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VAKAYEVA AND OTHERS v. RUSSIA - 2220/05 [2010] ECHR 893 (10 June 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/893.html
Cite as:
[2010] ECHR 893
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FIRST
SECTION
CASE OF VAKAYEVA AND OTHERS v. RUSSIA
(Application
no. 2220/05)
JUDGMENT
STRASBOURG
10 June 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 Vakayeva and Others
v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 20 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 2220/05) 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 four Russian nationals, listed below (“the
applicants”), on 30 December 2004.
The
applicants were represented by lawyers of the Stichting Russian
Justice Initiative (“SRJI”), an NGO registered in the
Netherlands with a representative office in Moscow. The Russian
Government (“the Government”) were represented by Ms V.
Milinchuk, former Representative of the Russian Federation at the
European Court of Human Rights.
On 13 September 2007 the Court
decided to apply Rule 41 of the Rules of Court and to grant
priority treatment to the application, as well as to give notice of
the application to the Government. Under the provisions of Article 29
§ 3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants are:
1) Ms
Shumist Vakayeva, born in 1953;
2) Ms
Rovzat Tatayeva, born in 1956;
3) Ms
Marina Otsayeva, born in 1980; and
4) Mr
Daud Abdurazakov, born in 1951.
The
first, second and third applicants live in the village of Duba-Yurt,
the Shali District, in the Chechen Republic; the fourth applicant
lives in the village of Chiri-Yurt, the Shashnskiy District, in the
Chechen Republic.
The
first applicant is married to Mr Shamsudi Vakayev, born in 1949; they
are the parents of Mr Shamil Vakayev, born in 1976, and Mr Shamkhan
Vakayev, born in 1975. The second applicant is the mother of Mr
Salambek Tatayev, born in 1976. The third applicant is married to
Mr Ramzan Dudayev, born in 1969. The fourth applicant is the
father of Mr Yunus Abdurazakov, born in 1979.
A. Disappearance of five inhabitants of Duba-Yurt
1. The applicants’ account
(a) Abduction of the five men
On
15 March 2001 Salambek Tatayev, Ramzan Dudayev, Yunus Abdurazakov,
Shamil Vakayev and Shamkhan Vakayev were at the Vakayevs’
house. Shamkhan Vakayev and his wife, Ms D., were in an upstairs
bedroom; the other four men were downstairs.
At
about 12.45 p.m. on 15 March 2001 two armoured personnel carriers
(“APCs”), a Ural vehicle and a UAZ all-terrain vehicle
arrived at the Vakayevs’ house; their registration numbers were
not clearly visible. Around thirty armed men wearing camouflage
uniforms got out of the vehicles. The men were unmasked. They had
Slavic features and spoke Russian with no accent.
The
armed men opened fire and wounded Shamil Vakayev and Ms Ch., the
Vakayevs’ neighbour. The armed men gave an injection to the
wounded Shamil Vakayev.
At
some point one of the armed men was also wounded.
The
third applicant was in her house nearby the Vakayevs’ house.
Having heard gunshots, she rushed outside to find out what was
happening and saw the Ural vehicle and the APCs. The third applicant
was frightened and went back inside her house.
The
armed men beat up Salambek Tatayev, Ramzan Dudayev, Yunus Abdurazakov
and Shamil Vakayev. Ramzan Dudayev started bleeding. The armed men
also beat up Mr Kh., the Vakayevs’ neighbour, who happened to
be in their courtyard.
Meanwhile
some of the armed men captured Shamkhan Vakayev in the upstairs
bedroom in Ms D.’s presence. Then they took the five men
outside. They put Shamil Vakayev in a UAZ vehicle and the four other
men in one of the APCs. The vehicles drove away in the direction of
the village of Dachu-Borzoy where the military base of the 34th
brigade of the internal troops was located. Later someone saw a
helicopter leaving the military base; for reasons which are not
clear, the applicants concluded that the helicopter had transported
their relatives to the Khankala military base.
(b) Media coverage of the abduction of the five men
On
19 March 2001 a spokesman for the Federal Security Service (“FSB”)
stated on the local television channel that five persons had been
arrested in the village of Duba-Yurt and named the applicants’
missing relatives.
On
14 May 2001 RTR television, a State-owned channel, aired a programme
produced by Mr S., which contained a video recording of the abduction
of the five applicants’ relatives.
The
applicants obtained a one-minute extract of Mr S.’s programme,
which shows the journalist commenting on a special operation carried
out by the FSB servicemen to detain an insurgent commander named
Vakayev.
2. The Government’s account
At
about 1 p.m. on 15 March 2001 unidentified men in camouflage uniforms
kidnapped Yunus Abdurazakov, Ramzan Dudayev, Salambek Tatayev, Shamil
Vakayev and Shamkhan Vakayev from the house at 175 Sheripov
Street, in the village of Duba-Yurt.
Mr
Kh. was not in the vicinity of the Vakayevs’ house on the
afternoon of 15 March 2001 as he was attending a funeral in another
part of the village.
B. Investigation of the disappearance of the five men
1. The applicants’ account
The
applicants repeatedly complained about their relatives’
disappearance to the local administration, the FSB, the Russian State
Duma and the police. The applicants also visited several military
bases to inquire about their relatives’ whereabouts.
On
15 May 2001 the applicants complained about the abduction of their
five relatives to prosecutors’ offices at different levels.
On 18 May 2001 the military prosecutor’s office
of military unit no. 20116 forwarded the applicants’
complaints about their relatives’ disappearance to the
prosecutor’s office of the Chechen Republic pursuant to the
subject-matter jurisdiction rules, arguing that no implication of
military personnel in the incident had been established.
On
19 June 2001 the prosecutor’s office of the Shali District
(“the district prosecutor’s office”) instituted an
investigation into the abduction of the five inhabitants of Duba-Yurt
under Article 126 § 2 of the Russian Criminal Code (aggravated
kidnapping). The case file was assigned the number 23116.
On
15 October 2001 the district prosecutor’s office replied to the
applicants’ letter of 15 May 2001, stating that the
investigation into their relatives’ kidnapping by unidentified
men armed with machine-guns was under way.
On
26 November 2001 the prosecutor’s office of the Chechen
Republic forwarded the first applicant’s complaint concerning
the kidnapping of her sons to the district prosecutor’s office.
On
15 December 2001 the district prosecutor’s office informed the
first applicant that the investigation in case no. 23116 had been
suspended for failure to identify those responsible and that
investigative measures were being taken to solve the crime.
On
26 December 2001 the Department of the FSB of the Chechen Republic
informed the first applicant that they had not carried out any
special operations in Duba-Yurt between 14 and 17 March 2001. They
stated that the video recording of the abduction of the applicants’
relatives allegedly broadcast on national and local television could
not have been subtitled “filmed by the Russian FSB”.
On
an unspecified date in March 2002 the commander of the North Caucasus
Group of the Internal Troops of the Russian Ministry of the Interior
(“the NCG troops”) informed the military prosecutor’s
office of military unit no. 20102 that on 15 March 2001 special
operations had been carried out in the village of Duba-Yurt but the
NCG troops had not apprehended Yunus Abdurazakov.
On
an unspecified date the first applicant complained about the
suspension of the investigation into her sons’ kidnapping to
the South Federal Circuit Department of the Prosecutor General’s
Office. On 25 April 2002 they replied that the complaint had been
forwarded to the prosecutor’s office of the Chechen Republic.
