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SHAKHABOVA v. RUSSIA - 39685/06 [2010] ECHR 661 (12 May 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/661.html
Cite as:
[2010] ECHR 661
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FIRST
SECTION
CASE OF
SHAKHABOVA v. RUSSIA
(Application
no. 39685/06)
JUDGMENT
STRASBOURG
12 May 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 Shakhabova 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,
Giorgio
Malinverni,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 22 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 39685/06) 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 Rayshat Shakhabova, on
20 September 2006.
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 Mr G.
Matyushkin, Representative of the Russian Federation at the European
Court of Human Rights.
On
10 June 2008 the Court decided to apply Rule 41
of the Rules of Court and to grant priority treatment to the
application and to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility. The President of the Chamber
acceded to the Government's request not to make publicly accessible
the documents from the criminal investigation file deposited with the
Registry in connection with the application (Rule 33 of the Rules of
Court).
The
Government objected to the joint examination of the admissibility and
merits of the application and to the application of Rule 41 of
the Rules of Court. Having considered the
Government's objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1942 and lives in the town of Urus-Martan, in
the Chechen Republic. She is the mother of Mr Adam Khurayev, born in
1978.
A. Disappearance of Adam Khurayev
1. The applicant's account
The
applicant's house in Urus-Martan was destroyed during the military
campaign in the Chechen Republic in the autumn of 1999. The
applicant's family had to move temporarily to Ingushetia, where they
lived at the material time. Adam Khurayev frequently visited his
aunt, Ms M.M., who lived in Urus-Martan, and stayed at her house no.
14, Lomonosova Lane (the street name and the house number were later
changed to 74, Kutuzova Street).
In
the summer of 2002 Adam Khurayev and his twin brother Arbi Khurayev
submitted their documents to the Urus-Martan District Department of
the Interior (the ROVD) to exchange their old Soviet passports for
new Russian ones. On 22 November 2002 Adam and Arbi Khurayev
went to Urus-Martan to pick up their new passports. The brothers
stayed at their aunt's house at the above address. At the material
time the town of Urus-Martan was under curfew. The authorities
maintained manned checkpoints at the entry and exit points to the
town.
At
about 10 p.m. on 23 November 2002 the family of M.M. was at home.
When Adam Khurayev went outside, to the toilet located in the
courtyard, a group of over fifteen armed masked men in camouflage
uniforms broke into the house. The intruders neither introduced
themselves nor produced any documents. The applicant's relatives
thought that they were Russian servicemen. They dispersed into
different rooms, pointed their guns at the family members and ordered
everyone to stay in their rooms. M.M.'s daughter, Ms L.M., rushed to
the window and heard the intruders order someone in Russian: “Lie
on the ground!” She thought that the order must have been given
to Adam Khurayev, as he was the only family member in the yard.
Without
providing any explanations or reasons for their actions, the
servicemen conducted a quick but thorough search of M.M.'s house.
They did not find anything of interest to them.
After
that the servicemen returned to the yard and walked out into the
street. Shortly thereafter M.M. and L.M. heard the sound of heavy
military vehicles in the street.
Ms.
A.M., one of M.M.'s neighbours, residing at 47 Lomonosova Street, was
woken up at about 10 p.m. on 23 November 2002 by the sound of heavy
military vehicles in the street. She looked out of the window and saw
an APC (armoured personnel carrier) and two military UAZ vehicles
(“таблетка”)
parked in the street. A.M. did not go outside because of the curfew.
According to A.M., at the material time APCs were frequently driven
in Urus-Martan at night and servicemen often took young men away.
About fifteen minutes later the vehicles started their engines and
drove away.
After
the servicemen had left, the applicant's relatives realised that Adam
Khurayev, who had been in the courtyard, had disappeared.
The
applicant has had no news of Adam Khurayev since 23 November
2002.
The
above account of the events is based on the applicant's application
form and written statements by M.M. and A.M., dated 10 and
11 November 2005 respectively.
2. Information submitted by the Government
The
Government submitted that on 23 November 2002 Adam Khurayev had
been abducted by unidentified persons.
B. The search for Adam Khurayev and the investigation
1. The applicant's account
(a) The applicant's search for Adam
Khurayev
In
the morning of 24 November 2002 Arbi Khurayev went to Ingushetia to
inform the applicant about the disappearance of Adam Khurayev.
The applicant immediately went to Urus-Martan and started searching
for her son. From 24 November 2002 for almost a month the applicant,
who was elderly and illiterate, complained in person about her son's
disappearance to a number of local law-enforcement agencies,
including the Urus-Martan district military commander's office
(hereafter “the district military commander's office”),
the ROVD, and the Urus-Martan district prosecutor's office (“the
district prosecutor's office”). The authorities denied any
involvement on the part of their officials in the abduction of
Adam Khurayev.
The
applicant's relatives assisted her in the search for Adam Khurayev.
They contacted, both in person and in writing, various official
bodies, such as the President of the Russian Federation, the Envoy of
the President of the Russian Federation for Ensuring Human Rights and
Freedoms in the Chechen Republic, the Chechen administration,
departments of the interior and prosecutors' offices at different
levels, asking for help in establishing the whereabouts of Adam
Khurayev. The applicant retained copies of a number of those
complaints and submitted them to the Court. An official investigation
was opened by the district prosecutor's office. The relevant
information is summarised below.
(b) The official investigation into the
abduction of Adam Khurayev
On 23 December 2002 the applicant complained in
writing about her son's disappearance to a number of State
authorities, including the district military commander's office, the
district prosecutor's office and the ROVD. She stated that on 22
November 2002 she and her sons Arbi and Adam had gone to Urus-Martan
to obtain her sons' identity documents. At about 10 p.m. on that
day armed and masked members of law-enforcement authorities, wearing
camouflage uniforms, had broken into the house at no. 14
Lomonosova Street and had abducted Adam Khurayev. The intruders had
used an APC and two UAZ vehicles. She stressed that prior to his
abduction her son had undergone stomach surgery.
