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SERIYEVY v. RUSSIA - 20201/05 [2010] ECHR 497 (8 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/497.html
Cite as:
[2010] ECHR 497
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FIRST
SECTION
CASE OF
SERIYEVY v. RUSSIA
(Application
no. 20201/05)
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 Seriyevy 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,
Dean
Spielmann,
Sverre
Erik Jebens,
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. 20201/05) 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 Abdula (also spelled
as Abdulla) Seriyev and Ms Maret Seriyeva (“the applicants”),
on 2 June 2005.
The
applicants were represented by lawyers of the Stichting Russian
Justice Initiative (“SRJI”), an NGO based in the
Netherlands with a representative office in Russia. The Russian
Government (“the Government”) were represented by their
Agent, Mr G. Matyushkin.
On
25 April 2008 the Court decided to apply
Rule 41 of the Rules of Court and to grant priority treatment to
the application and to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility. The President of the Chamber
acceded to the Government's request not to make publicly accessible
the documents from the criminal investigation file deposited with the
Registry in connection with the application (Rule 33 of the Rules of
Court).
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, who are father and daughter, were born in 1936 and 1975
respectively. They are the husband and the daughter of Bilkis
Askhabayeva, who was born in 1942, and the father and sister of
Sarali Seriyev, who was born in 1980. At the material time the
applicants and their relatives lived in Belgatoy, Chechnya; the
applicants currently live in Shali, Chechnya.
A. Events related to the death of Bilkis Askhabayeva as submitted
by the applicants
1. The death of Bilkis Askhabayeva
On 26 December 2002 a projectile struck the applicants'
house, hit Bilkis Askhabayeva and severely wounded her. She died on
the same day from the injuries.
2. The official investigation into the death of Bilkis Askhabayeva
On 27 December 2002 the district
prosecutor's office instituted an investigation into the death of
Bilkis Askhabayeva under Article 105 § 2
of the Criminal Code (aggravated murder). The case file was given
number 59281.
On 29 December 2002 the first
applicant was granted victim status in the criminal case. On 30
December 2002 the investigative authorities ordered a forensic
examination of Bilkis Askhabayeva's body.
At some point between January
2003 and November 2004 the investigation of the criminal case was
transferred to the military prosecutor's office of military
unit no. 20116 (the military prosecutor's
office), where the case file was given number 34/35/0191-03.
On 25 November 2004 the military prosecutor's office
terminated the proceedings in the criminal case. The decision stated
that the investigation had established that on 26 December 2002
military unit no. 23132 had participated in a special operation
against illegal armed groups. At about 8 p.m. an illuminating shell
launched by a cannon 2C3 No. 221 from the position of the
military unit, due to a technical malfunction, had hit the house at
41 Kirova Street in Belgatoy, Chechnya. The death of Bilkis
Askhabayeva was a result of an accident and therefore no personal
responsibility could be established for it. The decision further
stated that the criminal investigation in case no. 34/35/0191-03
should be terminated for lack of corpus delicti in the actions
of the military servicemen.
On 7 December 2004 the military prosecutor's office
informed the first applicant about the decision to terminate the
criminal proceedings. The applicants did not appeal this decision.
On 13 June 2005 the military prosecutor's office took
another decision to terminate the proceedings in the criminal case on
the grounds of lack of corpus delicti and the amnesty act
applied to the military officers. The applicants did not appeal this
decision either.
3. Civil proceedings initiated by the applicants in connection
with the death of Bilkis Askhabayeva
On 29 March 2005 the first applicant brought
proceedings against military unit no. 23132. He demanded
compensation for pecuniary and non pecuniary damage caused by
his wife's death.
On 13 June 2005 the Shali town court partially granted
the claim. The court granted the applicant 168,105 Russian roubles
(RUB - about 5,000 euros (EUR)) in respect of pecuniary damage and
RUB 10,000 (about EUR 300) in respect of non-pecuniary damage.
On an unspecified date the first applicant lodged a
request with the town court asking for an extension of the
time-limits for appeal of the judgment. The applicant submitted that
he had not complied with the time-limits for the appellate procedure
because of illness.
On 25 August 2005 the Shali town court rejected his
request. The court stated that the applicant had failed to provide
any evidence, such as a medical certificate, to justify his failure
to comply with the statutory time limits for the appeal.
On an unspecified date the first applicant again
brought proceedings against military unit no. 23132 demanding
compensation for pecuniary and non-pecuniary damage caused by the
actions of the military in December 2002.
On 23 June 2008 the Shali town court granted the
applicant's claim and awarded him a total of RUB 532,000 (about EUR
15,200) in damages, of which RUB 232,000 were granted in respect of
pecuniary damage and RUB 300,000 in respect of non-pecuniary damage
suffered in connection with the death of Bilkis Askhabayeva. The
applicant did not appeal against this decision.
On 3 September 2008 the judgement was enforced and the
applicant received the amount due.
B. Events related to the disappearance of Sarali Seriyev
1. The applicants' account
a. Abduction of Sarali Seriyev
In 2000 as a result of an accident Sarali Seriyev
(also spelled as Sar Ali Serbiyev) lost his right hand, three
fingers on the left hand and vision in his right eye. At the material
time he was wearing a prosthesis.
