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GERASIYEV AND OTHERS v. RUSSIA - 28566/07 [2011] ECHR 906 (7 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/906.html
Cite as:
[2011] ECHR 906
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FIRST
SECTION
CASE OF
GERASIYEV AND OTHERS v. RUSSIA
(Application
no. 28566/07)
JUDGMENT
STRASBOURG
7
June 2011
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 Gerasiyev and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
George
Nicolaou,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 17 Mai 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 28566/07) 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 in paragraph 5
below (“the applicants”), on 29 May 2007.
The
applicants were represented by Mr D. Itslayev, a lawyer practising in
Grozny. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, the Representative of the Russian
Federation at the European Court of Human Rights.
On
20 May 2009 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 former 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 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 applicants are:
1) Mr Vaysu Gerasiyev, born in 1938;
2) Ms Asiyat Gerasiyeva, born in 1942;
3) Mr Khasmagomed Gerasiyev, born in 1962; and
4) Ms Zarema Gerasiyeva,
born in 1971.
The applicants are Russian nationals and residents of
the village of Gekhi, the Chechen Republic.
The first applicant is the father and the second
applicant is the mother of Mr Valid Gerasiyev, born in 1977. The
third and fourth applicants are, respectively, brother and sister of
Valid Gerasiyev.
A. Disappearance of Valid Gerasiyev
1. The applicants’ account
(a) Events preceding Valid Gerasiyev’s
abduction
In the autumn of 1999 the applicants and Valid
Gerasiyev resided in their privately owned house in the village of
Gekhi. After the launch of the counter-terrorist operation in
Chechnya, the first applicant and some of his relatives moved to
Ingushetiya. Valid Gerasiyev, the first applicant’s other son
and the fourth applicant stayed in Gekhi to look after the family
house.
In
December 1999 federal forces regained control over Gekhi. The
hostilities ceased and the civil population began to return to the
area. Valid Gerasiyev, the fourth applicant and their brother decided
to stay in Gekhi and not to move to Ingushetiya as they had
previously planned.
On
an unspecified date in February 2000 the Gerasiyev family ran out of
firewood to heat their house. There being no forest area in the
vicinity of Gekhi, Valid Gerasiyev went to the neighbouring village
of Shaami-Yurt where O.V., a relative of the Gerasiyevs, resided and
where he could obtain firewood.
On
3 February 2000 Valid Gerasiyev and O.V. went to the forest to
collect firewood in the latter’s tractor. At a certain moment
the tractor started skidding and O.V. had to return to the village to
fetch a rope. When he returned to the forest on his bike and found
Valid Gerasiyev, both men came under fire. They decided to leave the
area and abandon the vehicles. While they were trying to leave, a
shell hit the tractor and the bike. Valid Gerasiyev was hit by a
shell splinter in the back of his arm. The wound did not seem
particularly serious but his arm was bleeding.
Later
on the same day Valid Gerasiyev and O.V. returned to Shaami Yurt.
The village was also under fire and the residents tried to shelter
from the bombing. The men learnt from the local residents that
federal forces were bombing the village because a group of rebels had
passed through it earlier. Those rebels had been previously forced
out of Grozny by federal forces.
Having
arrived at O.V.’s house, Valid Gerasiyev and O.V. went to the
basement to shelter from the bombing. Later on the same day about ten
residents of the village joined them in the basement, among them
A.D., S.D. and Sh.M. They bandaged Valid Gerasiyev’s arm
because the wound was still bleeding.
On
4 February 2000 the bombing continued and the people stayed in the
basement.
(b) Abduction of Valid Gerasiyev on 5
February 2000
On
5 February 2000 federal forces started a “sweeping”
operation in Shaami-Yurt. The servicemen ordered everyone to come out
of O.V.’s basement and checked their identity documents. They
immediately spotted Valid Gerasiyev’s bandaged arm and asked
him how he had been wounded. He did not speak Russian and could not
answer the question. When O.V. and others tried to explain that he
had been wounded while collecting firewood, the servicemen threatened
them with their submachine guns and ordered them to remain silent.
At
the same time the servicemen brought people out of the neighbouring
houses and checked their identities. It turned out that General
Shamanov was in command of the federal forces’ operation in
Shaami-Yurt and that he was present during the identity checks. A
certain A.S., a police officer from the neighbouring village
Khambi-Irzi, tried to stand up for Valid Gerasiyev and the other
young men targeted by the servicemen. He addressed General Shamanov
and asked him why federal forces had remained passive while the
rebels had been passing through the village and why were they now
trying to find fault with peaceful village residents. According to
the written statement by Sh.M. (see paragraph 20 below), in response
General Shamanov allegedly ordered the servicemen to disarm A.S. and
to beat him up, which they immediately did.
The
servicemen then put Valid Gerasiyev in a KAVZ minibus which was
specifically re-equipped for transporting detained persons and drove
away. Residents of the village alleged to have subsequently seen the
minibus in the courtyard of the Achkhoy-Martan military commander’s
office.