On
20 January 2003 the prosecutor's office of the Chechen Republic (“the
republican prosecutor's office”) forwarded the applicant's
complaint about her son's abduction to the district prosecutor's
office for examination.
On
14 February 2003 the district prosecutor's office instituted an
investigation into the abduction of Adam Khurayev under Article 126 §
2 of the Criminal Code (aggravated kidnapping). The criminal case
file was given number 34022.
On
15 March 2003 the district prosecutor's office granted the applicant
the status of a victim in criminal case no. 34022.
On
24 April 2003 the applicant wrote to a number of State authorities,
including the prosecutor and the military prosecutor of the Chechen
Republic. She stated that her son had been abducted by servicemen
from the law-enforcement agencies of the Urus-Martan district who had
arrived in two UAZ vehicles and an APC. The applicant pointed out
that her numerous complaints to various State bodies had failed to
produce any results and that, apart from instituting an investigation
into the abduction, the district prosecutor's office had failed to
take any other measures aimed at establishing her son's whereabouts.
She stressed that her son's abductors must have been representatives
of the State as only they could have moved freely in the town during
the curfew and used military vehicles.
On
22 May 2003 the republican prosecutor's office informed the applicant
that on 14 February 2003 the district prosecutor's office had opened
criminal case no. 34022 into the abduction of her son; that on
14 April 2003 the investigation had been suspended owing to the
failure to establish the perpetrators and that unspecified
operational and search measures aimed at solving the crime were under
way.
On
9 June 2003 the military prosecutor's office of the United Group
Alignment (“the UGA military prosecutor's office”)
forwarded the applicant's complaint about her son's abduction to the
military prosecutor's office of military unit no. 20102 for
examination.
On
17 June 2003 the republican prosecutor's office forwarded the
applicant's request for assistance in the search for her son to the
district prosecutor's office and instructed the latter to inform the
applicant of any developments in the investigation.
On
30 June and 2 July 2003 the military prosecutor's office of military
unit no. 20102 informed the applicant that the examination of her
complaints had failed to establish any involvement of Russian
servicemen in the abduction of Adam Khurayev.
On
11 December 2003 the applicant complained to the minister of the
interior of the Chechen Republic, submitting that her son had been
abducted by a group of armed men in camouflage uniforms who had
arrived in two UAZ cars and an APC without number plates. She
stressed that the abductors must have been State servicemen as only
they could have moved freely in the town during the curfew and used
military vehicles. The applicant pointed out that her numerous
complaints to various State bodies had failed to produce any effect
and that the criminal investigation had been suspended and reopened
and had failed to produce any results.
On
17 December 2003 the applicant complained to the prosecutor of the
Chechen Republic, stating that her son had been abducted by a group
of armed men in camouflage uniforms who had arrived in two UAZ
vehicles and an APC. She averred that her son's abductors must have
been representatives of the State as only they could have moved
freely in the town during the curfew and used military vehicles. The
applicant pointed out that her numerous complaints to various State
bodies had failed to produce any effect and that the criminal
investigation into her son's abduction had failed to produce any
results and had been suspended and reopened on a number of occasions.
She emphasised that her previous complaint to the prosecutor about
the inactivity of the district prosecutor's office had not produced
any results. Lastly, she requested the prosecutor to oblige the
district prosecutor's office to solve the crime.
On
13 January 2004 the republican prosecutor's office forwarded the
applicant's complaint to the district prosecutor's office. The latter
was to provide the applicant with detailed information on the
investigation and its results.
On
23 January 2004 the head of the ROVD informed the applicant that they
had opened an operational-search file for the search for her son and
that they had sent an unspecified number of requests for information
to law-enforcement agencies in the Urus-Martan District and various
regions of the Russian Federation.
Following
a complaint by the applicant to the republican prosecutor's office,
on 28 January 2004 the district prosecutor's office informed her that
on 28 January 2004 it had resumed the investigation in criminal case
no. 34022 and that the case file had been entrusted to another
investigator.
On
1 March 2004 the republican prosecutor's office forwarded the
applicant's complaint about her son's abduction to the district
prosecutor's office for inclusion into the criminal case file and
instructed the latter to inform the applicant of any developments in
the case. The letter also stated that the investigation in case
no. 34022 had been reopened.
On 24 March 2004 the district prosecutor's office informed the
applicant that on 28 February 2004 they had suspended the
investigation in criminal case no. 34022.
On
27 March 2004 the ROVD informed the applicant that their numerous
requests for information to various law-enforcement agencies in
Chechnya and other regions had failed to produce any results.
On
7 May 2004 the Prosecutor General's office in the Southern Federal
Circuit informed the applicant that they had forwarded her complaint
about the abduction of Adam Khurayev to the republican prosecutor's
office.
On
31 May 2004 the district prosecutor's office informed the applicant
that on 31 May 2004 they had resumed the investigation in criminal
case no. 34022.
On
17 June 2004 the republican prosecutor's office informed the
applicant that all information concerning the investigation into her
son's abduction was to be obtained from the district prosecutor's
office.
On
29 July 2004 the applicant wrote to a number of State authorities,
including the Urus-Martan district prosecutor and the head of the
ROVD. In her letter she described the circumstances of her son's
abduction and pointed out that her numerous complaints to various
State bodies had failed to produce any results. In particular, the
criminal investigation into her son's abduction had been conducted in
a superficial manner and had not produced any results. All her
complaints about the ineffectiveness of the investigation, addressed
to the supervisory bodies, had been forwarded to the district
prosecutor's office. Although the latter body had replied to the
complaints, none of those replies contained any information
concerning investigative measures undertaken in the course of the
criminal proceedings. Finally, the applicant submitted that her son's
abductors must have been representatives of the State as only they
could have moved freely in the town during the curfew, gone through
existing checkpoints and used military vehicles.