On 1 June 2004 the applicants, Sarali Seriyev and
their relative Imali Seriyev were at home at 41 Kirova Street in
Belgatoy, Chechnya. The area was under the full control of
the Russian federal forces; military checkpoints were located on the
roads leading to and from the village.
At about 5 p.m. eight or nine silver-coloured
vehicles, including a van and VAZ cars, arrived at the applicants'
house. Only one of them had a registration number, which was 516 95.
About thirty heavily-armed masked servicemen in
uniforms got out of the vehicles. Two or three of them were in
helmets. The men neither identified themselves nor produced any
documents. They communicated in Russian, although a few spoke
Chechen. The applicants thought that the intruders were federal
servicemen as the vast majority of them spoke unaccented Russian and
just a few spoke Chechen.
Upon entering the applicants' yard, the servicemen
demanded that the residents of the house hand their weapons to them
and state who had spent the night in the house. After that the men
forced the second applicant and her brother Imali into different
rooms.
The intruders sprayed some kind of thick liquid into
the room where the second applicant was placed. Two of the officers
entered Imali's room, where he was forced to stay, beat him and
searched the place.
Meanwhile other intruders took Sarali out from the
house, forced him into the yard and then into one of the cars in the
street. As this was happening the first applicant was trying to
explain to the servicemen that Sarali was a disabled person and to
show them his and Sarali's identity documents. One of the servicemen
took them from the first applicant and told him that they did not
need any identity documents.
The second applicant and Imali ran after the
servicemen in an attempt to prevent them from detaining Sarali, but
one of the intruders pushed the applicant and sprayed her with the
thick liquid, causing her eyes to burn. They also sprayed Imali in
the left eye and he ran to rinse his eye under an outdoor water tap.
The first applicant also attempted to prevent the soldiers from
taking Sarali away. The applicant threw himself onto one of the cars,
but a soldier sprayed a liquid into his eyes. A group of the
applicants' neighbours witnessed the abduction of Sarali Seriyev.
The first applicant followed the abductors' vehicles
by car with an officer from a local department of the interior. They
drove up to the local military checkpoints; however, the applicant
could not obtain any information there about Sarali's abductors.
The description of the circumstances surrounding
Sarali Seriyev's abduction is based on an account by the first
applicant dated 20 May 2005, on an account by the second applicant,
dated 6 February 2006, and on documents submitted with the
application.
b. The search for Sarali Seriyev and the
official investigation
On
1 June 2004 the applicants started their search for Sarali Seriyev.
They contacted, both in person and in writing, various official
bodies, such as the Shali administration, the Chechen administration,
the Shali district military commander's office and the prosecutors'
offices at different levels, describing in detail the circumstances
of their relative's abduction and asking for help in establishing his
whereabouts. The applicants retained copies of a number of their
complaints and the authorities' replies and submitted them to the
Court. An official investigation had been opened by the local
prosecutor's office. The relevant information is summarised below.
Immediately after his son's abduction, in the late
afternoon of 1 June 2004, the first applicant invited the
investigators of the Shali district prosecutor's office (the district
prosecutor's office). They arrived at the house about half an hour
after the events. In the yard they took down the statements of the
applicants, their relatives and neighbours and drew a map of the
house. When the second applicant told the investigators about the
spray used to disable her, one of them dismissed her statement as
irrelevant. The investigators refused to go inside and examine the
house for evidence.
On 2 July 2004 the district prosecutor's office
instituted an investigation into the abduction
of Sarali Seriyev under Article 126 § 2 of the
Criminal Code (aggravated kidnapping). The case file was given the
number 36076.
On 2 July 2004 the district prosecutor's office
granted the first applicant victim status in the criminal case.
On 21 July 2004 the Chechnya prosecutor's office
informed the first applicant that the investigation in the criminal
case was taking operational search measures to establish the
whereabouts of Sarali Seriyev and identify the perpetrators of his
kidnapping.
On 21 July 2004 the Chechnya prosecutor's office
forwarded the first applicant's request for assistance in the search
for his son to the district prosecutor's office for examination.
On 17 September 2004 the head of the criminal search
division of the Chechnya department of the interior (the Chechnya
MVD) informed the first applicant that his son's abduction was being
investigated by the district prosecutor's office.
On 20 September 2004 the first applicant requested the
military prosecutor office's of the United Group Alignment (the
military prosecutor's office of the UGA) to assist in the search for
his son.
On 15 October 2004 the military prosecutor's office of
the UGA informed the first applicant that information concerning the
investigation into his son's abduction was available either at the
district prosecutor office or the Chechnya prosecutor's office. The
letter also stated “... it has been established that federal
military servicemen were not involved in your son's abduction”.
On 1 December 2004 the district prosecutor's office
informed the first applicant that his complaint about the abduction
had been included into the investigation file.
On 2 February 2005 the first applicant addressed the
Shali district military commander's office (the district military
commander's office) with a request for assistance in the search for
his son.
On 3 February 2005 the district military commander's
office informed the first applicant that they had forwarded
information requests concerning Sarali Seriyev's whereabouts to a
number of law enforcement agencies.
On 5 February 2005 the Chechnya prosecutor's office
informed the first applicant that the investigation in the criminal
case had been resumed on an unspecified date.
On 22 February 2005 the military prosecutor's office
of military unit no. 20116 informed the first applicant that
they had not received his request.
On 8 March 2005 the district military commander's
office provided the first applicant with a copy of their information
request concerning the search for Sarali Seriyev.
