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Cite as: [2009] ECHR 674

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FIRST SECTION

CASE OF KHACHUKAYEV v. RUSSIA

(Application no. 28148/03)

JUDGMENT

STRASBOURG

23 April 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 Khachukayev 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 2 April 2009,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 28148/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Saydamin Mumadovich Khachukayev (“the applicant”), on 25 July 2003.

The applicant, who had been granted legal aid, was represented by Mr D. Itslayev, a lawyer practising in Nazran. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their new representative, Mr G. Matyushkin.

The applicant alleged that his son been killed following his detention by Russian servicemen in Chechnya. He referred to Articles 2, 5, 13 and 38 of the Convention.

By a decision of 18 September 2008, the Court declared the application partly admissible.

The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1927 and lives in Goyty, Urus-Martan district, Chechnya.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is the father of Murad Khachukayev, born in 1974. At the material time they lived, along with the applicant’s daughter and other two sons and their family members, in a private household comprising two houses at 141 Kirova Street in the village of Goyty (in the submitted documents the village is also referred to as Goyskoye), in the Urus-Martan District, Chechnya. The village was under curfew.

Abduction of Murad Khachukayev

1. Information submitted by the applicant

The applicant’s account of events was based on his statements as well as on eyewitness statements from his daughter, two daughters-in-law and youngest son.

On the night of 4-5 February 2003 the applicant, his elder son with his wife and their two children, the applicant’s daughter and daughter-in-law were sleeping in one of their houses, while Murad Khachukayev and the applicant’s youngest son were sleeping in the other one, situated in the same courtyard.

Around 2.30 a.m. a group of about fifteen masked men in camouflage uniform broke into the applicant’s house. The intruders had machine-guns, ammunition belts (“разгрузка”), sniper rifles and torches. They did not produce identity papers or any documents to justify their actions and gave no explanations. According to the applicant, the intruders were Russian military servicemen, as they spoke unaccented Russian and were able to circulate freely during the curfew.

The applicant was woken by the noise and attempted to get up, but was ordered to remain in bed. Two intruders pointed their machine guns at him. He asked them what they intended to do and in response they told him to go to sleep. From his bed the applicant saw that there were other armed men in the house.

Three men entered the room in which the applicant’s daughter and one of his daughters-in-law were sleeping. They told the women that it was a passport check and ordered them to remain in their beds and not to move. Then two of them aimed their machine guns at the women, while the third searched the room, acting quickly and quietly and in a professional manner. The intruders also asked the applicant’s daughter, who was in the other house at the time, and she replied that her two brothers were sleeping there. About five minutes later the men left the room, having warned the women to stay inside, as the house was surrounded by snipers.

Two intruders entered the room occupied by the applicant’s elder son, his wife and their two children. The applicant’s daughter-in-law woke up and the men told her that it was a passport check. They pointed their machine guns at the applicant’s elder son, who was still asleep, and asked the applicant’s daughter-in-law whether there were any firearms in the house. She answered in the affirmative and gave them a pistol belonging to her husband, who was an officer of a law enforcement agency. The intruders enquired why there were firearms in the house and the applicant’s daughter-in-law replied that it was her husband’s service gun. Thereafter the men asked who was in the other house, and the applicant’s daughter-in-law replied that two of her husband’s brothers were sleeping there. The intruders also ordered the applicant’s daughter-in-law to produce her husband’s identity papers. When she did so, one of the men took the documents away and showed them to someone in the street. Shortly after he returned and gave the papers back. The intruders then disassembled the service gun of the applicant’s elder son and put it in a plastic bag, stating that they had done so to ensure that the Khachukayevs would not shoot them in the back.

A group of three or four men forcibly entered the other house, occupied by Murad Khachukayev and the applicant’s youngest son. They ordered the latter to get up and stand against the wall and checked his documents. Thereafter they ordered Murad Khachukayev to lie face down on the floor and checked his identity papers as well. The men also quickly searched the house. After that they ordered Murad Khachukayev to follow them and took him away, stating that he should show them his neighbours.

According to the applicant, he went out to the yard to check what the intruders were doing in the house where his two sons were sleeping. One of the intruders shouted at him that there were snipers around. It was cold outside and the applicant went back to get some warm clothes. He returned to the yard a few minutes later, but the intruders had already left. The applicant’s youngest son told him that they had taken Murad Khachukayev away. The applicant rushed inside and woke up his elder son. They immediately went to the village administration, but there were only security guards there, who told them that it was too early in the morning and advised them to wait until working hours.

2. Information submitted by the Government

The Government did not challenge most of the facts as presented by the applicant. They stated that it had been established that “on the night of 5 February 2003 unidentified persons in camouflage uniform and masks, armed with automatic firearms, abducted M.S. Khachukayev from house no. 141, Kirova Street in the village of Goyty, in the Urus-Martan district of Chechnya”.

B. Search for Murad Khachukayev and discovery of his remains

In the morning of 5 February 2003 the applicant and his relatives found numerous footprints on the snow in their yard and around their household in the street. The footprints led in the direction of the village bakery. According to one of the applicant’s daughters-in-law, the servicemen who had raided their house that night had been out of breath and she concluded that they had reached their house on foot from some distance away. Several days later she talked to three other residents of Goyty who had seen two military UAZ vehicles parked near the bakery on the night of the abduction. The first witness had seen the UAZ vehicles close to the bakery in Goyty; the second and third witnesses had seen the vehicles in the western part of the village at about 4 a.m. on 5 February 2003. The vehicles were leaving Goyty and were about to cross the checkpoint of the Russian federal forces in the eastern part of Urus-Martan.