On the same day the servicemen took three other
residents of Shaami-Yurt away. On an unspecified date in March 2000
the body of one of them, Mr Akh.D., was found in the river on the
outskirts of the village. The other missing persons were not found.
The
applicants have had no news of Valid Gerasiyev since.
The account of the events described above is based on
the information contained in the application form; a written
statement made by the first applicant on 14 May 2007; written
statements by O.V. and A.D. dated 19 October 2006; a written
statement by S.D of 10 October 2006, and a written statement by Sh.M.
made on 12 October 2006.
2. Information submitted by the Government
According
to the Government, no evidence that Valid Gerasiyev had been abducted
by servicemen during a special operation was uncovered during the
domestic investigation.
B. Investigation into the abduction of Valid Gerasiyev
1. The applicants’ account
It
appears that the applicants returned to Gekhi around mid-February
2000. Having learnt about the abduction of Valid Gerasiyev at about
that time, the applicants applied, orally and in writing, to various
law enforcement authorities, seeking information on his
whereabouts. Although the first applicant was almost illiterate (he
never went to school), he made most of the enquiries in connection
with the disappearance of his son, also on behalf of other
applicants. At certain points he asked his neighbours for assistance
in compiling his complaints. In the applicants’ submission,
given the limited level of the first applicant’s education, he
did not keep copies of all his complaints to the authorities.
On
22 April 2000 the first applicant complained about the disappearance
of Valid Gerasiyev to the Achkhoy-Martanovskiy Temporary Office of
the Interior (“the VOVD”).
On
31 May 2000 the Prosecutor’s Office of the Chechen Republic
(“the republican prosecutor’s office”) forwarded
the first applicant’s complaint about the disappearance of his
son, along with about ten similar complaints by other persons from
the Chechen Republic, to the head of the Department of the Interior
of the Chechen Republic and instructed him to notify the complainants
about the decisions taken.
On
22 August 2000 the VOVD replied to the first applicant that Valid
Gerasiyev had not been detained on the VOVD premises.
On
26 August 2000 (or 2001 – the copy of the relevant letter is
partly illegible) the republican prosecutor’s office forwarded
the first applicant’s complaint about the disappearance of
Valid Gerasiyev to the acting prosecutor of the Urus-Martanovskiy
District.
On
4 November 2001 the first applicant filed another complaint about the
disappearance of Valid Gerasiyev with the VOVD. It appears that the
VOVD carried out an inquiry which resulted in a decision of
14 November 2001 refusing to open a criminal case into the
disappearance of the first applicant’s missing son.
On
12 December 2001 the prosecutor’s office of the
Achkhoy Martanovskiy District (“the district prosecutor’s
office”) set aside the decision of 14 November 2001 and
launched a criminal investigation into the disappearance of Valid
Gerasiyev under Article 127 § 2 of the Criminal Code (aggravated
unlawful deprivation of liberty). The case file was assigned
no. 27054. The investigator’s decision referred, among
other things, to a written statement by O.V. to the effect that on 5
February 2000 about ten officials of the military commander’s
office of the village of Lermontov-Yurt had come to O.V.’s home
and had taken away Valid Gerasiyev, and also to the fact that since
that time the latter had been missing. It appears that the applicants
were notified about that decision.
According to the applicants, after the initiation of
the investigation on 12 November 2001, they were convinced that the
district prosecutor’s office would search for Valid Gerasiyev
and find his abductors. Consequently, for several years they waited
for that body to fulfil its duties. Moreover, each time they
enquired, mostly orally, about the progress of the investigation, the
officials of the district prosecutor’s office reassured them
that the investigation was under way. It was only in February 2006
that the first applicant sought professional legal advice in
connection with the disappearance of Valid Gerasiyev.
On 7 February 2006 the first applicant requested the
district prosecutor’s office to provide him with information on
the progress of the investigation into the disappearance of his son
and to grant him victim status in connection with those proceedings.
It does not appear that his request was ever replied to.
On
19 September 2006 the first applicant filed another complaint with
the district prosecutor’s office, claiming that the
investigation into the disappearance of his son had been slow and
that he had not had any information on its progress. He requested to
be provided with access to the investigation case file and the
proceedings to be resumed in the event that they had been suspended.
On
22 September 2006 the district prosecutor’s office notified the
first applicant that it had granted his request in so far as it
concerned the resumption of the investigation and had dismissed the
remainder of the complaint.
On 28 September 2006 the district prosecutor’s
office resumed the investigation in case no. 27054. The decision, in
so far as relevant, stated as follows:
“... In the present case on 12 December 2001 [the
district prosecutor’s office] initiated a criminal
investigation under Article 127 § 2 of the Criminal Code in
connection with the fact that on 5 February 2000, during a special
operation carried out by federal security forces in the village of
Shaami-Yurt, in the Achkhoy Martanovskiy District, a group of
unidentified persons in camouflage uniforms, who arrived in a grey
KAVZ minibus, arrested and took away to an unknown destination Valid
Gerasiyev, [born in] 1977, resident of the village of Gekhi, who was,
at the moment of his abduction, at no 38 Shkolnaya Street, the home
of [O.V.], resident of Shaami-Yurt. The whereabouts of Valid
Gerasiyev remain unknown.