On
4 August 2004 the district prosecutor's office replied to the
applicant, stating that the investigation in criminal case no. 34022
had been carried out in compliance with the law. The district
prosecutor's office had taken all the investigative measures which
could be carried out in the absence of those to be charged with the
crime. They had sent numerous requests for information to various
law-enforcement agencies and hospitals. The republican prosecutor's
office's (unspecified) instructions concerning the investigation had
been complied with. The theory that Russian military servicemen had
been involved in the abduction of Adam Khurayev had been examined but
had not been confirmed. The latest decision to suspend the
investigation owing to the failure to identify the perpetrators was
dated 30 June 2004.
On
23 August 2004 the republican prosecutor's office informed the
applicant that on an unspecified date the investigation in criminal
case no. 34022 had been suspended, but operational-search
measures aimed at solving the crime were under way.
On
2 September 2004 the district prosecutor's office informed the
applicant that her complaint of 1 September 2004 had been included in
the case file of criminal case no. 34022.
On
30 September 2004 the ROVD forwarded the applicant's complaint about
her son's abduction to the district prosecutor's office for
examination.
On
15 May 2005 the applicant wrote to the Urus-Martan district
prosecutor, describing in detail the circumstances of her son's
apprehension and pointing out that her son had been abducted by
representatives of the State. The applicant complained that the
investigation into Adam Khurayev's abduction had been too
lengthy, that basic investigative measures had not been taken and
that she had no information about its progress. The applicant
requested the authorities to resume the investigation, to provide her
with access to the criminal case-file materials and with copies of
basic investigative documents to which she was entitled by law.
On
24 June 2005 the district prosecutor's office informed the applicant
that on 6 June 2005 they had resumed the investigation in criminal
case no. 34022 and that she could obtain a copy of the decision to
grant her victim status and certain other documents from their
office.
On
30 July 2005 the military prosecutor's office of military unit
no. 20102 informed the applicant that the examination of her
complaint about her son's abduction had failed to confirm any
involvement of Russian servicemen in the abduction of her son.
On
11 November 2005 the applicant wrote to the Urus-Martan district
prosecutor. She described in detail the circumstances of her son's
apprehension and pointed out that her son had been abducted by
representatives of the State. The applicant submitted that the
investigation into Adam Khurayev's abduction had been ineffective and
that it had failed to produce any results for more than three years.
She complained about the lack of information about the investigation,
requested the authorities to grant her victim status in the criminal
case, to resume the investigation and provide her with access to the
criminal case-file materials.
By
a letter of 14 November 2005 the republican prosecutor's office
forwarded the applicant's complaint about her son's abduction to the
district prosecutor's office for examination.
On
18 November 2005 the district prosecutor's office informed the
applicant that her complaint of 11 November 2005 had been granted
only in part. The letter did not specify in which part, but stated
that the applicant's request concerning access to the criminal
case-file materials had been rejected pursuant to Article 42 of the
Criminal Procedure Code.
On
15 December 2005 the applicant wrote to the district prosecutor's
office. She pointed out that on 11 November 2005 she had requested
the authorities to resume the investigation in criminal case
no. 34022 and provide her with access to the case-file
materials; that on 18 November 2005 the authorities had
partially granted her request but had failed to specify in which
part. The lack of clarity in the decision had precluded her from
appealing against it. She requested that that matter be clarified.
On
23 December 2005 the district prosecutor's office replied to the
applicant that she had been granted victim status on 15 March 2003
and that she was only entitled to access to procedural documents
concerning investigative measures she had participated in.
On
24 April 2006 the district prosecutor's office informed the applicant
that on an unspecified date they had resumed the investigation in
criminal case no. 34022.
2. Information submitted by the Government
On
14 February 2003 the district prosecutor's office instituted a
criminal investigation into the abduction of Adam Khurayev under
Article 126 § 2 of the Criminal Code. The case file was
attributed number 34022.
(a) Witnesses interviewed by the
investigation
Being interviewed as a witness on 18 February 2003,
M.M. stated that at 10 p.m. on 23 November 2002 armed persons in
masks and camouflage uniforms had broken into her house and had
abducted Adam Khurayev. Before coming to her household, the
abductors had looked for Adam Khurayev in her brother's house.
Neighbours known as “Zulay” and “Tamusa”,
whose family names M.M. did not remember, had seen the abductors use
APCs and UAZ vehicles.
On 15 March 2003 the applicant was granted victim
status and interviewed. She stated that she had learnt from M.M. that
at about 10 p.m. on 23 November 2002 armed and masked persons
had broken into M.M.'s house and had taken Adam Khurayev with them.
I.M., questioned on 20 January 2004 as a witness,
submitted that on 24 November 2002 he had learnt from M.M. about the
abduction of the applicant's son. M.M. had told him that she had not
witnessed the abduction and that two women known as Zulay and Tamusa
had told her that the abductors had arrived in an APC and two UAZ
vehicles.
Zara S., interviewed as a witness on 4 February 2004,
stated that in the morning of 24 November 2002 she had learnt from
the applicant and other neighbours about the abduction of Adam
Khurayev. Zara S. had not seen any vehicles and, apart from herself,
there were no other women known as “Tamusa” who lived in
the vicinity. Zara S. confirmed her statement while being questioned
as a witness on 18 June 2004.
M.Ch. was interviewed as a witness on 11 February
2004. She stated that on the night of 23 November 2002 she had been
at home with her husband A.Ch., who worked in the local military
commander's office. At about 10 p.m. she had heard noise coming from
the neighbouring household of Z.Ch. (see below). M.Ch. and her
husband had rushed to Z.Ch.'s house and seen armed men wearing masks
there. A.Ch. had asked them why they had broken into Z.Ch.'s house.
