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UMALATOV AND OTHERS v. RUSSIA - 8345/05 [2010] ECHR 499 (8 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/499.html
Cite as:
[2010] ECHR 499
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FIRST
SECTION
CASE OF
UMALATOV AND OTHERS v. RUSSIA
(Application
no. 8345/05)
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 Umalatov and Others 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. 8345/05) 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 three Russian nationals, Mr Imran Umalatov,
Mrs Roza Khamizayeva and Mr Sharan Durdiyev (“the
applicants”), on 17 February 2005.
The
applicants, who were granted legal aid, were represented by lawyers
of the International Protection Centre, a Russian NGO. The Russian
Government (“the Government”) were represented by Mrs
V. Milinchuk, the former Representative of the Russian Federation at
the European Court of Human Rights and subsequently by their new
representative, Mr G. Matyushkin.
On
7 January 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
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 1940, 1969 and 1943 respectively. They live
in the Chechen Republic (Chechnya).
A. Disappearance of Usman Umalatov and Shamad Durdiyev
1. The applicants' account
The
first applicant is the father of Usman Umalatov, born in 1969. The
second applicant is his wife. The third applicant is the father of
Shamad Durdiyev, born in 1976.
The
applicants stated that on 15 October 2002 at 7.00 a.m. a joint
operation of the Federal Security Service (FSB), the Ministry of the
Interior and the military took place in the village of Nagornoye
situated in the Grozny district of Chechnya.
Usman
Umalatov was apprehended in his home in Nagornoye in the presence of
his next-of-kin, including the second applicant, and brought to the
FSB office for the Nadterechny district in the village of
Znamenskoye.
Shamad
Durdiyev lived in Beno-Yurt and worked as a driver for the Grozny
Town Prosecutor's Office. On 15 October 2002 at about 6 a.m. he left
his home village and went towards Grozny in his service car, a black
“Volga”. On the same day he was apprehended during the
security operation and brought to the FSB office in Znamenskoye.
Two
or three days later nine men apprehended on that day in Nagornoye
were released, but Usman Umalatov and Shamad Durdiyev were not among
them.
The
applicants have had no news of Usman Umalatov and Shamad Durdiyev
since 15 October 2002.
In
support of their allegations, the applicants submitted the statements
of the first and second applicants, as well as an affidavit signed by
eight men who had been detained on 15 October 2002 together with
Usman Umalatov.
2. The Government's account
In
their observations the Government confirmed that both men had been
detained on 15 October 2002 in Nagornoye in the course of a special
security operation. Later on the same day they were transferred to
the FSB office in Znamenskoye and then released after their
identities had been ascertained.
B. The search for Usman Umalatov and Shamad Durdiyev
and the investigation
Since
15 October 2002 the applicants have repeatedly applied in person
and in writing to various public bodies. In their letters to the
authorities the applicants and their family members referred to their
relatives' detention and asked for assistance and details of the
investigation. These enquiries have mostly remained unanswered, or
purely formal replies have been given in which the applicants'
requests have been forwarded to various prosecutors' offices. The
applicants submitted some of the letters to the authorities and the
replies to the Court, which are summarised below.
1. Official investigation into Usman Umalatov's disappearance
The
first applicant submitted that several days after his son's
disappearance the head of the FSB office for the Nadterechny district
had told him in a personal conversation that Usman Umalatov and
Shamad Durdiyev had been released on the day of their detention.
However, they have not been found since.
On
24 October 2002 an investigator of the prosecutor's office of the
Urus-Martan district of Chechnya opened criminal proceedings (case
file no. 65049) in response to the first applicant's complaint
about his son's abduction. The investigator noted that the
applicant's son had been taken into custody by unknown masked persons
and taken away to an unknown destination. It appears that at some
later point the investigation was transferred to the Nadterechny
district prosecutor's office (“the district prosecutor's
office”).
On
25 October 2002 the first applicant was granted victim status in the
proceedings.
On
29 January 2003 the investigator of the district prosecutor's office
adjourned the criminal proceedings given the
failure to identify the persons against whom the charges must be
brought (Article 208, part 1, item 1 of the Code of Criminal
Procedure). The investigator's decision instructed the Nadterechny
district department of the Ministry of the Interior (ROVD) to search
for Usman Umalatov and the persons responsible for his disappearance.
