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IDALOVA AND IDALOV v. RUSSIA - 41515/04 [2009] ECHR 208 (5 February 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/208.html
Cite as:
[2009] ECHR 208
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FIRST
SECTION
CASE OF
IDALOVA AND IDALOV v. RUSSIA
(Application
no. 41515/04)
JUDGMENT
STRASBOURG
5 February 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 Idalova and Idalov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 15 January 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 41515/04) 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 two Russian nationals, Ms Adeni Abumuslinovna
Idalova and Mr Agdulmusum Abdulkhalimovich Idalov (“the
applicants”), on 6 October 2004.
The
applicants were represented by lawyers of the Stichting Russian
Justice Initiative (“SRJI”), an NGO based in the
Netherlands with a representative office in Russia. The Russian
Government (“the Government”) were represented by Ms V.
Milinchuk, former Representative of the Russian Federation at the
European Court of Human Rights.
On
12 June 2007 the Court decided to apply Rule 41
of the Rules of Court and to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
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 1952 and 1949 respectively. At the material
time they lived in the village of Akhkinchu-Borzoy, in the Kurchaloy
District of the Chechen Republic. They are currently residing in the
village of Noyber, in the Gudermes District of the Chechen Republic.
The
applicants are the parents of Mr Marvan Agdulmusumovich Idalov, born
in 1985. They also have three other sons: Khizir, Vakhid and Alikhan
Idalov.
A. Disappearance of Marvan Idalov
1. The applicants' account
At
the material time Marvan Idalov was a student at a secondary school.
A certificate issued by the local authorities confirmed that Marvan
Idalov had not participated in any illegal armed groups.
According
to inhabitants of Akhkinchu-Borzoy, special military unit no. 24
of the Russian Ministry of the Defence («24-е
стрелковое
спецподразделение
МО РФ»,
hereinafter “military unit no. 24”) was based near
their village in 2002.
On
the night of 21 to 22 November 2002 the applicants and Marvan Idalov
were sleeping at their family home. Early in the morning the first
applicant went outside the house to perform an ablution.
At
about 6 a.m. an armoured personnel carrier (“APC”), an
infantry battle vehicle (“IBV”) and a Ural vehicle
arrived at the Idalovs' house; a group of armed men wearing
camouflage uniforms and masks descended from them. The first
applicant inferred that the men belonged to the Russian military.
The
servicemen started breaking the entrance door and windows. The first
applicant asked them why they were doing so. In reply the servicemen
shouted at her and forced her to enter the house.
Meanwhile
five or six servicemen broke into the house without producing any
documents or search warrants. The first applicant saw the faces of
two unmasked servicemen who had Slavic features; they spoke Russian
without an accent. The servicemen hit the second applicant, tied his
arms behind his back, forced him to the floor and pointed a machine
gun at him.
Marvan
Idalov was studying when the servicemen entered his room. They tied
his arms, put a sack on his head and took him to the street. It
appears that they then put Marvan Idalov in one of the vehicles
parked at the house and left. Some neighbours submitted that the
vehicles drove away in the direction of the base of military unit
no. 24.
2. Information submitted by the Government
According
to the decision of the district prosecutor's office of 20 December
2004 to grant the second applicant victim status in criminal case no.
44034, on 22 November 2002 at least ten unidentified armed men
wearing camouflage uniforms and masks travelling in an APC, an IBV
and a lorry with an anti-aircraft gun on it unlawfully entered the
applicants' house, kidnapped Marvan Idalov and took him away to an
unknown destination.
B. The search for Marvan Idalov and the investigation
1. The applicants' account
Immediately after their son's abduction the applicants
requested information on his whereabouts from the head of special
military unit no. 24, Mr K., who replied that the military
servicemen under his command had not carried out any special
operations in the morning of 22 November 2002 and had not apprehended
Marvan Idalov.
The applicants continued searching for their son. They
applied to various official bodies, such as the prosecutors' offices
at different levels, the departments of the interior, the
Administration of the Chechen Republic, the Russian State Duma and
the Special Envoy of the Russian President in
the Chechen Republic for Rights and Freedoms, asking to help
them to find Marvan Idalov. In their efforts the applicants were
assisted by the SRJI. It appears that those complaints were futile.
On
26 February 2003 the first applicant complained about her son's
disappearance to the military prosecutor's office of the United Group
Alignment (“the UGA prosecutor's office”).
On
27 March 2003 the military prosecutor's office of military unit
no. 20116 (“the prosecutor's office of unit no. 20116”)
sent a letter to the UGA prosecutor's office and the first applicant
concerning Marvan Idalov's disappearance. The copy of the letter
submitted to the Court is illegible.