On
27 May 2002 the Department of the FSB of the Chechen Republic
informed the first applicant that her complaint had been forwarded to
the military prosecutor’s office of military unit no. 20102 and
that the FSB servicemen had not apprehended those mentioned in the
complaint.
On
1 July 2002 the investigation in case no. 23116 was resumed.
On 6 July 2002 the military prosecutor’s office
of military unit no. 20116 forwarded the first applicant’s
complaint to the prosecutor’s office of the Chechen Republic.
They noted the following:
“The arrest and kidnapping of those [missing]
persons were most probably carried out by the servicemen of the Alpha
unit of the Russian FSB rather than military intelligence, because as
early as on 19 March 2001 the central television broadcast a report
on this arrest by Mr [S.], which was commented on by the head of the
Russian FSB press service Mr [Z.]. A videotape of that report is
being kept in the file in criminal case no. 4-23116, which is being
investigated by the prosecutor’s office of the Shali District.”
On
27 July 2002 the district prosecutor’s office informed the
applicants that their complaint concerning the alleged implication of
the FSB officers in their relatives’ kidnapping had been
included in the case file and that the investigation had been resumed
on 1 July 2002.
On
31 July 2002 the prosecutor’s office of the Chechen Republic
informed the applicants that the investigation into their relatives’
kidnapping in case no. 23116 had been opened by the district
prosecutor’s office.
On
1 August 2002 the prosecutor’s office of the Chechen Republic
forwarded the applicants’ complaint to the district
prosecutor’s office. They also informed the first applicant
that they had repeatedly examined the case materials and that the
investigation was pending.
On
9 August 2002 the district prosecutor’s office informed the
first applicant that on 6 August 2002 they had forwarded the
investigation file in case no. 23116 to the prosecutor’s office
of the Chechen Republic for further transfer to the military
prosecutor’s office of military unit no. 20116.
On
14 August 2002 the prosecutor’s office of the Chechen Republic
informed the first applicant that the term of the investigation had
been extended until 1 November 2002 and that the case would
probably be transferred to the military prosecutor’s office at
a later date.
On
6 September 2002 the district prosecutor’s office informed the
first applicant that she had been granted victim status in case no.
23116.
On 13 September 2002 the prosecutor’s office of
the Chechen Republic transferred case no. 23116 to the military
prosecutor’s office of military unit no. 20102; in a cover
letter they noted that the implication of military personnel in the
kidnapping had been established.
On
7 October 2002 the military prosecutor’s office of the
North Caucasus Circuit returned case no. 23116 to the
prosecutor’s office of the Chechen Republic, arguing that the
investigation had been incomplete and that military personnel
implication had not been proven.
On
13 October 2002 the district prosecutor’s office took up the
case.
On
10 March 2003 district prosecutor’s office suspended the
investigation.
On
an unspecified date the investigation was resumed.
On
17 April 2003 the department of the interior of the Shali District
informed the first applicant that operational and search measures
were being taken to establish her sons’ whereabouts.
On
29 July 2003 the investigation was again suspended.
On
16 October 2003 the prosecutor’s office of the Chechen Republic
informed the first applicant that numerous law-enforcement agencies
had denied any implication in her sons’ abduction and that the
proceedings had been suspended for failure to identify the
perpetrators.
On
1 December 2003 the first applicant requested the district
prosecutor’s office to resume the investigation.
On
11 December 2003 the prosecutor’s office of the Chechen
Republic informed the first applicant that, despite the suspension of
the investigation in case no. 23116, the requisite measures were
being taken to solve the crime. On 30 December 2003 they sent a
similar letter to the fourth applicant.
On
23 March 2004 the district prosecutor’s office granted the
first applicant victim status.
On
1 April 2004 the investigation into the kidnapping of the applicants’
relatives was again suspended.
On
16 November 2004 the SRJI, acting on the applicants’ behalf,
requested the district prosecutor’s office to update them on
the progress of the investigation. On 20 December 2004 the district
prosecutor’s office replied that the investigation was under
way.
On
27 March 2006 the decision of 1 April 2004 was quashed and the
investigation in case no. 23116 was resumed.
On
30 March 2006 the prosecutor’s office of the Chechen Republic
informed the fourth applicant that the investigation had been resumed
and was pending before the district prosecutor’s office under
their supervision.
On
16 July 2006 the prosecutor’s office of the Chechen Republic
informed the fourth applicant that the investigation into the
kidnapping of Yunus Abdurazakov and other men “by unidentified
men in camouflage uniforms and masks” travelling in “two
APCs and a UAZ vehicle without identification marks or registration
plates” had been suspended on 27 April 2006 for failure to
identify those responsible.
On
20 July 2006 the prosecutor’s office of the Chechen Republic
informed the first applicant of the following:
“At about 1 p.m. on 15 March 2001 in the course of
a special operation [carried out] in the village of Duba-Yurt of the
Shali District unidentified men wearing camouflage uniforms and masks
arrested and took away to an unknown destination Yu. Abdurazakov,
R. Dudayev, S. Tatayev, Sh. Vakayev and Sh. Vakayev.”
They
further stated that the investigation in case no. 23116 had been
repeatedly suspended and that there were no grounds for quashing the
decision on its suspension of 27 April 2006.
On 19 March 2007 the Ministry of the Interior of the
Chechen Republic sent the first applicant a letter, which, in
particular, read:
“It follows from the materials of criminal case
[no. 23116] that the kidnapped men were arrested in the course of
special operations carried out by officers of security services and
servicemen of the Ministry of the Defence; however, it has been
impossible to establish the whereabouts of those kidnapped, or [the
identities of] the persons implicated in this crime and their
attachment to law enforcement agencies of the Russian Federation.”
On
17 May 2007 the fourth applicant requested the district prosecutor’s
office to resume the investigation in case no. 23116. He stated that
on 15 March 2001 in the course of the special operation a serviceman
of the Russian troops had been wounded and requested that that
serviceman be identified. He also stated that in May 2001 his son had
been held at the Shali district temporary department of the interior
and requested that the policemen from the Altay Region who had been
on duty at that department at that time be questioned. Finally, he
submitted that Yunus Abdurazakov had been held at the military
prosecutor’s office of the United Group Alignment and requested
that information be sought from that body.
On 28 May 2007 the district prosecutor’s office
granted the fourth applicant’s complaint in the part concerning
requests for information but refused to resume the investigation. The
decision read, in so far as relevant, as follows:
“At about 1 p.m. on 15 March 2001 in the course of
the operation carried out by the special unit in the village of
Duba-Yurt of the Shali District of the Chechen Republic unidentified
persons wearing camouflage uniforms and masks arrested Mr Abdurzakov,
Mr Dudayev, Mr Tatayev and Mr Vakayev and then drove them away in two
APCs and a UAZ vehicle to an unknown destination.
...
Having examined [the fourth applicant’s] request,
the investigative authorities have reached the conclusion that it
should be granted in the part regarding the sending of requests to
the Altay Region and to the Prosecutor’s Office of the United
Group Alignment, as well as the sending of a request for the
establishment of the identity of the serviceman of the Internal
Troops of the Ministry of the Interior in the North Caucasus Region
who was wounded in the course of the special operation of 15 March
2001 in the village of Duba-Yurt of the Shali District of the Chechen
Republic.”
On
10 April 2008 the Shali District Investigative Committee of the
Russian Prosecutor’s Office in the Chechen Republic informed
the first applicant that the investigation in case no. 23116 had been
suspended on 10 December 2007 for failure to identify those
responsible for the crime.