No new information was communicated to the first applicant
following his subsequent complaints and requests to the prosecutor's
office.
On
2 March 2004 the first applicant complained of unlawful inaction of
the investigation authorities to the Nadterechny district court (“the
district court”) under Article 125 of the Code of Criminal
Procedure.
On
29 March 2004 the district court dismissed the first applicant's
complaint as he had failed to appear before the court. The summons to
appear before the court reached the local post office at his place of
residence only on 31 March 2004.
On
6 April 2004 the first applicant lodged with the district court a new
complaint under Article 125 of the Code of Criminal Procedure
concerning the lack of an effective investigation into his son's
disappearance. This complaint was dismissed on 13 April 2004 as no
breach of procedural requirements had been found.
The
first applicant allegedly received this judgment on 12 May 2004 and
requested the president of the court to restore the ten-day
time-limit for lodging a cassation appeal against the judgment. The
applicant's request was dismissed by the district court on 28 June
2004. Following the applicant's appeal, the Supreme Court of the
Chechen Republic upheld the latter decision by the district court.
2. Official investigation into Shamad Durdiyev's disappearance
On
an unspecified date, the district prosecutor's office opened criminal
proceedings (case file no. 65048) on account of Shamad
Durdiyev's abduction.
On
25 October 2002 the third applicant was granted victim status in
those proceedings. The investigator's decision indicated that on
15 October 2002 around 6 a.m. Shamad Durdiyev had gone in his
own car in the direction of Grozny where he worked as a driver for
the Grozny town prosecutor. On his way he was arrested in the village
of Nagornoye by the FSB officers and brought to the FSB office for
the Nadterechny district in the village of Znamenskoye. According to
statements by unnamed FSB officials quoted by the investigator,
Shamad Durdiyev was released on the same date.
The
third applicant alleged that Shamad Durdiyev's car remained at the
office of the FSB in Znamenskoye for several days and was later
transferred to the Grozny town prosecutor's office. He also claimed
that the FSB had transferred to the Grozny town prosecutor's office a
request to dismiss Shamad Durdiyev from service, allegedly written by
his son on 14 October 2002. It does not appear that any
investigative steps were taken in this direction.
At
some point the military prosecutor's office also conducted an
investigation into Shamad Durdiyev's abduction. On 20 December 2002
the military prosecutor of army unit no. 20111 decided to return
the relevant criminal file (no. 34/34/0117-02d) to the district
prosecutor's office for further investigation. The military
prosecutor found it established that Shamad Durdiyev had been
apprehended on 15 October 2002 by the authorities during a joint
operation by the district military commander's office, ROVD and FSB,
brought to the FSB office in Znamenskoye for questioning and had left
the said office in an unknown direction. The military prosecutor
concluded that it had not been established that military personnel
were responsible for his disappearance.
On
24 January 2003 the district prosecutor's office adjourned the
criminal proceedings (case file no. 65048) given
the failure to identify the persons against whom the charges must be
brought. The investigator's decision instructed the Nadterechny ROVD
to search for Shamad Durdiyev and for the persons responsible for his
disappearance.
The
third applicant's subsequent complaints and requests to the Chechen
prosecutor's office and to the head of the Presidential
Administration of Chechnya in connection with his son's disappearance
remained without effect.
On
29 July 2004 the third applicant complained of unlawful
inaction of the investigation authorities before the president of the
district court under Article 125 of the Code of Criminal Procedure.
On 23 August 2004 the district court dismissed his complaint and
found the decision of 24 January 2004 to adjourn the proceedings
to be well founded. The applicant did not appeal.
3. Additional information submitted by the Government
With
reference to the information provided by the Prosecutor General's
Office, the Government submitted that the investigations of the
abduction of Usman Umalatov and Shamad Durdiyev had failed to solve
the crimes. In their observations they also submitted additional
information about the progress of the investigation and some copies
of documents from the files (11 pages). They did not submit copies of
any of the witness statements to which they referred.