On 14 March 2005 the first applicant complained to the
district military commander's office about the lack of information
concerning the investigation into his son's abduction.
On 6 June 2005 the applicants' representatives wrote
to the district prosecutor's office. They asked about the measures
taken in the criminal case and the progress of the investigation and
requested that the first applicant be provided with copies of
documents from the investigation file.
On 29 June 2005 the Chechnya prosecutor's office
informed the applicants' representatives that the investigation into
the abduction of Sarali Seriyev had taken all measures to identify
the perpetrators; that the first applicant was entitled to
familiarise himself with the documents in the investigation file;
that he could obtain information on the progress of the investigation
and receive copies of the requested documents at the district
prosecutor's office.
On 28 July 2005 the Chechnya prosecutor's office
informed the applicants' representatives that information concerning
the investigation in the criminal case was a secret and was not a
subject to disclosure.
2. Information submitted by the Government
The
Government submitted that “... at about 5 p.m. on 1 June 2004
in Kirov Street in Belgatoy, in the Shali district of Chechnya, about
fifteen unidentified persons in camouflage uniforms and masks, armed
with automatic weapons, abducted Sarali Seriyev and took him away to
an unknown destination in a VAZ-21099 vehicle. The whereabouts of
S. Seriyev have not been established since”. In connection
with this, the district prosecutor's office had opened criminal case
no. 36076 under Article 126 § 2 of the Criminal Code
(aggravated kidnapping).
On
10 June 2004 the investigators conducted the crime scene examination
at 41 Kirova Street, Belgatoy. Nothing was collected from the scene.
On 2 July 2004 the first applicant was granted victim status in the
criminal case. The text of the decision included the following:
“...the investigation established: on 1 June 2004
unidentified persons in camouflage uniforms, with firearms, had
arrived during the daytime in VAZ-21099 cars at the house of S.
Seriyev in Kirova Street, Belgatoy and detained him; after that they
had taken him away to an unknown destination...”
On
the same date, 2 July 2004, the applicant was questioned by the
investigators. According to a partial copy of his witness statement
furnished by the Government, in the late afternoon of 1 June 2004 he
had been at home with his relatives. His son Sarali was in the house
while his daughter, the second applicant, was in the yard. At about 5
p.m. a masked man in camouflage uniform armed with an automatic
weapon had entered the room where the first applicant was resting.
The man asked the applicant in Russian whether any other men were in
the house. The applicant responded that his children were on the
second floor of the house and then followed the man outside. In the
yard he saw a group of about eight masked men in camouflage uniforms,
armed with automatic weapons; the second applicant was showing her
brother's documents to them. One of the men sprayed the second
applicant's face with a liquid from a spray can and took Sarali
Seriyev to a VAZ-21099 car which was parked in the street. The
applicant did not see how many cars were in the street. He further
stated that his son had a first-degree disability owing to the
amputation of his hand.
On
5 July 2004 the investigators questioned the second applicant.
According to a partial copy of her witness statement furnished by the
Government, she stated that Sarali Seriyev had a disability: he had
lost his hand as a result of a mine explosion. On 1 June 2004 she had
been at home when she had heard from the hallway an order to put her
hands up. She saw a man in camouflage uniform holding a machine gun,
and her brother Sarali next to him. The man asked whether anyone
else, other than the family members, were in the house. When the
applicant responded that only family members were in the house, the
man asked what had happened to her brother's hands. The applicant
explained that a mine had exploded in his hands and that there were
medical documents certifying it. Several more men entered the house
and asked her to fetch the documents. After the applicant returned
with the papers, they sprayed her in the eyes with tear gas, pushed
her into a room and dragged her brother downstairs. She attempted to
follow them, but one of the abductors pointed his gun at her and
ordered her to get back in the room. Then the applicant decided to
call for help from the window; from there she saw several more armed
men in camouflage uniforms in the yard and five or six VAZ-21099
cars. All the vehicles were silver-coloured, except for one, which
was white. The intruders put Sarali into one of the cars and drove
away.
On
5 July 2004 the investigators questioned the applicants' neighbour,
Mr V.S. According to a partial copy of his witness statement
furnished by the Government, he stated that on 1 June 2004 he had
been at home when he had heard screams coming from the applicants'
house. He went outside and heard the second applicant screaming. Then
the witness went to the applicants' house. On the way there he saw a
boy who told him that Sarali Seriyev was being taken away. A silver
VAZ-21099 with tinted windows was in the street; its registration
number was 516, region 95. Four masked men in camouflage uniforms,
armed with 5.45 mm machine guns and APS pistols (“automatic
Stechkin pistol”) walked towards the car from the vegetable
garden. Judging by the way the men moved, the witness concluded that
they were about twenty to twenty-five years old; they were wearing
white training shoes. Three men got in the VAZ-21099 car, whereas the
fourth one pointed his gun at the witness and said in Russian: “Stop
or I will shoot”. After that the man also got into the car,
which drove away down the street in the direction of the Rostov-Baku
auto route. According to the witness, three more silver VAZ-21099
cars, a white VAZ 2110 car and a white minivan GAZ, all with
tinted windows, had been parked next to the Seriyevs' house; these
vehicles followed the VAZ-21099 in the direction of the Rostov-Baku
motorway.