On
31 March 2003 the prosecutor's office of unit no. 20116 sent a letter
to the UGA prosecutor's office and the second applicant concerning
Marvan Idalov's disappearance. The copy of the letter submitted to
the Court is illegible.
On
3 April 2003 the prosecutor's office of the Chechen Republic
forwarded the first applicant's complaint about her son's
disappearance to the prosecutor's office of the Kurchaloy District of
the Chechen Republic (“the district prosecutor's office”).
On
27 May 2003 the district prosecutor's office invited the first
applicant to send her queries concerning her son's kidnapping to the
prosecutor's office of unit no. 20116.
On 5 November 2003 the UGA prosecutor's office
informed the first applicant that an inquiry into her son's alleged
kidnapping by unidentified military servicemen had been carried out.
The inquiry established that on 22 November 2002 the Russian
military had not organised any special operations and had not
apprehended Marvan Idalov. No traces of military personnel
implication in Marvan Idalov's kidnapping had been found.
On
13 November 2003 the North-Caucasus Operational Department of the
Main Department of the Russian Ministry of the Interior for the
Southern Federal Circuit informed the first applicant that it had
verified the facts relating to her son's disappearance and had sent
the collected materials to the prosecutor's office of the Chechen
Republic.
On
8 December 2003 the SRJI wrote to the district prosecutor's office,
the prosecutor's office of the Chechen Republic and the prosecutor's
office of unit no. 20116, requesting them to inform it whether an
investigation into Marvan Idalov's disappearance had been instituted
and, if so, to provide details on the course of the investigation and
to grant the first applicant the status of victim of a crime.
On
2 February 2004 the prosecutor's office of the Chechen Republic
replied to the SRJI that Marvan Idalov had not been apprehended by
servicemen of the department of the interior of the Kurchaloy
District (“ROVD”) or kept in the temporary detention
facility of the ROVD. They further noted that the prosecutor's office
of unit no. 20116 had inquired into Marvan Idalov's kidnapping.
On
1 June 2004 the SRJI repeated their requests concerning Marvan
Idalov's fate to the district prosecutor's office and to the
prosecutor's office of unit no. 20116.
On
5 August 2004 the prosecutor's office of the Chechen Republic
instituted an investigation into the disappearance of Marvan Idalov
under Article 126 § 2 of the Russian Criminal Code (aggravated
kidnapping) and ordered the district prosecutor's office to assign a
number to the case file. On 6 August 2004 they informed the
first applicant accordingly and invited her to send further queries
to the district prosecutor's office.
On
4 October 2004 the SRJI wrote to the district prosecutor's office and
to the prosecutor's office of unit no. 20116, repeating their
requests of 8 December 2003 and 1 June 2004.
On
21 October 2004 the prosecutor's office of the Chechen Republic
informed the SRJI that it had instituted criminal proceedings in
relation to Marvan Idalov's disappearance and that the investigation
was under way.
On
13 November 2004 the prosecutor's office of unit no. 20116 forwarded
the SRJI's complaint about Marvan Idalov's kidnapping to the military
prosecutor's office of military unit no. 20102 (“the
prosecutor's office of unit no. 20102”) and requested that the
SRJI submit a detailed description of the crime to that office.
On
27 November 2004 the prosecutor's office of unit no. 20116 forwarded
the SRJI's complaint to the military prosecutor's office of military
unit no. 20119 (“the prosecutor's office of unit no. 20119”)
and requested that the SRJI submit a detailed description of Marvan
Idalov's kidnapping to that office.
On
26 January 2005 the district prosecutor's office granted the first
applicant victim status in case no. 44034, instituted in relation to
Marvan Idalov's kidnapping by unidentified armed persons. On the same
date the second applicant was informed of the decision to grant him
the status of victim of a crime in case no. 44034, issued by the
district prosecutor's office on an unspecified date.
On
26 March 2005 the prosecutor's office of unit no. 20116 forwarded the
SRJI's complaint about Marvan Idalov's kidnapping to the prosecutor's
office of unit no. 20102.
On
4 April 2005 the SRJI sent the prosecutor's office of unit no. 20102
information on Marvan Idalov's kidnapping as requested by the
prosecutor's office of unit no. 20116.
On
1 June 2005 the prosecutor's office of unit no. 20119 forwarded the
SRJI's letter to the prosecutor's office of unit no. 20116.