In response the armed men had forced A.Ch. to the ground. M.Ch. had
run back home and had fetched her own and her husband's identity
papers. She had presented them to the armed men, explaining to them
that her husband worked at the local military commander's office. At
that moment the armed men had been ordered over a portable radio to
leave, which they did quickly. They had left in several vehicles but
M.Ch. did not remember what their models were. On the next morning
M.Ch. had learnt about the abduction of Adam Khurayev.
On 17 February 2004 the investigation questioned A.Ch.
as a witness. He stated that on the night of 23 November 2002 he had
been at home with his family. One of his family members had alerted
him to the fact that something had been going on in Z.Ch.'s (his
brother's) house. A.Ch. had rushed outside and in Z.Ch's yard he had
run into several armed men wearing masks; their clothes had borne no
insignia. When A.Ch. had asked what they were doing there, the armed
men had forced him to the ground and ordered him to lie down. Several
minutes later A.Ch. had overheard somebody order the armed men to
leave, which they had done. A.Ch. and his wife had returned home and
had learnt on the following day about the abduction of Adam Khurayev.
On 20 February 2004 the investigation interviewed
Z.Ch. as a witness. He stated that at about 10 p.m. on 23 November
2002 he had been at home in his house in Urus-Martan. At that moment
several armed men in camouflage uniforms had burst into his house and
had requested his identity papers. Having carried out a passport
check, they had left.
M.B., the wife of Z.Ch., was questioned as a witness
on an unspecified date in February 2004. She stated that on the night
of 23 November 2002, while she had been at home with her
husband, several armed men in camouflage uniforms and masks had burst
into their house and had ordered the family members to produce their
identity documents for a passport check. Upon checking the documents
one of the intruders had apologised, saying that the group had come
to the wrong address, and they had left. M.B. had not noticed any
insignia and did not remember how many intruders there had been. On
the next day she had learnt about the abduction of the applicant's
son.
On 9 June 2004 M.M. was again questioned as a witness.
She confirmed the previous statement she had given to the
investigation and stated also that the intruders had carried out a
search in her house; that the applicant's son had been outside in the
toilet when the armed men had burst into her house and that in the
morning on 24 November 2002 she had found his slippers at the toilet
entry; and that she herself had not seen whether the intruders had
come in military vehicles.
On
12 June 2004 the investigation questioned R.Kh., the applicant's
daughter. She stated that on an unspecified date she had learnt from
the applicant that on 23 November 2002 Adam Khurayev had been
abducted while he had been at M.M.'s house in Urus-Martan.
When questioned again on 15 June 2004 the applicant
stated that on 22 November 2002 she had arrived in Urus-Martan
with her sons, Arbi and Adam Khurayev, to pick up their passports. In
the evening of 23 November 2002 the applicant and Arbi had
stayed at Z.Ch.'s place, while Adam Khurayev had gone to stay at
M.M.'s place. At about 10 p.m. several armed and masked men had burst
into Z.Ch.'s house and had forced Z.Ch. to the ground. One of the
intruders had said “I don't think it's him” and another
armed man had replied to him “I don't think so either”.
On the following morning the applicant had learnt from M.M. that
armed men in camouflage uniforms had abducted Adam Khurayev on the
previous night.
(b) Further investigative steps
On
an unspecified date the investigator inspected the crime scene. No
objects were seized during the inspection.
With
a view to examining the possibility that representatives of the State
had been involved in the applicant's son's abduction, on unspecified
dates the investigating authorities made enquires with various State
bodies, including the commander of military unit no. 6779, the
military commander of the Urus-Martanovskiy District, the ROVD,
unspecified remand prisons, detention centres and hospitals in the
region as to Adam Khurayev's whereabouts. From the replies of those
State authorities it followed that their officials had not arrested
Adam Khurayev, had not instituted criminal proceedings against him
and had no information on his whereabouts. According to those
replies, he had not been held in detention and had not applied for
medical assistance.
On
an unspecified date the detention logs of the ROVD and its temporary
detention ward were examined. No information concerning Adam Khurayev
was found.
On
6 July 2005 the investigation in case no. 34022 was suspended.
On
18 November 2005 the investigation was resumed and the applicant was
notified of that decision.
Despite a specific request by the Court, the
Government did not disclose most of the contents of the file in
criminal case no. 34022, providing only copies of the records of
the witness interviews described in paragraphs 53-63 above. The
Government stated that the investigation was in progress and that
disclosure of the documents would be in violation of Article 161 of
the Code of Criminal Procedure, since the file contained personal
data concerning the witnesses or other participants in the criminal
proceedings.
C. Court proceedings against the investigators
On
3 March 2006 the applicant complained to the Urus-Martanovskiy Town
Court (“the Town Court”) about the ineffectiveness of the
investigation into the abduction of her son. She requested that the
investigation be resumed and the necessary investigative measures be
taken and also sought access to the case file.
By a decision of 30 March 2006 the Town Court allowed
the applicant's complaint in part. In particular, it held that the
district prosecutor's office had unlawfully refused to provide the
applicant with information concerning the developments in the
investigation, which had prevented her from challenging the
investigator's acts or inaction in court. The court ordered the
district prosecutor's office to provide for the applicant's access to
the case file, subject to the restrictions applicable under the rules
of criminal procedure. Lastly, the court declared unlawful and
unfounded the decision to suspend the investigation in case no. 34022
and ordered the district prosecutor's office to carry out an
effective investigation. The decision, in so far as relevant, reads
as follows:
“... It emerges from the materials of case file
no.34022 ... that on 23 November 2002 at about 10 p.m. unidentified
masked persons carrying submachine guns broke into the household of
[M.M.]'s family ... and abducted Adam Khurayev.