On
an unspecified date the investigators questioned Mr M.K. who stated
that in June 2002 he and other residents of Belgatoy had been on
their way back to the village from haymaking. On the road they had
seen some objects. Sarali Seriyev picked up one of them. The objected
exploded in his hands. He was immediately taken to the nearest
military checkpoint and from there to the hospital. As the result of
the incident Sarali Seriyev had lost his hand.
On
8 July 2004 the investigators requested that the Road Traffic
Department of the Chechnya Ministry of the Interior (the Chechnya
GIBDD) informed them about the owners of vehicles which had
numbers 516-95 on their registration plates. According to the
response from the authorities, four persons, Mr I.B., Mr S.M., Mr
L.Yu. and Mr Kh.V., owned cars with the numbers 516-95 on the plates.
In
response to the investigators' request, in July 2004 the Shali
district department of the Federal Security Service (the FSB)
submitted that they had not conducted special operations on 1 June
2004 in Belgatoy and had no information which discredited Sarali
Seriyev. A similar response was received in August 2004 from the
Security Service of the Chechen President.
On
28 July 2004 the investigators forwarded a request to the military
prosecutor's office of the UGA and the Shali district department of
the interior (the Shali ROVD) asking whether they had conducted a
special operation in Belgatoy on 1 June 2004 and whether Sarali
Seriyev had been detained in either the UGA detention centre or the
ROVD premises. According to their replies, these authorities had no
information either concerning a special operation in Belgatoy on 1
June 2004 or detention of the applicants' relative.
In
February 2005 the investigators forwarded requests to the
Achkhoy-Martan district prosecutor's office and the Shelkovskoy
district prosecutor's office asking the authorities to question the
owners of the four vehicles. According to their responses, it was
impossible to question Mr I.B. as his whereabouts had not been
established; a neighbour of Mr Kh.V. had stated that the latter had
moved to the Shatoi district of Chechnya and therefore could not be
questioned. Mr S.M. stated that for three months in 2002 he had owned
a dark red 1976 VAZ-21099 with the registration number X516 AX-95,
which he had sold to Mr A. from the Samashki village, Chechnya. As
for Mr L.Yu., he stated that in December 2003 he had purchased
a silver 2003 VAZ-21099 with the registration number T 516 PC95.
In February 2004 he had sold the car to a man from Dagestan who had
been introduced to him by the owner of a local service station, Mr M.
On
an unspecified date the head of the criminal search division of the
Shelkovskoy ROVD informed the investigators that they could not
establish the identity of the new owner of the car which had belonged
to Mr L.Yu.
The
investigators forwarded a number of requests to various detention
centres and the district prosecutors' offices in Chechnya asking
whether these authorities had detained Sarali Seriyev and whether
they had opened criminal proceedings against him. According to the
replies received by the investigation, the applicants' relative had
not been detained and no criminal proceedings had been opened against
him.
On
an unspecified date the investigation received a letter from the
Special Group of the Ministry of the Interior (the MVD) which stated
that Sarali Seriyev was listed by the criminal search police as a
member of an illegal armed group.
According
to the Government, the investigation failed to establish the
whereabouts of Sarali Seriyev. The investigating authorities sent
requests for information to the competent State agencies and took
other steps to have the crime resolved. The investigation found no
evidence to support the involvement of Russian military servicemen in
the crime, nor did they find any evidence that the applicants'
relative was dead.
The
Government further submitted that the investigation had been
suspended and resumed on a number of occasions and that the
applicants had been duly informed of all decisions taken during the
investigation.
Despite
specific requests by the Court the Government did not disclose most
of the contents of the investigation file in criminal case no. 36076.
They provided copies of only a few documents, including only partial
copies of the applicants' witness statements to the investigators,
and requested the Court to apply Rule 33 § 3
of the Rules of Court concerning confidentiality of the submitted
documents and to restrict public access to the submitted
documentation. In their request the Government stated that the
criminal investigation was still in progress and that public
disclosure of the documents could be detrimental to the interests of
participants in the criminal proceedings.
The Government further stated that a copy of the
entire investigation file could not be submitted to the Court owing
to the absence of any guarantees on the part of the Court of
non-disclosure of the secret data contained in the investigation
file. In this respect the Government referred to Article 161 of the
Criminal Procedure Code, since the file contained information
concerning participants in criminal proceedings. They also cited, by
way of comparison, the Rome
Statute of the International Criminal Court
of 17 July 1998 (Articles 70 and 72) and the Statute of the
International Criminal Tribunal for the former Yugoslavia (Articles
15 and 22) and argued that these instruments provided for
personal responsibility for a breach of the rules of confidentiality.
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 IN RESPECT OF THE ABDUCTION
A. The parties' submissions
The
Government contended that the complaint should be declared
inadmissible for non-exhaustion of domestic remedies. They submitted
that the investigation into the disappearance of Sarali Seriyev had
not yet been completed.
The
applicants contested that objection. They stated that the only
effective remedy in respect of their complaints concerning Sarali
Seriyev's abduction was a criminal investigation which had proved to
be ineffective.
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).
As
regards criminal law remedies, the Court observes that the applicants
complained to the law enforcement authorities immediately after the
abduction of Sarali Seriyev and that an investigation has been
pending since 2 July 2004. 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 IN RESPECT OF THE ABDUCTION
A. The parties' arguments
The
applicants maintained that it was beyond reasonable doubt that the
men who had abducted Sarali Seriyev were State agents. In support of
their complaint they referred to the following facts. At the material
time Belgatoy had been under the total control of federal troops.
