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MUDAYEVY v. RUSSIA - 33105/05 [2010] ECHR 494 (8 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/494.html
Cite as:
[2010] ECHR 494
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FIRST
SECTION
CASE OF
MUDAYEVY v. RUSSIA
(Application
no. 33105/05)
JUDGMENT
STRASBOURG
8
April 2010
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 Mudayevy 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 18 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 33105/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Russian nationals, Mr Lomali (also spelled
as Lom-Ali) Mudayev and Ms Malkan Mudayeva (“the applicants”),
on 25 July 2005.
The
applicants, who were granted legal aid, were represented by lawyers
of the Centre of Assistance to International Protection, an NGO based
in Moscow. The Russian Government (“the Government”) were
represented by the First Deputy Minister of Justice Mr A. Savenkov
and subsequently by the Representative
of the Russian Federation at the European Court of Human Rights Mr
G. Matyushkin.
On
1 April 2008 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility. On 2 April 2008 it decided to
apply Rule 41 of the Rules of Court and to
grant priority treatment to the application.
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 1950 and 1948 respectively. They live in
Raduzhnoye, in the Grozny district, Chechnya. The applicants are the
father and aunt of Aslan Mudayev, who was born in 1985, and Mokhmad
Mudayev, who was born in 1982. The first applicant had a third son,
Mr Akhmad Mudayev, who was killed in July 2003.
A. Disappearance of Aslan and Mokhmad Mudayev
1. The applicants' account
a. The abduction of Aslan and Mokhmad Mudayev
On
29 January 2003 Russian military servicemen conducted a special
operation in the village of Raduzhnoye in the Grozny district of
Chechnya. More than twenty persons were apprehended as a result of
the operation, including Aslan and Mokhmad Mudayev and another of the
applicants' relatives, Mr Islam A. At the material time the village
was under the full control of the federal forces.
At
about 8 a.m. on 29 January 2003 the first applicant and his sons
Aslan and Mokhmad Mudayev and other relatives, including Mr Israil M.
and Mr Islam A., were in their family home situated in Raduzhnoye.
The first applicant heard noise coming from the street and looked out
of the window. He saw a group of armed men in camouflage uniforms and
masks running into his yard. The men entered the house and ordered
everyone to lie face down on the floor. They neither introduced
themselves nor produced any documents.
The
intruders ordered the first applicant to hand over his family
members' passports and the family photographs. Upon receiving the
documents and the photographs, the men took Aslan Mudayev, Mokhmad
Mudayev and the first applicant's nephew Mr Islam A. outside.
The
first applicant attempted to follow his relatives, but the armed men
in the yard threatened to kill him. Meanwhile, the applicant's sons
and nephew were put in a grey UAZ car (“таблетка”).
Sometime
later the first applicant managed to go outside and saw a convoy of
ten to twelve vehicles, including a grey UAZ car, two or three khaki
coloured UAZ-469 cars and an APC (armoured personnel carrier) driving
away in the direction of Grozny.
On
the following day of 30 January 2003 all persons detained during the
special operation, except for Aslan and Mokhmad Mudayev, were
released.
b. The subsequent events
Immediately
after the apprehension of Aslan and Mokhmad Mudayev the applicants
and their relatives started searching for them.
The applicants' relative, Mr Israil M., who was at the first
applicant's house during the abduction, immediately followed the
convoy of military vehicles in his VAZ car with two female relatives.
On the way to Grozny the abductors' vehicles split into two groups.
One of them, comprised of the APC and several UAZ cars, drove in the
direction of the nearby village of Znamenskoye in the Nadterechniy
district, while the other proceeded in the direction of Grozny.
When
the group arrived at Znamenskoye, the vehicles drove to the building
of the Nadterechniy district department of the Federal Security
Service (“the Nadterechniy district department of the FSB”)
and the Nadterechniy district department of the interior (“the
Nadterechniy ROVD”). Some of the vehicles drove onto the
agencies' premises.
Mr
Israil M. and relatives of other men apprehended during the operation
in Raduzhnoye decided to wait at the entrance to the FSB building.
Several hours later Mr Israil M. managed to talk to the head of the
Nadterechniy district department of the FSB Mr Mayrbek Kh. (also
known as Mairbek Kh.; in the documents submitted he was also referred
to as Mr M. Kh.) The latter told him that he would not release
his relatives until two prosecution officials who had been abducted
several days ago had been returned. He told Mr Israil M. that he knew
about the involvement of the first applicant's other son, Akhmad
Mudayev, in the abduction of the two officials. The officer
threatened that if within the next two days Mr Israil M. did not
return the two prosecutors or bring Akhmad Mudayev to their office,
he would hand over Mr Israil's apprehended relatives to military
servicemen in Khankala, the main base of the Russian federal forces
in Chechnya.
Subsequently
the applicants and their relatives spoke with Akhmad Mudayev, who
told them that he had not participated in the prosecutors' abduction
and refused to go to the district department of the FSB.
Within
the next five or six months Mr Israil M. had regular meetings with Mr
Mayrbek Kh. The latter insisted on his demands.
On
3 July 2003 the first applicant's elder son Akhmad Mudayev was killed
in a skirmish. After that Mr Mayrbek Kh. told the first applicant
that at some point Russian military forces had taken Aslan and
Mokhmad Mudayev from his department under false identities and that
he did not have any information concerning the brothers' whereabouts.
c. Information obtained by the applicants about the
detention of Aslan and Mokhmad Mudayev
The
first applicant's nephew, Mr Islam A., who had been apprehended with
Aslan and Mokhmad Mudayev, was released on 30 January 2003. Mr
Islam A. told the applicants that he had been put in one cell with
Aslan and Mokhmad Mudayev. In the evening of 29 January 2003 he had
been questioned by Mr Mayrbek Kh., the head of the Nadterechniy
district department of the FSB.
In
February 2003 Mr Mayrbek Kh. arrived at the mosque of the Raduzhnoye
village. He told a number of local residents gathered there that
Aslan and Mokhmad Mudayev had been detained in the FSB building. One
of the local residents, Mr Arsanuka M., asked him whether any
criminal charges had been brought against the brothers. In response
the officer told him that he would release Aslan and Mokhmad Mudayev
only if their elder brother Akhmad surrendered to the authorities.
Mr
Aslan A., who had been detained for some time with the Mudayev
brothers in the FSB building and released, told the applicants that
during the detention, Aslan and Mokhmad Mudayev had been beaten and
questioned separately from each other.