After communication of his application to the respondent Government, the applicant submitted to the Court the names and addresses of the witnesses who had provided this information. The witnesses requested not to have their names transmitted to the Government, out of fear for their personal safety, but they were ready to provide their accounts to the Court on conditions of anonymity.

The applicant asked his family members and neighbours to preserve the footprints in order to enable the authorities to conduct a crime scene examination and collect evidence. After that the applicant and his elder son went to Urus-Martan and complained to the Urus-Martan district prosecutor’s office (the district prosecutor’s office), the Urus-Martan district department of the interior (the ROVD) and the Urus-Martan district military commander’s office (the military commander’s office) that Murad Khachukayev had been unlawfully abducted. According to the applicant, all these law-enforcement bodies stated that they had not detained his son and that they had no information as to the latter’s whereabouts, and refused to take any measures in connection with his complaints.

During the next five days the applicant continued the search for his son. Every day he requested the authorities orally and then in writing to inform him about the reasons for his son’s apprehension or to commence an investigation, if Murad Khachukayev had been kidnapped by unknown persons. No measures had been taken.

On 10 February 2003 the applicant spoke with a resident of Goyty, who informed him that a shepherd who had been tending cattle in the abandoned orchard (known as the Michurina orchard or the Michurina district orchard) on a State collective farm near the road between Goyty and Urus-Martan had seen a fresh hole in the ground and human remains which had apparently been blown up. According to the applicant, the Russian mass media reported a number of incidents when the remains of blown-up corpses of persons detained by federal servicemen had been found on the said collective farm. In support of these allegations he submitted a copy of an article ‘Chechnya: after order no. 80’ (‘Чечня: после приказа № 80’) from a national weekly newspaper, Novaya Gazeta, dated 29 April-5 May 2002.

On the same day the applicant and his elder son met the shepherd, who accompanied them to the place where the remains had been discovered, which was about 20 metres from the road. The shepherd told them that he had discovered this site on 5 February 2003. The applicant saw a hole measuring approximately 1.5 m. in diameter and 1 m. in depth, with small fragments of a human body all around. The remains looked as though the body had been torn apart by an explosion. The applicant examined the hole and found several pieces of bone, a lock of hair and the lower part of a right leg with a woollen sock, a striped cotton sock and a burnt boot on it. He identified the socks and the boot as belonging to his son, Murad Khachukayev. The other fragments of the corpse of the applicant’s son, who had weighed 120 kg when he was alive, were too small and therefore unidentifiable. Some time later the applicant found out that a number of residents of Urus-Martan and the nearby villages had heard the explosion on the night of his son’s abduction.

The applicant and his relatives buried the remains shortly thereafter. It does not appear that they took photographs of the remains before the burial or contacted any authority or medical doctors about this matter.

Official investigation into the events

1. Information submitted by the applicants

Following the discovery of Murad Khachukayev’s remains, the applicant repeatedly applied, both orally and in writing, to prosecutors at various levels. He referred to his son’s abduction, asked for assistance and details of the investigation and complained that the investigating authorities were taking no action. Mostly he received formal responses informing him that his requests had been forwarded to prosecutor’s offices at a lower level for examination.

On 12 February 2003 the district prosecutor’s office instituted a criminal investigation into Murad Khachukayev’s abduction under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was assigned the number 34023. The applicant was informed about this decision on 18 February 2003.

On 12 February 2003 the investigators conducted a scene of crime examination of the place where the remains had been discovered. As a result, portions of the clothing and two metal objects had been collected for analysis. The scene of crime examination at the applicant’s house was conducted thirteen months later (see paragraph 44 below).

On 21 February 2003 the applicant was granted victim status in the criminal case.

On 4 March 2003 ballistics analysis (взрывотехническая экспертиза) established that one of the metal objects collected by the investigators from the place of the discovery of Murad Khachukayev’s remains had been a shell splinter and the other had not been a part of an explosive device. The applicant was not informed about this investigative measure.

On 7 April 2003 forensic analysis of Murad Khachukayev’s remains concluded that it was impossible to establish the cause of his death. The applicant was not informed about this investigative measure.

On 12 April 2003 the investigators suspended the investigation in criminal case no. 34023 owing to the failure to establish the identity of the perpetrators. The applicant was informed about this decision on 16 April 2003.

On 23 June 2003 the investigators reopened the investigation in criminal case no. 34023 at the applicant’s request. The applicant was informed about this decision on 24 June 2003.

On 23 July 2003 the investigators suspended the investigation in the criminal case for failure to establish the identity of the perpetrators. The applicant was informed about this decision on the same date.

On 14 August 2003 the investigators reopened the investigation in the criminal case due to “significant incompleteness of the investigation conducted”. The applicant was informed about this decision on 15 August 2003.

On 15 September 2003 the investigators suspended the investigation in the criminal case for failure to establish identity of the perpetrators. The applicant was informed about this decision on the same date.

On 9 December 2003 the investigators reopened the investigation in the criminal case “due to incompleteness of the investigation conducted”. The applicant was informed about this decision on the same date.

By a letter of 16 December 2003 the Chechnya prosecutor’s office informed the applicant that on 9 December 2003 the investigation into his son’s abduction had been resumed and that “the investigative actions aiming at establishing Murad Khachukayev’s whereabouts and identifying the identity of the alleged perpetrators were under way”.

On 21 December 2003, during questioning by the investigators, the applicant reiterated that he had found his son’s remains and identified them by the fragments of clothes and footwear.

On 26 December 2003 the investigators informed the applicant that the investigation in the criminal case had taken all measures possible in the absence of those to be charged with the crime.