There had been Russian military checkpoints on the roads leading to
and from the settlement. Most of the armed men who had abducted
Sarali Seriyev had spoken Russian without accent, which proved that
they were not of Chechen origin and belonged to the federal forces.
The men, who were armed and wearing specific camouflage uniforms, had
arrived in a convoy of several vehicles during the daytime, which
demonstrated that they had been allowed to drive around and pass
through the checkpoints. The abductors were a large group and they
acted in a manner similar to that of special forces carrying out
identity checks. The applicants further submitted that since Sarali
Seriyev had been missing for a very long time he could be presumed
dead. That presumption was further supported by the circumstances in
which he had been arrested, which should be recognised as
life-threatening. Finally, the applicants contended that the
Government had failed to provide a satisfactory explanation of the
circumstances under which their relative had disappeared.
The
Government submitted that unidentified armed men had kidnapped Sarali
Seriyev. They further contended that the investigation of the
incident was pending, that there was no evidence that the men were
State agents and that there were therefore no grounds for holding the
State liable for the alleged violations of the applicants' rights.
They further argued that there was no convincing evidence that the
applicants' relative was dead. The Government raised an objection to
the applicants' presentation of facts alleging that
the applicants' description of the circumstances surrounding the
abduction was inconsistent. In particular, they referred to
inconsistencies in the applicants' statements provided to the
investigation and to the Court in respect of the precise sequence of
events during the abduction and the first applicant's submission to
the Court concerning his attempts to follow the abductors by car.
Referring to the applicants' witness statements given to the
investigation, they pointed out that the first applicant had not
informed the investigators about his attempt to follow the abductors
by car and that both applicants had not mentioned the presence of
their relative Imali in the house during the abduction. The
Government further submitted that fact that the majority of the
abductors spoke unaccented Russian, were wearing camouflage uniforms
and drove around in several vehicles did not mean that these men
could not have been members of illegal armed groups or criminals
pursuing a blood feud. They asserted that the crime could have
been attributable to illegal armed groups and pointed out that groups
of mercenaries from Ukraine had committed crimes in the Chechen
Republic. They further emphasised that members of illegal armed
groups could have passed through the checkpoints in the area under
the full control of the Russian federal forces.
B. The Court's evaluation
The
Court observes that in its extensive jurisprudence it has developed a
number of general principles relating to the establishment of the
facts of matters 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).
The
Court notes that despite its requests for a copy of the investigation
file into the abduction of Sarali Seriyev, the Government produced
only a few documents from the case file, of which some were only
partial copies. 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' relative can be presumed dead and whether his
death can be attributed to the authorities.
The
applicants alleged that the persons who had taken Sarali Seriyev away
on 1 June 2004 and then killed him were State agents.
The Government suggested in their submissions that the abductors of
Sarali Seriyev may have been members of paramilitary groups or
criminals pursuing a blood feud. However, these allegations were not
specific, and the Government did not submit any material to support
them. The Court takes note of the Government's
allegation that the firearms and camouflage uniforms had probably
been stolen by insurgents from Russian arsenals in the 1990s.
Nevertheless, it considers it very unlikely that several vehicles
with a number of armed men could have moved freely in broad daylight
in an area under the full control of the federal forces and could
pass through military checkpoints without being unnoticed. 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 investigation. It finds that the
fact that a large group of armed men in uniforms was able to drive
around and move freely through military roadblocks in several
vehicles in broad daylight and proceeded to check identity documents
and took the applicants' relative away from his home strongly
supports the applicants' allegation that these were State servicemen
conducting a security operation. The domestic investigation also
accepted factual assumptions as presented by the applicants (see
paragraph 38 above); however, it does not appear that they took any
serious steps to check whether any state representatives were
involved in the abduction.
The
Government questioned the credibility of the applicants' statements
in view of certain discrepancies relating to the exact circumstances
of the arrests and the description of the hours immediately following
the detention. The Court notes in this respect
that no other elements underlying the applicants' submissions of
facts have been disputed by the Government. In the Court's
view, the fact that over a period of a few years the applicants'
recollection of an extremely traumatic and stressful event differed
in rather insignificant details does not in itself suffice to cast
doubt on the overall veracity of their statements.
The
Court observes that where the applicants make out a prima facie
case and the Court is prevented from reaching factual conclusions
owing to a lack of 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 relative was
abducted by State servicemen. The Government's statement that the
investigators had not found any evidence to support the involvement
of the federal servicemen in the kidnapping or their general
reference to the possibility of the involvement of illegal insurgents
or criminals in the abduction is insufficient to discharge them from
the above-mentioned burden of proof. Having examined the documents
submitted by the parties, and drawing inferences from the
Government's failure to submit the remaining documents which were in
their exclusive possession or to provide another plausible
explanation for the events in question, the Court finds that Sarali
Seriyev was arrested on 1 June 2004 by State servicemen during
an unacknowledged security operation.
There
has been no reliable news of Sarali Seriyev since the date of the
kidnapping. His name has not been found in any official detention
facility records. Finally, the Government have not submitted any
explanation as to what happened to him after his 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 unidentified servicemen without any subsequent
acknowledgment of the detention, this can be regarded as
life-threatening. The absence of Sarali Seriyev or of any news of him
for more than five years supports this assumption.