The
documents and the observations confirm that both men were detained on
15 October 2002 during a large security operation. The Government
submitted copies of three documents relevant to this operation. The
order by the military commander of the Nadterechny district of
14 October 2002 gave instructions to carry out a joint operation
involving about 250 servicemen of the Ministry of the Interior, FSB
and the military commander's office in order to find members of an
illegal armed group who had killed three servicemen of the military
commander's office on 1 October 2002, and who had apparently
been hiding in Nagornoye. As regards the possibility of detaining
suspect individuals, the order contained the following indications:
“upon identification of persons wanted upon suspicion of
involvement in crimes committed by illegal armed groups, they should
be detained, brought to the filtration point and later delivered to
the ROVD for the carrying out of investigative actions; if active
resistance is met, measures should be taken to neutralise or destroy
them”.
The
order of the Ministry of the Interior for the district, also dated
14 October 2002, contained similar provisions. Finally, on 15
October 2002 the head of the detachments of the Ministry of the
Interior based in the district produced a report on the results of
the operation. It listed thirteen men who had been detained in
Nagornoye on that day on suspicion of being involved with illegal
armed groups, and who had been questioned, fingerprinted and
delivered to the ROVD. Shamad Durdiyev and Usman Umalatov were listed
among the thirteen men.
As
to Usman Umalatov, the Government submitted that the investigation
commenced on 24 October 2002 by the Urus-Martan district prosecutor's
office under Article 126 part 2 of the Criminal Code –
aggravated kidnapping. The investigation had been triggered by the
first applicant's complaint to the Nadterechny district prosecutor's
office of 21 October 2002 about the arrest of his son early in
the morning on 15 October 2002 by the local FSB.
On
25 October 2002 the authorities questioned the first applicant and
granted him the status of a victim in the proceedings. He had stated
that his son had been detained at the district department of the FSB,
but that the head of the department, Mr Kh.M., had assured him that
he had personally let his son out of the building. The first
applicant also mentioned that Mr A.K., who had been detained
with his son, had returned home on 17 October 2002.
On
4 November 2002 the investigator examined the registration log of the
Nadterechny ROVD and noted that Usman Umalatov had been delivered
there at 10 a.m. on 15 October 2002 for an identity check and that at
the same time he had been transferred to the district department of
the FSB for further investigation.
It
does not appear that any additional steps were taken in the
investigation into Usman Umalatov's disappearance after this point.
As
to Shamad Durdiyev, criminal investigation file no. 65048 was
opened on 24 October 2002 in response to the third applicant's letter
of 21 October 2002. Within the following days the third
applicant was questioned and granted the status of a victim in the
criminal case. On 30 October 2002 the investigation was
forwarded to the military prosecutor of Chechnya and on 15 November
2002 the military prosecutor of military unit no. 20111 took
charge of the proceedings.
According
to the Government, in November 2002 the military prosecutor
questioned a number of officials and servicemen of the Nadterechny
district who had been in charge of or had participated in the
operation. Among them were the deputy military commander of the
district and the commander of the platoon who had taken part in the
operation, the head of the ROVD and several officials of the district
FSB. The Government related the statements of the head of the
district department of the FSB Mr Kh.M. in the following manner:
“On 2 October 2002 [we] received information that
members of the illegal armed groups which had attacked the
Nadterechny district commander's office were hiding in Nagornoye. As
a result of the attack three servicemen of the commander's office had
been killed. On this basis a special operation was planned. Upon
agreement with the military commanders of Chechnya and of the
Nadterechny district, on 14 October 2002 an order was issued to
include in the operation the servicemen of the military commander's
office, of the Ministry of the Interior and of the district
department of the FSB. At the northern entrance to the village, on
the road between Goragorsk and Grozny, an armoured personnel carrier
(APC-80) was positioned in order to block the traffic and to protect
the temporary point of gathering of the detainees. A black GAZ 3102
“Volga” vehicle arrived from Goragorsk at high speed, and
having nearly collided with the APC, turned around and tried to leave
towards Goragorsk. The police officers who had manned the block gave
chase and fired shots in the air, after which the vehicle stopped.
The police officers checked the documents of the driver, Shamad
Durdiyev, and doubted their authenticity. On the same day at about 1
p.m. Shamad Durdiyev was brought to the district department of the
FSB for a complete check. 12 other persons were also detained in the
course of the operation, of whom two – Usman Umalatov and Mr
A.K. – were also brought to the FSB department. Usman Umalatov
and Mr A.K. produced service badges of the security service of the
Administration of Chechnya, the authenticity of which was also
questioned.
