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TUPCHIYEVA v. RUSSIA - 37461/05 [2010] ECHR 630 (22 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/630.html
Cite as:
[2010] ECHR 630
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FIRST
SECTION
CASE OF
TUPCHIYEVA v. RUSSIA
(Application
no. 37461/05)
JUDGMENT
STRASBOURG
22 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 Tupchiyeva v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 25 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 37461/05) 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 a Russian national, Ms Eru Tupchiyeva (also
known as Dzhabrailova) (“the applicant”), on 29 September
2005.
The
applicant was 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 the Deputy Minister of Justice
Mr A. Savenkov and subsequently by
the Representative of the Russian Federation at the European Court of
Human Rights Mr G. Matyushkin.
On
18 March 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
applicant was born in 1948 and lives in Shali, Chechnya. She is the
mother of Vakhit (also known as Akhmed) Dzhabrailov, who was born in
1976.
A. Disappearance of Vakhit Dzhabrailov
1. The applicant's account
At
the material time the town of Shali was under the full control of
Russian federal forces. Military checkpoints were located on the
roads leading to and from the town. The area was under curfew.
The
applicant's house at 56 Kirova Street, Shali, Chechnya, consisted of
three dwellings. One of the applicant's sons, Vakhit, lived with her
in one dwelling; two other sons of the applicant lived with their
families in the others.
On
the night of 2-3 January 2003 the applicant, Vakhit Dzhabrailov and
their relatives were at home. At about 5.30 a.m. a group of fifteen
to twenty armed men in camouflage uniforms arrived at their house in
a white GAZ minivan with tented body ('Газель')
and a grey UAZ minivan ('Таблетка').
The vehicles did not have registration numbers. The men unloaded a
ladder and used it to climb over the fence into the applicant's yard.
The
men neither identified themselves nor produced any documents. They
had Slavic appearance and spoke Russian without
accent. The applicant and her relatives thought that they were
Russian military servicemen.
The
men split into two groups and went into the dwellings. Some of the
soldiers remained on the street and ordered the neighbours to get
back in their houses. The first group broke into the house where the
applicant's son Mr R. Dzh. lived with his family. They took him
outside and put him on the floor of the UAZ minivan. Mr R. Dzh. was
shown to a man in the vehicle and then immediately released.
In
another house the servicemen detained Vakhit Dzhabrailov and took him
outside. They put him face down on the ground. Vakhit Dzhabrailov,
who was suffering from tuberculosis, was not allowed to put on warm
clothing. The applicant asked the soldiers where they were taking
Vakhit, but did not receive any response. After that the soldiers put
Vakhit in the UAZ minivan. Immediately afterwards one of the officers
contacted someone via a portable radio and reported that they had
taken someone. After that the vehicles drove away in the direction of
the local mosque and the Shali district department of the interior
(the ROVD).
The
abduction of Vakhit Dzhabrailov was witnessed by a number of the
applicant's relatives and neighbours. The applicant has had no news
of Vakhit Dzhabrailov since the day of his abduction.
The
description of the circumstances surrounding the disappearance of the
applicant's son is based on the following documents: an account by
the applicant dated 22 December 2003, an account by the applicant's
neighbour Ms N. U. dated 12 December 2003, an account by the
applicant's son Mr R. Dzh. dated 10 November 2005, accounts by the
applicant's relatives Ms A. Al. and Ms S.T., both dated 10 November
2005, and an account by the applicant's neighbour Ms A. Ak. dated 17
November 2005.
2. Information submitted by the Government
The
Government did not challenge most of the account presented by the
applicant. According to their submission “... criminal case
no. 22015 was opened by the Shali district prosecutor's office
after Ms E. Tupchiyeva (Dzhabrailova) had complained that
unidentified persons had abducted V. Dzhabrailov from 56 Kirova
Street in Shali, Chechnya at about 10 a.m. on 3 January 2003...”