2. The Government’s account
After
the events of 15 March 2001 the applicants complained about the
abduction of their relatives to the district administration and the
Administration of the Chechen Republic, special representative
offices and public organisations.
On
26 June 2001 the applicants complained about the five men’s
abduction to the department of the interior of the Shali District.
On
29 June 2001 the district prosecutor’s office instituted an
investigation into the kidnapping of the five men in case no. 23116.
On
14 July 2001 the first and fourth applicants, as well as Mr D.,
Ramzan Dudayev’s elder brother, were granted victim status,
while the second applicant was granted victim status on 22 July 2001.
On
an unspecified date the first applicant was questioned. She stated
that in 1999 Shamil Vakayev had joined an illegal armed group but
several months later returned home. He had not taken part in the
insurgents’ activities after that. At about 2 p.m. on 15 March
2001 the first applicant had learned from fellow villagers that her
two sons, as well as Yunus Abdurazakov, Ramzan Dudayev and Salambek
Tatayev, had been taken away by unknown persons travelling in APCs
and UAZ vehicles and that Ms Ch. had been shot accidentally in the
course of the abduction.
On
an unspecified date the fourth applicant was questioned. He stated
that on 15 March 2001 his son Yunus Abdurazakov had gone to Duba-Yurt
to visit his grandmother. The fourth applicant had been told that at
some point his son had noticed a group of servicemen and, to avoid
meeting them, had entered the first house on his way. Then the
servicemen had entered that house and taken away Yunus Abdurazakov
and four other young men. The military commander of the Shali
District had told the fourth applicant that no special operations had
been carried out in Duba Yurt. On 14 May 2001 the RTR channel
had broadcast a footage picturing his son’s arrest.
Mr
D. was questioned and stated that on 15 March 2001 his brother had
gone to visit distant relatives of theirs. Later Mr D. had learned
that Ramzan Dudayev and other men had been arrested by servicemen and
taken away in APCs. Two months later a report on the arrest of
members of illegal armed groups by the Alpha special task force unit
had been broadcast; one of the detainees shown was his brother.
On
an unspecified date Ms Ch. was questioned and stated that at about 12
noon or 1 p.m. on 15 March 2001 servicemen in APCs and UAZ vehicles
had arrived at a shop she had been working in and had started
shooting in the air. One bullet had gone through her shoulder. Ms Ch.
had seen the servicemen take the Vakayev brothers away from house no.
175.
Ms
D., Shamkhan Vakayev’s wife, was questioned as a witness and
stated that at about 1 p.m. on 15 March 2001, while she had been
inside their family house, armed and masked men in camouflage
uniforms had burst inside, locked Ms D. in a room and searched the
house. Afterwards Ms D. had heard shots coming from their courtyard,
where her husband and his brother had been. When the unknown men had
left, Ms D. had gone outside the house and learned from the
neighbours that the Vakayev brothers had been taken away.
Mr
Kh., the Vakayevs’ neighbour, was questioned and stated that at
about 6 p.m. on 15 March 2001 he had heard about the abduction of
several residents of Duba-Yurt.
Mr
Ya., the head of the local administration of Duba-Yurt, was
questioned and stated that Shamil Vakayev had been an insurgent in
1999 2000 and had probably been the leader of a local terrorist
group.
The investigators requested the head of RTR Channel to
provide the complete footage of the special operation in the Chechen
Republic that had been broadcast in the news programme “Vesti”
on 14 May 2001. It followed from the reply received that on 14 May
2001 the RTR Channel had broadcast a documentary film “Chechnya:
Worries and Hopes” by Mr D.S., which had contained images
filmed by the Vesti news programme crew and others provided by the
public relations centre of the Russian FSB. The RTR Channel had not
kept a copy of the footage in question as such material was normally
stored for one year only.
On
an unspecified date Mr D.S. was questioned. He stated that he had not
witnessed the arrests in Duba-Yurt on 15 March 2001 and had no
information about the special operation carried out at that time or
on the identities of the servicemen in charge of it. The footage of
the special operation had been sent to the RTR Channel via the
official channels for the exchange of video material.
The
head of the North-Caucasus Group of the Internal Troops of the
Russian Ministry of the Interior and the deputy head of the temporary
group of the Russian Ministry of the Interior sent the investigators
letters on 17 March and 6 September 2002, respectively. They
stated that on 15 March 2001 special operations had been carried out
in Duba-Yurt, but Yunus Abdurazakov, Ramzan Dudayev, Salambek
Tatayev, Shamil Vakayev and Shamkhan Vakayev had not been arrested.
On
4 July 2001 and 29 July 2002 the investigators requested information
on the applicants’ relatives from the FSB Department of the
Shali District. On 2 March 2002 they sent a similar request to the
FSB Department of the Chechen Republic. In reply they were informed
that no servicemen of either of the departments in question had
arrested the five missing men and that investigative measures had
been taken to identify the users of the APCs travelling in Duba-Yurt
on that day, but to no effect.
The
investigation in case no. 23116 was ongoing.
C. Disappearance of Shamsudi Vakayev and investigation
into it
1. The first applicant’s account
On
12 March 2005 a group of armed men allegedly belonging to the Russian
military came to the first applicant’s home. They talked to
Shamsudi Vakhayev and asked him why he was not yet in prison. Then
they searched the house and left.
Between
3 and 4 a.m. on 2 April 2005 a group of armed masked men wearing
camouflage uniforms burst into the Vakayevs’ house. The men did
not identify themselves but asked where Shamsudi Vakayev was. The
first applicant told them that her husband slept in an annex to the
house. The men went there, awakened Shamsudi Vakayev, told him to
dress up warmly, took him into a UAZ vehicle parked outside and drove
away in the direction of the village of Chishki where a federal
checkpoint was located.
When
the first applicant began to search for her husband, she found out
that two other inhabitants of Duba-Yurt, Mr Said-Khuseyn Elmurzayev
and Mr Suliman Elmurzayev, had been apprehended on the night of 2
April 2005 by armed men in three UAZ vehicles.
On the second day after the abduction the first
applicant complained about her husband’s arrest to the district
prosecutor’s office. Later an investigator of the district
prosecutor’s office accompanied by military servicemen visited
the Vakayevs’ house and that of the two apprehended men,
interrogated witnesses and took pictures of the crime scene.
On
2 August 2005 the first applicant was granted victim status in case
no. 46060.
On
9 February 2006 the prosecutor’s office of the Chechen Republic
issued, at the first applicant’s request, a progress report in
case no. 46060 stating that the investigation into the kidnapping of
Shamsudi Vakayev and the Elmurzayevs had been opened on 14 June 2005
and then suspended on an unspecified date, that the whereabouts of
those missing had not been established and that investigative
measures were being taken to solve the crime.
On
20 February 2006 the district prosecutor’s office suspended the
investigation in case no. 46060 and notified the first applicant
accordingly.
In
a letter to the first applicant dated 20 February 2006 the district
prosecutor’s office stated that the investigation in case no.
46060 had been resumed on 2 March 2006.
The
first applicant complained to the prosecutor’s office of the
Chechen Republic about the ineffectiveness of the investigation into
her husband’s kidnapping.
On
16 March 2006 the prosecutor’s office of the Chechen Republic
informed the first applicant that on 8 May 2005 Said-Khuseyn
Elmurzayev’s dead body had been discovered in the Groznenskiy
District of the Chechen Republic and that an investigation into his
murder had been opened by the prosecutor’s office of the
Groznenskiy District in case no. 44078. The whereabouts of
Shamsudi Vakayev and Suliman Elmurzayev had not been established.