On
10 May 2003 (in the documents submitted the date 12 May 2003 was also
given) an explosion occurred in the building of the Nadterechniy
district department of the FSB and partially destroyed it. In the
evening of 10 May 2003 Aslan and Mokhmad Mudayev were taken from the
building to an unknown destination. There has been no news about the
brothers ever since.
In
support of their statements the applicants submitted: an account by
the first applicant (undated); an account by Mr Israil M. dated
12 November 2003; an account by Mr Islam A. dated 14 November
2003; an account by Mr Khavashi K. (undated); an account by Mr
Arsanuka M. (undated); an account by Mr Amin K. (undated) and copies
of documents received from the authorities.
2. Information submitted by the Government
The
Government did not challenge most of the facts as presented by the
applicants. According to their submission of 25 July 2008 “...
on 29 September 2003 an investigator of the Grozny district
prosecutor's office initiated an investigation of criminal case
no. 42172 opened in connection with the abduction of Aslan and
Mokhmad Mudayev under Article 126 § 2 of the Criminal
Code ...”.
In
the same submission, referring to the contents of criminal case
no. 42172, the Government further stated:
“... on 29 January 2003 in the village of
Raduzhnoye in the Nadterechniy district of Chechnya officers of the
Nadterechniy district department of the FSB conducted a special
operation. The goal of the operation was the identification of
persons who had abducted employees of the Chechnya prosecutor's
office. In the course of the criminal investigation [of the Mudayev
brothers' abduction] the head of the Nadterechniy district department
of the FSB, Mr M. Kh., who was in charge of the operation, was
questioned by the investigators.
[According to his statement] during the operation Aslan
and Mokhmad Mudayev had been brought to the Nadterechniy district
department of the FSB in connection with the abduction of the
officials from the Chechnya prosecutor's office. As a result of the
questioning it had been established that Aslan and Mokhmad Mudayev
had not been involved in the abduction of the prosecution officials.
After that Aslan and Mokhmad Mudayev had been released.”
The
Government also submitted:
“... on 12 May 2003 a terrorist act was committed
in the village of Znamenskoye in the Nadterechniy district. As a
result, the building of the Nadterechniy district department of the
FSB was partially destroyed. Procedural documents, explanations and
statements by Aslan and Mokhmad Mudayev were [also] destroyed.”
B. The search for Aslan and Mokhmad Mudayev and the
investigation
1. Information submitted by the applicants
a. The official investigation into the abduction
The applicants and their relatives also contacted, both in person and
in writing, various official bodies, such as the Chechen
administration, military commanders' offices, departments of the
interior and prosecutors' offices at different levels, asking for
help in establishing the whereabouts of Aslan and Mokhmad Mudayev.
The applicants retained copies of a number of those complaints and
submitted them to the Court. An official investigation was opened by
the local prosecutor's office. The relevant information is summarised
below.
According
to the applicants, from January 2003 to August 2003, on a number of
occasions, they complained in person to the Nadterechniy district
prosecutor's office about the abduction of their relatives.
On
22 September 2003 a local human rights organisation complained on
behalf of the applicants and their relatives to the Grozny district
prosecutor's office about the abduction of Aslan and Mokhmad Mudayev.
On
29 September 2003 the Chechnya prosecutor's office forwarded the
applicants' complaint about the abduction of their relatives to the
Grozny district prosecutor's office.
On
15 January 2004 the applicants' representatives wrote to the Chechnya
prosecutor's office. They described in detail the circumstances of
the Mudayev brothers' abduction during the special operation
conducted by the Nadterechniy district department of the FSB on 29
January 2003. The letter stated that the brothers had been taken to
the detention centre of the district department of the FSB; they had
been detained there until 10 May 2003, when they had been taken away
in an unknown direction. According to the information obtained by the
applicants from the persons who had been detained together with Aslan
and Mokhmad Mudayev from January to May 2003, the conditions of their
detention had been inhuman; the brothers had been beaten, had marks
of ill-treatment on their bodies and fallen ill. After May 2003,
according to some witnesses, the conditions of their detention in
another place had also been inhuman; the brothers had been severely
beaten and bound by adhesive tape. According to the letter, the
applicants and their relatives had spoken with the head of the
Nadterechniy district department of the FSB Mr Mayrbek Kh. who had
told them that the release of the two Mudayev brothers would be
possible only in exchange for their elder brother Akhmad. The letter
further stated that the applicants had complained about the arrest
and detention of Aslan and Mokhmad Mudayev to a number of
authorities, including the Nadterechniy district prosecutor's office,
the Nadterechniy district department of the FSB, the Grozny district
prosecutor's office and the Chechnya prosecutor's office. Referring
to the European Convention on Human Rights the applicants requested
the following information: on what grounds the Mudayev brothers had
been arrested; whether any criminal charges had been brought against
them and if so, what stage the criminal investigation was at; which
authorities had issued the warrant for their arrest and where exactly
the brothers had been detained. Finally, the applicants requested the
authorities to ensure their safety and the
safety of the witnesses to the abduction of Aslan and Mokhmad
Mudayev.
On
11 February and 16 September 2004 the Chechnya prosecutor's office
informed the applicants that on 29 September 2003 the Grozny district
prosecutor's office had initiated an investigation into the abduction
of Aslan and Mokhmad Mudayev.
On
28 April 2004 the Chechnya Department of Human Rights and Freedoms
wrote to the Chechnya prosecutor's office. The letter stated that
Aslan and Mokhmad Mudayev had been abducted on 29 January 2003 during
an identity check.
On
22 May 2004 the Grozny district prosecutor's office granted the
second applicant victim status in criminal case no. 42172
instituted in connection with the abduction of Aslan and Mokhmad
Mudayev.
On
10 August and 28 October 2004 the military prosecutor's office of the
United Group Alignment (the military prosecutor's office of the UGA)
forwarded the applicants' complaints about the abduction to the
Chechnya prosecutor's office for examination.
On
10 September 2004 the Grozny district prosecutor's office informed
the applicants that the investigation in the criminal case had been
suspended for failure to establish the identities of the
perpetrators.
On
25 October 2004 the Grozny district prosecutor's office informed the
Chechnya prosecutor's office that on 21 June 2004 the investigation
in the criminal case had been suspended and that the investigators
had been instructed to take investigating measures and that upon
their completion the case would be transferred to the Nadterechniy
district prosecutor's office for further investigation.
On
18 February 2005 the Grozny prosecutor's office informed the
applicants that on that date they had resumed the investigation in
the criminal case.