On 9 January 2004 the investigators suspended the investigation in the criminal case for failure to establish the identity of the perpetrators. According to the applicant, on 5 May 2004 an official of the Goyty village administration gave him a letter from the district prosecutor’s office dated 9 January 2004, by which the applicant was informed that the investigation in case no. 34023 had been suspended on the same date for failure to establish the identity of the perpetrators.

On 26 February 2004 the Department of the Prosecutor General’s office in the Southern Federal Circuit (Управление Генеральной прокуратуры РФ в Южном федеральном округе) forwarded the applicant’s request for information about the investigation in criminal case no. 34023 to the Chechnya prosecutor’s office for examination.

On 4 March 2004 the Chechnya prosecutor’s office informed the applicant that his complaint concerning the abduction of Murad Khachukayev and the subsequent discovery of the latter’s remains had been examined and that the search for the perpetrators was under way.

On 5 March 2004 the investigators resumed the investigation in criminal case no. 34023. The decision stated, inter alia, that “on 12 February 2003 in an orchard located four km from Urus-Martan in the direction of Goyty, fragments of a human body were discovered. The relatives [of the disappeared] identified M.S. Khachukayev from these fragments by the remaining footwear and portions of clothing” and further stated that “[the decision to suspend the investigation] was unsubstantiated and should be overruled and the criminal case should be returned for additional investigation”. On the same date the letter informing the applicant about this decision was forwarded to his address.

On 13 March 2004 the investigators conducted a scene of crime examination at the applicant’s house.

On 5 April 2004 the Urus-Martan prosecutor’s office suspended the investigation in the criminal case for failure to establish the identity of the perpetrators. It appears that the applicant was not informed about this decision.

On 6 May 2004 the applicant lodged a complaint against the investigators with the Urus-Martan Town Court (the Town Court). He challenged the decision of 9 January 2004 to suspend the investigation and requested the court to order the investigators to resume the criminal investigation, carry it out in a thorough and effective manner, take a number of necessary investigative measures and provide him with access to the case file. The applicant also complained that the investigators had failed to reply to his previous request.

On 14 May 2004 the Town Court ordered the investigators to reply to the applicant’s request and dismissed the remainder of his complaint.

On 24 August 2004, on an appeal by the applicant, the Chechnya Supreme Court quashed the decision of 14 May 2004 and remitted the case to the first-instance court for a fresh examination.

At the end of August 2004 the applicant wrote to the Town Court and the district prosecutor’s office with requests to resume the investigation, take necessary investigative measures and verify the theory that the federal forces had been involved in the abduction and murder of his son. In respect of the latter the applicant referred to a number of measures that could have been taken by the investigators. He also requested to be provided with access to the criminal case file.

On 25 September 2004 the investigators resumed the investigation in the criminal case. On the same date a letter informing the applicant about this decision was forwarded to his address.

On 29 September 2004 the Town Court dismissed the applicant’s complaint. It stated that despite all possible measures the authorities had been unable to establish the identity of the culprits, that the criminal investigation had been reopened on 25 September 2004, and that until it was complete the applicant could not be provided with access to the investigation file.

On 25 October 2004 the investigators suspended the investigation in the criminal case owing to the failure to establish the perpetrators. On the same date a letter informing the applicant about this decision was forwarded to his address. According to the applicant, he did not receive the letter and only at some point in June 2005 did the investigators inform him in reply to his oral request that the criminal proceedings in case no. 34023 had been suspended.

On 27 October 2004 the Chechnya Supreme Court quashed the Town Court’s decision of 29 September 2004 and remitted the case for a fresh examination.

On 1 December 2004 the Town Court allowed the applicant’s complaint in part and ordered the prosecutor’s office to resume the criminal proceedings and to carry out a complete and effective investigation. The court rejected the applicant’s request for access to the case file, stating that the investigation was still in progress.

On 25 January 2005 the Chechnya Supreme Court upheld the decision of 1 December 2004 on appeal, noting that the refusal to provide the applicant with access to the investigation file did not violate his constitutional or procedural rights, as “he had not been refused access to the criminal case file in general, but only until the completion of the preliminary investigation”.

On 21 September 2005 the applicant wrote to the district prosecutor requesting information about the progress of the investigation in the criminal case and asking for it to be resumed.

On 2 June 2006 the applicant wrote again to the district prosecutor requesting information about the progress of the investigation in the criminal case.

On 5 June 2006 the district prosecutor’s office resumed the investigation in case no. 34023. On the same date a letter informing the applicant about this decision was forwarded to his address.

On 5 June 2006 the district prosecutor’s office instituted a criminal investigation under Article 105 § 2 of the Criminal Code (aggravated murder) in connection with the discovery of Murad Khachukayev’s remains. The decision stated that “in the course of the investigation of criminal case no. 34023 opened on 12 February 2003 in connection with the abduction of Murad Khachukayev on 5 February 2003 from the village of Goyty in the Urus-Martan district of Chechnya, it was established that the corpse of the said person with signs of violent death had been discovered on 12 February 2003 in the orchards located near the village of Goyty in the Urus-Martan district”. The criminal case was assigned number 57031.

On the same date the Urus-Martan prosecutor’s office joined the investigation in criminal case no. 34023 with the investigation in case no. 57031. The joined criminal case was assigned number 34023.

On 6 June 2006 the applicant was questioned by the investigation in criminal case no. 34023.

On 13 June 2006 the applicant’s two relatives were questioned by the investigators.

On 5 July 2006 the investigators suspended the investigation in the criminal case for failure to establish the identity of the perpetrators.

On 27 July 2006 the investigators reopened the investigation in criminal case no. 34023. The applicant was not informed about this decision.

At some point in 2008 the investigation of criminal case no. 34023 was transferred from the Urus-Martan district prosecutor’s office to the Achkhoy-Martan district prosecutor’s office.