Cases nos. 46060 and 44078 had been joined and were pending before
the prosecutor’s office of the Groznenskiy District under the
supervision of the prosecutor’s office of the Chechen Republic.
On
18 July 2006 the prosecutor’s office of the Chechen Republic
informed the first applicant that cases nos. 46060 and 44078 had been
joined under the number 46060 and had been suspended on several
occasions, as well as on 2 June 2006. On 18 July 2006 the decision of
2 June 2006 had been quashed and investigative measures were
being taken.
On
21 August 2006 the prosecutor’s office of the Groznenskiy
District suspended the investigation.
On
11 February 2008 the Groznenskiy District Investigative Committee of
the Russian Prosecutor’s Office in the Chechen Republic quashed
the decision of 21 August 2006 and resumed the investigation in case
no. 46060.
On
22 February 2008 the investigators, having established that
Said Khuseyn Elmurzayev’s dead body had no visible traces
of a violent death and had not been autopsied, terminated the
investigation into his murder for lack of evidence of a crime.
On
28 February 2008 the file concerning the investigation into the
kidnapping of Shamsudi Vakayev, Said-Khuseyn Elmurzayev and Suliman
Elmurzayev was transferred to the Shali District Investigative
Committee of the Russian Prosecutor’s Office in the Chechen
Republic.
2. The Government’s account
At
about 4 a.m. on 2 April 2005 unidentified masked men armed with
machine guns arrived in Duba-Yurt in three UAZ vehicles, abducted
Shamsudi Vakayev and two other villagers and took them away to an
unknown destination.
On 14 June 2005 the district prosecutor’s office
instituted an investigation into the kidnapping of the three men in
case no. 46060.
Shamsudi
Vakayev’s whereabouts were not established. The investigation
in case no. 46060 was under way.
D. Investigation files in cases nos. 23116 and 46060
Despite
specific requests by the Court, the Government did not disclose any
documents of the investigation files in cases nos. 23116 and
46060, except for a copy of the decision of 22 July 2001 by the
district prosecutor’s office’s to grant the second
applicant victim status and a transcript of her interview of the same
date. Relying on the information obtained from
the Prosecutor General’’s
Office, the Government stated that the investigation in both cases
was in progress and that disclosure of the documents would be in
violation of Article 161 of the Code of Criminal Procedure since the
files contained information of a military nature and personal data
concerning witnesses or other participants in the criminal
proceedings.
II. RELEVANT DOMESTIC LAW
For
a summary of 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 application should be declared
inadmissible for non-exhaustion of domestic remedies. They submitted
that the investigation in cases nos. 23116
and 46060 had not yet been completed. It was also open to the
applicants to complain about inaction on the part of the
investigators to courts under Article 125 of the Code of Criminal
Procedure, as well as to lodge civil claims for pecuniary and
non-pecuniary damage, which they had failed to do.
The
applicants contested that objection. They stated that the criminal
investigation in cases nos. 23116 and 46060 had been pending for a
long time without producing any meaningful results and had thus
proved to be ineffective. Moreover, they pointed out that a complaint
about inaction on the part of investigators lodged with a court could
not produce any positive results, as domestic courts were not allowed
to order investigative measures directly. They referred to a number
of examples of unsuccessful litigation in complaints brought by
residents of the Chechen Republic against prosecutors’ offices.
B. The Court’s assessment
The
Court reiterates that the rule of exhaustion of domestic remedies
under Article 35 § 1 of the Convention obliges applicants to use
first the remedies which are available and sufficient in the domestic
legal system to enable them to obtain redress for the breaches
alleged. The existence of the remedies must be sufficiently certain
both in theory and in practice, failing which they will lack the
requisite accessibility and effectiveness. Article 35 §
1 also requires that complaints intended to be brought subsequently
before the Court should have been made to the appropriate domestic
body, at least in substance and in compliance with the formal
requirements and time-limits laid down in domestic law and, further,
that any procedural means that might prevent a breach of the
Convention should have been used. However, there is no obligation to
have recourse to remedies which are inadequate or ineffective (see
Aksoy v. Turkey, 18 December 1996, §§ 51-52,
Reports of Judgments and Decisions 1996 VI, and Cennet
Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64,
27 June 2006).
It
is incumbent on the respondent Government claiming non-exhaustion to
indicate to the Court with sufficient clarity the remedies to which
an applicant has not had recourse and to satisfy the Court that the
remedies were effective and available in theory and in practice at
the relevant time, that is to say that they were accessible, were
capable of providing redress in respect of the applicant’s
complaints and offered reasonable prospects of success (see Cennet
Ayhan and Mehmet Salih Ayhan, cited above, § 65).
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. A civil court is unable to pursue any independent
investigation and is incapable, without the benefit of the
conclusions of a criminal investigation, of making any meaningful
findings regarding the identity of the perpetrators of fatal assaults
or disappearances, still less of establishing their responsibility
(see Khashiyev and Akayeva v. Russia, nos. 57942/00
and 57945/00, §§ 119-21, 24 February 2005). In the
light of the above, the Court confirms that the applicants were not
obliged to pursue civil remedies.
As
regards criminal-law remedies provided for by the Russian legal
system, the Court observes that the investigating proceedings in
cases nos. 23116 and 46060 have been pending since June 2001 and
June 2005 respectively. The applicants and the Government dispute the
effectiveness of the investigation in both cases.
The Court considers that the Government’s
objection raises issues concerning the effectiveness of the
investigation which are closely linked to the merits of the
applicants’ complaints. Thus, it decides
to join this objection to the merits of the case and considers that
the issue falls to be examined below.
II. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION
The
applicants complained that Salambek Tatayev, Ramzan Dudayev, Yunus
Abdurazakov, Shamil Vakayev and Shamkhan Vakayev, and Shamsudi
Vakayev, had been arrested by Russian servicemen and then disappeared
and that the domestic authorities had failed to carry out an
effective investigation of the crimes in question. They relied on
Article 2 of the Convention, which 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. Arguments of the parties
1. The Government
The
Government contested the applicants’ submissions. They doubted
that on 15 March 2001 the abductors had opened fire immediately upon
arrival at the Vakayevs’ house as Ms D. had submitted that she
had heard gunshots after the men had entered her home. Ms D. had not
eye witnessed the kidnapping because she had been locked in a
room. Mr Kh. had not eye-witnessed the kidnapping and had not
been beaten up, as he had confirmed in the course of the domestic
investigation that he had been away.
The
Government further claimed that the hypothesis concerning a visit to
a sick grandmother was implausible and suggested that the five men
had gathered in the Vakayevs’ home to pursue certain illegal
goals and had been hiding from the State authorities. Moreover, in
the Government’s submission it was probable that Shamil Vakayev
had run away to avoid prosecution for his involvement in illegal
armed groups.
The
whereabouts of the applicants’ five missing relatives remained
unknown. There were no reasons to assume that they were dead because
no corpses had been found.
The
wording of the letter by the Ministry of the Interior of the Chechen
Republic, in the Government’s view, did not confirm the
military officers’ implication in the events of 15 March 2001
and merely reflected a hypothesis that had been looked into in the
course of the investigation.
Shamsudi
Vakayev’s kidnapping was being investigated. Neither the
involvement of State officials in the crime nor the fact of the
missing man’s death had been proven.