Accordingly,
the Court finds that the evidence available permits it to establish
that Sarali Seriyev must be presumed dead following his
unacknowledged detention by State servicemen.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicants complained under Article 2 of the Convention that Bilkis
Askhabayeva and Sarali Seriyev had been deprived of their lives by
Russian servicemen and that the domestic authorities had failed to
carry out an effective investigation of the incidents. 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 Sarali Seriyev was dead or that any
servicemen of the federal law-enforcement agencies had been involved
in his kidnapping or alleged killing. The Government claimed that the
investigation into the kidnapping of Sarali Seriyev met the
Convention requirement of effectiveness, as all measures available
under national law were being taken to identify those responsible.
The
applicants argued that Sarali Seriyev had been detained by State
servicemen and should be presumed dead in the absence of any reliable
news of him for more than five 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 the district prosecutor's office had not taken some
crucial investigative steps. The investigation into Sarali Seriyev's
kidnapping had been opened a month 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 pending 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
(a) The alleged violation of the right to
life of Bilkis Askhabayeva and the alleged inadequacy of the
investigation of her death
As
for the applicants' allegations concerning the responsibility of
State agents for the killing of Bilkis Askhabayeva, the Court
observes that the applicants neither challenged
the investigators' decision that her death was a result of an
accident (see paragraph 10 above), nor their subsequent decision to
terminate the criminal case on the grounds of lack of corpus
delicti and the amnesty act which applied to military officers
(see paragraph 12 above). It should be further noted that the
applicants successfully brought civil proceedings against the
military unit responsible for her death (see
paragraphs 18 and 19 above). The Court finds that in bringing
these civil proceedings for damages the applicants have used the
local remedies available and that in accepting and receiving
compensation the applicants have effectively renounced further use of
these remedies. They may no longer in these circumstances claim to be
victims of a violation of the Convention within the meaning of
Article 34 of the Convention (see Caraher v. UK (dec.), no.
24520/94, ECHR ).
As
for the procedural limb of the applicants' complaint that the
investigation into the circumstances of Bilkis Askhabayeva's death
was ineffective, the Court observes that the
first applicant was granted victim status in the criminal case, which
allowed him to participate in the proceedings. However, the applicant
did not attempt to take any steps to appeal the authorities' decision
to terminate the criminal investigation (see paragraphs 11 and 12
above). In these circumstances the Court notes that the applicants
failed to exhaust domestic remedies available to them (see Yildiz
v. Turkey (dec.), no. 34542/03).
The
Court concludes that the applicants' complaint under Article 2 of the
Convention in respect of the death of Bilkis Askhabayeva must
therefore be rejected as manifestly ill-founded, pursuant to Article
35 §§ 3 and 4 of the Convention.
(b) The alleged violation of the right to
life of Sarali Seriyev and the alleged inadequacy of the
investigation of his disappearance
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 72 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 Sarali Seriyev
The
Court has already found that the applicants' relative 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 his death can be attributed to the State and
that there has been a violation of Article 2 in respect of Sarali
Seriyev.
(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 Sarali Seriyev was investigated.
The Court must assess whether that investigation met the requirements
of Article 2 of the Convention.
The
Court notes at the outset that most of the documents from the
investigation were not disclosed by the Government. It therefore has
to assess the effectiveness of the investigation on the basis of the
few documents submitted by the parties and the information about its
progress presented by the Government.
The Court notes that the authorities were immediately made aware of
the kidnapping by the applicants' submissions. The investigation in
case no. 36076 was instituted on 2 July
2004, that is, a month after Sarali Seriyev's abduction. Such a
postponement per se was liable to affect the investigation of
the kidnapping in life-threatening circumstances, where crucial
action has to be taken in the first days after the event. It appears
that after that a number of essential steps were delayed or not taken
at all. For instance, the investigators did not question the Russian
federal servicemen who had been on duty at the checkpoints on the day
of the abduction; they had not questioned the applicants' neighbours
apart from Mr V.S., who could have also witnessed the abduction (for
example, see paragraph 54 above) and they had failed to question any
of the local law-enforcement or military officers about their
possible involvement in the abduction. It is obvious that these
investigative measures, if they were to produce any meaningful
results, should have been taken immediately after the crime was
reported to the authorities, and as soon as the investigation
commenced. Such delays, for which there has been no explanation in
the instant case, not only demonstrate the authorities' failure to
act of their own motion but also constitute a breach of the
obligation to exercise exemplary diligence and promptness in dealing
with such a serious matter (see Öneryıldız
v. Turkey [GC],
no. 48939/99, § 94, ECHR 2004 XII).
The
Court also notes that even though the first applicant was granted
victim status in the investigation concerning his son's abduction, he
was only informed of the suspension and resumption of the
proceedings, and not of any other significant developments.
Accordingly, the investigators failed to ensure that the
investigation received the required level of public scrutiny, or to
safeguard the interests of the next of kin in the proceedings.