On the same day, at about 3 p.m., a group of armed
persons arrived at the department in three vehicles. They were headed
by Mr B.Sh., who had produced the service badge of the deputy head of
the Administration of Chechnya. He demanded that Usman Umalatov be
transferred to him, since the latter had served under his command. At
the same time, Usman Umalatov was not listed among the employees of
the Chechnya Administration that had been submitted by Mr B.Sh. to
the district department of the FSB in December 2001. Mr B.Sh. was
told that he could wait until Usman Umalatov had been questioned and
released, but B.Sh. had left. On the same day at about 4 p.m.
the prosecutor of the Nadterechny district Mr S.P. phoned the
department and asked if Shamad Durdiyev, the driver of the Grozny
town prosecutor, had been detained there. He (Kh.M.) himself called
the Grozny prosecutor who confirmed that Shamad Durdiyev worked as a
driver in that office.
Later on the same day the formalities concerning Shamad
Durdiyev and Usman Umalatov were concluded and he (Kh.M.) ordered to
them to provide signed forms attesting the return to them of money
and valuables collected upon arrest. Shamad Durdiyev and Usman
Umalatov left the FSB department on 15 October 2002. Work with A.K.
continued.”
The
Government further relayed Kh.M.'s statements about how the relatives
of Shamad Durdiyev and Usman Umalatov had come to the department on
several occasions after 16 October 2002 and how he had informed them
that both men had been released. Kh.M. assured them that his
subordinates had nothing to do with the two men's disappearance and
that he had no information about their whereabouts. On 15 October
2002 they had not been delivered to any “filtration point”,
but a simple check through a data base had taken place.
The
head of the district detachments of the Ministry of the Interior, Mr
D.A., who was questioned on 26 November 2002, testified that he had
witnessed the detention of Usman Umalatov. As cited in the Government
observations, on 15 October 2002 he had taken part in the special
operation in Nagornoye at the site of the temporary detention point
on the road between Goragorsk and Grozny, along with 23 other
servicemen. At about 5.30 p.m. a black Volga car, driving at high
speed, approached the roadblock from the direction of Goragorsk. The
vehicle was forced to brake abruptly, as a result of which it slid
into the roadside ditch. Several servicemen immediately ran to the
car and detained the driver. According to Mr D.A.'s knowledge, the
driver was later transferred to the ROVD and then to the district
FSB. The servicemen under his command were not involved in the
detention, but supervised and trained the members of the local police
force.
In
November 2002 the investigation questioned Mr A.K., the third man who
had been detained at the FSB district department. According to the
Government, he stated that on 15 October 2002 he had been detained
together with Usman Umalatov and a third man, whose name he did not
know. First the unknown man was taken from the room for questioning,
and then later that day, at about 8 p.m., Mr Umalatov. Mr A.K. was
released on the following day at about midday, after questioning and
having signed a form stating that he had no complaints about the FSB
servicemen.
On
19 November 2002 the military prosecutor of military unit no. 2011
examined the black “Volga” car driven by Shamad Durdiyev
on the day of his detention. The car was examined on the premises of
the Grozny town prosecutor's office and no damage was noted. The
Government submitted a copy of the examination report to the Court.
The
Government mentioned a number of other documents contained in the
investigation file concerning Mr Durdiyev's disappearance. In
February 2000 and in August 2002 the Ministry of the Interior and the
Grozny town administration issued papers to confirm the latter's
active involvement with the Chechen counter-insurgent movements and
his participation in the storming of Grozny in January 2000.
The
Government stated that the case files also contained copies of the
forms signed by Usman Umalatov and Shamad Durdiyev on 15 October 2002
confirming their release and absence of complaints about the FSB, but
failed to provide them to the Court. The Government also stated that
at some point both forms had been submitted for graphology tests
which had confirmed their authenticity, but did not submit copies of
those reports either.
According
to the Government, the military prosecutors examined the registration
logs of the Nadterechny district temporary detention ward and of the
ROVD. Copies of the relevant documents were contained in the
investigation files. They demonstrated that Shamad Durdiyev and Usman
Umalatov had been delivered to the ROVD at 10 a.m. on 15 October 2002
for identification and that on the same day at 10 a.m. both had been
transferred to the district department of the FSB, without being
placed in detention. The Government did not submit copies of these
documents to the Court.