On
9 August 2005 the prosecutor's office of unit no. 20102 informed the
SRJI that there was no evidence of the implication of military
personnel in the crime and that the investigation should therefore be
carried out by a civilian prosecutor's office.
On
15 August 2005 the SRJI requested the district prosecutor's office,
the prosecutor's office of the Chechen Republic and the prosecutor's
office of unit no. 20116 to inform it of the state of the
proceedings instituted in relation to Marvan Idalov's kidnapping.
On
5 October 2005 the prosecutor's office of the Chechen Republic
informed the SRJI that the first applicant had been granted victim
status and that she would be updated on progress in the
investigation.
On
2 August 2007 the Ministry of the Interior of the Chechen Republic
forwarded the applicants' letter dated 25 July 2007 to the ROVD and
requested it to search for Marvan Idalov and his kidnappers more
actively and to inform the applicants of measures taken.
On
17 August 2007 the ROVD informed the applicants that the
investigation into the kidnapping of Marvan and Alikhan Idalov in
case no. 44034 had been commenced on 5 August 2004 and that
investigative measures were being taken to solve the crime.
On
30 August 2007 the district prosecutor's office informed the
applicants that the investigation into the kidnapping of Marvan
Idalov had been resumed on 30 September 2007.
2. Information submitted by the Government
On 13 December 2003 the district prosecutor's office
received a complaint by the first applicant dated 29 August 2003 and
addressed to the Administration of the President of Russia. According
to the complaint, on an unspecified date during the month of Sawm
unidentified men wearing camouflage uniforms and masks had entered
the Idalovs' house in the village of Akhkinchu-Borzoy and kidnapped
Marvan Idalov.
On
18 December 2003 the district prosecutor's office ordered the ROVD to
ensure the first applicant's appearance before the investigators, to
collect depositions by her relatives and to examine the scene of the
incident.
Later
the ROVD reported that the first applicant's whereabouts were unknown
and that her neighbours had no information concerning the merits of
her complaint.
On
23 January 2004 the district prosecutor's office informed the
prosecutor's office of the Chechen Republic that it was impossible to
give a decision on the first applicant's complaint owing to the
failure to establish her whereabouts or to find any evidence of the
facts complained of.
On
an unspecified date the temporary department of the interior of the
Kurchaloy District (“VOVD”) informed the district
prosecutor's office of the following. They had established that
Vakhid and Alikhan Idalov had been active members of illegal armed
groups and that Marvan Idalov had been an accomplice of insurgents.
Vakhid Idalov had been killed in June 2000 in a fight with federal
servicemen. Alikhan and Marvan Idalov had not been arrested by the
VOVD servicemen and had been hiding from the federal authorities.
Several
residents of Akhkinchu-Borzoy informed the investigation that three
of the first applicant's sons had been involved in unlawful
activities of illegal armed groups.
On 23 April 2004 the district prosecutor's office
decided on the basis of the inquiry's results to refuse to institute
criminal proceedings in the absence of any crime.
On
5 August 2004 the prosecutor's office of the Chechen Republic quashed
the decision of 23 April 2004 and ordered the district prosecutor's
office to institute an investigation into Marvan Idalov's abduction
under Article 126 § 2 of the Russian Criminal Code (aggravated
kidnapping).
On 20 December 2004 the second applicant was granted
victim status and questioned. He submitted that Marvan Idalov had
been kidnapped on 22 November 2002 by unknown persons in masks.
On 26 January 2005 the first applicant was granted
victim status and questioned. She made a statement similar to that by
her husband.
The investigators requested information from
law-enforcement agencies of the Chechen Republic and were told in
reply that Marvan Idalov had not been arrested, prosecuted or held in
any detention facilities and that no special operations had been
carried out in Akhkinchu-Borzoy on 22 November 2002.
The
Idalovs' relatives and neighbours were questioned in the course of
the investigation and submitted that they had no information
concerning the circumstances of Marvan Idalov's kidnapping.
On
15 February 2005 the district prosecutor's office suspended the
investigation in case no. 44034 concerning the kidnapping of Marvan
Idalov on 22 November 2002 on account of the failure to identify
those responsible and notified the applicants accordingly.
On
21 May 2005 the district prosecutor's office resumed the
investigation in case no. 44034 and notified the applicants
accordingly.
The
investigation in case no. 44034 was suspended on 21 June 2005 and
then resumed on 15 October 2005.
On
15 November 2005 the district prosecutor's office again suspended the
investigation.
On
30 August 2007 the district prosecutor's office resumed the
investigation in case no. 44034.