Finally,
the Court notes that the investigation was adjourned and resumed on
several occasions and that there were lengthy periods of inactivity
on the part of the district prosecutor's office when no proceedings
were pending
The
Government argued that the applicants could have sought judicial
review of the decisions of the investigating authorities in the
context of the exhaustion of domestic remedies. The Court observes
that the applicants, having no access to the case file and not being
properly informed of the progress of the investigation, could not
have effectively challenged acts or omissions of investigating
authorities before a court. Furthermore, the Court emphasises in this
respect that while the suspension or reopening of proceedings is not
in itself a sign that the proceedings are ineffective, in the present
case the decisions to adjourn were made without the necessary
investigative steps being taken, which led to numerous periods of
inactivity and thus unnecessary protraction. 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. Therefore, it is
highly doubtful that the remedy relied on would have had any
prospects of success. 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 Sarali Seriyev, 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 as
a result of the death of Bilkis Askhabayeva and Sarali Seriyev's
disappearance and the State's failure to investigate these incidents
properly they had endured mental suffering in breach of Article 3 of
the Convention. Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
The
Government disagreed with these allegations and argued that the
investigation had not established that the applicants had
been subjected to inhuman or degrading treatment prohibited by
Article 3 of the Convention.
The
applicants maintained their submissions.
B. The Court's assessment
1. Admissibility
a. The applicants' complaint in respect of Bilkis
Askhabayeva
Firstly, the Court notes that this complaint does not
raise a separate issue as the Court has consistently refused to
extend the application of Article 3 to the relatives of persons who
have been killed by the authorities in violation of Article 2, as
opposed to the relatives of the victims of forced disappearances (see
Yasin Ateş v. Turkey, no. 30949/96, § 135,
31 May 2005). Secondly, it should be noted that the applicants had
already been awarded non-pecuniary damages by domestic courts for the
mental and emotional suffering they endured in connection with the
death of Bilkis Askhabayeva (see paragraphs 18 and 19 above). In
these circumstances, the Court concludes that the applicants'
complaint under Article 3 of the Convention in respect of the death
of Bilkis Askhabayeva must be rejected as manifestly ill-founded
pursuant to Article 35 §§ 3 and 4 of the Convention.
b. The applicants' complaint in respect of Sarali
Seriyev
The
Court notes that this complaint under Article 3 of the Convention is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
2. Merits
The Court has found on many occasions that in a
situation of forced disappearance close relatives of the victim may
themselves be victims of treatment in violation of Article 3. The
essence of such a violation does not mainly lie in the fact of the
“disappearance” of the family member but rather concerns
the authorities' reactions and attitudes to the situation when it is
brought to their attention (see Orhan v. Turkey, no. 25656/94,
§ 358, 18 June 2002, and Imakayeva, cited
above, § 164).
In
the present case the Court notes that the applicants are close
relatives of the disappeared person, who witnessed his abduction and
were involved in searching for him. For several years they have not
had any news of the missing man. During this period the applicants
have made enquiries of various official bodies, both in writing and
in person, about their missing relative. Despite their attempts, the
applicants have never received any plausible explanation or
information about what became of Sarali Seriyev following his
detention. The responses they received mostly denied State
responsibility for their relative's arrest or simply informed them
that the investigation was ongoing. The Court's findings under the
procedural aspect of Article 2 are also of direct relevance here.
The
Court therefore concludes that there has been a violation of Article
3 of the Convention in respect of the applicants.
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicants further stated that Sarali Seriyev had been detained in
violation of the guarantees contained in Article 5 of the Convention,
which reads, in so far as relevant:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law:...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. The parties' submissions
The
Government asserted that no evidence had been obtained by the
investigators to confirm that Sarali Seriyev had been deprived of his
liberty. He was not listed among the persons kept in detention
centres and none of the regional law-enforcement agencies had
information about his 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 Sarali Seriyev was abducted
by State servicemen on 1 June 2004 and has not been seen since. His
detention was not acknowledged, was not logged in any custody records
and there exists no official trace of his subsequent whereabouts or
fate. In accordance with the Court's practice, this in itself must be
considered a most serious failing, since it enables those responsible
for an act of deprivation of liberty to conceal their involvement in
a crime, to cover their tracks and to escape accountability for the
fate of a detainee. Furthermore, the absence of detention records
noting such matters as the date, time and location of detention and
the name of the detainee, as well as the reasons for the detention
and the name of the person effecting it, must be seen as incompatible
with the very purpose of Article 5 of the Convention (see Orhan,
cited above, § 371).
The
Court further considers that the authorities should have been more
alert to the need for a thorough and prompt investigation of the
applicants' complaints that their relative had been detained and
taken away in life-threatening circumstances. However, the Court's
findings above in relation to Article 2 and, in particular, the
conduct of the investigation, leave no doubt that the authorities
failed to take prompt and effective measures to safeguard him against
the risk of disappearance.
In
view of the foregoing, the Court finds that Sarali Seriyev 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.
VI. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
In
their initial submission the applicants complained that the
proceedings related to compensation of damages caused by the death of
Bilkis Askhabayeva were unfair. They relied on Article 6 § 1
of the Convention, which, in so far as relevant, reads as follows:
“”In
the determination of his civil rights and obligations ..., everyone
is entitled to a fair ... hearing ... by [a] ... tribunal... ”
In their observations on the
admissibility and merits of the application the applicants stated
that they no longer wished to maintain this complaint.