On
20 December 2002 the military prosecutor of military unit no. 20111
concluded that the military servicemen and the servicemen of the FSB
had not been implicated in Shamad Durdiyev's disappearance. On the
same day he sent the file for further investigation to the district
prosecutor's office. The prosecutor sent a number of requests for
information to local law-enforcement authorities, medical facilities
and detention centres, but these brought about no results.
In
their additional memorandum submitted in September 2008 the
Government, without indicating the dates and without providing copies
of the documents, informed the Court that the investigation into both
cases was ongoing. The prosecutors had questioned seven local
residents who had been detained on 15 October 2002 or their family
members. They confirmed that Shamad Durdiyev and Usman Umalatov had
been detained at the local FSB department on that day and that all
other detainees had been released and returned home.
Despite
specific requests by the Court, the Government did not disclose most
of the contents of criminal case files nos. 65048 and 65049. 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 files contained information
of a military nature and personal data concerning the witnesses or
other participants in the criminal proceedings.
II. RELEVANT DOMESTIC LAW
For a summary of the relevant domestic law see
Akhmadova and Sadulayeva v. Russia (no. 40464/02,
§§ 67-69, 10 May 2007) and Akhmadova and
Others v. Russia (no. 3026/03, §§ 104-113,
4 December 2008).
THE LAW
I. THE GOVERNMENT'S OBJECTION REGARDING NON
EXHAUSTION OF DOMESTIC REMEDIES
The
Government contended that the complaint should be declared
inadmissible for non-exhaustion of domestic remedies. They submitted
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 apply to
civil courts in order to exhaust domestic remedies.
The
Court notes that 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, §§ 119-121,
24 February 2005, and Estamirov and Others v. Russia, no.
60272/00, § 77, 12 October 2006 ). In the light of the
above, the Court confirms that the applicants were not obliged to
pursue civil remedies. The Government's objection in this regard is
thus dismissed.
II. THE COURT'S ASSESSMENT OF THE EVIDENCE AND THE
ESTABLISHMENT OF THE FACTS
A. The parties' arguments
The
applicants maintained that State agents were responsible for the
disappearance and death of Usman Umalatov and Shamad Durdiyev. They
pointed out that the two men had been detained in the course of a
security operation, that they were last seen alive in the hands of
State agents and that the Government had failed to discharge its
burden of proof by submitting any explanation as to what had happened
to them afterwards. The applicants also asked the Court to draw
inferences from the Government's failure to present more than a few
relevant documents from the investigation files, either to them or to
the Court. Since their relatives had been missing for a very lengthy
period, they could be presumed dead.
The
Government submitted that, even though Usman Umalatov and Shamad
Durdiyev had been briefly detained on 15 October 2002, they were
released on the same day. The documents contained in the criminal
investigation files, including witness statements by the officials
and copies of the forms signed by the two men on their release,
attested to that. They further contended that the investigation of
the disappearances was ongoing and that there was no convincing
evidence that the applicants' relatives were dead. The Government
also noted that the applicants had been
inconsistent in their descriptions of the exact dates and
conversations they had had with various officials in the days
following the disappearance of their relatives. The Government
referred to the witness statements made to the domestic
investigators; but did not submit them to the Court. Finally, the
Government drew the Court's attention to the fact that both men had
worked for the State authorities: Shamad Durdiyev had been a driver
for the Grozny town prosecutor's office and Usman Umalatov had been a
member of the security service of the head of administration of
Chechnya. Their respective employers were happy with them, and it
could not be excluded that the illegal groups held a grudge against
them.
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). It 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
files into the abduction of Usman Umalatov and Shamad Durdiyev, the
Government produced hardly any documents. The Government referred to
Article 161 of the Code of Criminal Procedure. In previous cases it
has already found this explanation insufficient to justify the
withholding of key information requested by the Court (see Imakayeva
v. Russia, no. 7615/02, § 123, ECHR 2006-XIII (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
Government suggested in their submissions that Usman Umalatov and
Shamad Durdiyev may have been killed or abducted by members of
paramilitary groups. However, this allegation was not specific and
the Government did not submit any material to support it. The Court
would stress in this regard that the evaluation of the evidence and
the establishment of the facts is a matter for the Court, and it is
incumbent on it to decide on the evidentiary value of the documents
submitted to it (see Çelikbilek v. Turkey,
no. 27693/95, § 71, 31 May 2005).