The
investigations into the kidnappings had been effective. Their length
could be explained by the complexity of the cases in question. The
delay in commencement of the proceedings in case no. 23116 was
attributable to the applicants because they had not promptly
contacted the competent authorities. The domestic authorities had
taken all the requisite measures to solve the crimes. Three of the
applicants had been granted victim status and would be able to study
the entire case files upon completion of the investigations. The
investigations were ongoing.
2. The applicants
The
applicants maintained their complaints. They argued that Mr Kh.
had in fact been in the Vakayevs’ house on 15 March 2001 and
had lied to the investigators out of fear of persecution. The
applicants further pointed out that they had lodged a complaint with
the military prosecutor’s office before 18 May 2001. The
reasons for the gathering in the Vakayevs’ house on 15 March
2001, as well as the timing of the shooting were, in the applicants’
view, irrelevant to the examination of their complaints.
The
applicants also pointed out that in March 2001 checkpoints manned by
the federal troops had been located on each of the two roads in and
out of their village.
The
first applicant submitted that in April 2005 there had been a
checkpoint manned by Russian officers from Buryatia on the way out of
the village.
The
applicants further alleged that the investigations in cases nos.
23116 and 46060 had been ineffective and futile.
B. The Court’s assessment
1. Admissibility
The
Court considers, in the light of the parties’ submissions, that
the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. The Court has already found that the Government’s
objection concerning the alleged non exhaustion of criminal law
domestic remedies should be joined to the merits of the complaint
(see paragraph 103 above). The complaint under Article 2 of the
Convention must therefore be declared admissible.
2. Merits
(a) 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 Orhan v. Turkey, no.
25656/94, § 326, 18 June 2002). 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).
In
cases in which there are conflicting accounts of events, the Court is
inevitably confronted when establishing the facts with the same
difficulties as those faced by any first-instance court. When, as in
the instant case, the respondent Government have exclusive access to
information capable of corroborating or refuting an applicant’s
allegations, any lack of cooperation by the Government without a
satisfactory explanation may give rise to the drawing of inferences
as to the well-foundedness of those allegations (see Taniş
and Others v. Turkey, no. 65899/01, § 160,
ECHR 2005 VIII).
The
Court points out that a number of principles have been developed in
its case-law when it is faced with the task of establishing facts on
which the parties disagree. As to the facts that are in dispute, the
Court refers to its jurisprudence in which the standard of proof
“beyond reasonable doubt” has been applied in its
assessment of evidence (see Avşar v. Turkey,
no. 25657/94, § 282, ECHR 2001 VII (extracts)).
Such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions
of fact. In this context, the conduct of the parties when evidence is
being obtained has to be taken into account (see Taniş and
Others, cited above, § 160).
The
Court is sensitive to the subsidiary nature of its role and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Nonetheless, where allegations are made under Articles 2
and 3 of the Convention, the Court must apply a particularly thorough
scrutiny (see, mutatis mutandis, Ribitsch v. Austria,
4 December 1995, § 32, Series A no. 336, and Avşar,
cited above, § 283) even if certain domestic proceedings and
investigations have already taken place.
Where
the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, such as in cases where
persons are under their control in custody, 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 Tomasi v. France, 27 August 1992, pp.
40-41, §§ 108-11, Series A no. 241-A, Ribitsch,
cited above, § 34, and Selmouni v. France [GC],
no. 25803/94, § 87, ECHR 1999-V).
The
Court further 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 Kaya v. Turkey, 19 February 1998, § 86,
Reports 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,
carried out with reasonable promptness and expedition, effective in
the sense that it is capable of leading to a determination of whether
the force used in such cases was or was not justified in the
circumstances or otherwise unlawful, and afford a sufficient element
of public scrutiny of the investigation or its results (see Hugh
Jordan v. the United Kingdom, no. 24746/94, §§
105-09, ECHR 2001 III (extracts), and Douglas-Williams v. the
United Kingdom (dec.), no. 56413/00, 8 January 2002).
(b) The alleged violations of Article 2 in
respect of Yunus Abdurazakov, Ramzan Dudayev, Salambek Tatayev,
Shamil Vakayev and Shamkhan Vakayev
i. Establishment of the facts
The
Court notes that the circumstances of the kidnapping of the
applicants’ five relatives were disputed between the parties.
The
applicants alleged that the armed men who had abducted their close
relatives Yunus Abdurazakov, Ramzan Dudayev, Salambek Tatayev, Shamil
Vakayev and Shamkhan Vakayev had been State agents. Their account of
the events was supported by written statements by Ms D. and the third
applicant.
The
Government conceded that the five men had been abducted by
unidentified armed men on 15 March 2001. However, they denied that
the abductors were servicemen, referring to the absence of
conclusions from the ongoing investigation. They also suggested that
Shamil Vakayev could have run away to join the insurgents.
The Court notes that despite its requests for a copy
of the entire investigation file in case no. 23116, the Government
refused to produce any documents from the file except for the first
applicant’s interview transcript, on the grounds that they were
precluded from providing them by Article 161 of the Code of
Criminal Procedure. The Court observes that in previous cases it has
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 the foregoing and bearing in mind the principles referred to
above, the Court finds that it can draw inferences from the
Government’s conduct in this respect.
The
Court considers that the applicants presented a clear and coherent
picture of the events of 15 March 2001. It does not accord important
weight to the inconsistencies in Ms D.’s description as regards
the timing of the shooting. Furthermore, it is not necessary to
assess the value of Mr Kh.’s statement since the applicants’
account of events is supported by other elements.
The
hypothesis of the State agents’ involvement in the abduction of
the five men appears to be plausible in the light of the following.
The abductors – heavily armed men in camouflage uniforms –
arrived at the Vakayevs’ house in military and paramilitary
vehicles during daylight hours. The fact that they were able to pass
freely through the checkpoints to enter the village supports the
assumption that they belonged to the federal troops or other State
agencies.
Furthermore,
the domestic investigative authorities themselves suggested on
several occasions that the applicants’ relatives were detained
in the course of a special operation. For instance, in July 2002
military prosecutors relinquished jurisdiction over the case to
civilian prosecutors for the reason that the men had “most
probably” been arrested by FSB servicemen, not the military
(see paragraph 32 above). In September 2002 the case file was
transferred back to the military prosecutors for the reason that
military implication in the crime had been established (see paragraph
39 above). The Ministry of the Interior of the Chechen Republic
acknowledged in their letter of 19 March 2003 that the applicants’
relatives had been arrested by unidentified State agents (see
paragraph 56 above). The Court is not satisfied with the Government’s
explanation that the letter in question merely described one of the
theories to be looked at since its wording rather strongly suggests
that the investigation collected at the very least some evidence of
military involvement in the crime. Lastly, the district prosecutor’s
office explicitly stated that the five men had been arrested in the
course of a special operation and acceded to the fourth applicant’s
request to take steps to identify the wounded serviceman (see
paragraph 58 above).
The
Court takes note of the applicants’ submission that the first
applicant recognised her son in the one-minute extract of the RTR
programme that they had obtained. It observes in this
respect that the Government did not dispute the fact that the RTR
television channel broadcast a programme concerning the Chechen
Republic showing a certain special operation (see paragraph 71
above). As follows from the letter of 6 July 2002 from the
military prosecutor’s office, the district prosecutor’s
office had the tape with the footage in question at their disposal
(see paragraph 32 above). However, the Government stated that the
investigation was unable to obtain a copy of the recording (see
paragraph 71 above). In any event, the Court does not deem it
necessary to establish whether the footage showed the first
applicant’s son being arrested since it is satisfied that the
applicants have made a prima facie case that their five
relatives were arrested by State agents.