The
Government submitted a copy of an undated document entitled
“Explanation”, signed with the name of the first
applicant and addressed to the prosecutor's office of the Chechen
Republic. The document stated that in May 2000 a group of servicemen
had found bags with firearms and ammunition in a cemetery in
Akhkinchu-Borzoy near the Idalovs' house. The first applicant had
been detained for questioning for some time. Then she had found out
that her son Vakhid had been killed in unknown circumstances. In
December 2000 her son Alikhan had gone to the forest with insurgents.
Two or three months later he had returned home and started hiding
from the authorities. Then he had tried to flee the country and to go
to Turkey. The first applicant had no information on his whereabouts.
He might have been arrested by federal servicemen. At about 5.30 a.m.
on 22 November 2002 the first applicant had seen an APC, an IBV
and a vehicle fitted with an anti-aircraft gun arriving at her house.
Around ten armed men had entered the house; all the men but one had
been wearing masks, and the unmasked man was tall and had red hair.
The armed men had taken away Marvan Idalov. The first applicant had
told of the kidnapping to officials of the district prosecutor's
office whom she had seen on the VOVD premises.
The
investigation failed to identify the perpetrators. The involvement of
federal troops in the kidnapping was not proven. The investigation
was suspended several times owing to the failure to identify those
responsible and was then resumed in order to verify certain items of
information. It was pending under the supervision of the Russian
Prosecutor General's Office.
Despite
specific requests by the Court, the Government did not disclose most
of the contents of the file in criminal case no. 44034,
providing only copies of the first applicant's “explanation”,
several witnesses' interviews, decisions to grant the applicants
victim status and a few notifications to the applicants concerning
the suspension and resumption of the investigation. 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
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 ABUSE OF THE RIGHT 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 political as
the applicants wanted to accuse the Russian Federation of being a
State which allegedly carried out a policy of violation of human
rights in the Chechen Republic. The Government concluded that there
had been an abuse of the right of petition on the part of the
applicants and that the application should be dismissed
pursuant to Article 35 § 3 of the Convention.
64. The
Court observes that the complaints the applicants brought to its
attention concerned their genuine grievances. Nothing in the case
file reveals any appearance of an abuse of their right of individual
petition. Accordingly, the Government's objection must be dismissed.
II. The government's
objection regarding LOCUS
STANDI
The
Government suggested that the applicants had probably been unaware of
the contents of the application form, which had been signed not by
the applicants, but by the lawyers working for SRJI.
In
so far as the Government may be
understood to claim a lack of locus standi in
the present case, the Court observes
that the applicants gave the SRJI
powers of attorney, thus duly authorising this NGO to represent their
interests in the Strasbourg proceedings, and in particular to sign on
their behalf application forms submitted to the Registry. There are
no grounds to believe that the applicants issued those powers of
attorney against their will. Accordingly, the Government's objection
must be dismissed.
III. 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 of the disappearance of Marvan Idalov had not
yet been completed. They further argued that it had been open to the
applicants to challenge in court or before higher prosecutors any
actions or omissions of the investigating authorities, but that the
applicants had not availed themselves of that remedy. They also
argued that the applicants could have brought civil claims for
damages but had failed to do so.
The
applicants contested that objection. They stated that the criminal
investigation and other remedies 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, most recently, Cennet
Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64,
27 June 2006).
It
is incumbent on the respondent Government claiming non-exhaustion to
indicate to the Court with sufficient clarity the remedies to which
the applicants have not had recourse and to satisfy the Court that
the remedies were effective and available in theory and in practice
at the relevant time, that is to say that they were accessible, were
capable of providing redress in respect of the applicant's complaints
and offered reasonable prospects of success (see 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 the victims of illegal and criminal acts
attributable to the State or its agents, namely civil and criminal
remedies.
As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, the
Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention. A civil
court is unable to pursue any independent investigation and is
incapable, without the benefit of the conclusions of a criminal
investigation, of making any meaningful findings regarding the
identity of the perpetrators of fatal assaults or disappearances,
still less of establishing their responsibility (see Khashiyev and
Akayeva v. Russia, nos. 57942/00 and 57945/00,
§§ 119-21, 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.
As
regards the criminal-law remedies provided for by the Russian legal
system, the Court observes that the applicants complained of Marvan
Idalov's kidnapping to the law-enforcement authorities and that an
investigation into the incident has been pending since 5 August 2004.
The applicants and the Government dispute the effectiveness of this
investigation.
The Court considers that the Government's objection
regarding the criminal-law remedies raises issues concerning the
effectiveness of the investigation which are closely linked to the
merits of the applicants' complaints. Thus it considers that this
objection should be joined to the merits and falls to be examined
below.