On 27 May 2008 the investigators exhumed Murad Khachukayev’s remains for a post-mortem examination. The applicant was not informed about the results of the examination.

2. Information submitted by the Government

Referring to the information provided by the Prosecutor General’s office, the Government submitted that the applicant’s first complaint that his son had been abducted had been received by the district prosecutor’s office on 11 February 2003, that the criminal case in this respect had been instituted on 12 February 2003 under Article 126 § 2 of the Criminal Code (aggravated kidnapping) and that it had been assigned number 34023. In connection with the discovery on 12 February 2003 of fragments of a human body which, according to the relatives, was that of Murad Khachukayev, the district prosecutor’s office opened criminal case no. 57031 under Article 105 § 2 of the Criminal Code (aggravated murder). The investigation of this case had been joined with the investigation in criminal case no. 34023.

On 12 February 2003 the investigation questioned witness Mr A.E., who stated that he had been present during the examination of the place of discovery of the remains and identified them as belonging to his cousin Murad Khachukayev. In addition, the investigation questioned five witnesses who had been present in the applicant’s house during Murad Khachukayev’s abduction and who had confirmed that their relative had been taken away by unidentified persons. The Government submitted that although the applicant and his relative had information about the two UAZ vehicles driving around in the village on the night of the abduction, they had failed to provide this information to the investigation.

On 21 February 2003 the applicant was granted victim status in the criminal case and questioned about the circumstances of his son’s abduction. According to his account, on 5 February 2003 a group of unidentified armed men had broken into his house and taken away his son; on 12 February 2003 he had found out about the discovery of the fragments of his son’s body near the village of Goyskoye.

According to the information from the Prosecutor General’s office, the investigative authorities undertook, inter alia, the following measures: on 12 February 2003 they had examined the place where the remains were discovered and, as a result, had collected portions of the clothing and two metal objects for analysis. On 4 March 2003 ballistics analysis had established that one of these metal objects was a shell splinter and that the other was not part of an explosive device. According to the forensic expert evaluation of Murad Khachukayev’s remains, dated 7 April 2003, it had been impossible to establish the cause of his death.

According to the Government, the newspaper article submitted by the applicant about the discovery of several corpses in the Urus-Martan district had no connection with the applicant’s case; no criminal proceedings had been initiated in connection with these discoveries. The Government submitted that in June 2002 four other corpses had been found in the orchards on the outskirt of Urus-Martan; however, these corpses had not been blown up and were the subject of a separate criminal investigation.

On 5 July 2006 the investigation in the criminal case was suspended and on 27 July 2006 it was resumed.

On 31 July 2006 the investigators questioned the applicant’s relative Mr A.E., who stated that on 6 February 2003 the applicant had told him that a group of unidentified men had abducted his son. On 12 February 2003 a resident of Urus-Martan had told him about the discovery of human remains in the orchard in Michurina district and that these remains had been identified as those of Murad Khachukayev.

On 2 August 2006 the investigators questioned Mr A.D. and Mr A.Kh., and on 15 December 2006 they questioned Mr G.A. Each of the witnesses provided a statement similar to the one given by Mr A.E. On unspecified dates the investigators also questioned Mr Z.D., Mr A.Kh., Mr Kh.Kh. and Mr T.A., who also provided similar statements.

On 25 August 2006 the investigators questioned Mr I.P., who stated that on 12 February 2003 when he had been tending cattle in the orchard in Michurina district he had found human remains and had informed the central mosque about it. On the following day Murad Khachukayev’s relatives had visited him and he had showed them where he had found the remains.

On 12 December 2006 the investigators requested the ROVD to establish the identity of additional witnesses to Murad Khachukayev’s abduction. According to the ROVD, they failed to establish the identity of additional witnesses.

On 19 May 2008 the investigation of the criminal case was transferred to the Achkhoy-Martan district prosecutor’s office.

On 20 May 2008 the investigators requested the district military commander to inform them whether a curfew was in force in Goyty on 5 February 2003. According to his response, no such information was available.

On 24 May 2008 the investigators again questioned the applicant, who stated that he could not remember the individual features of his son’s abductors; that some time after his son’s abduction human remains had been discovered on the outskirt of Goyty; that he and his relatives had identified them as belonging to Murad Khachukayev by the remaining pieces of clothing; that they had buried the remains in a local cemetery and that he could not give his permission for the exhumation of his son’s remains because of his religious beliefs; that he had not seen military vehicles next to his house on the night of the abduction; that he did not remember who had told him that the abductors had arrived in UAZ vehicles, and that he had not complained about his son’s abduction to the head of the ROVD or the district military commander.

On 25 May 2008 the investigators forwarded requests for information to a number of law enforcement agencies. According to the response received from the Central Archives of the Internal Troops of the Ministry of the Interior, no special operations aimed at the detention of Murad Khachukayev had been conducted in Goyty on 4-5 February 2003.

On 2 June 2008 the applicant gave consent for the exhumation of Murad Khachukayev’s remains.

The Government further submitted that on 9 June 2008 the investigation of the criminal case was being conducted by a group of investigators from the public prosecutor’s office and the military prosecutor’s office of the United Group Alignment (the UGA).

On 17 June 2008 the investigators questioned Mr S.-M.M., who stated that at the material time he had been the head of the ROVD. He remembered that the applicant’s son had been abducted and that in spite of the investigators’ efforts it had been impossible to establish the identity of the culprits. Around the same time the investigators had forwarded requests for information concerning the whereabouts of Murad Khachukayev to various law enforcement agencies in Chechnya; they had identified and questioned a number of witnesses but had failed to obtain any meaningful information. According to the witness, on 5 February 2003 the Urus-Martan area was under curfew and representatives of law enforcement agencies or the military could not move around freely without the permission of the local military commander.