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 (extracts)).
The
Court considers that in the present case the Government have not
provided any plausible explanation for the events in question. Their
assertion that Shamil Vakayev could have left his home to join an
illegal armed group does not account in any way for what happened to
the other missing men and therefore 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, the Court finds that Yunus
Abdurazakov, Ramzan Dudayev, Salambek Tatayev, Shamil Vakayev and
Shamkhan Vakayev were arrested on 15 March 2001 by State
servicemen during an unacknowledged security operation.
There
has been no reliable news of the five missing men since the date of
the kidnapping. Their names have not been found in any official
detention facility records. Finally, the Government have not
submitted any explanation as to what happened to them after their
arrest.
Having
regard to the previous cases concerning disappearances which have
come before it (see, among others, Bazorkina, cited above,
Imakayeva, cited above, and, more recently, Vagapova and
Zubirayev v. Russia, no. 21080/05, 26
February 2009), the Court finds that in the context of the conflict
in the Chechen 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 Yunus
Abdurazakov, Ramzan Dudayev, Salambek Tatayev, Shamil Vakayev and
Shamkhan Vakayev or of any news of them for more than nine years
strongly supports this assumption.
Accordingly, the Court finds that the evidence
available permits it to establish that Yunus Abdurazakov, Ramzan
Dudayev, Salambek Tatayev, Shamil Vakayev and Shamkhan Vakayev must
be presumed dead following their unacknowledged detention by State
servicemen.
ii. The State’s compliance with
Article 2
The
Court reiterates that 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, from which no derogation is permitted (see McCann and
Others v. the United Kingdom, 27 September 1995, § 147,
Series A no. 324).
The
Court has already found that Yunus Abdurazakov, Ramzan Dudayev,
Salambek Tatayev, Shamil Vakayev and Shamkhan Vakayev must be
presumed dead following their unacknowledged detention by State
servicemen (see paragraph 135 above). Noting that the authorities do
not rely on any ground of justification in respect of the use of
lethal force by their agents, it considers that responsibility for
these deaths lies with the respondent Government.
Accordingly,
the Court finds that there has been a violation of Article 2 of the
Convention in respect of Yunus Abdurazakov, Ramzan Dudayev, Salambek
Tatayev, Shamil Vakayev and Shamkhan Vakayev.
iii. The alleged inadequacy of the
investigation into the abduction
The
Court will now assess whether the investigation into the kidnapping
of Yunus Abdurazakov, Ramzan Dudayev, Salambek Tatayev, Shamil
Vakayev and Shamkhan Vakayev met the requirements of Article 2 of the
Convention.
The
Court notes at the outset that the documents from the investigation
were not disclosed by the Government. It therefore has to assess the
effectiveness of the investigation on the basis of the few documents
submitted by the applicants and the scarce information about its
progress presented by the Government.
Turning
to the facts of the present case, the Court observes that the date on
which the investigation into the kidnapping of the applicants’
relatives was opened is disputed between the parties. In the absence
of a copy of the district prosecutor’s office’s decision
at its disposal it is unable to establish when exactly the
investigation commenced. In any event, it is clear that no official
proceedings were opened until 19 June 2001, that is, three months
after the kidnapping. It remains unclear, furthermore, when the
applicants lodged their first complaint concerning their relatives’
kidnapping with the domestic authorities. However, the Government
have not contested the applicants’ submission that they
complained to the military prosecutor’s office on 18 May 2001
(see paragraph 22 above). It follows that no less than a month lapsed
between the date on which a domestic investigative body was informed
of a serious crime and the moment of commencement of an investigation
into the matter.
The
Court disagrees with the Government that the applicants were
responsible for the delay in opening the investigation. In its view,
once the military prosecutor’s office became aware of the crime
allegedly committed, it was for them to report the incident to a
civilian prosecutor’s office via the official channels of
communication that should exist between various law enforcement
agencies (see Khalidova and Others v. Russia, no. 22877/04,
§ 93, 2 October 2008). In such circumstances the Court
cannot but conclude that a delay of at least one month in opening the
investigation was attributable to the domestic authorities. Such a
postponement per se is liable to affect an investigation of a
kidnapping in life-threatening circumstances, where crucial action
has to be promptly taken.
The
Court further has to assess the scope of the investigative measures
taken. The Government submitted that the investigating authorities
checked various versions of the abduction, interviewed several
witnesses and made numerous requests for information. However, owing
to the lack of access to the investigation file, it is impossible not
only to establish how promptly those measures were taken but whether
they were taken at all. At the same time it is striking that until 28
May 2007 the district prosecutor’s office made no attempts to
interview servicemen from the checkpoints blocking entry to and exit
from the village.
Furthermore,
it appears that a number of crucial steps were never taken. In
particular, it is not clear from the materials at the Court’s
disposal whether the investigators took any steps to examine the
logbooks kept at the checkpoints with a view to obtaining information
on the vehicles used by the abductors or their owners.
It
is obvious that, if they were to produce any meaningful results,
these 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 first, second and fourth
applicants, as well as Mr D., Ramzan Dudayev’s brother, were
granted victim status in the criminal case, it does not appear that
they were informed of any significant developments in the
investigation. 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 (see
Oÿur v. Turkey
[GC], no. 21594/93, § 92, ECHR 1999 III).
Finally,
the investigation was adjourned and resumed several times. There were
lengthy – up to two years – periods of inactivity on the
part of the investigating authorities when no investigative measures
were 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, having
been repeatedly suspended and resumed and plagued by inexplicable
delays, it has been pending for nine years with no tangible results.
Furthermore, the applicants, having no access to the case file
and not having been properly informed about the progress of the
investigation, could not have effectively challenged acts or
omissions on the part of the investigating authorities before a
court. Moreover, owing to the time which
has elapsed since the events complained of, certain
investigative measures that ought to have been carried out much
earlier can no longer usefully be conducted. Therefore, it is highly
doubtful that the remedy relied on would have had any prospect of
success. Accordingly, the Court finds that that
the criminal law remedies relied on by the Government were
ineffective in the circumstances of the case and rejects their
objection as regards the applicants’ failure to exhaust them.
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 Yunus Abdurazakov,
Ramzan Dudayev, Salambek Tatayev, Shamil Vakayev and Shamkhan
Vakayev, in breach of Article 2 in its procedural aspect.
(c) The alleged violations of Article 2 in
respect of Shamsudi Vakayev
The
Court notes that despite its requests for a copy of the investigation
file on the kidnapping of Shamsudi Vakayev, the Government refused to
produce the documents from the case file, referring to Article 161 of
the Code of Criminal Procedure. The Court reiterates that this
explanation is insufficient to justify the withholding of key
information requested by it (see paragraph 125 above). Having regard
to the above principles concerning establishment of the facts which
are in dispute between the parties, the Court finds that it can draw
inferences from the Government’s conduct in this respect.
The
Court points out that the first applicant, a witness to her husband’s
abduction, presented a clear and coherent picture of the events of 2
April 2005. It considers that the fact that a group of armed men in
camouflage uniforms were able to move freely around the village at
night in paramilitary vehicles and to take three villagers away from
their homes strongly supports the hypothesis that they were State
agents.
Referring
to the above-mentioned principles (see paragraph 131 above), the
Court considers that the first applicant has made a prima facie
case as regards the alleged involvement of State agents in her
husband’s kidnapping and that, accordingly, it is for the
Government to provide a satisfactory and convincing explanation of
how the events in question occurred, which they have failed to do.