On 12 February 2001, upon the expiry of the time-limit
for the preliminary investigation, the proceedings [in case no.
27054] were adjourned.
The decision to suspend the investigation was unfounded
and premature and should be set aside as it was issued on the basis
of insufficiently verified information about the crime.
The examination [of the case file] reveals that not all
comprehensive measures aimed at establishing the truth were carried
out; the investigation was incomplete ... In particular, in order to
elucidate the circumstances of the crime [the investigators] should
question the residents of the village of Gekhi, relatives, neighbours
and acquaintances of the missing person, as well as persons from
Shaami-Yurt residing in the immediate vicinity of the crime scene.
Not all measures necessary to identify other witnesses, eyewitnesses
to the crime or the culprits were taken. Furthermore, the
investigators did not verify information pertaining to the ownership
of the KAVZ vehicle used by the perpetrators; a close relative of the
missing person was neither questioned nor granted victim status.
An additional investigation should broaden the circle of
potential witnesses to the crime, instruct the police to take
additional operational and search measures aimed at establishing the
whereabouts of the missing person and identifying the perpetrators,
to examine all the relevant circumstances of the crime ...”
On
2 October 2006 the first applicant was granted victim status in
connection with the proceedings in case no. 27054. He was notified
about that decision on the same day.
On
12 October 2006 the first applicant complained to the
Achkhoy Martanovskiy District Court (“the District Court”)
about the refusal of the district prosecutor’s office to
provide him with access to case file no. 27054 (see below).
On
28 October 2006 the district prosecutor’s office suspended the
investigation in case no. 27054 owing to the failure to identify
those responsible.
On
22 January 2007 the first applicant formally joined the proceedings
in case no. 27054 as a civil party. He claimed 2,500,000 Russian
roubles (RUB) in respect of pecuniary and non pecuniary damage
caused by the offence.
2. Information submitted by the Government
Despite
the Court’s specific requests, the Government refused to submit
a copy of the entire criminal case file opened into the abduction of
the applicants’ relative. They did not put forward any
explanation for their failure to do so. The Government furnished only
copies of several witness’ statements, the decisions to open
and resume the investigation and the investigators’ requests to
various authorities concerning the whereabouts of Valid Gerasiyev, as
well as some of the replies to them. Some of the documents provided
by the Government were illegible; others were legible only in part.
The information contained in those documents, in so far as they are
legible, is summarised below.
On
12 December 2001 the deputy prosecutor of the Achkhoy Martanovskiy
District quashed the decision of 14 November 2001, issued by the
Achkhoy-Martanovskiy district department of the interior (“the
VOVD”) and refusing to institute a criminal investigation into
the first applicant’s complaint about the abduction of Valid
Gerasiyev. The deputy prosecutor’s decision stated, in
particular, that on 4 November 2001 the VOVD had received the first
applicant’s complaint about the abduction of his son on 5
February 2000 from house no. 24, Shkolnaya Street, in
Shaami-Yurt. Following a preliminary inquiry, the VOVD had refused to
open a criminal case. However, their refusal was unlawful because the
materials of the preliminary inquiry contained a statement by O.V. to
the effect that on 5 February 2000 a group of ten servicemen
from the military commander’s office of the village of
Lermontovo-Yurt had come to his house at no. 24, Shkolnaya
Street and had taken Valid Gerasiyev away in their bus. By the same
decision the deputy prosecutor instituted an investigation into the
abduction of Valid Gerasiyev under Article 127 § 2 of the
Criminal Code (aggravated unlawful deprivation of liberty). The case
file was assigned the number 27054.
On 29 December 2001 the investigators interviewed
O.V., residing at 24, Shkolnaya street, Shaami-Yurt, as a witness. He
stated that at the beginning of February 2000 Valid Gerasiyev had
visited him in Shaami Yurt and had asked for help in collecting
firewood. O.V. had given him a tractor and the latter had gone to the
forest. At a certain point after his departure unspecified forces had
started shelling the village and a group of rebel fighters had
entered the village. Civilians had been given the opportunity to
leave the village in several buses. O.V. had sent his parents away in
a bus but had had to stay in Shaami-Yurt. In the evening of the same
day unspecified persons had brought Valid Gerasiyev, who had been
wounded and was bleeding severely, to his house. When a local doctor,
called by O.V., had started bandaging the wound, a group of
servicemen of the federal forces had come and taken Valid Gerasiyev
away. O.V. had himself seen them place the applicants’ relative
into a light-grey KAVZ bus with a blue stripe on the side. As they
were taking Valid Gerasiyev away, the servicemen had said that they
would provide him with the necessary medical assistance. Residents of
Shaami-Yurt B.D., S.D. A.D. and Sh.M. had been present during Valid
Gerasiyev’s abduction.