The investigation took steps aimed at solving the crime
and identifying the perpetrators. In particular, M.M., I.M., Z.S.,
Z.Ch., R.B., M.Ch. and A.Ch. were interviewed as witnesses. ...
... The investigation failed to identify the persons who
had abducted Adam Khurayev or establish his whereabouts. In that
connection it had been suspended ... on numerous occasions and then
reopened again. The latest decision to suspend the investigation is
dated 18 December 2005.
However it transpires from the case file that the
investigator failed to take all relevant investigative steps. In
particular:
it was
not established which [military] units or power structures on the
territory of the Urus-Martanovskiy District were equipped with APCs;
where each military vehicle had been located at the time of the
abduction, and where and on whose order it had been used [at the
time of the abduction]”;
the
commanders of units equipped with APCs at the time of the abduction
and the drivers of the APCs were not interviewed;
the
logbooks of the departments keeping records of the use of military
vehicles at the time of the abduction were not examined;
the
heads of the military commander's office, the district department of
the FSB and the district department of the Interior were not
questioned with a view to establishing who had been granted
authorisation to pass through Urus-Martan on 23 November 2002
at night during the curfew;
the
logbooks of detention facilities were not seized and checked and the
persons responsible for detainees were not questioned with a view to
verifying whether the abducted person was being or had been held in
any detention facility.”
On
5 July 2006 the Supreme Court of the Chechen Republic upheld the
decision on appeal.
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 Adam Khurayev had
not yet been completed. They also pointed out that the applicant had
not lodged a claim for compensation of non-pecuniary damage under
Articles 1069-70 of the Civil Code.
The
applicant contested that objection. She stated that the criminal
investigation had proved to be ineffective and that her complaints to
that effect had been futile. With reference to the Court's practice,
she argued that she was not obliged to apply to civil courts in order
to exhaust domestic remedies.
B. The Court's assessment
The
Court will examine the arguments of the parties in the light of the
provisions of the Convention and its relevant practice (for a
relevant summary, see Estamirov and Others v. Russia, no.
60272/00, §§ 73-74, 12 October 2006).
The Court notes that the Russian legal system provides, in principle,
two avenues of recourse for the victims of illegal and criminal acts
attributable to the State or its agents, namely, civil and criminal
remedies.
As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, the
Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention (see
Khashiyev and Akayeva v. Russia, nos. 57942/00 and
57945/00, §§ 119-121, 24 February 2005, and Estamirov
and Others, cited above, § 77). In the light of the
above, the Court confirms that the applicant was not obliged to
pursue civil remedies. The Government's objection in this regard is
thus dismissed.
As
regards criminal-law remedies provided for by the Russian legal
system, the Court observes that the applicant complained to the
law-enforcement authorities shortly after the kidnapping of Adam
Khurayev and that an investigation has been ongoing since 14 February
2003. The applicant and the Government dispute the effectiveness of
the investigation of the kidnapping.
The Court considers that this limb of 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 under the substantive provisions of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicant complained under Article 2 of the Convention that her son
had disappeared after being detained by State agents and that the
investigation into his disappearance had not been effective. 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. Submissions by the parties
The
Government submitted that the investigation was pending and that it
had obtained no evidence that Adam Khurayev had been abducted by
State agents or that any State authorities had conducted a special
operation in Urus-Martan on the night of his abduction. Furthermore,
there was no evidence that Adam Khurayev was dead. The investigation
had failed to identify any eyewitnesses to the abduction. In
particular, whilst the applicant had named M.M. as a witness, the
latter had confirmed to the investigators that she had not witnessed
the abduction. None of the persons interviewed by the investigators
had seen the APC or UAZ vehicles mentioned by the applicant in her
application form; they had only heard about them from neighbours.
When interviewed by the investigators, M.M. had failed to give the
addresses of her neighbours “Zulay” and “Tamusa”,
who had allegedly seen the military vehicles. Furthermore, Zara S.,
who was allegedly known as “Tamusa”, stated that she had
not seen any military vehicles. Only M.Ch. claimed to have seen
several vehicles, but she had been unable to provide any particular
details. Although A.M. claimed to have seen an APC and two UAZ
vehicles, she had not witnessed the abduction of the applicant's son.
Furthermore, there were inconsistencies in the applicant's and M.M.'s
submissions concerning the abduction. In particular, whilst in the
application form the applicant stated that she had learnt about the
abduction from her son Arbi while she was in Nazran, she had told the
investigators that she had been in Urus-Martan on the night of the
abduction. In a statement appended to the application form M.M.
submitted that she had been in Urus-Martan on 23 November 2002. At
the same time, when interviewed by the investigators, she submitted
that she had come to Urus-Martan together with Adam Khurayev.
The
Government further argued that the investigation into the abduction
of the applicant's son met the Convention requirement of
effectiveness. It was being conducted by an independent authority,
which had examined various theories of the abduction, had sent
requests for information to numerous State bodies and had checked
several detention centres. The investigators had interviewed numerous
witnesses, inspected the crime scene and examined detention logs of
the ROVD. The applicant had been duly notified of the progress in the
investigation. Although the investigation had been suspended and
resumed on numerous occasions, this fact did not detract from its
effectiveness.
The
applicant submitted that there existed a bulk of evidence proving
beyond reasonable doubt that her son had been abducted by State
agents and was to be presumed dead following his abduction. She
considered that she had laid down a prima facie case that Adam
Khurayev had been abducted by State agents. The applicant's son had
been detained by a large group of armed individuals wearing
camouflage uniforms, acting under one command and using military
equipment, such as portable radios. Those individuals had driven
military vehicles freely through the town at night, during curfew
hours. The fact of the use of military vehicles had been proved by
the statements of M.Ch., who had seen the abductors drive away,
M.M.'s reference to the noise of military vehicles, A.M.'s statement
that she had seen an APC and two military UAZ vehicles and the Town
Court's findings concerning the APCs. It transpired from the
Government's submissions that the theory of Adam Khurayev's abduction
by State servicemen had been the only possibility examined by the
domestic investigating authorities and the former had failed to
provide any other explanation for what had happened to him. The
applicant also invited the Court to draw conclusions from the
Government's unjustified failure to submit the documents from the
case file.