Drawing
inferences from the Government’s failure to submit the
documents which were in their exclusive possession, the Court finds
that Shamsudi Vakayev was arrested on 2 April 2005 by State
servicemen during an unacknowledged security operation.
There
has been no reliable news of Shamsudi Vakayev 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.
Furthermore,
the Court finds that the assumption that the first applicant’s
husband was in a life-threatening situation following his
unacknowledged detention is unfortunately even more credible given
that Mr Elmurzayev, who had been abducted together with Shamsudi
Vakayev, was found dead five weeks after the kidnapping. The
Government’s assertion that his dead body bore no visible marks
of a violent death is, in its view, irrelevant given that no autopsy
was carried out.
Accordingly,
the Court finds that the evidence available permits it to establish
that Shamsudi Vakayev must be presumed dead following his
unacknowledged detention by State servicemen. Noting that the
authorities do not rely on any ground of justification in respect of
the use of lethal force by their agents, the Court considers that
responsibility for Shamsudi Vakayev’s death lies with the
respondent Government.
There
has therefore been a violation of Article 2 of the Convention in
respect of Shamsudi Vakayev.
The
Court will now assess whether the investigation into Shamsudi
Vakayev’s kidnapping met the requirements of Article 2 of the
Convention.
It
notes at the outset that the documents from the investigation were
not disclosed by the Government. It therefore has to assess the
effectiveness of the investigation on the basis of the few documents
submitted by the applicants and the scarce information about its
progress presented by the Government.
The
Court observes that the first applicant reported her husband’s
abduction to the district prosecutor’s office shortly after the
events (see paragraph 79 above). However, the investigation was
opened only on 14 June 2005, that is, more than two months later
(see paragraph 92 above). Such a postponement per se is 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.
Furthermore,
owing to the Government’s refusal to produce any materials from
the investigation file in case no. 46060, the Court is unable to
establish whether, at least, the most crucial investigative measures
were, taken to solve the first applicant’s husband’s
kidnapping promptly, if at all.
The
Court also observes that the first applicant had no effective assess
to the case file and that there were lengthy periods of inactivity on
the part of the investigators, when the investigation was suspended.
The
Court further notes that the investigation, having been repeatedly
suspended and resumed and plagued by inexplicable delays, has been
pending for five years with no tangible results. It reiterates its
above doubts concerning the effectiveness of the criminal law
remedies referred to by the Government (see paragraph 148 above) and
rejects their objection as regards the first applicant’s
failure to exhaust them.
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 Shamsudi Vakayev, in
breach of Article 2 in its procedural aspect.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants complained that at the moment of their abduction and after
it Salambek Tatayev, Ramzan Dudayev, Yunus Abdurazakov, Shamil
Vakayev and Shamkhan Vakayev were subjected to ill-treatment. They
further claimed that as a result of the disappearance of their
relatives and the State’s failure to investigate the crimes
properly, they had endured profound mental suffering. They relied on
Article 3 of the Convention, which 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 in case no. 23116 had not established that Salambek
Tatayev, Ramzan Dudayev, Yunus Abdurazakov, Shamil Vakayev and
Shamkhan Vakayev had been subjected to
inhuman or degrading treatment prohibited by Article 3 of the
Convention. They further argued that the applicants’ mental
suffering could not be imputable to the State.
In
their observations on admissibility and merits of the case dated
7 May 2008 the applicants withdrew their complaint concerning
the alleged ill-treatment of their relatives and maintained their
complaint concerning their moral suffering.
B. The Court’s assessment
1. Admissibility
(a) The complaint concerning the
applicants’ relatives’ ill-treatment
The
Court, having regard to Article 37 of the Convention, finds that the
applicants do not intend to pursue this part of the application,
within the meaning of Article 37 § 1 (a). The Court also finds
no reasons of a general character affecting respect for human rights
as defined in the Convention, which require the further examination
of the present complaints by virtue of Article 37 § 1 of the
Convention in fine
(see, for example, Singh and Others
v. the United Kingdom (dec.), no.
30024/96, 26 September 2000; Stamatios
Karagiannis v. Greece, no. 27806/02,
§ 28, 10 February 2005; and Khadzhialiyev
and Others v. Russia, no. 3013/04, § 143, 6 November 2008).
It
follows that this part of the application must be struck out in
accordance with Article 37 § 1 (a) of the Convention.
(b) The
complaint concerning the applicants’ mental suffering
The
Court notes that this part of 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 observes that the question whether a member
of the family of a “disappeared person” is a victim of
treatment contrary to Article 3 will depend on the existence of
special factors which give the suffering of the applicants a
dimension and character distinct from the emotional distress which
may be regarded as inevitably caused to relatives of a victim of a
serious human rights violation. Relevant elements will include the
proximity of the family tie, the particular circumstances of the
relationship, the extent to which the family member witnessed the
events in question, the involvement of the family member in the
attempts to obtain information about the disappeared person and the
way in which the authorities responded to those enquiries. The Court
would further emphasise that 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.
It is especially in respect of the latter that a relative may claim
directly to be a victim of the authorities’ conduct (see Orhan
v. Turkey, no. 25656/94, § 358, 18 June 2002, and
Imakayeva, cited above, § 164).
In
the present case the Court notes that the applicants are close
relatives of the five missing persons. For nine years they have not
had any news of their loved ones. Furthermore, the first applicant
has not heard from her husband for over five years. The applicants
have applied to various official bodies with enquiries about their
relatives, both in writing and in person. Despite their attempts,
they have never received any plausible explanation or information as
to what became of the missing men following their kidnappings. The
Court’s findings under the procedural aspect of Article 2 are
also of direct relevance here.
In
view of the above, the Court finds that the applicants suffered
distress and anguish as a result of the disappearance of their close
relatives and their inability to find out what happened to them. The
manner in which their complaints have been dealt with by the
authorities must be considered to constitute inhuman treatment
contrary to Article 3.
The
Court therefore concludes that there has been a violation of Article
3 of the Convention in respect of the applicants.
IV. ALLEGED VIOLATION OF ARTICLE 5
OF THE CONVENTION
The applicants further stated
that their six relatives had been detained in violation of the
guarantees of 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
In the Government’s
opinion, no evidence was obtained by the investigators to confirm
that the applicants’ relatives had been deprived of their
liberty in breach of the guarantees set out in Article 5 of the
Convention.
The applicants reiterated the
complaint.
B. The Court’s assessment
1. Admissibility
The Court notes that this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It further notes that the complaint is
not inadmissible on any other grounds and must therefore be declared
admissible.
2. Merits
The
Court has previously noted the fundamental importance of the
guarantees contained in Article 5 to secure the right of individuals
in a democracy to be free from arbitrary detention. It has also
stated that unacknowledged detention is a complete negation of these
guarantees and discloses a very grave violation of Article 5 (see
Çiçek v. Turkey, no. 25704/94, § 164,
27 February 2001, and Luluyev, cited above, § 122).
The Court has found it established that Salambek
Tatayev, Ramzan Dudayev, Yunus Abdurazakov, Shamil Vakayev and
Shamkhan Vakayev were abductedapprehended by State servicemen on 15
March 2001 and that Shamsudi Vakayev was abducted by State agents on
2 April 2005. Their respective detentions were not acknowledged, were
not logged in any custody records and there exists no official trace
of their 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).
