the
applicants' mental suffering and in conjunction with Article 1 of
Protocol No. 1, and the remainder of the application inadmissible;
Holds that there has been a violation of
Article 2 of the Convention in respect of Akhmed Rezvanov;
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 Akhmed
Rezvanov had disappeared;
5. Holds that there has been a violation of
Article 3 in respect of the applicants on account of their
mental suffering;
Holds that there has been a violation of
Article 5 of the Convention in respect of Akhmed Rezvanov;
Holds that there has been a violation of
Article 8 of the Convention and Article 1 of Protocol No. 1 to
the Convention in respect of the applicants;
8. Holds
that there has been a violation of Article 13 of the Convention
in conjunction with Article 2 of
the Convention;
Holds that there has been a violation of
Article 13 in conjunction with Article 8 of the Convention and
Article 1 of Protocol No. 1 to the Convention in respect of the
applicants;
Holds that no separate issues arise under
Article 13 of the Convention in respect of the alleged violation of
Article 3 on account of the applicants' mental suffering and in
respect of the alleged violation of Article 5 of the Convention;
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
1,500 (one thousand five hundred euros) to the applicants jointly in
respect of pecuniary damage, to be converted into Russian roubles at
the rate applicable at the date of settlement,
plus any tax that may be chargeable thereon;
(ii) EUR
40,000 (forty thousand euros) to the applicants jointly 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 thereon;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants'
claim for just satisfaction.
Done in English, and notified in writing on 24 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President