The Court finds that the
applicants do not intend to pursue this part of the application,
within the meaning of Article 37 § 1 (a). The Court also finds
no reasons of a gGeneral
character, affecting respect for human rights as defined in the
Convention, which require the further examination of the present
complaints by virtue of Article 37 § 1 of the Convention in
fine (see, for example, Chojak
v.Poland, no. 32220/96, Commission
decision of 23 April 1998; Singh
and Others v. the United Kingdom
(dec.), no. 30024/96, 26 September 2000; and Stamatios
Karagiannis v. Greece, no. 27806/02,
§ 28, 10 February 2005) .).
It
follows that this part of the application must be struck out in
accordance with Article 37 § 1 (a) of the Convention.
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. The Government also stated
that participants in criminal proceedings could also claim damages in
civil proceedings. They further pointed out that the applicants had
successfully applied to domestic courts for compensation for damage
caused by the death of Bilkis Askhabayeva. 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
a. The applicants' complaint in respect of the death
of Bilkis Askhabayeva
In
so far as the complaint under Article 13 concerns the existence
of a domestic remedy in respect of the applicants' complaints under
Articles 2 and 3 raised in connection with the death of Bilkis
Askhabayeva, the Court notes that these complaints were found
inadmissible in paragraphs 92 and 106 above. Accordingly, the
applicants did not have an “arguable claim” of a
violation of a substantive Convention provision and, therefore,
Article 13 of the Convention is inapplicable.
It follows that this part of the application should be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
b. The applicants' complaint in respect of the
abduction of Sarali Seriyev
As
for the applicants' complaint concerning the lack of effective
remedies in respect of the disappearance of Sarali Seriyev, 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 the disappearance has been ineffective and the
effectiveness of any other remedy that might have existed, including
civil remedies suggested by the Government, has consequently been
undermined, the State has failed in its obligation under Article 13
of the Convention (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 applicants' reference to Articles 3 and 5 of the
Convention, the Court considers that in the circumstances no separate
issue arises in respect of Article 13, read 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. Damage
The applicants did not submit any claims in respect
of pecuniary damage. As regards non-pecuniary damage, the applicants
claimed 100,000 euros (EUR) jointly in
respect of non-pecuniary damage for the suffering they had endured as
a result of the loss of their family members Bilkis Askhabayeva and
Sarali Seriyev, the indifference shown by the authorities towards
them and the failure to provide any information about the fate of
Sarali Seriyev.
The Government found the
amounts claimed exaggerated.
The
Court notes that it has found inadmissible the applicants' complaints
concerning the death of Bilkis Askhabayeva and that in respect of
their complaints concerning Sarali Seriyev a violation of Articles 2,
5 and 13 of the Convention was established. The applicants
themselves have been found to have been victims of a violation of
Article 3 of the Convention in connection with their relative's
disappearance. The Court thus accepts that they have suffered
non-pecuniary damage which cannot be compensated for solely by the
findings of violations. It awards the applicants jointly EUR 60,000
plus any tax that may be chargeable thereon.
B. Costs and expenses
The applicants were represented
by the SRJI. They submitted an itemised schedule of costs and
expenses that included research and interviews in Ingushetia and
Moscow, at a rate of EUR 50 per hour, and the drafting of legal
documents submitted to the Court and the domestic authorities, at a
rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for
SRJI senior staff and experts. The aggregate claim in respect of
costs and expenses related to the applicants' legal representation
amounted to EUR 9,450.
The Government did not dispute
the reasonableness and justification for the amounts claimed under
this head.
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 v.
the United Kingdom, 27 September
1995, § 220, Series A no. 324).
Having regard to the details of
the information and legal representation contract submitted by the
applicants, 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 incurred were necessary, the Court
notes that this case was rather complex and required a certain amount
of research and preparation. It notes at the same time that, due to
the application of Article 29 § 3 in the present case, the
applicants' representatives submitted their observations on the
admissibility and merits in one set of documents. The Court thus
doubts that legal drafting was necessarily time-consuming to the
extent claimed by the representatives.
Having regard to the details of the claims submitted
by the applicants, the Court awards them EUR 6,500 together with
any value added tax that may be chargeable to the applicants,
the net award to be paid into the representatives' bank account in
the Netherlands, as identified by the applicants.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides
to strike the application out of its list of cases in accordance with
Article 37 § 1 (a) of the Convention in so far as it concerns
the applicants' complaint under Article 6 of the Convention;
Decides to join to the merits the Government's
objection as to non exhaustion of domestic remedies and rejects
it;
Declares
the complaints under Articles 2, 3 5 and 13 of the Convention lodged
in respect of Sarali Seriyev's disappearance admissible and remainder
of the application inadmissible;
4. Holds
that there has been a substantive violation of Article 2 of the
Convention in respect of Sarali Seriyev;
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 Sarali Seriyev disappeared;
6. Holds
that there has been a violation of Article 3 of the Convention
in respect of the applicants;
7. Holds
that there has been a violation of Article 5 of the Convention
in respect of Sarali Seriyev;
8. Holds
that there has been a violation of Article 13 of the Convention
in conjunction with Article 2 of the Convention;
9. Holds
that no separate issues arise under Article 13 of the Convention in
respect of the alleged violations of Articles 3 and 5;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, 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 60,000
(sixty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the applicants jointly;
(ii) EUR 6,500
(six thousand five hundred euros), plus any tax that may be
chargeable to the applicants, in respect of costs and expenses, to be
paid into the representatives' bank account in the Netherlands;
(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