On an unspecified date the investigators interviewed
the first applicant as a witness. He stated that before 1999 his
family had resided in the village of Gekhi and that in 1999 they had
moved to Ingushetiya, except for Valid Gerasiyev and his other son
V.G., who had stayed in Gekhi. In February 2000 the first applicant
had returned to Gekhi but had not found Valid Gerasiyev there. From
V.G. he had learnt that Valid Gerasiyev had gone to Shaami-Yurt to
collect firewood. When the first applicant had gone there, O.V. had
told him that Valid Gerasiyev had indeed come to Shaami Yurt and
that at that time sweeping operations had been conducted there. Valid
Gerasiyev had been wounded and had then been taken away by servicemen
who had promised to provide him with medical assistance.
On 10 January 2002 the investigators interviewed the
third applicant as a witness. He stated that in 1999 he had left
Gekhi together with his parents, whilst Valid Gerasiyev and V.G. had
stayed in the village. The family had gone back to Gekhi in the
mid-February 2000 and had learnt, after a certain lapse of time, from
O.V. that Valid Gerasiyev had been at O.V.’s home in
Shaami-Yurt and had been wounded while collecting firewood in the
forest. At that time there had been clashes between the federal
forces and the rebel fighters who had entered the village. At the
beginning of February servicemen of the federal forces had taken
Valid Gerasiyev from O.V.’s house, had placed him in a KAVZ bus
and had taken him away. Since February 2000 the Gerasiyevs had
contacted various State authorities with complaints about the
disappearance of Valid Gerasiyev but had been unable to obtain any
information.
On 16 January 2002 the investigators interviewed Sh.M.
as a witness. He submitted that during a special operation in the
area in February 2000 the rebel fighters had been given a free
corridor to leave through Shaami-Yurt. They had entered the village
on 2-3 February 2000, after which the federal forces had started
shelling the village. Sh.M. had gone down to O.V.’s basement to
hide from the shelling. There he had seen a number of people,
including S.D., other neighbours and a wounded young man left behind
by the rebel fighters when they had left the village on 4 5 February
2000. On 5 February 2000 a group of servicemen in camouflage uniforms
had ordered everyone out of the basement. Having checked their
identity papers, the servicemen took the young man with them.
On 18 January 2002 the investigators interviewed B.D.
as a witness. He stated that at the beginning of February 2000
members of illegal armed groups had entered Shaami-Yurt and that the
federal forces had been conducting a special operation in the village
on 2-5 February 2000. When the federal forces had started shelling
the village, B.D. had gone down to O.V.’s basement There B.D.
had seen a wounded young man who, according to the other people
hiding in the basement, had been from the village of Gekhi and had
been left behind by the rebel fighters. At about 10 a.m. on 5
February 2000 a group of servicemen or police officers had come to
the basement, had ordered everyone outside and had checked their
identity papers. The servicemen had then taken the wounded man with
them.
On 18 November 2002 A.D. was interviewed as a witness.
She gave a similar account of the events concerning Valid Gerasiyev’s
abduction to those given by Sh.M. and B.D.
On 20 January 2002 the investigators interviewed S.D.
as a witness. He stated that on 2-3 February 2000 rebel fighters had
entered Shaami-Yurt, following which the village had been blocked off
by federal forces which had put the village under fire. As he did not
have a basement, S.D. went to O.V.’s house, where other
residents of Shaami-Yurt were also sheltering. On 5 February 2000
servicemen had blocked off the basement and ordered everyone in it
outside. They had checked the residents’ passports and taken
away the wounded person.
On
12 February 2002 the investigation was suspended owing to the failure
to identify the perpetrators. The related decision mentioned that a
copy of it was to be forwarded to the Achkhoy-Martanovskiy
Interdistrict prosecutor but was silent on as to whether it was
supposed to be sent to the applicants.
On
28 September 2006 the deputy prosecutor of the Achkhoy Martanovskiy
district set aside the decision of 12 February 2002 as premature and
unfounded. The decision stated that the investigators had not
interviewed the residents of Gekhi, had not taken steps to identify a
number of eyewitnesses to the abduction of Valid Gerasiyev and had
not verified the information that he had been taken away in a KAVZ
vehicle. Moreover, none of the relatives of the missing person has
been granted victim status. After the opening of the investigation
the investigators were instructed to increase the pool of witnesses
to be interviewed and to carry out additional measures to step up the
investigation.
On
30 September 2006 the first applicant was granted victim status in
the proceedings in case no.27054 and interviewed. He confirmed his
account of the events surrounding his son’s abduction and
stated, in addition, that O.V. had told him that rebel fighters had
brought Valid Gerasiyev, wounded, to his house in Shaami-Yurt. The
latter had a missile wound to the right forearm and was bleeding.
O.V. had called the local doctor, D., who had tried to stop the
bleeding. At about that time a group of servicemen had emerged and
had asked the people hiding in the basement to go outside. When they
had seen Valid Gerasiyev, they had taken him away, saying that they
would provide him with the necessary medical assistance. The
servicemen had left in a KAVZ vehicle.
On
30 September 2006 the investigators interviewed the second applicant
as a witness. She confirmed the account of the events surrounding the
abduction of Valid Gerasiyev given by the first applicant.