On
18 March 2005 the Grozny prosecutor's office informed the applicants
that on that date they had suspended the investigation in the
criminal case for failure to establish the identities of the
perpetrators.
On
19 April 2005 the second applicant requested the Grozny district
prosecutor's office to inform her about the results of the criminal
investigation of the abduction and provide her with access to the
investigation file.
On
5 May 2005 the first applicant complained to the Chechnya
prosecutor's office. He stated that his two sons, Aslan and Mokhmad
Mudayev, had been abducted on 29 January 2003 by representatives of
the Nadterechniy district department of the FSB under the command of
officer Mayrbek Kh., and that the investigation opened by the Grozny
prosecutor's office had been ineffective. In particular, the
applicant pointed out that the investigators had failed to comply
with the court's decision of 30 December 2004 concerning the
reopening of the suspended investigation and questioning of all
persons involved in the abduction; that the investigation had been
suspended several times in spite of the authorities' failure to
establish the circumstances of the abduction. The applicant requested
the Chechnya prosecutor's office to take over the investigation and
to comply with the court's decision of 30 December 2004.
On
13 May 2005 the Chechnya prosecutor's office informed the first
applicant that the investigation in the criminal case had been
resumed.
b. Proceedings against law-enforcement officials
In
November 2004 the applicants lodged a complaint with the Grozny
district court of Chechnya (the district court). They complained of
unlawful suspensions of the investigation in the criminal case and a
failure on the part of the authorities to take basic investigative
measures. The applicants sought a ruling obliging the prosecutor's
office to resume the investigation and question the witnesses of
their relatives' abduction.
On 30 December 2004 the district
court allowed the complaint. The court stated, inter
alia, the following:
“... the court established that:
... from [the date of the opening of the criminal case]
29 September 2003 up to the present the investigation in criminal
case no. 42172 was suspended three times and resumed twice owing
to the applicants' numerous complaints.
On 30 November 2004 the investigator Zh. U. took the
last decision to suspend the investigation for failure to establish
the identities of the perpetrators; this decision was taken by him
after 25 November 2004, that is, [shortly] after the applicants had
lodged their court complaint about his actions.
Given the kind of approach the investigator has taken to
the execution of his work duties, it is possible that the
perpetrators [of the abduction] will not be established any time soon
[...]the investigator did not carry out the written orders issued by
the deputy district prosecutor on 25 October 2004 ... even though
such orders were compulsory ...
In the course of the preliminary investigation it had
been unequivocally established by whom and when the Mudayev brothers
had been arrested and where they had been detained. From this it
follows that the investigator and the supervising prosecutor must
concentrate their attention on the identification of those who
detained the brothers, on the examination of the lawfulness and the
grounds for their detention, [and] the establishment of the actual
place of their detention, which was carried out without lawful
grounds ...
The court decided:
To
recognise as unlawful the actions of the investigator Zh.U.
concerning the suspension of the investigation in criminal case
no. 42182 under Article 208 § 1 of the
Criminal Procedure Code [for failure to establish the identities of
the perpetrators];
To
oblige the investigator to carry out in full the written orders
issued by the [supervising] prosecutor ...;
To
question all persons involved in the arrest of the Mudayev brothers
in violation of Articles 91 and 92 of the Criminal Procedure Code
[grounds and procedure for detention];
To
examine the lawfulness and the grounds for the Mudayev brothers'
detention without a court order, [which took place] in violation of
Article 108 of the Criminal Procedure Code [arrest procedure] ...”
On 11 May 2005 the second
applicant complained to the district court that the investigation
into the abduction had been ineffective. She described in detail the
circumstances of the abduction and pointed out that Aslan and Mokhmad
Mudayev had been unlawfully detained as hostages in the Nadterechniy
district department of the FSB. The applicant
stated that the investigation into the abduction had been suspended
several times and that the last suspension had taken place on 13 May
2005. The applicant sought a ruling obliging the prosecutor's office
to resume the investigation and transfer it to the Chechnya
prosecutor's office.
On 8 June 2005 the district
court rejected the applicant's complaint. On 16 August 2005 this
decision was upheld on appeal by the Chechnya Supreme Court.
2. Information submitted by the Government
The Government submitted that the investigation of the abduction of
the applicants' relatives had commenced on 29 September 2003 upon
receipt on 22 September 2003 of a complaint by the applicants'
relative Mr I.M. about the abduction of Aslan and Mokhmad
Mudayev on 29 January 2003.
On
27 September 2003 the investigators conducted a crime scene
examination at the first applicant's house. Nothing was collected
from the scene.
On 29 September 2003 the first applicant was granted victim status in
the criminal case and questioned. According to a copy of his witness
statement submitted to the Court, the applicant stated that at about
8.15 a.m. on 29 January 2003 a group of fifteen masked men in
military uniforms armed with automatic weapons had broken into his
house. The men had put everyone up against the wall, and then ordered
everyone to lie on the floor face down. After that they had demanded
everyone's passports and checked them. The men had returned all the
documents, expect for the passports of his sons Aslan and Mokhmad
Mudayev. Immediately after the men had taken the applicant's two sons
outside, put them in a light-coloured UAZ vehicle ('tabletka')
and taken them to the settlement of Znamenskoye in the Nadterechniy
district of Chechnya. When the applicant had asked the men about the
reasons for the arrest of his sons, the men had not explained
anything. They had told him and his relatives to stay inside,
threatening to shoot if anyone went outside. According to the
applicant, the abductors had arrived at his house in a light-coloured
UAZ vehicle and two grey GAZ vehicles; the cars did not have
registration numbers. At some point later the applicant had asked the
head of the Nadterechniy district department of the FSB Mr Mayrbek
Kh. about his sons. The latter had told him that Aslan and Mokhmad
Mudayev had been detained on the premises of his department. The
applicant had not received any other information about his sons'
whereabouts.
On
22 May 2004 the investigators granted the second applicant victim
status in the criminal case.
According
to the Government, the investigators also questioned a number of
witnesses. Without providing any of the relevant witness statements
and the dates, the Government summarised their testimonies as
follows.
On
an unspecified date the investigators questioned the applicants'
relative, Mr I.B., who stated that on 29 January 2003 he had been in
the first applicant's house with his relatives. In the morning a
group of armed masked men had broken into the house, checked identity
documents and taken him, Aslan and Mokhmad Mudayev in a UAZ car to
the village of Znamenskoye in the Nadterechniy district. There they
had been placed in one cell. In the evening of the same day the
witness had been interrogated twice. The first questioning had been
conducted by Mr M.Kh. who had asked him about Akhmed Mudayev. The
second interrogation was conducted by a man who had spoken unaccented
Russian, in the presence of a Chechen man. In the evening of 30
January 2003 the witness had been released, whereas Aslan and Mokhmad
Mudayev remained in detention.