B. The search for Vakhit Dzhabrailov and the
investigation
1. The applicant's account
In
the morning of 3 January 2003 the applicant and her relatives started
searching for Vakhit Dzhabrailov. They also
contacted, both in person and in writing, various official bodies,
such as the Russian President, the Envoy of the President of the
Russian Federation for Ensuring Human Rights and Freedoms in the
Chechen Republic, the Shali district administration, the Chechen
administration, military commanders' offices and prosecutors' offices
at different levels, describing in detail the circumstances of their
relative's abduction and asking for help in establishing his
whereabouts. The applicant retained copies of some of those letters
and the authorities' replies and submitted them to the Court.
According
to the applicant, at some point after the events one of the
servicemen who had been on duty at the ROVD on the night of the
abduction told her that on the night of 3 January 2003 the minivan
with Vakhit Dzhabrailov had been driven up to the ROVD building and
left shortly afterwards.
On
5 January 2003 the head of the Shali district administration
forwarded the applicant's complaint about her son's abduction to the
ROVD.
On
27 January 2003 the district prosecutor's office instituted an
investigation into the disappearance of Vakhit Dzhabrailov under
Article 126 § 2 of the Russian Criminal Code
(aggravated kidnapping). The case file was given the number 22015.
The applicant was informed about it on 1 July 2004.
On
13 November 2003 the applicant wrote to the Chechnya prosecutor's
office. She described the circumstances of her son's abduction and
stated that her requests to various law-enforcement bodies had not
produced any results. She pointed out that the Shali district
prosecutor's office (the district prosecutor's office) had failed to
initiate an investigation into her son's abduction. She expressed her
concerns about her son's state of health as at the time of his
abduction Vakhit Dzhabrailov had been suffering from tuberculosis.
On
3 December 2003 the applicant's representatives requested the
district prosecutor's office to inform them about the following:
whether the authorities had initiated a criminal investigation into
the abduction of Vakhit Dzhabrailov; whether the applicant had been
granted victim status in the criminal case, and what measures had
been taken to establish the identity of the perpetrators of the
kidnapping and the whereabouts of the applicant's son. No reply was
given to this request.
On
1 June 2004 the applicant's representatives reiterated their request
of 3 December 2003.
On
1 July 2004 the district prosecutor's office informed the applicant's
representatives that on 27 January 2003 they had instituted
an investigation into the disappearance of Vakhit Dzhabrailov
and that the case file had been given the
number 22015. According to the letter, on an unspecified date
the applicant had been granted victim status in the criminal
proceedings.
On
7 August 2004 the military prosecutor's office of the United Group
Alignment (the military prosecutor's office of the UGA) forwarded the
applicant's request for assistance in the search for her son to the
military prosecutor's office of military unit no. 20116.
On
17 February 2005 the Shali district military commander's office (the
district military commander's office) informed the applicant that
they had examined her complaint about the abduction of Vakhit
Dzhabrailov and forwarded a number of requests for information to
various law-enforcement bodies.
On
11 March 2005 the district military commander's office informed the
applicant that in connection with the abduction of her son the ROVD
had opened operational search file no. 71409 and measures aimed
at establishing his whereabouts were under way.
On
19 July 2005 the applicant's representatives requested the district
prosecutor's office to provide information concerning the progress of
the investigation in the criminal case, the date of suspension of the
criminal proceedings and the results of examination by the
investigative authorities of the applicant's version of the
involvement of Russian military forces in the abduction of Vakhit
Dzhabrailov. The representatives also requested to be informed
whether the applicant could be provided with access to the
investigation file. No reply was given to this request.
On
5 October 2005 the applicant's representatives reiterated their
request for an update on the criminal investigation.
On
12 November and 12 December 2005 the district prosecutor's office
informed the applicant's representatives that on 8 July 2004 they had
suspended the investigation in the criminal case. They also stated
that the investigation had not established the involvement of Russian
military servicemen in the abduction. The letters further invited the
applicant to familiarise herself with those documents from the
investigation file “which concerned her interests as a victim
in the criminal case”.
According
to the applicant, between January 2003 and December 2005 the
investigators from the military prosecutor's office questioned twelve
witnesses from her relatives and neighbours about Vakhit Dzhabrailov.
2. Information submitted by the Government
Without
submitting any of the relevant documents or providing the dates of
the investigating measures the Government stated that the
investigation of the abduction of Vakhit Dzhabrailov had been
initiated by the district prosecutor's office and that the applicant
had been granted victim status in the criminal case.