On
2 October 2006 the investigators interviewed V.Sh., the applicants’
neighbour, as a witness. He stated that he had learnt about the
abduction of Valid Gerasiyev from his relatives and relayed the
account of the events given by the first and second applicants.
Residents
of Gekhi S.A., A.M., M.K., S.M., A.Ch., M.I., S.A., R.Kh., Ch.P.,
M.A., Kh.I., Kh.U., I.M., Sh.U., A.T., Sh.B. and A.A., interviewed
between 2 and 26 October 2006, made similar statements to that of
V.Sh.
On 21 October 2006 the investigators interviewed I.G.
as a witness. He stated that in February 2000 the federal forces had
opened a corridor for rebel fighters, who could leave Grozny through
Shaami-Yurt. After the rebel fighters had entered the village, the
federal forces had started shelling it. When the rebel fighters had
left, the servicemen had started a sweeping operation, checking the
houses of the residents and their identity papers. I.G. had heard
from an acquaintance that the servicemen had taken away a young
wounded man from O.V.’s basement. That man had gone to O.V.’s
house to collect firewood and had been wounded while in the forest.
On 22 October 2006 the investigators interviewed M.A.,
a resident of Shaami-Yurt, as a witness. He submitted that in
February 2000 a corridor had been opened for the rebel fighters to
leave from Grozny through Shaami-Yurt. When the rebel fighters had
entered the village, the federal forces started shelling it. M.A. had
stayed with his family in the basement of his house. When the rebel
fighters had left, the servicemen had started a sweeping operation,
looking for rebel fighters who might have stayed. M.A. had learnt
from O.V. that the servicemen had taken away a young man from Gekhi,
who had come to visit O.V. and ask him for assistance in finding
firewood.
Residents of Shaami-Yurt T.V. and R.M., interviewed on
24 October 2006, gave a similar account of the events concerning the
sweeping operation in Shaami-Yurt and the apprehension of Valid
Gerasiyev to that given by M.A.
On
28 October 2006 the investigation in case no. 27054 was
suspended owing to the failure to identify the perpetrators.
On
22 January 2007 the decision to suspend the investigation was set
aside as premature and unfounded and the investigators were
instructed to step up the investigation.
On 1 February 2007 the investigators interviewed
residents of Shaami-Yurt Kh.Sh., R.A., R.D., M.T., Kh.Kh., E.Kh. and
A.Kh. as witnesses. They gave similar accounts of the events of the
sweeping operation in Shaami-Yurt and Valid Gerasiyev’s
abduction to that given by M.A.
On
22 February 2007 the investigation in case no. 27054 was
suspended owing to the failure to identify the perpetrators.
According
to the Government, the investigation in case no. 27054 is
pending.
C. Court proceedings against law-enforcement officials
On 24 November 2006 the Achkhoy-Martanovskiy District
Court dismissed the first applicant’s complaint about the
district prosecutor’s office’s refusal to provide him
access to the criminal case file opened into his son’s
abduction and to allow him make copies from it. The court decision
stated, among other things, that it transpired from the materials of
case file no. 27054 that on 5 February 2000 servicemen of the
federal security forces had arrested and taken away Valid Gerasiyev
and that the latter had subsequently disappeared. The investigation
had obtained information on the involvement of servicemen in the
abduction of Valid Gerasiyev. However, it had proved impossible to
identify the specific persons who had committed the crime.
On
25 April 2007 the Supreme Court of the Chechen Republic upheld the
decision of 24 November 2006 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 applicants had not appealed against the decision of the
Achkhoy Martanovskiy District Court, as upheld on appeal by the
Supreme Court of the Chechen Republic, by way of supervisory review.
They also argued that it had been open to the applicants to pursue
civil complaints but that they had failed to do so.
The
applicants contested that objection. They stated that challenging the
impugned court decisions by way of supervisory review did not
constitute an effective remedy. With reference to the Court’s
practice, they argued that they were not obliged to apply to the
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).
In
so far as the Government argued that the applicants should have
appealed against the decision of the District Court, as upheld by the
Supreme Court, by way of supervisory review, the Court notes, with
reference to its extensive case-law, that such extraordinary remedies
cannot, as a general rule, be taken into account for the purpose of
applying Article 35 of the Convention (see, among many other
authorities, Berdzenishvili v. Russia (dec.), no. 31697/03,
ECHR 2004 II (extracts)). In any event, the Government failed to
demonstrate how an application for supervisory review of the impugned
decisions could have provided the applicants with either preventive
or compensatory redress in respect of the alleged violations of the
Convention.
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 applicants were not obliged to
pursue civil remedies. The Government’s objection in this
regard is thus dismissed.
In
sum, the Court dismisses the Government’s objection.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicants complained under Article 2 of the Convention that their
relative had been deprived of his life by the servicemen and that the
domestic authorities had failed to carry out an effective
investigation of the matter. Article 2 reads:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. Submissions by the parties
The
Government argued that the domestic investigation had obtained no
evidence that Valid Gerasiyev had been arrested during a special
operation by servicemen or that he should be presumed dead. The
domestic investigation had only established that he had been abducted
by unidentified armed men. The fact that the abductors had worn
uniforms and had been armed did not prove that they were servicemen.