The
parties do not dispute that on 15 October 2002 Usman Umalatov and
Shamad Durdiyev were detained in Nagornoye during a security
operation aimed at finding persons responsible for a terrorist act
and delivered to the ROVD, from which they were transferred to the
district department of the FSB. The orders of the district commander
of the Ministry of the Interior and of the military commander cited
“suspicion of involvement in crimes committed by illegal armed
groups” as the possible grounds for detention, though no formal
charges have been ever brought. It does not appear that any formal
records were drawn up in relation to the detention or any other
actions carried out in respect of Usman Umalatov and Shamad Durdiyev,
except to note that both men had been transferred to the district
department of the FSB from the ROVD premises. They have not been seen
since 15 October 2002 and their families have had no news of them.
The investigation failed to establish what had happened to them or to
charge anyone in relation to their disappearance.
The Government suggested that certain documents in the criminal
investigation files proved that the two men had been released.
However, since none of these documents have been submitted to the
Court, it is reluctant to rely on them in order to absolve the
Government from their responsibility to account for the fate of
detainees last seen alive within their hands (see Akkum and Others
v. Turkey, no. 21894/93, § 211, ECHR 2005 II).
The
Government also questioned the credibility of the applicants'
statements in view of certain discrepancies in their descriptions of
the days 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. The Government did not provide to the Court the witness
statements to which they referred in their submissions. In any
event, the fact that over a period of several 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.
Furthermore,
a number of serious and unresolved contradictions about the exact
circumstances of the arrest and alleged release of the two men
transpire from the statements of witnesses cited in the Government's
observations. While the Court will address these issues in more
detail below under the procedural obligation of Article 2, it notes
that the official investigation was unable to come up with a coherent
picture of these crucial facts. There has been no reliable news of
Usman Umalatov and Shamad Durdiyev since the date of the arrest.
Their names have not been found in any official detention facility
records. 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 XIII (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 the circumstances in which Usman Umalatov and Shamad
Durdiyev were detained can be regarded as life-threatening. The
absence of the two men or of any news of them for many years supports
this assumption.
Accordingly,
the Court finds that the evidence available permits it to establish
that Usman Umalatov and Shamad Durdiyev must be presumed dead
following their 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 Russian servicemen and
that the domestic authorities had failed to carry out an effective
investigation of the matter. Article 2 reads:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. The parties' submissions
The
Government first argued that the complaint is manifestly ill-founded
and should be dismissed as such. They further contended that the
domestic investigation had obtained no evidence to the effect that
Usman Umalatov and Shamad Durdiyev 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 Usman Umalatov and Shamad Durdiyev had been
detained by State servicemen and should be presumed dead in the
absence of any reliable news of them for several years. The
applicants also argued that the investigation had not met the
effectiveness and adequacy requirements laid down by the Court's
case-law. They pointed out that the district prosecutor's office had
not taken certain crucial investigative steps. The investigations
into Usman Umalatov and Shamad Durdiyev's kidnapping had been opened
with delays and then the taking of the most basic steps was
protracted. The relatives had not been properly informed of the most
important investigative measures and had no access to the case files.
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
The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits. The
complaint under Article 2 of the Convention must therefore be
declared admissible.
2. Merits
(a) The alleged violation of the right to
life of Usman Umalatov and Shamad Durdiyev
The
Court has already found that the applicants' relatives must be
presumed dead following unacknowledged detention by State servicemen
and that the deaths can be attributed to the State. In the absence of
any justification in respect of any use of lethal force by State
agents, the Court finds that there has been a violation of Article 2
in respect of Usman Umalatov and Shamad Durdiyev.
(b) The alleged inadequacy of the
investigation
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).
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 discerns that the authorities were immediately made aware of
the disappearance by the applicants. The investigations were
instituted on 24 and 25 October 2002, that is, nine and ten days
after Usman Umalatov and Shamad Durdiyev's abduction. Such a
postponement per se was liable to affect the investigation of
a kidnapping in life-threatening circumstances, where crucial action
has to be taken in the first days after the event. It appears that
within the following days the applicants and a number of key
officials were questioned. The applicants were granted victim status.