IV. THE COURT'S ASSESSMENT OF THE EVIDENCE AND THE
ESTABLISHMENT OF THE FACTS
A. The parties' arguments
The
applicants maintained that it was beyond reasonable doubt that the
men who had taken away Marvan Idalov had been State agents. In
support of their complaint they referred to the following facts. The
kidnappers had travelled in heavy military vehicles, such as the APC
and IBV. They would have had to pass through a military checkpoint to
get to the Idalovs' house. The military vehicles had moved in the
direction of military unit no. 24. The armed men had Slavic
features and spoke unaccented Russian. The applicants asserted that
there was no proof that Marvan Idalov had ever been involved in
illegal activities.
The
Government submitted that there was no evidence that Marvan Idalov
had been kidnapped by 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' son was dead. They pointed
out that the first applicant had not lodged her first official
complaint concerning the abduction until August 2003. At some point
the first applicant had informed the investigation that on 22
November 2002 armed men wearing camouflage uniforms and masks
travelling in an APC, an IBV and a vehicle fitted with an
anti-aircraft gun had entered her house and kidnapped Marvan Idalov.
She had not mentioned that the men had been servicemen or ethnic
Russians. The Government noted that the first applicant was
surprisingly competent as she could easily distinguish an APC from an
IBV and knew what an anti-aircraft gun looked like.
According
to some villagers, the Idalovs' sons had been insurgents. Vakhid
Idalov had been killed in a fight with the federal troops; Alikhan
Idalov had gone into hiding in the forests with rebels, had then
returned home and at some point had “disappeared”. Hidden
firearms and ammunition had been found near the Idalovs' plot of
land. The fact that the first applicant had not complained to the
Court about the death and disappearance of her two other sons proved,
in the Government's view, that the Idalov brothers had participated
in illegal armed groups.
The
hypothesis of the involvement of State servicemen in Marvan Idalov's
kidnapping had not been proved. The missing man could have been
kidnapped by insurgents recruiting future rebel fighters.
The
Government noted that groups of Ukrainian,
Belarusian and ethnic Russian mercenaries had committed crimes in the
territory of the Chechen Republic; thus, the fact that the
perpetrators had Slavic features and spoke Russian did not prove
their attachment to the Russian military. They further observed that
a considerable number of weapons and armoured vehicles had been
stolen by illegal armed groups from Russian arsenals in the 1990s and
that anyone could purchase masks and camouflage uniforms.
B. The Court's evaluation of the facts
1. 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 Tanış
and Others v. Turkey, no. 65899/01, § 160, ECHR 2005 VIII).
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). 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 Tanış 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, § 32, Series A no. 336; and Avşar,
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, §§
108-11, Series A no. 241 A; 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 Tanış
and Others, cited above, § 160).
Lastly,
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 the 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 Avşar,
cited above, § 284).
2. Establishment of the facts
The
Court notes that despite its requests for a copy of the file on the
investigation into the abduction of Marvan Idalov, the Government
produced only a small part of the 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 XIII).
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' son can be presumed dead and whether his
death can be attributed to the authorities.
The
applicants alleged that the persons who had taken Marvan Idalov away
on 22 November 2002 had been State agents.
The
Government suggested in their submission that the persons who had
detained Marvan Idalov could have been insurgents wishing to recruit
the young man to an illegal armed group. 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 it very unlikely that several military vehicles
stolen by insurgents from the federal troops in the 1990s could have
moved freely through Russian military checkpoints without being
noticed. It thus finds that the fact that a large group of armed men
in uniform travelling in the APC and IBV arrived in the village of
Akhkinchu-Borzoy at 6 a.m. on 22 November 2002
strongly supports the applicants' assertion
that these were State servicemen conducting a security
operation.
The
domestic investigation also accepted factual assumptions as presented
by the applicants and took steps to check whether law-enforcement
agencies or the military had been involved in the kidnapping (see
paragraphs 22 and 52 above).
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 argue
conclusively why the documents in question cannot serve to
corroborate the allegations made by the applicants, or to provide a
satisfactory and convincing explanation of how the events in question
occurred. The burden of proof is thus shifted to the Government and
if they fail in their arguments, issues will arise under Article 2
and/or Article 3 (see Toğcu v. Turkey, no. 27601/95,
§ 95, 31 May 2005; and Akkum and Others v. Turkey,
no. 21894/93, § 211, ECHR 2005 II).