On
an unspecified date the investigators questioned the second
applicant. She stated that on 29 February 2003 a special operation
had been conducted in Raduzhnoye by the local FSB office and that Mr
Mayrbek Kh. had been in charge of it. As a result of this operation
more than twenty young men had been arrested in the settlement,
including her nephews Aslan and Mokhmad Mudayev and Mr I.A. Many of
the detainees had been released in the evening on the same day. On 30
January 2003 her nephew Mr I.A. had also returned home. He had told
her that he had been detained with Aslan and Mokhmad Mudayev in the
FSB office.
On
unspecified dates the investigators also questioned twelve other
witnesses, including the first applicant, Mr A.M., Mr I.M., Mr Yu.V.,
Mr A.D., Mr S.B., Mr Sh.A., Ms A.B., Ms B.O., Mr T.A., Ms T.M.,
Mr A.K. and Mr S.Z., who provided statements similar to the one
given by the second applicant.
On
an unspecified date the investigators questioned the applicants'
neighbour, Ms Kh. D., who stated that at about 9 a.m. on 29 January
2003 three grey UAZ vehicles without registration numbers had arrived
at the first applicant's house. A group of armed men in camouflage
uniforms and masks had gotten out of the cars. The men had taken the
first applicant's two sons and driven them away in the direction of
the Nadterechniy district.
On
an unspecified date the investigators also questioned Mr I.M., who
provided a statement similar to the one given by Ms Kh.D.
On
an unspecified date the investigators questioned Ms T.M. who stated
that at about 9 a.m. on 29 January 2003 she had been driving with her
relatives through the area situated next to the bridge in the village
of Pobedinskoye. There she had seen several UAZ cars and APCs which
were driving in the direction of the village of Znamenskoye in the
Nadterechniy district. After the witness had arrived at Pobedinskoye,
she had learnt from the local residents that earlier in the morning a
group of armed men in camouflage uniforms under the command of the
head of the Nadterechniy district department of the FSB, Mr M. Kh.,
had taken Aslan and Mokhmad Mudayev away; that the relatives of the
abducted men had followed the abductors in cars and that they had
seen that the two brothers had been taken to the premises of the
Nadterechniy district department of the FSB.
On
unspecified dates the investigators also questioned three other
witnesses, including Ms M.Yu., Ms. Z.K. and Ms L.A., who provided
statements similar to the one given by Ms T.M.
On
an unspecified date the investigators questioned Mr Z.B., who stated
that he had known Aslan and Mokhmad Mudayev since childhood. On 29
January 2003 he had learnt that the two brothers had been arrested as
a result of the operation conducted under the command of the head of
the Nadterechniy district department of the FSB, Mr M. Kh. According
to the witness, the elder brother of the arrested men, Akhmed, had
been a member of illegal armed groups but Aslan and Mokhmad had not
been involved in illegal activities. At some point Akhmed Mudayev had
been killed by the OMON (special task force) police officers during a
skirmish in the village of Dolinskoye.
On
an unspecified date the investigators questioned the applicants'
relative Mr E.M., who stated that his nephews Aslan and Mokhmad
Mudayev had been arrested on 29 January 2003 by representatives of
the Nadterechniy district department of the FSB in the presence of
its head, Mr Mayrbek Kh. On the following day many of those who
had been detained were released. However, Aslan and Mokhmad Mudayev
did not return home.
On
an unspecified date the investigators questioned a police officer,
N.M., who stated that in the spring of 2003 he had worked as the
district police officer in the settlement of Podebinskoye in the
Grozny district. About two months prior to that, in the winter of
2003, Aslan and Mokhmad Mudayev had been brought to the Nadterechniy
district department of the FSB.
On
unspecified dates the investigators also questioned Mr G.R. and Mr
B.S., who had provided statements similar to the above statement by
Mr N.M.
On
an unspecified date the investigators questioned Mr E.A. who stated
that about two or three weeks after the apprehension of Aslan and
Mokhmad Mudayev he had been detained on the premises of the FSB
office in the Nadterechniy district and that at the time he had not
seen the applicants' relatives there.
On
an unspecified date the investigators questioned Mr S.Z., who stated
that in January 2003 about twenty of his fellow villagers, including
Aslan and Mokhmad Mudayev, had been detained by representatives of
the FSB in the villages of Raduzhnoye and Dolinskoye. On 26 April
2003 he had been arrested by representatives of the Nadterechniy
district department of the FSB and was released some time later.
During his detention at the FSB office he had not seen the
applicants' relatives.
On
an unspecified date the investigators questioned the head of the
Nadterechniy district department of the FSB Mr Mayrbek Kh., who
stated that after two staff members of the Chechnya prosecutor's
office had been kidnapped their department had taken operational
search measures aimed at establishing the identity of the
perpetrators. As a result, Aslan and Mokhmad Mudayev had been brought
over to the FSB office and questioned. After it had been established
that the two brothers had not been involved in the abduction, Aslan
and Mokhmad Mudayev had been released. The witness did not know why
the brothers had not returned home. The officer further stated that
Aslan and Mokhmad Mudayev had signed papers to the effect that they
had nothing against the officers of the FSB; however, these documents
had been later destroyed. Relatives of Aslan and Mokhmad Mudayev had
contacted the witness on a number of occasions asking for assistance
in establishing the brothers' whereabouts. According to the witness,
he had had information concerning the possible absconding of Aslan
and Mokhmad Mudayev from Chechnya to Ingushetia, where their brother
Akhmed, an active member of illegal armed groups, had been hiding. In
the summer of 2003 Akhmed Mudayev had been killed in a shoot-out. The
witness had no information concerning the whereabouts of Aslan and
Mokhmad Mudayev.
The
investigators requested information from the Nadterechniy district
court concerning arrest orders issued by the court as of 29 January
2003 in respect of Aslan and Mokhmad Mudayev. According to the
district court, no such orders had been issued by it.
The
investigators also requested information from the head of the
Nadterechniy district administration concerning the list of persons
who had suffered as a result of the terrorist attack committed on 12
May 2003 in Znamenskoye. The list of victims did not contain the
names of Aslan and Mokhmad Mudayev.