However, it also appears that after December 2002 the investigation
failed to make any progress. In particular, the Court is struck by
the investigation's failure to resolve major discrepancies concerning
the witnesses' descriptions of the two men's arrest and alleged
release. It notes, for example, that the head of the district
detachment of the Ministry of the Interior, Mr D.A., indicated that
Shamad Durdiyev had been detained at about 5.30 p.m. on the road
between Goragorsk and Grozny. At the same time, the registration log
of the Nadterechny ROVD, as cited in the Government's observations,
indicated that both detainees had been delivered there at 10 a.m. and
transferred to the FSB at the same time (see paragraphs 39 and 44
above). The investigation failed to explain why Shamad Durdiyev's
service vehicle, in which he had arrived in Nagornoye, had remained
at the local department of the FSB and was eventually transferred to
the Grozny town prosecutor's office intact, where it was examined in
November 2002 (see paragraph 41).
The
Court also notes that even though the applicants were granted victim
status in the investigations 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 investigation failed to receive the required level
of public scrutiny, or to safeguard the interests of the next of kin
in the proceedings.
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 Usman Umalatov and
Shamad Durdiyev, 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 their relatives' disappearance and the State's failure to
investigate it 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. They also pointed out that it has not
been established that the State was responsible for the
disappearances.
In
their observations the applicants reiterated the complaint concerning
the mental suffering endured.
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 has found on many occasions that in a
situation of enforced disappearance close relatives of the victims
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 persons. The first and second applicants
themselves witnessed the arrest of Usman Umalatov. For almost seven
years they have not had any news of the missing men. During this
period the applicants have made enquiries to various official bodies,
both in writing and in person, about their missing relatives. Despite
their attempts, the applicants have never received any plausible
explanation or information about what became of them following their
detention. The responses they received mostly denied State
responsibility for their relatives' disappearance or 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 also 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 Usman Umalatov and Shamad Durdiyev 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 Usman Umalatov and Shamad Durdiyev had
been deprived of their liberty. They were not listed among the
persons kept in detention centres and none of the regional
law-enforcement agencies had authorised their detention either on
criminal or on administrative charges. On 15 October 2002 they were
simply invited to the Nadterechny ROVD and then to the district
department of the FSB in order to ascertain their identities and for
a conversation with the FSB officers. This description was confirmed
by the statements of the officials of the ROVD and of the FSB and by
the documents contained in the investigation files. The actions of
the servicemen were lawful in view of the order of the district
military commander and, in a wider sense, the Law on the Suppression
of Terrorism.
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 Usman Umalatov and Shamad
Durdiyev were apprehended by State servicemen on 15 October 2002
and have not been seen since. Their detention was not acknowledged in
any meaningful and reliable manner, was not logged in any custody
records and there exists no official trace of their subsequent
whereabouts or fate. According to the Court's practice, the absence
of detention records, noting such matters as the date, time and
location of detention and the name of the detainee as well as the
reasons for the detention and the name of the person effecting it,
must be seen as incompatible with the very purpose of Article 5 of
the Convention (see Orhan, cited above, § 371). In
fact, the Government's argument points to the heart of the problem,
because even though there is overwhelming evidence, not contested by
the parties, that the two men were deprived of their liberty by State
agents (see paragraphs 31 and 32, for example), none of the
safeguards against arbitrary detention contained in the domestic
legal order were employed.
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
then disappeared 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 defend them against
the risk of disappearance.
In
view of the foregoing, the Court finds that Usman Umalatov and Shamad
Durdiyev 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 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 pursuant to Article 125 of
the Code of Criminal Procedure and had availed themselves of it. They
added that participants in criminal proceedings could also claim
damages in civil proceedings and referred to a case where victims in
criminal proceedings had been awarded damages from the prosecutor's
office. 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 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.
VII. ALLEGED VIOLATIONS OF ARTICLES 34 AND 38 OF THE
CONVENTION
The
applicants argued that the Government's failure to submit the
documents requested by the Court, namely the entire criminal
investigation file, disclosed a failure to comply with their
obligations under Articles 34 and 38 § 1 (a) of the Convention.