Taking
into account the above elements, the Court is satisfied that the
applicants have made a prima facie case that their son was
apprehended by State servicemen. The Government's statement that the
investigation did not find any evidence to support the involvement of
the military or law enforcers 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 Marvan Idalov was apprehended on 22 November 2002 by State
servicemen during an unacknowledged security operation.
There
has been no reliable news of Marvan Idalov since the date of the
kidnapping. His name has not been found in any official detention
facilities' records. Lastly, the Government did not submit any
explanation as to what had happened to him after his arrest.
Having
regard to the previous cases concerning disappearances of persons in
the Chechen Republic which have come before the Court (see, among
others, Imakayeva, cited above; Luluyev and Others
v. Russia, no. 69480/01, ECHR 2006 XIII; Baysayeva
v. Russia, no. 74237/01, 5 April 2007; Akhmadova and
Sadulayeva v. Russia, cited above; 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 Marvan Idalov or any news of him for
almost seven years supports this assumption.
Accordingly,
the Court finds that the evidence available permits it to establish
that Marvan Idalov must be presumed dead following his unacknowledged
detention by State servicemen.
V. 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 of the matter. Article 2 reads:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. The parties' submissions
The
Government contended that the domestic investigation had obtained no
evidence to the effect that Marvan Idalov was dead or that any
servicemen of the federal law-enforcement agencies had been involved
in his kidnapping or alleged killing. The Government 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 delay
in commencing the investigation was attributable to the first
applicant as she had officially reported the crime only in August
2003 and not to a prosecutor's office, but to the President's
Administration. The first applicant had allegedly mentioned the crime
to officials from a prosecutor's office, whom she had seen on the
VOVD premises, but their identities remained unknown. Furthermore,
the Idalovs had moved out of Akhkinchu-Borzoy and thus impeded the
investigation. The first applicant had a right of access to
non-confidential case documents. The prosecutors' offices dealing
with the case were independent and impartial.
The
applicants argued that Marvan Idalov had been detained by State
servicemen and should be presumed dead in the absence of any reliable
news of him for almost seven 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 of
the Convention. They had verbally informed the authorities of Marvan
Idalov's kidnapping immediately after the crime, but had not
considered it necessary to lodge written complaints owing to their
lack of legal background. In any event, the first written reply to
their complaints had been sent by the prosecutor's office of unit no.
20116 on 27 March 2003, which proved that the applicants had
complained before that date. The applicants pointed out that the
investigating authorities had not tried to establish the owners of
the APC and IBV or to question the servicemen of military unit no.
24. The investigation had several times been suspended and then
resumed, which illustrated its ineffectiveness. 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 should be
joined to the merits of the complaint (see paragraph 74 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 Marvan Idalov
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, 27 September 1995, §§
146-47, Series A no. 324; and Avşar, cited
above, § 391).
The
Court has already found it established that the applicants' son must
be presumed dead following his unacknowledged detention by State
servicemen and that the 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 Marvan Idalov.
(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, § 161; and Kaya v. Turkey, 19 February 1998,
§ 86, Reports of Judgments and Decisions 1998 I).
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,
§§ 105-09, ECHR 2001 III; and Douglas-Williams v.
the United Kingdom (dec.), no. 56413/00, 8 January
2002).
In
the present case, the kidnapping of Marvan Idalov 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 most of the documents from the
investigation were not disclosed by the Government. It therefore has
to assess the effectiveness of the investigation on the basis of the
few documents submitted by the parties and the information about its
progress presented by the Government.
The
Court observes that the applicants submitted that they had verbally
reported Marvan Idalov's abduction to the investigating authorities
immediately after 22 November 2002 (see paragraphs 15 and 16 above).
The investigation in case no. 44034 was instituted on 5 August 2004,
that is, one year, eight months and thirteen days after the crime.
The
Government attributed the delay in commencing the investigation to
the applicants, arguing that the first applicant had filed a
complaint with the President's Administration only on 29 August 2003.
The Court is not in a position to establish whether the applicants
visited any law-enforcement authorities immediately after 22 November
2002 in the absence of any material evidence of such a visit or to
the contrary, but it does not deem it necessary to go into such
details for the following reason. In December 2003 the district
prosecutor's office received the first applicant's complaint of 29
August 2003 (see paragraph 42 above); it refused to investigate the
kidnapping in the absence of any crime as late as April 2004 (see
paragraph 48 above). The investigation commenced only after that
decision had been quashed by the prosecutor's office of the Chechen
Republic. The Government provided no explanation whatsoever of the
fact that the district prosecutor's office had not taken any
procedural decision on a report of a serious crime for more than four
months.