According to the Government, the investigation failed to establish
the whereabouts of Aslan and Mokhmad Mudayev; their corpses were not
found. No evidence demonstrating the involvement of federal forces in
their disappearance was found.
According
to the documents submitted by the Government, between 29 September
2003 and 25 July 2008 the investigation was suspended and resumed on
at least three occasions, that is, on 21 June 2004, 8 June 2005 and
11 February 2008, and it has so far failed to establish the
identities of the perpetrators.
From
the Government's submission it follows that on 16 July 2008 the head
of the Investigations Department of the Investigations Committee at
the Office of the Russian Prosecutor General decided that the
investigation of the abduction of the applicants' relatives should be
carried out by a joint group of investigators from the prosecutor's
office and the military investigations department.
The
Government further submitted that all the measures envisaged under
the domestic law were being taken by the investigators and that the
applicants had been duly informed of all decisions taken during the
proceedings.
Despite
specific requests by the Court the Government did not disclose most
of the contents of criminal case file no. 42172, providing only
copies of several notifications to the applicants of the suspension
and reopening of the proceedings and a copy of the witness statement
given by the first applicant on 29 September 2003. 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 data concerning the
witnesses or other 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 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, submitting that
the investigation into the disappearance of Aslan and Mokhmad Mudayev
had not yet been completed. They further argued that it had been open
to the applicants to challenge in court any acts or omissions of the
investigating or other law-enforcement authorities, and that the
applicants had availed themselves of that remedy. Finally, they
argued that it had been open to the applicants to pursue civil
complaints but that they had failed to do so.
The
applicants contested that objection. They stated that the criminal
investigation had proved to be ineffective. With reference to the
Court's practice, they argued that they were not obliged to claim
damages through civil proceedings in order to exhaust domestic
remedies.
B. The Court's assessment
The
Court will examine the arguments of the parties in the light of the
provisions of the Convention and its relevant practice (for a
relevant summary, see Estamirov and Others v. Russia, no.
60272/00, §§ 73-74, 12 October 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, 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 (see
Khashiyev and Akayeva v. Russia, nos. 57942/00
and 57945/00, §§ 119-21, 24 February 2005, and
Estamirov and Others, cited above, § 77). In the
light of the above, the Court confirms that the applicants were not
obliged to pursue civil remedies.
As
regards criminal law remedies provided for by the Russian legal
system, the Court observes that the applicants complained to the law
enforcement authorities about the kidnapping of Aslan and Mokhmad
Mudayev and that an investigation has been ongoing since 29 September
2003. The applicants and the Government dispute the effectiveness of
the investigation of the kidnapping.
The
Court considers that the Government's objection raises issues
concerning the effectiveness of the investigation which are closely
linked to the merits of the applicants' complaints. Thus, it decides
to join this objection to the merits of the case and considers that
the issue falls to be examined below.
II. 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 Aslan and Mokhmad Mudayev had been State
agents. In support of their complaint they referred to the following
facts. The Government had confirmed to the Court that the local
law-enforcement authorities had conducted a special operation on 29
January 2003, as a result of which Aslan and Mokhmad Mudayev had been
taken to the Nadterechniy district department of the FSB along with
other residents of Raduzhnoye. However, the applicants' relatives had
not been released on the following day, unlike the other detainees,
and had never returned home. The Government's allegations that the
two brothers had been released shortly after their apprehension were
completely unsubstantiated and refuted by witness statements
collected by the applicants and the official investigation. All the
information disclosed by the Government about the criminal
investigation supported the applicants' assertion as to the
involvement of State agents in the abduction of their relatives.
Since Aslan and Mokhmad Mudayev had been missing for a very lengthy
period, they could be presumed dead. That presumption was further
supported by the circumstances in which they had been arrested, which
should be recognised as life-threatening.
The
Government submitted that on 29 January 2003 the Nadterechniy
district department of the FSB, under the command of its head officer
M.Kh., had conducted a special operation to identify the perpetrators
of the abduction of two prosecution officials which had taken place
prior to the events in question. As a result of the operation, Aslan
and Mokhmad Mudayev had been taken to the Nadterechniy district
department of the FSB for questioning. Their non-participation in the
abduction of the officials had been established and the two brothers
had been released. The Government further stated that the brothers
might have absconded from the authorities. They further contended
that the investigation into the incident was ongoing and that there
was no evidence that State representatives might be responsible for
the disappearance of the Mudayev brothers. The Government further
argued that there was no convincing evidence that the applicants'
relatives were dead as their corpses had not been found. Referring to
the witness statements obtained by the investigation, the Government
pointed out that Mr E.A. and Mr S.Z. had stated that during their
detention in the Nadterechniy district department of the FSB in
February 2003 and after 26 April 2003 accordingly, they had not seen
the Mudayev brothers either on the premises of the FSB office or
during the transportation of the office's detainees in May 2003 after
the partial destruction of the building as a result of the terrorist
attack. The Government did not submit these
witness statements to the Court.
B. The Court's evaluation of the facts
The
Court observes that in its extensive jurisprudence 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, § 161, Series A no. 25).
The
Court notes that despite its requests for a copy of the investigation
file into the abduction of Aslan and Mokhmad Mudayev, the Government
produced only a few 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-VIII (extracts)).
In
view of this and bearing in mind the principles referred to above,
the Court finds that it can draw inferences from the Government's
conduct in respect of the well-foundedness of the applicants'
allegations. The Court will thus proceed to examine crucial elements
in the present case that should be taken into account when deciding
whether the applicants' relatives can be presumed dead and whether
their deaths can be attributed to the authorities.
The
applicants alleged that the persons who had taken Aslan and Mokhmad
Mudayev away on 29 January 2003 and then killed them had been
State agents. The Government did not dispute any of the main factual
elements underlying the application. They acknowledged that the
applicants' relatives had been detained by State agents, but
suggested that they had been released some time later.