The Court finds that in the circumstances of the present case the
above issue should be examined under Article 34 of the Convention,
which provides as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
The
Court points out that it has already taken note of the Government's
failure to produce a copy of the investigation file and drawn
inferences from it. Nevertheless, it reiterates that the main
objective of Article 34 of the Convention is to ensure the effective
operation of the right of individual petition. There is no indication
in the present case that there has been any hindrance of the
applicants' right of individual petition, either in the form of
interference with the communication between the applicants or their
representatives and the Court, or in the form of undue pressure
placed on the applicants.
It follows that this part of the application
should be rejected pursuant to Article 35 §§ 3 and 4 of the
Convention.
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
applicants claimed damages in respect of loss of earnings by their
relatives after their arrests and subsequent disappearances. They did
not provide any calculations or attesting documents, but indicated
that the first and third applicants were pensioners and had counted
on the financial support of their sons. The second applicant had lost
her husband and thus the financial support he could have provided to
her. Each applicant claimed 15,000 euros (EUR).
The
Government regarded these claims as based on suppositions and
unfounded. They also pointed to the existence of domestic statutory
machinery for the provision of a pension for the loss of the family
breadwinner.
The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicants and the violation of the
Convention. Furthermore, under Rule 60 of the Rules of Court any
claim for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”.
Since the applicants have failed to produce any calculations or
justifications regarding the pecuniary damage claimed, the Court
decides to make no award under this head (see Elmurzayev and
Others v. Russia, no. 3019/04, § 156, 12 June 2008).
B. Non-pecuniary damage
The
first and the third applicants claimed EUR 100,000 and the
second applicant claimed EUR 150,000 in respect of non-pecuniary
damage for the suffering they had endured as a result of the loss of
their family members, the indifference shown by the authorities
towards them and the failure to provide any information about the
fate of their close relatives.
The
Government found these amounts exaggerated.
The
Court has found a violation of Articles 2, 5 and 13 of the Convention
on account of the unacknowledged detention and disappearance of the
applicants' relatives. The applicants themselves have been found to
have been victims of a violation of Article 3 of the Convention. The
Court thus accepts that they have suffered non-pecuniary damage which
cannot be compensated for solely by the findings of violations. It
awards to the first and second applicants jointly EUR 60,000 and
to the third applicant EUR 60,000, plus any tax that may be
chargeable thereon.
C. Costs and expenses
The
applicants also claimed EUR 5,600 for the costs and expenses
incurred before the Court. They listed four lawyers who had worked in
2004, 2005 and 2008 on this complaint and asked to be reimbursed for
the costs of translation.
The
Government left the issue of costs to the Court's discretion.
The
Court may make an award in respect of costs and expenses in so far
that they were actually and necessarily incurred and are reasonable
as to quantum (see Bottazzi v. Italy [GC], no. 34884/97,
§ 30, ECHR 1999 V and Sawicka v. Poland, no.
37645/97, § 54, 1 October 2002). In the present case the Court
notes that the initial powers of attorney were issued in respect of
two lawyers of the International Protection Centre, Mrs Moskalenko
and Mrs Arutyunyan, who prepared the initial application form. In
February 2005 the first and the third applicants issued powers of
attorney for Mrs Mikhaylova and Mr Magomadov. The applicants'
observations were submitted by Mrs Moskalenko and Mrs Mikhaylova. The
Court is unable to award any costs allegedly incurred by Mr Magomadov
(the claim of EUR 2,000) in the absence of any information about
his involvement in the preparation of the case. The Court awards to
the applicants the global sum of EUR 3,600, less the sum of EUR 850
received in legal aid from the Council of Europe.
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
Declares the complaints under Articles 2, 3, 5
and 13 of the Convention admissible and the remainder inadmissible;
Holds that there has been a substantive
violation of Article 2 of the Convention in respect of Usman
Umalatov and Shamad Durdiyev;
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 Usman
Umalatov and Shamad Durdiyev disappeared;
4. Holds that there has been a violation of
Article 3 of the Convention in respect of the applicants;
Holds that there has been a violation of
Article 5 of the Convention in respect of Usman Umalatov and
Shamad Durdiyev;
6. Holds
that there has been a violation of Article 13 of the Convention
in respect of the alleged violations of Article 2 of the Convention;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the date of settlement:
(i) EUR 60,000
(sixty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the first and the second
applicants jointly;
(ii) EUR 60,000
(sixty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the third applicant;
(iii) EUR 2,750
(two thousand seven hundred and fifty 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;
(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