The
applicant disputed the Government's argument that the investigation
into the abduction of her son had met the effectiveness and adequacy
requirements laid down by the Court's case-law. In particular, the
authorities had failed to promptly open a criminal case into
Adam Khurayev's abduction. Only two witnesses had been
interviewed in 2003. The majority of witnesses had been questioned in
2004 and their interviews had been superficial. Although the
abduction had occurred in a densely populated area, no attempts had
been made to identify other witnesses who might have provided
information on the vehicles and the direction they had taken. Despite
the Town Court's guidelines, the investigation had failed to take the
investigative steps enumerated in its decision. The investigation had
been ongoing for more than five years and had failed to produce any
results.
B. The Court's assessment
1. Admissibility
The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits.
Further, the Court has already found that the Government's objection
concerning the alleged non-exhaustion of domestic remedies should be
joined to the merits of the complaint (see paragraph 80 above). The
complaint under Article 2 of the Convention must therefore be
declared admissible.
2. Merits
(a) The alleged violation of the right to
life of Adam Khurayev
(i) General principles
The
Court reiterates that, in the light of the importance of the
protection afforded by Article 2, it must subject deprivations of
life to the most careful scrutiny, taking into consideration not only
the actions of State agents but also all the surrounding
circumstances. Detained persons are in a vulnerable position and the
obligation on the authorities to account for the treatment of a
detained individual is particularly stringent where that individual
dies or disappears thereafter (see, among other authorities, Orhan
v. Turkey, no. 25656/94, § 326, 18 June 2002, and the
authorities cited therein). Where the events in issue lie wholly or
in large part within the exclusive knowledge of the authorities, as
in the case of persons under their control in detention, strong
presumptions of fact will arise in respect of injuries and death
occurring during that detention. Indeed, the burden of proof may be
regarded as resting on the authorities to provide a satisfactory and
convincing explanation (see Salman v. Turkey [GC], no.
21986/93, § 100, ECHR 2000-VII, and Çakıcı
v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV).
(ii) Establishment of the facts
The
Court observes that it has developed a number of general principles
relating to the establishment of facts in dispute, in particular when
faced with allegations of disappearance under Article 2 of the
Convention (for a summary of these, see Bazorkina v. Russia,
no. 69481/01, §§ 103-109, 27 July 2006). The Court also
notes that the conduct of the parties when evidence is being obtained
has to be taken into account (see Ireland v. the United
Kingdom, 18 January 1978, § 161, Series A no. 25).
The
applicant alleged that on the night of 23 November 2002 her son, Adam
Khurayev, had been abducted by Russian servicemen and had then
disappeared. She did not witness her son's abduction but enclosed
statements by witnesses collected after his apprehension. She also
invited the Court to draw inferences as to the well-foundedness of
her allegations from the Government's failure to provide the
documents requested from them.
The
Government conceded that Adam Khurayev had been abducted by unknown
armed men on the night of 23 November 2002. However, they denied that
the abductors had been State servicemen, referring to the absence of
evidence to that effect from the ongoing investigation.
The
Court notes that despite its request for a copy of the investigation
file into the abduction of Adam Khurayev, the Government refused to
produce most of the documents from the case file, providing only
copies of several interview records (see paragraph 69 above). They
relied on 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-XIII (extracts)).
In
view of this and bearing in mind the principles cited above, the
Court finds that it can draw inferences from the Government's conduct
in this respect.
It
is undisputed by the parties that at the material time Urus-Martan
was under curfew and that the authorities maintained manned
checkpoints at the entry and exit points to the town (see also the
Town Court's findings described in paragraph 71 above). It further
emerges from the copies of witness testimonies furnished by the
Government that on the night of 23 November 2002 a group of
armed men in camouflage uniforms, equipped with portable radios and
driving several vehicles, proceeded to check identity documents in
several households in Urus-Martan (see paragraphs 57-60 above).
The
Government did not dispute the veracity of the statement by M.M.'s
neighbour A.M., who claimed to have seen an APC and two UAZ vehicles
in the vicinity of M.M.'s house on the night of the abduction.
Furthermore, from M.M.'s statements it follows that, although she had
not seen the intruders' vehicles, she had heard the noise of military
vehicles immediately after the intrusion. Lastly and more
importantly, it transpires from the decision of 30 March 2006 that
the Town Court, which had had access to case file no. 34022, did
not doubt the presence of military vehicles and, in particular, an
APC, at the crime scene (see paragraph 71 above).
In
the Court's view, the fact that a group of armed men in uniform in
several military vehicles and equipped with portable radios was able
to pass freely through checkpoints during curfew hours and proceeded
to check identity documents in several households in a manner similar
to that of State agents strongly supports the applicant's allegation
that those were State servicemen and that they were conducting a
special operation in Urus-Martan on the night of Adam Khurayev's
abduction.
Contrary
to the Government's assertion, the Court has not found any major
inconsistencies in the applicant's and M.M.'s accounts of events in
the course of both the domestic and Strasbourg proceedings. As to
their submission that there had been no witnesses to the abduction,
it is noted that the Government did not dispute that Adam Khurayev
was present in M.M.'s household when a group of armed men had burst
into her household at about 10 p.m. on 23 November 2002. Having
regard to the materials available to it, the Court considers that the
applicant and M.M. had reasonable grounds to assume that the armed
men who had broken into M.M.'s house had taken away Adam Khurayev and
had driven away in the vehicles whose noise M.M. had heard and which
had been described to her by A.M. as an APC and two UAZ vehicles
(see, mutatis mutandis, Abdurzakova and
Abdurzakov v. Russia, no. 35080/04,
§ 91, 15 January 2009). In any event, the
Government offered no explanation whatsoever as to what had happened
to Adam Khurayev after the armed men had broken into M.M.'s house.