The
Government submitted that the applicants' relatives had been detained
on 29 January 2003 by representatives of the local law enforcement
agencies under the command of the head of the Nadterechniy district
department of the FSB officer M. Kh. and taken to the FSB office for
questioning and that they had been released shortly afterwards (see
paragraph 25 above). In support of their position the Government
referred to the summary of the witness statement given by officer
M.Kh. to the investigators (see paragraph 65 above), which the
Government did not submit to the Court. 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 notes that the applicants' allegation is supported by the
witness statements collected by the applicants and by the
investigation. In particular, the Court notes that a number of
witnesses pointed out that Aslan and Mokhmad Mudayev had not been
released from detention in the FSB office unlike the other men who
had been apprehended as a result of the special operation (see
paragraphs 20, 21, 52 and 60 above). It further observes that the
Government's allegation that the applicants' relatives were released
after questioning was not substantiated by any documents. In their
application to the authorities the applicants consistently maintained
that Aslan and Mokhmad Mudayev had been arrested by servicemen under
the command of officer M. Kh. and subsequently detained in the FSB
office and requested the investigation to examine that possibility
(see paragraphs 31, 41, 45, 49 and 53 above). The domestic
investigation also accepted factual assumptions as presented by the
applicants and questioned officer M. Kh. However, it does not appear
that any serious steps were taken to verify his statement concerning
the release of the applicants' relatives.
The
Court observes that where applicants make out a prima facie case
and the Court is prevented from reaching factual conclusions owing to
a lack of relevant 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 relatives
were apprehended by State servicemen. The Court observes that the
Government submitted no evidence, such as records of detention and
release, to corroborate their contention that the applicants'
relatives had been set free. As to the Government's contention that
the records were destroyed as a result of the fire (see paragraph 26
above), they failed to submit any evidence confirming that the
impugned documents had been indeed destroyed as a result of it. No
documents in the case file indeed refer to the destruction of the
documents as a result of the incident. The Court is struck by the
fact that the source of this assertion is none other than the officer
most closely implicated in the detention of the Mudayev brothers. In
such circumstances and taking into account the absence of any
evidence to the contrary, the Court finds that Aslan and Mokhmad
Mudayev remained under the control of the authorities after being
apprehended during the special operation.
The
Court further notes that no documents relating to the applicants'
relatives' apprehension and subsequent detention have been made
available to it. There has been no reliable news of the
Aslan and Mokhmad Mudayev since the date of the kidnapping. Their
names have not been found in any official detention facility records.
Finally, the Government have not submitted any explanation as to what
happened to them after their arrest.
Having
regard to the previous cases concerning disappearances in Chechnya
which have come before it (see, among others, Bazorkina, cited
above; Imakayeva, cited above; Luluyev and Others v.
Russia, no. 69480/01, ECHR 2006 ... (extracts);
Baysayeva v. Russia, no. 74237/01, 5 April 2007;
Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva
v. Russia, no. 68007/01, 5 July 2007), the Court finds
that in the context of the conflict in the Republic, when a person is
detained by servicemen without any subsequent acknowledgment of the
detention, this can be regarded as life threatening. The absence
of Aslan and Mokhmad Mudayev or of any news of them for many years
supports this assumption. Furthermore, the Government have failed to
provide any explanation as to the disappearance of the applicants'
relatives after their arrest, and the official investigation into
their abduction, which has lasted for more than six years, has
produced no tangible results.
The
Court further notes that, regrettably, it has been unable to benefit
from the results of the domestic investigation owing to the
Government's failure to disclose most of the documents from the file
(see paragraph 72 above). Nevertheless, it is clear that the
investigation did not identify the perpetrators of the kidnapping.
Accordingly,
the Court finds that the evidence available permits it to establish
that Aslan and Mokhmad Mudayev must be presumed dead following their
unacknowledged detention by State servicemen.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicants complained under Article 2 of the Convention that their
relatives had been deprived of their lives by State agents 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 Aslan and Mokhmad Mudayev were dead or
that any servicemen of the federal law-enforcement agencies had been
involved in their kidnapping or alleged killing. The Government
claimed that the investigation into the kidnapping of the applicants'
relatives met the Convention requirement of effectiveness, as all
measures available under national law were being taken to identify
those responsible.
The
applicants argued that Aslan and Mokhmad Mudayev had been detained by
State servicemen and should be presumed dead in the absence of any
reliable news of them for years. The applicants also argued that the
investigation had not met the effectiveness and adequacy requirements
laid down by the Court's case-law. The applicants pointed out that by
January 2005 the district prosecutor's office had not taken certain
crucial investigative steps. The investigation into Aslan and Mokhmad
Mudayev's kidnapping had been opened several months after the events
and then had been suspended and resumed a number of times –
thus delaying the taking of the most basic steps – and that the
relatives had not been properly informed of the most important
investigative measures. The fact that the investigation had been
ongoing for such a long period of time without producing any known
results was further proof of its ineffectiveness. They also 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 80 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 Aslan and Mokhmad Mudayev
The
Court has already found that the applicants' relatives must be
presumed dead following unacknowledged detention by State servicemen.
In the absence of any justification put forward by the Government,
the Court finds that their deaths can be attributed to the State and
that there has been a violation of Article 2 in respect of Aslan and
Mokhmad Mudayev.
(b) The alleged inadequacy of the
investigation of the kidnapping
The
Court has on many occasions stated that the obligation to protect the
right to life under Article 2 of 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. It 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 kidnapping of Aslan and Mokhmad Mudayev 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 file were not disclosed by the Government. It therefore
has to assess the effectiveness of the investigation on the basis of
the few documents submitted by the parties and the information about
its progress presented by the Government.
The
Court notes that the authorities were made aware of the crime by the
applicants' written submission on 22 September 2003. The
investigation in case no. 42172 was instituted on 29 September 2003.
Taking into account that the Government failed to furnish the Court
with any information as to the dates of the investigative measures
taken by the prosecutor's office, it is nonetheless clear that after
the opening of the criminal case the investigators did not take even
the most basic steps. For instance, the Court notes that, as can be
seen from the decision of the district court of 30 December 2004, by
that date the investigators had not questioned any of the persons
involved in the arrest of the Mudayev brothers even though “...
in the course of the preliminary investigation it had been
unequivocally established by whom and when the Mudayev brothers had
been arrested and where they had been detained ...” (see
paragraph 44 above). It is obvious that if they were to produce any
meaningful results such investigative measures should have been taken
immediately after the investigation obtained the relevant
information. 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 matter (see Öneryıldız v.
Turkey [GC], no. 48939/99, § 94, ECHR 2004 XII).
Further, it does not appear that the investigation tried to identify
and question any of the servicemen who had worked in the Nadterechniy
district department of the FSB, other than officer M.Kh., in order to
establish whether Aslan and Mokhmad Mudayev had been detained there
after 29 January 2003, or that the investigators tried to identify
and question the more than twenty other residents of Raduzhnoye who
had been arrested in the course of the same special operation.
The
Court also notes that even though the applicants were granted victim
status in the criminal case concerning the abduction of their
relatives, 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, and to
safeguard the interests of the next of kin in the proceedings.