On
an unspecified date the investigators questioned the applicant, who
stated that on 3 January 2003 she had been at home. At about 10 a.m.
a group of armed men in camouflage uniforms had broken into her
house. At first the men had taken away her son Ramzan; however, they
had brought him back soon afterwards and taken her second son, Vakhit
Dzhabrailov. The men placed him in a grey UAZ minivan and took him
away to an unknown destination. At some point later the investigators
again questioned the applicant, who stated that it was one of her
sons, Mr V. Dz., who had informed her about the visit of the
abductors' car to the ROVD on the night of the abduction and that he,
in his turn, had obtained this information from taxi drivers who had
witnessed the vehicle arriving at the ROVD and leaving some time
later.
On
an unspecified date the investigators questioned the applicant's
neighbour Ms A. Ak., who stated that at about 10 a.m. on 3 January
2003 she had seen from her window a tented GAZ vehicle and a grey UAZ
minivan pulling over to the applicant's gate. A number of men in
camouflage uniforms who were armed with automatic weapons had got out
of the vehicles and fetched a ladder from the boot of the GAZ car.
They had used the ladder to climb over the applicant's gate; they got
into the applicant's yard and opened the gate from inside. About ten
minutes later the armed men brought the applicant's son Mr R. Dzh. to
the vehicles; a few minutes later they took him back to the house.
After that the intruders took the applicant's other son, Vakhit
Dzhabrailov, placed him in the grey minivan and drove away. According
to the witness, in the UAZ minivan she had noticed a man in
camouflage uniform of Caucasian appearance and to whom the
applicant's sons had been shown.
On
an unspecified date the investigators questioned the applicant's
neighbour Ms N. U. who provided a statement similar to the one given
by Ms A. Ak.
On
an unspecified date the investigators questioned the applicant's
neighbour Mr A.T. who stated that at about 10 a.m. on 3 January 2003
he had heard screams coming from the applicant's house and the noise
of a vehicle driving down the street. He had immediately gone to the
applicant's house where he had been told that armed men had taken
away Vakhit Dzhabrailov.
According
to the Government, the investigators also questioned witnesses Ms
T.M. and Ms Z.D. whose statements had not provided any significant
information for the investigation.
On
an unspecified date the investigators conducted the crime scene
examination at the applicant's house. Nothing was collected from the
scene.
37 Further,
on unspecified dates the investigators forwarded a number of requests
to competent authorities, including various district departments of
the interior and district prosecutor's offices in Chechnya, the Shali
department of the Federal Security Service (the FSB), the military
commander of the United Group Alignment in the Northern Caucasus (the
UGA), the military prosecutor of military unit no. 20116, the
Chechnya Ministry of the Interior (the Chechnya MVD) and the Federal
Department of Execution of Punishment in Kabardino-Balkaria.
According to the responses received from the agencies, they had not
conducted any special operations on 3 January 2003 in Shali and did
not have any information about Vakhit Dzhabrailov.
The
Government also submitted that on an unspecified date the
investigators had forwarded requests to establish the owners of the
UAZ minivan used by the abductors. However, the Government did not
specify either where the requests had been forwarded or whether any
response had been given to them.
The
Government stated that the investigation into the abduction of Vakhit
Dzhabrailov had not established the involvement of federal forces in
the incident.
The
Government further submitted that although the investigation had
failed to establish either the whereabouts of Vakhit Dzhabrailov or
the perpetrators of his abduction, it was still in progress.
Despite specific requests by the Court the Government
did not disclose any documents of criminal case no. 22015.
The Government stated that a copy of the 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
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 Vakhit Dzhabrailov
had not yet been completed. They also argued
that it had been open to the applicant to pursue civil complaints but
that she had failed to do so.
The
applicant contested that objection. She stated that the only
effective remedy in her case was the 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).
The
Court notes that the Russian legal system provides, in principle, two
avenues of recourse for the victims of illegal and criminal acts
attributable to the State or its agents, namely civil and criminal
remedies.