The
Court also notes that in her applications to the authorities the
applicant consistently maintained that Adam Khurayev had been
detained by unidentified servicemen, and requested the investigating
authorities to look into that possibility. It further notes that
after more than five years the domestic investigation has produced no
tangible results.
The
Court reiterates that where an applicant makes out a prima facie case
and the Court is prevented from reaching factual conclusions owing to
a lack of 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 out a prima facie case that her son was detained
by State servicemen. The Government's statement that the
investigation did not find any evidence to support the theory that
the special forces were involved in the abduction is insufficient to
discharge them from the above-mentioned burden of proof. Drawing
inferences from the Government's failure to submit the documents
which were in their exclusive possession or to provide a plausible
explanation of the events in question, the Court finds it established
that Adam Khurayev was abducted on 23 November 2002 at M.M.'s home in
Urus-Martan by State servicemen during an unacknowledged security
operation.
The
Court further notes that there has been no reliable news of Adam
Khurayev since November 2002. His name has not been found in the
official records of any detention facilities. Finally, the Government
have not submitted any explanation as to what happened to him after
his abduction.
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 Adam Khurayev or of any news of him
for over five years supports this assumption.
Accordingly,
the Court finds that the evidence available permits it to establish
to the requisite standard of proof that Adam Khurayev was abducted on
23 November 2002 by State servicemen and that he must be presumed
dead following his unacknowledged detention.
(iii) The State's compliance with Article
2
Article
2, which safeguards the right to life and sets out the circumstances
when deprivation of life may be justified, ranks as one of the most
fundamental provisions in the Convention, to which no derogation is
permitted. In the light of the importance of the protection afforded
by Article 2, the Court must subject deprivation of life to the most
careful scrutiny, taking into consideration not only the actions of
State agents but also all the surrounding circumstances (see, among
other authorities, McCann and Others v. the United Kingdom, 27
September 1995, §§ 146-147, Series A no. 324, and Avşar
v. Turkey, no. 25657/94, § 391, ECHR 2001 VII
(extracts)).
The
Court has already found it established that the applicant's son must
be presumed dead following unacknowledged detention by State
servicemen. Noting that the authorities do not rely on any ground of
justification in respect of any use of lethal force by their agents,
it follows that liability for his presumed death is attributable to
the respondent Government.
Accordingly,
the Court finds that there has been a violation of Article 2 in
respect of Adam Khurayev.
(b) The alleged inadequacy of the
investigation of the kidnapping
The
Court reiterates that the obligation to protect the right to life
under Article 2 of the Convention, read in conjunction with the
State's general duty under Article 1 of the Convention to “secure
to everyone within [its] jurisdiction the rights and freedoms defined
in [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 (see,
mutatis mutandis, McCann and Others, cited above, § 161,
and Kaya v. Turkey, 19 February 1998, § 86, Reports of
Judgments and Decisions 1998 I). The essential purpose of
such an investigation is to secure the effective implementation of
the domestic laws which protect the right to life and, in those cases
involving State agents or bodies, to ensure their accountability for
deaths occurring under their responsibility. This investigation
should be independent, accessible to the victim's family and carried
out with reasonable promptness and expedition. It should also be
effective in the sense that it is capable of leading to a
determination of whether or not the force used in such cases was
lawful and justified in the circumstances, and should afford a
sufficient element of public scrutiny of the investigation or its
results (see Hugh Jordan v. the United Kingdom, no. 24746/94,
§§ 105-109, 4 May 2001, and Douglas-Williams
v. the United Kingdom (dec.), no. 56413/00, 8
January 2002).
The
Court notes at the outset that very few documents from the
investigation file were disclosed by the Government. It therefore has
to assess the effectiveness of the investigation on the basis of very
scarce information submitted by the Government and the few documents
available to the applicant, which she provided to the Court.
Turning
to the facts of the present case, the Court observes that, according
to the applicant, on 24 November 2002 she notified a number of
law-enforcement agencies in Urus-Martan, including the ROVD and the
district prosecutor's office, about the abduction of Adam Khurayev.
The Government did not dispute that assertion. They also failed to
produce any documents from the case file, such as a copy of the
applicant's stamped complaint to the authorities or the decision to
launch the investigation, which could have cast doubt on it. The
investigation was launched on 14 February 2003. Bearing this in
mind, the Court cannot but conclude that the two-month delay in
opening the investigation was attributable to the domestic
authorities. 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.
The
Court also has to assess the scope of the investigative measures
taken. In this connection it is noted that the Government submitted
only copies of several records of witness interviews. It emerges from
those documents that the investigating authority interviewed M.M. and
the applicant in February and March 2003, while the remaining
witnesses were questioned only a year later. In the Court's view,
this delay in questioning witnesses, for which no explanation has
been offered by the Government, must have had a negative effect on
the ability of the investigation to establish the relevant facts
since, with the passage of time, important details concerning the
events of 23 November 2002 might have faded from the witness'
memories. As regards the other investigative measures enumerated by
the Government, in the absence of the related documents the Court is
unable not only to assess how promptly those steps were taken but
whether they were taken at all.
Furthermore,
it appears that a number of crucial steps were never taken. It
follows from the Town Court's decision that the investigation did not
make any attempts to identify the owners of the APC, examine the
relevant logbooks or detention logs and interview persons who could
have provided information as to who had been permitted to pass
through the town during curfew hours (see paragraph 71 above). In
fact, there is no indication that the Town Court's instruction has
been ever complied with.