On 25 June 2008 the investigators exhumed the remains of Murad Khachukayev from the cemetery on the outskirt of Goyty. The applicant was present during the procedure. On the same date the investigators took samples of the applicant’s blood and decided to conduct a DNA test of the remains to establish whether there was a blood relationship between them and the applicant. According to the Government, as of February 2009 the testing has not yet been completed.

On 27 June 2008 the investigators questioned the current head of the Goyty village administration, Mr A.D., who stated that in 2003 unidentified armed men had abducted Murad Khachukayev, and that some time later human remains had been found and the applicant and his relatives had identified them as belonging to Murad Khachukayev. The witness gave a good character reference to Murad Khachukayev and stated that the latter had not participated in illegal activities against the federal forces.

On 15 August 2008 the investigators questioned Mr A. Dzh., who had been the head of the Goyty village administration at the material time. His statement concerning the events in 2003 was similar to that of Mr A.D.

According to the Government, the criminal case file did not contain any evidence demonstrating that a special operation had been conducted on the night of 4-5 February 2003 in Goyty.

The Government further submitted that the theory of the involvement of special forces (спецподразделений) in the abduction of Murad Khachukayev had not been confirmed by the investigation. According to the information obtained from various departments of the Ministry of the Interior (the MVD), the Federal Security Service (the FSB) and other law enforcement agencies, they had not detained Murad Khachukayev, had never opened any criminal proceedings against him and had not placed him in detention.

Finally, the Government submitted that although the investigation had failed to establish the identity of the perpetrators of Murad Khachukayev’s abduction and murder, it was still in progress.

3. The Court’s requests to submit the investigation file

When the application was communicated to the respondent Government the Court requested it to submit a copy of the entire investigation file no. 34023. However, despite the specific request from the Court the Government refused to submit a copy of the entire investigation file in the criminal case, stating with reference to the information obtained from the Prosecutor General’s office 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. The Government submitted only several documents, which included:

(a) a procedural decision dated 12 February 2003 to institute criminal proceedings in connection with Murad Khachukayev’s abduction;

(b) a procedural decision dated 21 February 2003 to grant the applicant victim status in criminal case no. 34023;

(d) investigators’ decisions to take up case no. 34023;

(e) procedural decisions concerning extension of the time-limits for the investigation in the criminal case;

(f) letters informing the applicant about suspensions and resumptions of the investigation in the criminal case;

(g) a procedural decision of 5 June 2006 to institute criminal proceedings in connection with Murad Khachukayev’s murder.

On 18 September 2008 the Court declared the application partially admissible and reiterated its request for a copy of the investigation file. The Court also requested information on the progress of the investigation after July 2006.

In response, the Government submitted an update of the investigation but no documents from the investigation file. They reiterated that disclosure of the documents would violate Article 161 of the Code of Criminal Procedure since the file contained personal data of participants in the criminal proceedings.

II. RELEVANT DOMESTIC LAW

For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, (no. 40464/02, §§ 67-69, 10 May 2007).

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTION

A. The parties’ submissions

The Government contended that the application should be declared inadmissible for failure to exhaust domestic remedies, as the investigation into the abduction and murder of Murad Khachukayev was still in progress. They argued that within the framework of the criminal proceedings the applicant, who had been granted victim status in the criminal case, could have complained about the acts or omission of the investigators to domestic courts and that he could have lodged a civil claim for compensation.

The applicant contested the Government’s objection. He claimed that an administrative practice consisting of the authorities’ continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya rendered any potentially effective remedies inadequate and illusory in his case. He argued that the only effective remedy in this case, that is the criminal investigation, had proved ineffective, as it had been pending for several years but had failed to produce any tangible results.

B. The Court’s assessment

The Court notes that in its decision of 18 September 2008 it considered that the question of the exhaustion of domestic remedies was closely linked to the substance of the applicant’s complaints and should be joined to the merits.

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. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996 IV, and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 65, 27 June 2006).

The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.

As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies. The preliminary objection in this regard is thus dismissed.

As regards criminal law remedies, the Court observes that the applicant complained to the law enforcement authorities after the abduction of Murad Khachukayev and that an investigation has been pending since 12 February 2003. The applicant and the Government dispute the effectiveness of the investigation.

The Court considers that the Government’s preliminary objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicant’s complaints under Article 2. Thus, it considers that these matters fall to be examined below under the relevant substantive provisions of the Convention.

II. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS

A. The parties’ submissions

The applicant argued that it was beyond reasonable doubt that Murad Khachukayev had been abducted on 5 February 2003 by representatives of Russian federal forces, this fact being confirmed by eyewitness statements. The applicant pointed out that thereafter his son had not been seen alive and his remains had been discovered several days later. He further stressed that Murad Khachukayev had been killed while in the hands of State representatives. He further alleged that the State had failed to advance any plausible version of the events or to disclose documents from the criminal investigation file which could shed light on the circumstances of his son’s abduction and death, and invited the Court to draw the relevant inferences.

The Government argued that the Russian authorities were not responsible for the actions of unidentified persons who had abducted and murdered Murad Khachukayev and that the investigation had not obtained any evidence to the effect that representatives of the Russian federal forces had been involved in the imputed offence. No information had been obtained by the investigation about the carrying out of special operations in Goyty on that night. Finally, the Government stated that the investigation was verifying the theory of Murad Khachukayev’s murder by members of illegal armed groups or the theory of his accidental death by being blown up by a home-made explosive device.

B. Article 38 § 1 (a) and consequent inferences drawn by the Court

The Court has on many occasions reiterated that the Contracting States are required to furnish all necessary facilities to the Court and that a failure on a Government’s part to submit information which is in their hands, without a satisfactory explanation, may reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention (see Timurtaş v. Turkey, no. 23531/94, § 66, ECHR 2000-VI).