As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, the
Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention (see
Khashiyev and Akayeva v. Russia, nos. 57942/00 and
57945/00, §§ 119-121, 24 February 2005, and Estamirov
and Others, cited above, § 77). In
the light of the above, the Court confirms that the applicant was not
obliged to pursue civil remedies.
As
regards criminal-law remedies, the Court observes that the applicant
complained to the law-enforcement authorities shortly after the
kidnapping of Vakhit Dzhabrailov and that an investigation has been
pending since 27 January 2003. The applicant 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 applicant's complaints. Thus, it decides
to join this objection to the merits of the case and considers that
the issue falls to be examined below.
II. THE COURT'S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT
OF THE FACTS
A. The parties' arguments
The
applicant maintained that it was beyond reasonable doubt that the men
who had taken away Vakhit Dzhabrailov had been State agents. In
support of her complaint she referred to the following facts. At the
material time Shali had been under total control of federal troops
and the area was under strict curfew. There had been Russian military
checkpoints on the roads leading to and from Shali. The armed men who
had abducted Vakhit Dzhabrailov had Slavic features and spoke Russian
without an accent, which proved that they were not of Chechen origin.
The men had arrived at the applicant's house at night, which
indicated that they had been able to circulate freely past curfew.
The men acted in a manner similar to that of special forces carrying
out identity checks. They were wearing specific camouflage uniform,
were armed and had portable radios. Since her son had been missing
for a very lengthy period, 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.
The
Government submitted that unidentified armed men had kidnapped Vakhit
Dzhabrailov. They further contended that the investigation of the
incident was pending, that there was no evidence that the men had
been State agents and that there were therefore no grounds for
holding the State liable for the alleged violations of the
applicant's rights. They further argued that there was no convincing
evidence that the applicant's son was dead. The Government raised a
number of objections to the applicant's presentation of facts. The
fact that the perpetrators of the abduction spoke unaccented Russian
and were wearing camouflage uniforms did not mean that these men
could not have been members of illegal armed groups. The
Government further alleged that the applicant's description of the
circumstances surrounding the abduction was inconsistent. In
particular, the applicant had submitted to the domestic investigators
that the abductors had arrived at her house around 10 a.m. whereas in
her complaint to the Court she had alleged that they had arrived at
about 5.30 a.m.; that she had failed to inform the investigators
about the officer from the ROVD who had confirmed that the abductors'
vehicles had stopped at the ROVD after the abduction and that the
applicant's neighbour Ms A.Ak. had informed the domestic
investigators about the man with Caucasian appearance, but had failed
to submit this information to the Court. The Government referred to
the witness statements made to the domestic investigation, but did
not submit them to the Court.
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
truth 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, § 161,
Series A no. 25).
The
Court notes that despite its requests for a copy of the investigation
file into the abduction of Vakhit Dzhabrailov, the Government
produced none of the documents from the case file. The Government
referred to Article 161 of the Code of Criminal Procedure. The Court
observes that in previous cases it has already found this explanation
insufficient to justify the withholding of key information requested
by the Court (see Imakayeva v. Russia, no. 7615/02, §
123, ECHR 2006-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 applicant's
allegations. The Court will thus proceed to examine crucial elements
in the present case that should be taken into account when deciding
whether the applicant's son can be presumed dead and whether his
death can be attributed to the authorities.
The
applicant alleged that the persons who had taken Vakhit Dzhabrailov
away on 3 January 2003 and then killed him were State agents.
The Government suggested in their submissions that the abductors of
Vakhit Dzhabrailov may have been 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
Court notes that the applicant's allegation is supported by the
witness statements collected by the applicant and by the
investigation. It finds that the fact that a large group of armed men
in uniform during curfew hours, in the area fully controlled by the
authorities, was able to move freely in the area and proceeded to
check identity documents and take the applicant's son away from his
home strongly supports the applicant's allegation that these were
State servicemen conducting a security operation. In her application
to the authorities the applicant alleged that Vakhit Dzhabrailov had
been detained by unknown servicemen and requested the investigation
to look into that possibility (see paragraph 26 above). The domestic
investigation also accepted factual assumptions as presented by the
applicant, and took steps to check whether federal servicemen were
involved in the kidnapping (see paragraph 28 above), but it does not
appear that any serious steps were taken in that direction.