None of the witnesses interviewed by the investigation had been able
to give a detailed description of the abductors or specify whether
they had had insignia or used specific military terms in
communicating among themselves. The body of Valid Gerasiyev had not
been discovered. Moreover, V.O. had given contradictory statements to
the investigation and the Court.
As
regards the investigation, the Government submitted that it satisfied
the Convention requirements. The domestic authorities had carried out
an important number of investigating measures. They had interviewed
numerous witnesses and sent out requests for information to various
State authorities. The fact that the applicants were dissatisfied
with the amount of information provided by the investigating
authorities did not render the investigation ineffective. In the
Government’s submission, even in the periods when the
investigation had been suspended, the authorities continued carrying
out operational and search measures aimed at establishing the missing
person’s whereabouts and identifying the culprits.
The
applicants argued that the evidence submitted by them and the
documents disclosed by the Government unequivocally showed that the
State authorities had been conducting a special operation in
Shaami-Yurt at the time of the abduction of their relative. Numerous
witnesses interviewed by the investigation stated that Valid
Gerasiyev had been abducted by a group of servicemen. They concluded
that there existed evidence “beyond reasonable doubt”
that their relative had been abducted by servicemen during a special
operation. They claimed that he was to be presumed dead following his
unacknowledged detention and invited the Court to draw inferences
from the Government’s unjustified refusal to furnish the
documents requested from them.
In
the applicants’ submission, the investigation of the kidnapping
of Valid Gerasiyev had been neither prompt nor effective. It had been
instituted with a considerable delay. Despite the evidence of
implication of servicemen in the abduction of the applicants’
relative, the authorities had not identified and interviewed the
persons who had been in charge of the operation and those who had
participated in it. They had also failed to take any steps to obtain
any information on the vehicles used by the servicemen. The
interviewing of witnesses had been superficial. The investigation had
been pending for over seven years without any tangible 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. 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 Valid Gerasiyev
(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
applicants alleged that at about 10 a.m. on 5 February 2000 their
relative, Valid Gerasiyev, had been abducted by servicemen during a
sweeping operation conducted by the authorities in Shaami-Yurt and
had then disappeared. They invited the Court to draw inferences as to
the well foundedness of their allegations from the Government’s
failure to provide the documents requested from them. They submitted
that several persons had witnessed their relative’s abduction
and enclosed their statements to support that submission.
The
Government conceded that Valid Gerasiyev had been abducted on 5
February 2000 by unidentified armed camouflaged men and that the
authorities had conducted a special operation in Shaami-Yurt at the
time of his abduction. However, they denied that the abductors had
been servicemen, referring to the absence of conclusions from the
ongoing investigation.
The
Court notes that despite its requests for a copy of the investigation
file into the abduction of Valid Gerasiyev, the Government refused to
produce most of the documents from the case file and that they did
not refer to any reasons which would justify their refusal to do so.
In
view of this and bearing in mind the principles referred to above,
the Court finds that it can draw inferences from the Government’s
conduct in respect of the well-foundedness of the applicants’
allegations.
Having
regard to the applicants’ submissions and statements by
witnesses enclosed by them, the Court considers that they presented
an overall coherent and convincing picture of Valid Gerasiyev’s
abduction on 5 February 2000 by a group of armed and camouflaged
men during a security operation. It further observes that the
applicants’ account was consistent both throughout the domestic
investigation and before this Court (see paragraphs 8-18, 20, 41 and
42 above). It also cannot but note that the sparse materials from the
criminal case file that the Government agreed to disclose appear not
only to confirm the applicants’ allegation that the authorities
had conducted a security operation in Shaami-Yurt at the time of
Valid Gerasiyev’s abduction but also that it had been precisely
the servicemen participating in the operation who had taken the
applicant’s relative with them (see paragraphs 40, 43, 46, 53-55
and 58 above).
In
this connection it is also highly significant to the Court that the
domestic courts, which apparently had access to the investigation
file, unequivocally stated that the applicant’s relative had
been abducted by servicemen who had conducted a security operation in
Shaami-Yurt (see paragraph 61 above). Against this background the
Court does not consider that the discrepancies in the statements by
O.V., as referred to by the Government, were such as to critically
undermine the overall coherent and consistent account of the events
given by the applicants.
The
Court notes that in their applications to the authorities the
applicants consistently maintained that Valid Gerasiyev had been
detained by unknown servicemen during a security operation and
requested the investigating authorities to look into that
possibility. It further notes that after more than seven years the
investigation has produced no tangible results.
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)).
Taking
into account the above elements, the Court is satisfied that the
applicants have made a prima facie case that their relative was
abducted by State servicemen during a security operation. The
Government’s statement that the investigation had not found any
evidence to support the involvement of servicemen in the kidnapping
is insufficient to discharge them from the above-mentioned burden of
proof. Drawing inferences from the Government’s failure to
submit the remaining documents, which were in their exclusive
possession, or to provide another plausible explanation for the
events in question, the Court finds that Valid Gerasiyev was arrested
on 5 February 2000 by State servicemen during an unacknowledged
security operation.