The
Court is not persuaded that the applicants' move to another village
within the territory of the Chechen Republic indeed impeded the
investigation as suggested by the Government. Moreover, it does not
accept the Government's argument that the first applicant should have
applied not to the President's Administration but to the district
prosecutor's office. It reiterates in this connection that the
issue of whether the applicants have lodged a formal complaint about
their son's disappearance with the competent investigating
authorities is not decisive since the authorities' mere
knowledge of a kidnapping in life-threatening circumstances gives
rise ipso facto to an obligation under Article 2 of the
Convention to carry out an effective investigation into the
circumstances surrounding the incident (see, mutatis mutandis,
Ergi v. Turkey, 28 July 1998, § 82, Reports of
Judgments and Decisions 1998 IV; and Yaşa v. Turkey,
2 September 1998, § 100, Reports of Judgments and
Decisions 1998 VI).
Accordingly,
the Court finds that the investigating authorities should be held
responsible for the delay in commencing the investigation between 29
August 2003 and 5 August 2004. In the Court's view, this significant
delay was in itself liable to affect the investigation of the
kidnapping in life-threatening circumstances, where crucial action
has to be taken in a timely fashion.
Furthermore,
the Court notes that even after the commencement of the proceedings
certain requisite investigating measures were delayed. For example,
it appears reasonable to assume that the applicants, being the
parents of the missing young man and eyewitnesses to his abduction,
should have been considered key witnesses in the criminal case.
However, the investigators questioned them for the first time several
months after the proceedings had been instituted (see paragraphs 50
and 51 above). It is obvious that these interviews, if they were to
produce any meaningful results, should have been conducted as soon as
the investigation had commenced. Such delays, for which there has
been no explanation in the instant case, not only demonstrate the
authorities' failure to act of their own motion but also constitute a
breach of the obligation to exercise exemplary diligence and
promptness in dealing with such a serious crime (see Paul and
Audrey Edwards v. the United Kingdom, no. 46477/99, § 86,
ECHR 2002 II).
The
Court also points out that some crucial investigative steps have
apparently not been taken. In particular, nothing in the material in
the Court's possession suggests that the district prosecutor's office
has ever tried to question the servicemen of military unit no. 24 who
were based near the applicants' home village or to establish the
owner of the APC and IBV that allegedly moved around Akhkinchu-Borzoy
on 22 November 2002.
The
Court also notes that even though the applicants were eventually
granted victim status in case no. 44034, they were only informed of
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 legitimate interests of the next
of kin of the victim in the proceedings (see Oğur v. Turkey
[GC], no. 21594/93, § 92, ECHR 1999 III).
Lastly,
the Court notes that the investigation in case no. 44034 was
suspended and then resumed at least three times and that no
proceedings whatsoever were pending between 15 November 2005 and 30
August 2007.
The
Court will now examine the limb of the Government's objection that
was joined to the merits of the complaint (see paragraph 74 above).
Inasmuch as it concerns the fact that the domestic investigation is
still pending, the Court notes that the authorities' failure to take
necessary and urgent investigative measures undermined the
effectiveness of the investigation in its early stages. Moreover, 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 actions or omissions of investigating
authorities before a court. Besides, given that the effectiveness of
the investigation had already been undermined, it is highly doubtful
that the remedy relied on would have had any prospects of success.
Accordingly, the Court finds that the criminal-law remedies relied on
by the Government were ineffective in the circumstances and rejects
their 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 Marvan Idalov, in
breach of Article 2 of the Convention in its procedural aspect.
VI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants complained that as a result of their son's disappearance
and the State's failure to investigate it properly they had endured
moral suffering in breach of 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
investigation had not established that the applicants had been
subjected to inhuman or degrading treatment prohibited by Article 3
of the Convention.
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 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; and
Imakayeva, cited above, § 164).
In
the present case the Court notes that the applicants are the parents
of the missing man. For almost seven years they have not had any news
of Marvan Idalov. During this period the applicants have applied to
various official bodies with enquiries about their son. Despite their
attempts, the applicants have never received any plausible
explanation or information as to what became of Marvan Idalov
following his kidnapping. The responses received by the applicants
mostly denied that the State was responsible for his abduction or
simply informed them that an investigation was ongoing. 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
of the Convention.
The
Court therefore concludes that there has been a violation of Article
3 of the Convention in respect of the applicants.
VII. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicants further stated that Marvan Idalov 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 Marvan Idalov 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 and Others, cited above, § 122).
The Court has found it established that Marvan Idalov
was apprehended by State servicemen on 22 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).
In
view of the foregoing, the Court finds that Marvan Idalov 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.