The
Government questioned the credibility of the applicant's 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 her submissions of facts have been
disputed by the Government and that the latter did not furnish the
Court with the witness statements to which they referred in their
submissions. In the Court's view, the absence of anything to
substantiate the Government's position in this respect and the fact
that the Government did not dispute the underlying account of the
abduction, those alleged inconsistencies do not in themselves suffice
to cast doubt on the overall veracity of the applicant's statements.
The
Court observes that where the applicant makes 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 applicant, or to provide a
satisfactory and convincing explanation of how the events in question
occurred. The burden of proof is thus shifted to the Government and
if they fail in their arguments, issues will arise under Article 2
and/or Article 3 (see Toğcu v. Turkey, no. 27601/95,
§ 95, 31 May 2005, and Akkum and Others v. Turkey,
no. 21894/93, § 211, ECHR 2005 II).
Taking
into account the above elements, the Court is satisfied that the
applicant has made a prima facie case that her son was taken away by
State servicemen. The Government's statement that the investigators
had not found any evidence to support the involvement of the federal
forces in the kidnapping or their general reference to the
possibility of illegal insurgents' involvement in the crime is
insufficient to discharge them from the above-mentioned burden of
proof. Having examined the documents submitted by the applicant, 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 Vakhit Dzhabrailov was arrested on 3 January
2003 by State servicemen during an unacknowledged security operation.
There
has been no reliable news of Vakhit Dzhabrailov 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 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 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 Vakhit Dzhabrailov or of any news of
him for more than six years supports this assumption.
Accordingly,
the Court finds that the evidence available permits it to establish
that Vakhit Dzhabrailov must be presumed dead following his
unacknowledged detention by State servicemen.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicant complained under Article 2 of the Convention that her son
had been deprived of his life by Russian servicemen and that the
domestic authorities had failed to carry out an effective
investigation of the matter. Article 2 reads:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. The parties' submissions
The
Government contended that the domestic investigation had obtained no
evidence to the effect that Vakhit Dzhabrailov was dead or that any
servicemen of the federal law-enforcement agencies had been involved
in his kidnapping or alleged killing. The Government claimed that the
investigation into the kidnapping of the applicant's son met the
Convention requirement of effectiveness, as all measures available
under national law were being taken to identify those responsible.
The
applicant argued that Vakhit Dzhabrailov had been detained by State
servicemen and should be presumed dead in the absence of any reliable
news of him for more than six years. The applicant also argued that
the investigation had not met the effectiveness and adequacy
requirements, laid down by the Court's case-law. The applicant
pointed out that the district prosecutor's office had not taken some
crucial investigative steps. The investigation into Vakhit
Dzhabrailov's kidnapping had been opened several weeks 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 she 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. The applicant also invited the Court to
draw conclusions from the Government's unjustified failure to submit
the documents from the case file to her or to the Court.
B. The Court's assessment
1. Admissibility
The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits.
Further, the Court has already found that the Government's objection
concerning the alleged non-exhaustion of domestic remedies should be
joined to the merits of the complaint (see paragraph 49 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 Vakhit Dzhabrailov
The
Court has already found that the applicant's son 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 Vakhit
Dzhabrailov.
(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 Vakhit Dzhabrailov 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 none of the documents from the
investigation were disclosed by the Government. It therefore has to
assess the effectiveness of the investigation on the basis of the few
documents submitted by the applicant and the information about its
progress presented by the Government.
The
Court notes that the authorities were made aware of the crime by the
applicant's submission on 5 January 2003 the latest (see paragraph 17
above). The investigation in case no. 22015 was instituted on 27
January 2003, twenty-two days after the authorities had become aware
of Vakhit Dzhabrailov'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. Further, it is not possible to
assess whether a number of investigating steps had been delayed, in
view of the Government's failure to provide the Court with relevant
information (see paragraphs 30 and 41 above), but it is clear that a
number of the most crucial investigating measures had not been taken
at all. For instance, the investigators did not question the local
military commander about those who could have obtained his permission
to drive around past curfew; they did not question the servicemen who
had been on duty at the ROVD on 3 January 2003; they failed to
establish the identity of the owners of the tented GAZ vehicle used
by the abductors, and they did not question the applicant's relatives
who had been present during the abduction. Further, it does not
appear that the investigators attempted to question the applicant's
son Mr V.D. and the taxi drivers who had seen the abductors' vehicle
driving on the premises of the ROVD shortly after the events (see
paragraph 31 above). 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 crime (see
Öneryıldız v. Turkey [GC], no. 48939/99, §
94, ECHR 2004 XII).]