Finally,
the Court notes that the investigation was adjourned and resumed on
numerous occasions and that there were lengthy periods of inactivity
on the part of the prosecutor's office when the proceedings were
suspended. The district court criticised the deficiencies in the
proceedings and ordered remedial measures (see paragraph 44 above).
It appears that its instructions were not complied with.
The
Government argued that the applicants could have sought further
judicial review of the decisions of the investigating authorities in
the context of the exhaustion of domestic remedies. The Court
observes that the applicants did, in fact, make use of that remedy,
which eventually led to the resumption of the investigation.
Nevertheless, the effectiveness of the investigation had already been
undermined in its early stages by the authorities' failure to take
essential investigative measures. Moreover, the district court's
instructions to the prosecutor's office to investigate the crime
effectively did not bring any tangible results for the applicants.
The investigation was repeatedly suspended and resumed, but it
appears that no significant investigative measures were taken to
identify those responsible for the kidnapping. In such circumstances,
the Court considers that the applicants could not be required to
challenge in court every single decision of the district prosecutor's
office. Accordingly, the Court finds that the remedy cited by the
Government was ineffective in the circumstances and dismisses their
preliminary objection as regards the applicants' failure to exhaust
domestic remedies within the context of the criminal investigation.
In
the light of the foregoing, the Court holds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the disappearance of Aslan and Mokhmad
Mudayev, in breach of Article 2 in its procedural aspect.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants relied on Article 3 of the Convention, submitting that
after their arrest Aslan and Mokhmad Mudayev had been subjected to
inhuman and degrading treatment and that the State had failed to
investigate the applicants' allegations about it in breach of Article
3 of the Convention. Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
The
Government disagreed with these allegations and argued that the
investigation had not established that Aslan and Mokhmad Mudayev
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
Ill-treatment of the applicants' relatives
The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. To assess this evidence, the Court adopts
the standard of proof “ beyond reasonable doubt ” but
adds that such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted
presumptions of fact (see Ireland v. the United Kingdom, cited
above, § 161 in fine).
The
Court has already found that Aslan and Mokhmad Mudayev were detained
on 29 January 2003 by federal forces and that no reliable news of
them has been received since. It has also found that, in view of all
the known circumstances, they can be presumed dead and that the
responsibility for their death lies with the State authorities (see
paragraph 99 above). However, the questions of the exact way in which
they died and whether they were subjected to ill-treatment while in
detention have not been elucidated. The Court considers that the
applicants' reference to the statement of Mr Aslan A. (see paragraph
21 above) does not enable it to find beyond all reasonable doubt that
Aslan and Mokhmad Mudayev were ill-treated in detention. It thus
finds that this part of the complaint has not been substantiated.
It
follows that this part of the application is manifestly ill-founded
and should be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
2. Merits
Alleged ineffectiveness of the investigation of the
ill-treatment
The
Court reiterates that “where an individual makes a credible
assertion that he has suffered treatment infringing Article 3 at the
hands of the police or other similar agents of the State, that
provision, read in conjunction with the State's general duty under
Article 1 of the Convention to secure to everyone within their
jurisdiction the rights and freedoms defined in ... [the] Convention,
requires by implication that there should be an effective official
investigation” (see Labita v. Italy [GC], no. 26772/95,
§ 131, ECHR 2000 IV).
The
Court notes that the applicants raised in detail their complaints
about the ill treatment of Aslan and Mokhmad Mudayev with the
investigating authorities (see paragraph 31 above). However, it does
not appear that their complaints were properly examined by the
prosecutor's office.
For
the reasons stated above in paragraphs 103 – 107 in relation to
the procedural obligation under Article 2 of the Convention, the
Court concludes that the Government has failed to conduct an
effective investigation into the ill-treatment of Aslan and Mokhmad
Mudayev.
Accordingly,
there has been a violation of Article 3 in this respect.
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicants stated that Aslan and Mokhmad Mudayev had been detained in
violation of the guarantees contained in Article 5 of the Convention.
Article 5 reads, in so far as relevant:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law: ...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. The parties' submissions
The
Government asserted that no evidence had been obtained by the
investigators to confirm that Aslan and Mokhmad Mudayev had been
deprived of their liberty. The brothers had been brought to the
Nadterechniy district department of the FSB for questioning and had
been released shortly afterwards. The applicants' relatives were not
listed among the persons kept in detention centres and none of the
local law-enforcement agencies had information about their detention.
The
applicants reiterated the complaint.
B. The Court's assessment
1. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that the complaint is not inadmissible
on any other grounds and must therefore be declared admissible.
2. Merits
The
Court has previously noted the fundamental importance of the
guarantees contained in Article 5 to secure the right of individuals
in a democracy to be free from arbitrary detention. It has also
stated that unacknowledged detention is a complete negation of these
guarantees and discloses a very grave violation of Article 5 (see
Çiçek v. Turkey, no. 25704/94, § 164,
27 February 2001, and Luluyev, cited above, § 122).
The Court has found that Aslan and Mokhmad Mudayev
were apprehended by State servicemen on 29 January 2003 and have
not been seen since. Their detention was not acknowledged, was not
logged in any custody records and there exists no official trace of
their subsequent whereabouts or fate (see paragraph 90 above). In
accordance with the Court's practice, this fact in itself must be
considered a most serious failing, since it enables those responsible
for an act of deprivation of liberty to conceal their involvement in
a crime, to cover their tracks and to escape accountability for the
fate of a detainee. Furthermore, the absence of detention records,
noting such matters as the date, time and location of detention and
the name of the detainee as well as the reasons for the detention and
the name of the person effecting it, must be seen as incompatible
with the very purpose of Article 5 of the Convention (see Orhan,
cited above, § 371).
The
Court further considers that the authorities should have been more
alert to the need for a thorough and prompt investigation of the
applicants' complaints that their relatives had been detained and
taken away in life-threatening circumstances. However, the Court's
findings above in relation to Article 2 and, in particular, the
conduct of the investigation leave no doubt that the authorities
failed to take prompt and effective measures to safeguard them
against the risk of disappearance.
In
view of the foregoing, the Court finds that Aslan and Mokhmad Mudayev
were 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.
VI. ALLEGED VIOLATION OF ARTICLE 18 IN CONJUNCTION WITH ARTICLE 5 §
1 (c) OF THE CONVENTION
The
applicants further alleged that the detention of their relatives was
carried out for a purpose other than those envisaged by Article
5 § 1 (c), contrary to Article 18 of the
Convention. Article 18 reads:
“The restrictions permitted under this Convention
to the said rights and freedoms shall not be applied for any purpose
other than those for which they have been prescribed.”