There
has been no reliable news of Valid Gerasiyev since the date of the
kidnapping. His name has not been found in any official detention
facility records. Lastly, the Government have not submitted any
explanation as to what happened to him after his arrest.
Having regard to the previous cases concerning
disappearances in Chechnya which have come before it (see, among many
others, Bazorkina, cited above; Imakayeva v. Russia,
no. 7615/02, ECHR 2006 XIII (extracts); Luluyev and Others v.
Russia, no. 69480/01, ECHR 2006-VIII (extracts); Baysayeva
v. Russia, no. 4237/01, 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 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
Valid Gerasiyev or of any news of him for more than seven years
supports this assumption.
Accordingly,
the Court finds that the evidence available permits it to establish
that Valid Gerasiyev must be presumed dead following his
unacknowledged detention by State servicemen.
(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, from 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 applicants’
relative 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 Valid Gerasiyev.
(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 the Government refused to produce most
of the documents from case file no. 27054. It therefore has to assess
the effectiveness of the investigation on the basis of the very
sparse information submitted by the Government and the few documents
available to the applicants that they provided to the Court.
Turning
to the facts of the present case, the Court observes that Valid
Gerasiyev was abducted on 5 February 2000 and that the investigation
into his abduction was instituted on 12 December 2001, that is, one
year and ten months later. The applicants claimed that they had
complained about their relative’s disappearance shortly after
they had returned to Gekhi in mid-February 2000 and had learnt about
it. However, they did not provide any further information in that
connection. The Government did not contest that submission. The
applicants also submitted that they had not kept copies of all their
initial complaints to the authorities, but furnished a copy of their
complaint to the VOVD dated 22 April 2000 and the letter of the
prosecutor’s office of the Chechen Republic dated 31 May 2000
in which the latter authority instructed the head of the Ministry of
the Interior of the Chechen Republic to examine their submissions and
to notify the applicants of any decisions taken.
Against
this background the Court is unable to attribute the responsibility
for the delay in the opening of the investigation to any of the
parties in the time span between 5 February and 31 May 2000.
Nonetheless, having regard to the available documents it considers
that as of 31 May 2000 the republican prosecutor’s office
became aware of the crime allegedly committed and it was for them to
report the matter to the appropriate 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, and
Vakayeva and Others v. Russia, no. 2220/05, §§
141-42, 10 June 2010). Accordingly, it finds that the delay of one
year and six months in the opening of the investigation is
attributable to the domestic authorities. In this connection it
stresses that such an important 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.
The
Court has further to assess the scope of the investigative measures
taken.
The
Government argued that the investigating authorities had made
enquiries to a number of State bodies about Valid Gerasiyev’s
whereabouts and that the replies received indicated that those
authorities had no relevant information. However, in view of their
refusal to provide copies of the related documents, not only is it
impossible for the Court to establish how promptly those measures
were taken, but whether they were taken at all.
Furthermore,
it seems that a number of investigative steps were taken with a
considerable delay. In particular, the Court is struck by the fact
that the investigating authorities waited for over five years to
interview the residents of Shaami-Yurt, who were able to provide
information on the circumstances of Valid Gerasiyev’s abduction
and the details of the security operation conducted in the village.
More
importantly, it appears that a number of crucial investigative steps
were not taken at all. The Court notes that, despite the abundance of
witness’ statements explicitly stating that a large scale
security operation had been conducted in the village of Shaami-Yurt
at the time of Valid Gerasiev’s abduction, it does not
transpire that the investigators made any genuine attempts to
establish which State authorities and military units had been in
charge of it and had carried it out. Likewise, it does not appear
that the investigators took any steps to obtain information on the
vehicles used by the servicemen and, in particular, the KAVZ bus in
which Valid Gerasiyev had been taken away. It is particularly
striking given that in setting aside one of the decisions to suspend
the investigation, the higher-ranking prosecutors explicitly referred
to those omissions and instructed the investigators to rectify them
and to pursue the matter (see paragraph 33 above).
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 further notes that the first applicant was granted victim
status in the proceedings concerning the abduction of his son only
more than four years after the opening of the investigation and there
is no indication that the authorities ever considered granting that
status to the other applicants. Regard being had to the applicants’
unanswered requests for information addressed to the investigating
authorities (see, for example, paragraph 30 above), the Court has
serious doubts that they were properly informed of any 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.
It
is further observed that the investigation was adjourned and resumed
on numerous occasions. It also transpires that there were lengthy
periods of inactivity on the part of the prosecuting authorities when
no investigative measures were being taken. In this respect the Court
emphasises that while the adjourning or reopening of proceedings is
not in itself a sign that the proceedings are ineffective, in the
present case the decisions to adjourn were made without the necessary
investigative steps being taken, which led to numerous periods of
inactivity and thus unnecessary protraction. Moreover, owing to the
time that had elapsed since the events complained of, certain
investigative measures that ought to have been carried out much
earlier could no longer usefully be conducted.