The
Court also notes that even though the applicant was eventually
granted victim status in the investigation concerning the abduction
of her son, she 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 suspended and resumed on
several occasions and that there were lengthy periods of inactivity
of the district prosecutor's office when no proceedings were pending.
Having
regard to the limb of the Government's objection that was joined to
the merits of the complaint, inasmuch as it concerns the fact that
the domestic investigation is still pending, the Court notes that the
investigation, having been repeatedly suspended and resumed and
plagued by inexplicable delays, has been pending for many years
without producing tangible results. Accordingly, the Court
finds that the remedy cited by the Government was ineffective in the
circumstances and dismisses their preliminary objection as regards
the applicant's failure to exhaust domestic remedies within the
context of the criminal investigation.
In
the light of the foregoing, the Court holds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the disappearance of Vakhit Dzhabrailov, in
breach of Article 2 in its procedural aspect.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant relied on Article 3 of the Convention, submitting that as a
result of her son's disappearance and the State's failure to
investigate it properly, she 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 applicant had
been subjected to inhuman or degrading treatment prohibited by
Article 3 of the Convention
The
applicant maintained her submissions.
B. The Court's assessment
1. Admissibility
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 enforced 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 applicant is the mother of
the disappeared person, who witnessed his abduction. For more than
six years she has not had any news of the missing man. During this
period the applicant has made enquiries of various official bodies,
both in writing and in person, about her missing son. Despite her
attempts, the applicant has never received any plausible explanation
or information about what became of him following his detention. The
responses she received mostly denied State responsibility for her
son's arrest or simply informed her 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 applicant.
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicant further stated that Vakhit Dzhabrailov 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 Vakhit Dzhabrailov 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
applicant 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 Vakhit Dzhabrailov was taken
away by State servicemen on 3 January 2003 and has not been seen
since. His detention was not acknowledged, was not logged in any
custody records and there exists no official trace of his subsequent
whereabouts or fate. In accordance with the Court's practice, this
fact in itself must be considered a most serious failing, since it
enables those responsible for an act of deprivation of liberty to
conceal their involvement in a crime, to cover their tracks and to
escape accountability for the fate of a detainee. Furthermore, the
absence of detention records, noting such matters as the date, time
and location of detention and the name of the detainee as well as the
reasons for the detention and the name of the person effecting it,
must be seen as incompatible with the very purpose of Article 5 of
the Convention (see Orhan, cited above, § 371).
The
Court further considers that the authorities should have been more
alert to the need for a thorough and prompt investigation of the
applicant's complaints that her son had been detained and taken away
in life-threatening circumstances. However, the Court's findings
above, in relation to Article 2 and in particular to 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 Vakhit Dzhabrailov 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 13 OF THE CONVENTION
The
applicant complained that she 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 applicant had had effective remedies at
her disposal as required by Article 13 of the Convention and that the
authorities had not prevented her from using them. The applicant had
had an opportunity to challenge the acts or omissions of the
investigating authorities in court. They further added that
participants in criminal proceedings could also claim damages in
civil proceedings and referred to cases where victims in criminal
proceedings had been awarded damages from state bodies and in one
instance from the prosecutor's office. In sum, the Government
submitted that there had been no violation of Article 13.
The
applicant 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.
As regards the applicant's 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).
VII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
The
applicant complained that she had been discriminated against in the
enjoyment of her Convention rights, because the violations of which
she complained had taken place because she was a resident in Chechnya
and because of her ethnic background as a Chechen. This was contrary
to Article 14 of the Convention, which reads as follows:
“The enjoyment of the right and freedoms set forth
in [the] Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a national
minority, property, birth or other status.”