As
for the alleged violation of Article 18 in conjunction with Article 5
of the Convention, the Court reiterates that Article 18 of the
Convention does not have an autonomous role. It can only be applied
in conjunction with other Articles of the Convention (Gusinskiy v.
Russia, no. 70276/01, § 73, ECHR 2004 IV).
The Court has already found in paragraphs 123-125
above that the applicants' relatives were deprived of their liberty
without any of the safeguards contained in Article 5, and not “for
the purpose of bringing [a person] before the competent legal
authority on reasonable suspicion of having committed an offence”
as stipulated in Article 5 § 1 (c). In these circumstances,
since that issue has already been addressed by the Court, there is no
need to examine these facts again under Article 18 in conjunction
with Article 5 of the Convention.
VII. 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
that the authorities had not prevented them from using them. The
applicants had had an opportunity to challenge the acts or omissions
of the investigating authorities in court and had availed themselves
of it. They added that participants in criminal proceedings could
also claim damages in civil proceedings. In sum, the Government
submitted that there had been no violation of Article 13.
The
applicants reiterated the complaint.
B. The Court's assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
The
Court reiterates that in circumstances where, as here, a criminal
investigation into a disappearance has been ineffective (see
paragraph 107 above) and the effectiveness of any other remedy that
might have existed, including civil remedies, as suggested by the
Government in the present case, has consequently been 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 the Convention.
As
regards the applicants' reference to Articles 3 and 5 of the
Convention, the Court considers that, in the circumstances, no
separate issues arise in respect of Article 13 in conjunction with
Articles 3 and 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).
VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
The
first applicant, as the father of Aslan and Mokhmad Mudayev, claimed
damages in respect of loss of earnings by his sons after their
arrests and subsequent disappearances. Referring to the method of
calculation used in the case of Isayeva v. Russia (no.
57950/00, §§ 232-236, 24 February 2005), he claimed a total
of 21,600 euros (EUR) under this heading.
The
Government regarded these claims as unsubstantiated. They also
pointed to the existence of domestic statutory machinery for the
provision of a pension for the loss of a family breadwinner.
The
Court reiterates that there must be a clear causal connection between
the damage claimed by an applicant and the violation of the
Convention at issue, and that this may, in an appropriate case,
include compensation in respect of loss of earnings. The Court
further finds that loss of earnings also applies to elderly parents
and that it is reasonable to assume that Aslan and Mokhmad Mudayev
would eventually have had some earnings from which the first
applicant would have benefited (see, among other authorities,
Imakayeva, cited above, § 213). Having regard to its
above conclusions, it finds that there is a direct causal link
between the violation of Article 2 in respect of the first
applicant's sons and the loss by the first applicant of the financial
support which they could have provided. Having regard to the
applicants' submissions and the fact that Aslan and Mokhmad Mudayev
were not employed at the time of their apprehension, the Court awards
EUR 20,000 to the first applicant in respect of pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Non-pecuniary damage
The
first applicant, as the father of the disappeared Aslan and Mokhmad
Mudayev, claimed EUR 200,000 in respect of non-pecuniary damage
for the suffering he had endured as a result of the loss of his
family members, the indifference shown by the authorities towards him
and the failure to provide any information about the fate of his
sons. The second applicant, as the aunt of the disappeared men,
claimed 50,000 EUR under this head.
The
Government found the amounts claimed exaggerated.
The
Court has found a violation of Articles 2, 3, 5 and 13 of the
Convention on account of the unacknowledged detention and
disappearance of the applicants' relatives. The Court thus accepts
that the applicants have suffered non-pecuniary damage which cannot
be compensated for solely by the findings of violations. It awards
100,000 EUR to the first applicant and 20,000 EUR to the second
applicant plus any tax that may be chargeable on these amounts.
C. Costs and expenses
The
applicants were represented by lawyers of the Centre of Assistance to
International Protection, Ms K. Moskalenko and Ms S. Davydova.
The applicants submitted that the aggregate claim in respect of costs
and expenses related to their legal representation amounted to EUR
4,500.
The
Government indicated that the applicants had not shown that the
expenses claimed for legal representation had actually been incurred.
The Court has to establish
first whether the costs and expenses indicated by the applicants'
representatives were actually incurred and, second, whether they were
necessary (see McCann and Others,
cited above, § 220).
Having regard to the details of
the information in its possession, the Court is satisfied that these
rates are reasonable and reflect the expenses actually incurred by
the applicants' representatives.
As to whether the costs and
expenses were necessary, the Court notes that this case was rather
complex and required a certain amount of research and preparation.
Having regard to the details of
the claims submitted by the applicants, the Court awards them the
amount of EUR 4,000 less EUR 850 received by way of legal
aid from the Council of Europe, together with any value-added tax
that may be chargeable thereon.
D. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares
the complaints under Articles 2, 3 (in respect of the authorities'
failure to investigate the alleged ill treatment), 5 and 13
admissible and the remainder of the application inadmissible;
Decides to join to the merits the Government's
objection as to non exhaustion of domestic remedies and rejects
it;
Holds that there has been a substantive
violation of Article 2 of the Convention in respect of Aslan and
Mokhmad Mudayev;
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 Aslan and
Mokhmad Mudayev disappeared;
5. Holds
that there has been a violation of Article 3 of the Convention
in respect of the failure to conduct an effective investigation into
the allegations of ill-treatment of Aslan and Mokhmad Mudayev;
Holds that there has been a violation of
Article 5 of the Convention in respect of Aslan and Mokhmad
Mudayev;
7. Holds
that there has been a violation of Article 13 of the Convention
in conjunction with Article 2 of the Convention;
8. Holds
that no separate issues arise under Article 13 of the Convention in
respect of the alleged violations of Articles 3 and 5;
Holds that there is no need to examine the
applicants' complaint under Article 18 in conjunction with Article
5 § 1 (c);
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 date of settlement, save
in the case of the payment in respect of costs and expenses:
(i) EUR 20,000
(twenty thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage to the first applicant;
(ii) EUR 100,000
(hundred thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the first applicant;
(iii) EUR 20,000
(twenty thousand euros) plus any tax that may be chargeable, in
respect of non-pecuniary damage to the second applicant;
(iv)
EUR 3,150 (three thousand one hundred and fifty euros) plus
any tax that may be chargeable, in respect of costs and expenses 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 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