VIII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants complained that they had been deprived of effective
remedies in respect of the aforementioned violations, contrary to
Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
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 had
not been prevented from using them. The applicants had had an
opportunity to challenge the actions or omissions of the
investigating authorities in court pursuant to Article 125 of the
Russian Code of Criminal Procedure or to bring civil claims for
damages.
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, 25 June 1997, § 64, Reports of
Judgments and Decisions 1997 III).
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, 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 has been ineffective and the
effectiveness of any other remedy that may have existed, including
the civil remedies suggested by the Government, has consequently been
undermined, the State has failed in its obligation under Article 13
of the Convention.
Consequently,
there has been a violation of Article 13 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' moral suffering as a result of the
disappearance of their son, 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.
141. 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. In view of its
above findings of a violation of Article 5 of the Convention
resulting from the unacknowledged detention of Marvan Idalov, 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 VIOLATIONS OF ARTICLE 14 OF THE CONVENTION
In
their initial application form the applicants stated that they had
been discriminated against on the grounds of their ethnic origin in
breach of Article 14 of the Convention, which provides:
“The enjoyment of the rights 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 20 December 2007 the
applicants stated that they no longer wished their complaints 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. Damage
The
applicants did not submit any claims for pecuniary damage. As regards
non-pecuniary damage, the applicants claimed 50,000 euros (EUR) each
for the suffering they had endured as a result of the loss of their
son, the indifference shown by the authorities towards them and the
failure to provide any information about the fate of Marvan Idalov.
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' son. 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.
Accordingly, it finds it appropriate to award under this head the
applicants EUR 35,000 jointly, plus any tax that may be
chargeable on that amount.
B. 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 at
rates of EUR 50 and EUR 150 per hour. They also claimed international
courier mail fees and translation fees, as confirmed by relevant
invoices, and administrative expenses unsubstantiated by any
evidence. The aggregate claim in respect of costs and expenses
related to the applicants' legal representation amounted to EUR
7,263.88.
The
Government disputed the reasonableness and the justification of the
amounts claimed under this head. They also submitted that the
applicants' claims for just satisfaction had been signed by six
lawyers, whereas two of them had not been mentioned in the powers of
attorney issued by the applicants. They also doubted that it had been
necessary to send the correspondence to the Registry via courier
mail.
The
Court points out that the applicants had given authority to act to
the SRJI and its six lawyers. The applicants' observations and claims
for just satisfaction were signed by six persons in total. The names
of four of them appeared in the powers of attorney, while two other
lawyers collaborated with the SRJI. In such circumstances the Court
sees no reason to doubt that the six lawyers mentioned in the
applicants' claims for costs and expenses took part in the
preparation of the applicants' observations. Moreover, there are no
grounds to conclude that the applicants were not entitled to send
their submissions to the Court via courier mail.
The
Court has now to establish whether the costs and expenses indicated
by the applicants' relative were actually incurred and whether they
were necessary (see McCann and Others, cited above, §
220).
Having
regard to the details of the information before it, the Court is
satisfied that these rates are reasonable and reflect the expenses
actually incurred by the applicants' representatives.
Further,
it has to be established whether the costs and expenses incurred for
legal representation were necessary. The Court notes that this case
was rather complex and required a certain amount of research and
preparation. It notes at the same time that, owing 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. Moreover, the case involved little
documentary evidence, in view of the Government's refusal to submit
most of the case file. The Court thus doubts that legal drafting was
necessarily time-consuming to the extent claimed by the
representatives.
Having
regard to the details of the claims submitted by the applicants, the
Court finds it appropriate to award the applicants' representatives
EUR 4,500, less EUR 850 received by way of legal aid from
the Council of Europe, plus any tax that may be chargeable to the
applicants, the award to be paid into the representatives' bank
account in the Netherlands, as identified by the applicants.
C. 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 regarding
abuse of the right of petition;
Dismisses the Government's objection regarding
locus standi;
Decides to join to the merits the
Government's objection regarding non-exhaustion of criminal domestic
remedies and rejects it;
Declares the complaints under Articles 2, 3, 5
and 13 of the Convention admissible;
Holds that there has been a violation of
Article 2 of the Convention in respect of Marvan Idalov;
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 Marvan
Idalov disappeared;
8. 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 Marvan Idalov;
10. 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;
11. 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 35,000
(thirty-five thousand euros) in respect of non-pecuniary damage to
the 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
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;
Dismisses the remainder of the applicants'
claim for just satisfaction.
Done in English, and notified in writing on 5 February 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President