In the present case the applicant alleged that his son had been illegally detained and then killed by servicemen. He also alleged that no proper investigation had taken place. In view of these allegations, the Court asked the Government to produce documents from the criminal case file opened in relation to the abduction and murder. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case.

The Government confirmed the principal facts as submitted by the applicant. They refused to disclose most of the documents from the criminal investigation file, relying on Article 161 of the Code of Criminal Procedure. The Government also argued that the Court’s procedure contained no guarantees of the confidentiality of documents, in the absence of sanctions for applicant in the event of a breach of confidentiality. They also argued that the applicant’s representative was not a participant in the criminal proceedings and therefore was not entitled to have access to contents of the case file. Lastly, the Government argued that by providing detailed information about the progress of the investigation and some documents from the criminal investigation file they had complied with their obligations under Article 38 § 1 (a).

The Court notes that Rule 33 § 2 of the Rules of Court permits a restriction on the principle of the public character of documents deposited with the Court for legitimate purposes, such as the protection of national security, the private life of the parties or the interests of justice. The Court cannot speculate as to whether the information contained in the criminal investigation file in the present case was indeed of such a nature, since the Government did not request the application of this Rule and it is the obligation of the party requesting confidentiality to substantiate its request.

The Court further notes that it has already found on a number of occasions that the provisions of Article 161 of the Code of Criminal Procedure do not preclude the disclosure of documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure (see Mikheyev v. Russia, no. 77617/01, § 104, 26 January 2006, and Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-XIII). For these reasons the Court considers the Government’s explanation insufficient to justify the withholding of the key information requested by it.

As to the Government’s argument that they had complied with the requirements of Article 38 § 1 (a) by providing a summary of the investigative steps and some documents from the investigation file requested, the Court reiterates that in cases where the applicants raise the issue of the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of facts and their absence may prejudice the Court’s proper examination of the complaint both at the admissibility and at the merits stage (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999-IV). The Court would also 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).

Reiterating the importance of a respondent Government’s cooperation in Convention proceedings, the Court finds that there has been a breach of the obligation laid down in Article 38 § 1 (a) of the Convention to furnish all necessary facilities to assist the Court in its task of establishing the facts.

C. The Court’s evaluation of the facts

The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). 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 applicant’s allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the death of the applicant’s son can be attributed to the authorities.

The applicant maintained that it was beyond reasonable doubt that the men who had abducted and subsequently killed Murad Khachukayev were State agents. In support of that affirmation he referred to the following facts. At the material time the village of Goyty had been under the total control of federal troops. There had been military checkpoints on the roads leading to and from the settlement. The armed men who had abducted Murad Khachukayev spoke unaccented Russian, had been armed with sniper rifles, and were wearing camouflage uniform. The group had consisted of at least fourteen men. According to some witnesses, the men had arrived at the applicant’s house in UAZ vehicles, of a type normally used only by federal forces. Because of the curfew, such a large group of armed men could not have moved freely around the area between 8 p.m. and 6 a.m. unless they had obtained the permission of federal forces or were military servicemen. The men had stated that they had arrived to do a passport check and had acted in a manner similar to that of special forces carrying out identity checks. The abductors had not taken away another son of the applicant, Mr S.Kh., as the latter was an officer of a local enforcement agency and had a service gun; if the abductors had been members of illegal armed groups, they would have rather attacked Mr S.Kh. in retaliation for his work. The abductors had driven away in the direction of the Russian military checkpoint. Murad Khachukayev had not been seen alive since his abduction. His remains had been discovered in the orchard where blown-up corpses of other abducted men had previously been found. The body of Murad Khachukayev had been blown up only about 20 metres from the road, which demonstrated that only Russian federal servicemen could have openly acted in such close proximity to the road without fear of arrest. Murad Khachukayev’s body had been blown up with a significant amount of explosives and only representatives of Russian federal forces could have had access to such an amount of explosives.

The Government stated that there was no evidence demonstrating the involvement of the Russian servicemen in the abduction and subsequent killing of Murad Khachukayev. They further argued that the four other corpses found in the same Michurina orchard were the subject of a separate investigation and had nothing to do with the criminal case concerning the applicant’s son. They stated that Murad Khachukayev could have been killed by members of illegal armed groups or that he could have died as a result of an accident, having blown himself up with a home-made explosive device. However, these allegations were not specific and the Government did not submit any material to support them. Furthermore, from the information reviewed by the Court it does not appear that the domestic investigation has ever considered these possibilities.

The Court notes that the applicant’s version of events is supported by the witness statements collected by him and by the investigation. The applicant, his relatives and the neighbours stated that the perpetrators had acted in a manner similar to that of a security operation – they had checked the residents’ identity documents, and they had spoken Russian among themselves and to the residents. Some witnesses also referred to the use of military UAZ vehicles (see paragraph 18 above). In his applications to the authorities the applicant consistently maintained that his son had been detained by unknown servicemen and requested the investigation to look into that possibility (see paragraph 49 above).

The Court finds that the fact that a large group of armed men in uniform during curfew hours was able to move freely through military roadblocks and proceeded to check identity documents strongly supports the applicant’s allegation that these were State servicemen. The Court also does not lose sight of some of the applicant’s other submissions, none of which are refuted by the Government’s arguments or by the materials received by the Court. The domestic investigation also accepted factual assumptions as presented by the applicant and acted to check the involvement of law enforcement bodies in the arrest, but it does not appear that any serious steps were taken in that direction.

The Court observes that where the applicants make out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government, and if they fail in their arguments issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II).