In
view of the foregoing, the Court finds that Salambek Tatayev, Ramzan
Dudayev, Yunus Abdurazakov, Shamil Vakayev, Shamkhan Vakayev and
Shamsudi Vakayev were held in unacknowledged detention without any of
the safeguards contained in Article 5. This constitutes a
particularly grave violation of the right to liberty and security
enshrined in Article 5 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The applicants complained that
they had been deprived of effective remedies in respect of the
aforementioned violations, contrary to Article 13 of the Convention,
which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties’ submissions
The Government contended that
the applicants had had effective remedies at their disposal as
required by Article 13 of the Convention and that the authorities had
not prevented them from using them. The applicants had had an
opportunity to challenge any actions or omissions on the part of the
investigating authorities in court or before higher prosecutors, as
well as to claim damages through civil proceedings.
The applicants reiterated the
complaint.
B. The Court’s assessment
1. Admissibility
The Court notes that this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
The Court reiterates that in
circumstances where, as here, a criminal investigation into the
disappearance has been ineffective and the effectiveness of any other
remedy that might have existed, including civil remedies suggested by
the Government, has consequently been undermined, the State has
failed in its obligation under Article 13 of the Convention (see
Khashiyev and Akayeva,
cited above, § 183).
Consequently, there has been a
violation of Article 13 in conjunction with Article 2 of the
Convention.
188. As
regards the applicants’ reference to Articles 3 and 5 of the
Convention, the Court considers that, in the circumstances, no
separate issue arises in respect of Article 13, read in conjunction
with Articles 3 and 5 of the Convention (see Kukayev v. Russia,
no. 29361/02, § 119, 15 November 2007, and
Aziyevy v. Russia, no. 77626/01, § 118, 20 March
2008).
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention
provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
The
first and third applicants claimed damages in respect of the loss of
their husbands’ earnings after their disappearance. The third
applicant also pointed out that Ramzan Dudayev would have provided
for their two minor children. They based their calculations on the
subsistence level applicable in Russia and applied the actuarial
tables for use in personal injury and fatal accident cases published
by the United Kingdom Government Actuary’s Department (“the
Ogden tables”) and the provisions of the Russian legislation.
The first applicant claimed 62,421.61 Russian roubles (RUB) (1,700
euros (EUR)) and the third applicant claimed RUB 551,500.80 (EUR
15,000) in respect of pecuniary damage. The second and fourth
applicants made no claims under this head.
The
Government argued that the applicants’ claims were
unsubstantiated and that they had not made use of the domestic
avenues for obtaining compensation for the loss of a 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
conclusions above, it finds that there is a direct causal link
between the violation of Article 2 in respect of the first and third
applicants’ husbands and the loss to those applicants of the
financial support which they could have provided.
Having
regard to the applicants’ submissions and the materials in its
possession and accepting that it is reasonable to assume that
Shamsudi Vakayev and Ramzan Dudayev would eventually have had some
earnings resulting in financial support for their families, the Court
awards EUR 800 to the first applicant and EUR 3,000 to the third
applicant in respect of pecuniary damage.
B. Non-pecuniary damage
The
first applicant claimed EUR 150,000 in respect of non-pecuniary
damage for the suffering she had endured as a result of the loss of
her husband and two sons. The second, third and fourth applicants
claimed EUR 50,000 each in respect of non-pecuniary damage caused by
the disappearance of their family members.
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
applicants’ relatives. The applicants themselves have been
found to have been victims of a violation of Articles 3 of the
Convention. The Court thus accepts that they have suffered
non-pecuniary damage which cannot be compensated for solely by the
findings of violations. It thus awards EUR 150,000 to the first
applicant and EUR 50,000 to the second, third and fourth applicants
each, plus any tax that may be charged thereon.
C. Costs and expenses
The
applicants were represented by the SRJI. They submitted an itemised
list 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 applicants’
legal representation amounted to EUR 7.426.89 to be paid into
the applicants’ 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 has been
shown that they were actually incurred and are reasonable as to
quantum (see Skorobogatova v. Russia, no. 33914/02, §
61, 1 December 2005). They also submitted that the
applicants’ claims for just satisfaction had been signed by six
lawyers, whereas two of them had not been mentioned in the powers of
attorney issued by the applicants. They also doubted that it had been
necessary to send the correspondence to the Registry via courier
mail.
The
Court points out that the applicants had given authority to act to
the SRJI and its five lawyers. The applicants’ observations and
claims for just satisfaction were signed by six persons in total. The
names of four of them appeared in the powers of attorney, while two
other lawyers worked with the SRJI. In such circumstances the Court
sees no reason to doubt that the six lawyers mentioned in the
applicants’ claims for costs and expenses took part in the
preparation of the applicants’ observations. Moreover, there
are no grounds to conclude that the applicants were not entitled to
send their submissions to the Court via courier mail.
The
Court now has to establish first whether the costs and expenses
indicated by the applicant 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 applicants, the Court is satisfied that
these rates are reasonable and reflect the expenses actually
incurred.
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,
however, that the case involved little documentary evidence, in view
of the Government’s refusal to submit the case files.
Furthermore, due to the application of Article 29 § 3 in the
present case, the applicants’ representatives submitted their
observations on admissibility and merits in one set of documents. The
Court thus doubts that the case involved the amount of research
claimed by the applicants’ 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
applicants’ representatives’ accounts (see, for example,
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 applicants, the Court awards them the amount of EUR 4,000,
together with any value-added tax that may be chargeable to the
applicants, the net award to be paid into the representatives’
bank account in the Netherlands, as identified by the applicants.
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 strike the application out of its
list of cases in accordance with Article 37 § 1 (a) of the
Convention in so far as it concerns the applicants’ complaint
under Article 3 of the Convention of ill-treatment of their
relatives;
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 Article 2, Article 3 in respect of the
applicants’ mental suffering, Article 5 and Article 13
admissible and the remainder of the application inadmissible;
Holds
that there has been a violation of Article 2 of the Convention
in respect of Salambek Tatayev, Ramzan Dudayev, Yunus
Abdurazakov, Shamil Vakayev, Shamkhan Vakayev and Shamsudi Vakayev;
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 Salambek Tatayev, Ramzan Dudayev,
Yunus Abdurazakov, Shamil Vakayev, Shamkhan Vakayev and Shamsudi
Vakayev disappeared;
6. Holds that there has been a violation of
Article 3 of the Convention in respect of the applicants;
Holds that there has been a violation of
Article 5 of the Convention in respect of Salambek Tatayev,
Ramzan Dudayev, Yunus Abdurazakov, Shamil Vakayev, Shamkhan Vakayev
and Shamsudi Vakayev;
Holds that there has been a violation of
Article 13 of the Convention in conjunction with Article 2 of
the Convention;
Holds that no separate issues arise under
Article 13 of the Convention on account of the alleged violations of
Articles 3 and 5 of the Convention;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts:
(i) EUR
800 (eight hundred euros) to the first applicant and EUR 3,000
(three thousand euros) to the third applicant in respect of pecuniary
damage, to be converted into Russian roubles at the rate applicable
at the date of settlement, plus any tax that may be chargeable on
these amounts;
(ii) EUR 150,000
(one hundred and fifty thousand euros) to the first applicant and EUR
50,000 (fifty thousand euros) to the second, third and fourth
applicants each in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable on these amounts;
(iii) EUR
4,000 (four thousand euros), in respect of costs and expenses, to be
paid into the representatives’ bank account in the Netherlands,
plus any tax that may be chargeable to the applicants;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President