It
is obvious that, if they were to produce any meaningful results,
those investigative measures should have been taken immediately after
the crime was reported to the authorities, and as soon as the
investigation commenced. The delays and omissions, for which there
has been no explanation in the instant case, not only demonstrate the
authorities' failure to act of their own motion but also constitute a
breach of the obligation to exercise exemplary diligence and
promptness in dealing with such a serious matter (see Öneryıldız
v. Turkey [GC], no. 48939/99, § 94, ECHR 2004-XII).
The
Court also notes that even though the applicant was granted victim
status in the investigation concerning the abduction of her son, she
hardly received any meaningful information about the developments in
the investigation, a fact which appears to be confirmed by the Town
Court's findings (see paragraph 71 above). Accordingly, the
investigators failed to ensure that the investigation received the
required level of public scrutiny, or to safeguard the interests of
the next of kin in the proceedings.
Lastly,
it transpires that the investigation was adjourned and resumed on
numerous occasions. It also appears that there were lengthy periods
of inactivity on the part of the prosecuting authorities when no
investigative measures were being taken.
Having
regard to the limb of the Government's preliminary 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 being repeatedly suspended and
resumed and plagued by inexplicable delays, has been pending open for
many years with no tangible results. Accordingly, the Court finds
that the remedy relied on by the Government was ineffective in the
circumstances and dismisses their preliminary objection.
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 Adam Khurayev, in
breach of Article 2 in its procedural aspect.
III. 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 the 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, cited above,
§ 358, and Imakayeva, cited above, § 164).
In
the present case the Court notes that the applicant is the mother of
the disappeared person. For more than five years she has not had any
news of her son. During this period the applicant has made enquiries
to various official bodies, both in writing and in person, about
Adam Khurayev. Despite her attempts, the applicant has never
received any plausible explanation or information about what became
of him following his apprehension. The responses they received mostly
denied State responsibility for her son's arrest or simply informed
her that the investigation into the matter 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.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicant further stated that Adam Khurayev 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 Adam Khurayev had been deprived of his
liberty.
The
applicant maintained her 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 Adam Khurayev was
apprehended by State servicemen on 23 November 2002 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 relative had been detained and taken
away in life-threatening circumstances. However, the Court's findings
above in relation to Article 2 and, in particular, the conduct of the
investigation leave no doubt that the authorities failed to take
prompt and effective measures to safeguard him against the risk of
disappearance.
In
view of the foregoing, the Court finds that Adam Khurayev was held in
unacknowledged detention without any of the safeguards contained in
Article 5. This constitutes a particularly grave violation of the
right to liberty and security enshrined in Article 5 of the
Convention.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained that 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 and had availed herself of it.
They 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, 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).
VI. 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 as a result of her being resident in
Chechnya and 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 they have 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.
VII. 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 that she had sustained damage in respect of the
loss of her son's earnings following his apprehension and
disappearance. She claimed a total of 429,553.36 Russian roubles
(RUB) (approximately 11,928 euros (EUR)) under this head.
The
applicant submitted that Adam Khurayev had been unemployed at the
time of his arrest, and that in such cases the calculation should be
made on the basis of the subsistence level established by national
law. 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 (the so-called “Ogden
tables”). The applicant assumed that she would have benefitted
from her son's financial support equal to 30% of his earnings.
The
Government argued that the applicant's claims were unsubstantiated
and that she had not made use of the domestic avenues for obtaining
compensation for the loss of her 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. It has held that the
loss of earnings also applies to dependant children and, in some
instances, to elderly parents (see, among other authorities,
Imakayeva, cited above, § 213). Having regard to its
conclusions above, 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 to her of the financial support which he could have
provided.
Having
regard to the applicant's submissions and the fact that Adam Khurayev
was not employed at the time of his apprehension, the Court awards
EUR 2,000 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 100,000 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 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
applicant's relative. The applicant herself has been found to have
been the 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 to 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, and the
drafting of legal documents submitted to the Court and the domestic
authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR
150 per hour for SRJI senior staff, as well as administrative
expenses, translation and courier delivery fees. The aggregate claim
in respect of costs and expenses related to the applicant's legal
representation amounted to EUR 5,634.67, to be paid into the
representatives' account in the Netherlands.
The
Government pointed out that the applicant should be entitled to the
reimbursement of her costs and expenses only in so far as it had been
shown that they had actually been incurred and were reasonable as to
quantum (see Skorobogatova v. Russia, no. 33914/02, § 61,
1 December 2005).
The
Court has to establish first whether the costs and expenses indicated
by the applicant's relative were actually incurred and, second,
whether they were necessary (see McCann and Others, cited
above, § 220).
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 incurred for legal representation
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. Furthermore, the case
involved little documentary evidence, in view of the Government's
refusal to submit most of the case file. Hence, it is also doubtful
whether research was necessary to the extent claimed by the
representatives. Lastly, the Court notes that it is its standard
practice to rule that awards in relation to costs and expenses are to
be paid directly into the applicant's representatives' accounts (see,
for example, Toğcu, cited above, § 158; Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98,
§ 175, ECHR 2005 VII; and Imakayeva, cited
above).
Having regard to the details of the claims submitted
by the applicant, the Court awards her the amount of EUR 4,000,
together with any value-added tax that may be chargeable to her, 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 criminal 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 Adam
Khurayev;
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 Adam
Khurayev disappeared;
5. Holds that there has been a violation of
Article 3 of the Convention in respect of applicant;
Holds that there has been a violation of
Article 5 of the Convention in respect of Adam Khurayev;
7. Holds
that there has been a violation of Article 13 of the Convention
in respect of the alleged violations of Article 2;
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 2,000
(two 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 4,000
(four thousand 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 12 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President