Taking into account the above elements, the Court is satisfied that the applicant has made a prima facie case that his son was detained by State servicemen. The Government’s statement that the investigation did not find any evidence to support the involvement of the special forces in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide another plausible explanation of the events in question, the Court considers that Murad Khachukayev was arrested on 5 February 2003 at his home in Goyty by State servicemen during an unacknowledged security operation.

The remains of Murad Khachukayev were discovered several days later in the nearby Michurina gardens. The forensic documents cited by the Government and witness statements attest that his death was of a violent nature (see, for example, paragraph 59 above).

The next point to be considered by the Court is whether there is a causal link between the arrest of Murad Khachukayev by State servicemen and his death. The Court reiterates in this connection that 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, among many authorities, Tomasi v. France, 27 August 1992, Series A no. 241-A, §§ 108-111, and Avşar v. Turkey, no. 25657/94, § 392, ECHR 2001-VII).

In the present case there was no news of the applicant’s son between his detention on 5 February 2003 and the discovery of his remains on 10 February 2003. The Court also notes that although forensic expert examination was carried out on the remains, it failed to establish the cause of his death (see paragraph 30 above).

The Government did not dispute the circumstances of the discovery of the remains. The link between the kidnapping and the death of the applicant’s son has furthermore been assumed in the domestic proceedings (see paragraph 59 above), and the Court takes this into account. The Government did not provide any substantiated version of the events which would refute the one presented by the applicant.

The Court finds that the facts of the present case strongly suggest that the death of Murad Khachukayev was part of the same sequence of events as his abduction and support the conclusion that he was extrajudicially executed by State agents. In these circumstances, the Court finds that the State is responsible for the death of the applicant’s son.

For the above reasons the Court considers that it has been established that Murad Khachukayev was killed following his unacknowledged detention by State servicemen.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

124. The applicant complained under Article 2 of the Convention that his son had been killed 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;

A. The alleged violation of the right to life of Murad Khachukayev

The Court has already established that the death of the applicant’s son 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 Murad Khachukayev.

B. The alleged inadequacy of the investigation into the disappearance and murder of Murad Khachukayev

The applicant maintained his complaint. He alleged that in spite of his complaint on 5 February 2003 about his son’s abduction, the investigators had failed to initiate the criminal proceedings in a timely manner and had opened the criminal case only on 12 February 2003. Due to this delay a number of items of important evidence, such as the perpetrators’ fingerprints, imprints of their boots and the vehicle’s tyre imprints had been lost. Even after the opening of the criminal proceedings in February 2003, the investigators failed to conduct a scene of crime examination or question the applicant and other witnesses of the abduction for more than five months. Further, the investigators had failed to establish how the abductors had been allowed to pass through the checkpoint on the eastern outskirts of Urus-Martan; they had failed to question the heads of the local military and law enforcement agencies about possible participation of their staff in the abduction of Murad Khachukayev; they had failed to establish the owners of the UAZ vehicles which had been seen driving around in Goyty on the night of the abduction and to question their drivers. The investigators had failed to establish the type of the explosive device used to blow up the applicant’s son; they had failed to verify whether any law enforcement agencies had been involved in a special operation in Goyty on 5 February 2003. Although Murad Khachukayev’s remains had been discovered on 12 February 2003, the criminal investigation in this respect had been opened only on 5 June 2006. The criminal investigation into the abduction and murder of Murad Khachukayev had been ongoing for more than five years, but it had failed to produce any tangible results. The authorities had failed to provide any explanations for the delays in the investigation; the ineffectiveness of the investigation had been recognised by the supervisory prosecutors and by domestic courts, which had ordered the prosecutor’s office to resume the suspended investigation.

The Government stated that the investigation into the abduction and murder of Murad Khachukayev was still ongoing and that therefore it was premature to discuss its alleged ineffectiveness. They argued that the theory of the involvement of Russian servicemen in the abduction and killing of the applicant’s son had not been confirmed by the investigation and that investigators were verifying the theory of possible involvement of members of illegal armed groups in the crime or the theory of an accidental death of the applicant’s son as a result of being blown up by a home-made explosive device. The criminal investigation was opened in timely fashion and even though it was subsequently suspended and resumed on several occasions, these procedural decisions did not demonstrate its ineffectiveness. The applicant was informed in timely fashion about all decisions of the investigation.

The Court has developed a number of guiding principles to be followed for an investigation to comply with the Convention’s requirements (for a summary of these principles see Bazorkina, cited above, §§ 117-119).

In the present case, the criminal investigation into the abduction and subsequent killing of the applicant’s son has been pending since 12 February 2003. 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 produced by the Government.

The Court notes that the investigation into the abduction of the applicant’s son was initiated on 12 February 2003, a week after his abduction. Further, the crime scene examination was conducted at the applicant’s house only on 13 March 2004, more than thirteen months after the events. At the same time, even though the applicant consistently pointed out to the authorities that his son’s remains had been discovered in February 2003 (see paragraph 38 above), and in spite of the fact that the expert evaluation of the remains had been conducted in April 2003 (see paragraph 30 above), for more than three years the investigators failed to take these facts into account (see paragraphs 37 and 43 above). They opened the investigation into Murad Khachukayev’s murder only on 5 June 2006, that is only after the communication of the applicant’s complaints to the respondent Government. A number of other crucial investigative steps were taken with a significant delay. In particular, a number of eyewitnesses to the abduction were questioned only in 2006 and 2008 (see paragraphs 73-75, 83 and 85-86 above) and DNA testing of the remains was ordered only in June 2008 (see paragraph 84 above).