The
Court observes that no evidence has been submitted to it that
suggests that the applicant was treated differently from persons in
an analogous situation without objective and reasonable
justification, or that she has ever raised this complaint before the
domestic authorities. It thus finds that this complaint has not been
substantiated.
It
follows that this part of the application is
manifestly ill-founded and should be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
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
applicant claimed damages in respect of loss of earnings by her son
after his arrest and subsequent disappearance. The applicant claimed
a total of 482,104 Russian roubles (RUB) under this heading (13,774
euros (EUR)).
She
claimed that her son had been unemployed at the time of his arrest,
and that in that case the calculation should be made on the basis of
the subsistence level established by national law. She calculated his
earnings for the period, taking into account an average inflation
rate of 13.67%. Her calculations were also based on the actuarial
tables for use in personal injury and fatal accident cases published
by the United Kingdom Government Actuary's Department in 2007 (“Ogden
tables”).
The
Government regarded these claims as unsubstantiated. They also
pointed to the existence of domestic statutory machinery for the
provision of a pension for the loss of the family breadwinner.
The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicant and the violation of the
Convention, and that this may, in an appropriate case, include
compensation in respect of loss of earnings. Having regard to its
above conclusions, it finds that there is a direct causal link
between the violation of Article 2 in respect of the applicant's
son and the loss by the applicant of the financial support which he
could have provided. Having regard to the applicant's submissions and
the fact that Vakhit Dzhabrailov was not employed at the time of his
abduction, the Court awards EUR 10,000 to the applicant in
respect of pecuniary damage, plus any tax that may be chargeable on
that amount.
B. Non-pecuniary damage
The
applicant claimed EUR 70,000 in respect of non-pecuniary damage
for the suffering she had endured as a result of the loss of her son,
the indifference shown by the authorities towards her and the failure
to provide any information about his fate.
The
Government found the amounts claimed excessive.
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
applicant's son. The applicant herself has been found to have been
victim of a violation of Article 3 of the Convention. The Court thus
accepts that she has suffered non-pecuniary damage which cannot be
compensated for solely by the findings of violations. It awards the
applicant EUR 60,000 plus any tax that may be chargeable thereon.
C. Costs and expenses
The
applicant was 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 for the work
in the area of exhausting domestic remedies and of EUR 150 per hour
for the drafting of submissions to the Court. The aggregate claim in
respect of costs and expenses related to the applicant's legal
representation amounted to EUR 7,301.
The
Government did not dispute the reasonableness of and justification
for the amounts claimed under this heading.
The
Court has to establish first whether the costs and expenses indicated
by the applicant's 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
contracts submitted by the applicant, the Court is satisfied that
these rates are reasonable and reflect the expenses actually incurred
by the applicant's representatives.
As
to whether the costs and expenses were necessary, the Court notes
that this case was rather complex and required a certain amount of
research and preparation. It notes at the same time, that due to the
application of Article 29 § 3 in the present case, the
applicant's representatives submitted their observations on
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 applicant, the Court awards her the amount of EUR 5,500
together with any value-added tax that may be chargeable to the
applicant, the net award to be paid into the representatives' bank
account in the Netherlands, as identified by the applicant.
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
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 admissible and the remainder of the
application inadmissible;
Holds that there has been a substantive
violation of Article 2 of the Convention in respect of Vakhit
Dzhabrailov;
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 Vakhit
Dzhabrailov disappeared;
5. Holds that there has been a violation of
Article 3 of the Convention in respect of the applicant;
Holds that there has been a violation of
Article 5 of the Convention in respect of Vakhit Dzhabrailov;
7. Holds
that there has been a violation of Article 13 of the Convention
in conjunction with Article 2 of the Convention;
8. Holds
that no separate issues arise under Article 13 of the Convention in
respect of the alleged violations of Articles 3 and 5;
Holds
(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 10,000
(ten thousand euros), plus any tax that may be chargeable, in respect
of pecuniary damage to the applicant;
(ii) EUR 60,000
(sixty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the applicant;
(iii) EUR 5,500
(five thousand five hundred euros), plus any tax that may be
chargeable to the applicant, 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 applicant's
claim for just satisfaction.
Done in English, and notified in writing on 22 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