A number of essential steps were never taken by the investigators. For instance, it does not appear that the investigation attempted to identify or question any of the servicemen of the local law enforcement bodies who might have been involved in the detention of Murad Khachukayev. Further, the investigators failed to establish the identity of the owners of the UAZ vehicles which had been driving around the village on the night of the abduction and to question their drivers. The investigators failed to question the Russian military servicemen who had manned the Russian military checkpoint on the eastern outskirts of Urus-Martan or to check its registration log reflecting the passage of vehicles and persons on the night of the abduction. Nor did they question the local military commander about those who had obtained his permission to drive around after curfew on the night of the abduction.

Furthermore, it does not appear that the investigation fully established the circumstances of Murad Khachukayev’s death. Even though a forensic examination of his remains was carried out (see paragraph 30 above) it does not appear that it established the time and the cause of his death. The investigators failed to question the residents of Urus-Martan and the nearby villages who had heard the explosion on the night of Murad Khachukayev’s abduction (see paragraph 23 above) or to establish the identity of the witnesses who might have seen the perpetrators on the site of the explosion.

The Court also notes that even though the applicant was granted victim status, he was only informed of the suspensions and resumptions of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.

Lastly, the Court notes that the investigation was suspended and resumed at least seven times and that there were long periods of inactivity during the years when it was pending.

The Government raised the possibility for the applicant to make use of judicial review of the decisions of the investigating authorities in the context of exhaustion of domestic remedies. The Court observes that the applicant, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged the actions or omissions of investigating authorities before a court (see paragraphs 46, 51 and 54 above). Furthermore, the investigation was resumed by the prosecuting authorities themselves a number of times owing to the need to take additional investigative steps (see paragraphs 34 and 36 above) or after the local court had granted the applicant’s complaint in that respect (see paragraph 54 above). However, the prosecutor’s office still failed to investigate the applicant’s allegations properly. Moreover, owing to the time that had elapsed since the events complained of, certain investigative measures that ought to have been carried out much earlier could no longer usefully be conducted. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicant’s 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 abduction and subsequent killing of Murad Khachukayev.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

The applicant further stated that Murad Khachukayev 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.”

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 v. Russia, no. 69480/01, § 122, ECHR 2006 ... (extracts)).

The Court has established that Murad Khachukayev was detained by State servicemen on 5 February 2003 and then unlawfully deprived of his life. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate.

Consequently, the Court finds that Murad Khachukayev 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 13 OF THE CONVENTION

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

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government contended that the applicant had had effective remedies at his disposal as required by Article 13 of the Convention and that the authorities had not prevented him from using them. They referred to Article 125 of the Code of Criminal Procedure, which allowed participants in criminal proceedings to complain to a court about measures taken during an investigation. This was an effective remedy to ensure the observation of his rights. In addition, the applicant had failed to claim damages in civil proceedings.

The Court reiterates that in circumstances where, as here, the criminal investigation into the violent death was ineffective and the effectiveness of any other remedy that may have existed, including civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183).

Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.

As regards the applicant’s reference to Article 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in conjunction with Article 5 of the Convention (see Kukayev v. Russia, no. 29361/02, § 119, 15 November 2007, and Aziyevy v. Russia, no. 77626/01, § 118, 20 March 2008).

VI. 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 applicant did not claim in respect of pecuniary damage. As to non-pecuniary damage, he stated that he had lost his son and endured stress, frustration and helplessness in relation to his son’s abduction and the subsequent discovery of his remains, aggravated by the authorities’ inactivity in the investigation of those events for several years. He left the determination of the amount of compensation to the Court.

The Government submitted that finding a violation of the Convention would be adequate just satisfaction in the applicant’s case.

The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and death of the applicant’s son. The Court thus accepts that he has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicant 35,000 euros (EUR) plus any tax that may be chargeable thereon.

B. Costs and expenses

The applicant was represented by Mr D. Itslayev, a lawyer practising in Nazran. The applicant submitted a contract with his representative and an itemised schedule of costs and expenses that included legal research and drafting, as well as administrative and translation expenses. The overall claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR 9,444. The applicant submitted the following breakdown of costs:

(a) EUR 8,702 for 62.25 hours of interview and drafting of legal documents submitted to the Court and the domestic authorities, at the rates of EUR 150 per hour and EUR 80 per hour accordingly;

(b) EUR 245 of administrative expenses;

The Government did not dispute the reasonableness of the amounts claimed.

The Court has to establish first whether the costs and expenses indicated by the applicant were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324)

Having regard to the details of the information submitted by the applicant, the Court is satisfied that these rates are reasonable. The Court notes that this case was rather complex and required the amount of research and preparation claimed by the applicant.

Having regard to the details of the claims submitted by the applicant and acting on an equitable basis, the Court awards him the amount of EUR 9,000 together with any value-added tax that may be chargeable to the applicant, less EUR 850 received by way of legal aid from the Council of Europe, together with any value-added tax that may be chargeable to the applicant, the net award to be paid into the representative’s bank account, as identified by the applicant.

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

Dismisses the Government’s preliminary objection;

Holds that there has been a failure to comply with Article 38 § 1 (a) of the Convention in that the Government have refused to submit documents requested by the Court;

Holds that there has been a violation of Article 2 of the Convention in respect of Murad Khachukayev;

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 of Murad Khachukayev’s abduction and death;

5. Holds that there has been a violation of Article 5 of the Convention in respect of Murad Khachukayev;

Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;

7. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Article 5;

Holds

(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into Russian roubles at the rate applicable at the date of settlement:

(i) EUR 35,000 (thirty-five thousand euros) to the applicant in respect of non-pecuniary damage, plus any tax that may be chargeable thereon;

(ii) EUR 8,150 (eight thousand one hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the representative’s bank account as indicated by the applicant;

(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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 23 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President