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 Valid Gerasiyev, in
breach of Article 2 in its procedural aspect.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicants relied on Article 3 of the Convention, submitting that as
a result of their relative’s disappearance and the State’s
failure to investigate it properly, they had endured mental suffering
in breach of Article 3 of the Convention. Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
The
Government submitted that the investigation had not established that
the applicants had been subjected to inhuman or
degrading treatment prohibited by Article 3 of the Convention.
The
applicants maintained their complaint.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint under Article 3 of the Convention is
not manifestly ill-founded within the meaning of Article 35 § 3
(a) 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, cited
above, § 358, and Imakayeva, cited above, § 164).
In
the present case the Court notes that the applicants are close
relatives of the disappeared person. For more than seven years they
have not had any news of the missing man. During this period the
applicants have made enquiries of various official bodies, both in
writing and in person, about their missing relative. Despite their
attempts, the applicants have never received any plausible
explanation or information about what became of him following his
detention. The responses they received mostly denied State
responsibility for their relative’s arrest or simply informed
them that the investigation was ongoing. The Court’s findings
under the procedural aspect of Article 2 are also of direct relevance
here.
In
view of the above, the Court finds that the applicants suffered, and
continue to suffer, distress and anguish as a result of the
disappearance of their close relative and their inability to find out
what happened to him. 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 Valid Gerasiyev 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 Valid Gerasiyev had been deprived of
his liberty. He was not listed among the persons kept in detention
centres and none of the regional law-enforcement agencies had
information about his detention.
The
applicants reiterated the complaint.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) 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 Valid Gerasiyev was
apprehended by State servicemen on 5 February 2000 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
applicants’ complaints that their relative had been detained
and taken away in life-threatening circumstances. However, the
Court’s findings above in relation to Article 2 and, in
particular, the conduct of the investigation leave no doubt that the
authorities failed to take prompt and effective measures to safeguard
him against the risk of disappearance.
In
view of the foregoing, the Court finds that Valid Gerasiyev 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
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 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 (a) 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, has
consequently been undermined, the State has failed in its obligation
under Article 13 of the Convention (see Khashiyev and
Akayeva, cited above, § 183).
Consequently,
there has been a violation of Article 13 in conjunction with Article
2 of the Convention.
As
regards the applicants’ reference to Articles 3 and 5 of the
Convention, the Court considers that, in the circumstances, no
separate issue arises in respect of Article 13, read in conjunction
with Articles 3 and 5 of the Convention (see Kukayev v. Russia,
no. 29361/02, § 119, 15 November 2007, and
Aziyevy v. Russia, no. 77626/01, § 118, 20 March
2008).
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 second applicants claimed damages in respect of loss of
earnings by their son after his arrest and subsequent disappearance.
They submitted that although Valid Gerasiyev had been unemployed
before his abduction, he would have been able to find a job. For
instance, if he had worked at a construction site, he would have
earned about 460 euros (EUR) a month, which constituted the average
salary for construction workers in the Chechen Republic at the time
of the submission of the applicants’ claims. Accordingly, the
first applicant claimed a total amount of EUR 9,568 and the
second applicant claimed EUR 16,650 in respect of pecuniary damage.
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 applicants 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 applicants’
relative and the loss to them of the financial support which he could
have provided.
Having
regard to the applicants’ submissions and the fact that Valid
Gerasiyev was not employed at the time of his abduction, the Court
awards EUR 3,000 to the first applicant and EUR 4,000 to the second
applicant in respect of pecuniary damage plus any tax that may be
chargeable on that amount.
B. Non-pecuniary damage
The
applicants claimed EUR 1,000,000 in respect of non-pecuniary
damage for the suffering they had endured as a result of the loss of
their family member, the indifference shown by the authorities
towards them and the failure to provide any information about the
fate of their close relative.
The
Government found the amounts claimed excessive.
The
Court has found a violation of Articles 2, 5 and 13 of the Convention
on account of the unacknowledged detention and disappearance of the
applicants’ relative. The applicants themselves have been found
to have been victims of a violation of Article 3 of the Convention.
The Court thus accepts that they have suffered non-pecuniary damage
which cannot be compensated for solely by the findings of violations.
It awards to the first and second applicants jointly EUR 50,000 and
EUR 5,000 to the third and fourth applicants each in respect of
non-pecuniary damage, plus any tax that may be chargeable to them.
C. Costs and expenses
The
applicants were represented by Mr D. Itslayev. The aggregate claim in
respect of costs and expenses related to the applicants’ legal
representation amounted to EUR 8,657. They submitted the following
breakdown of costs:
(a) EUR
8,025 for 53.50 hours of research and drafting of legal documents
submitted to the Court at a rate of EUR 150 per hour;
(b) EUR
472 for translation costs, as certified by invoices, and
(c) EUR
160 for administrative and postal costs.
The
Government claimed that the agreement for the applicants’
representation bore the date of 7 September 2009, that is, it had
been concluded four days before the Government had submitted their
observations. Furthermore, the applicants failed to furnish any
documents in support of the postal and administrative claims and the
translation fee note submitted by them had no seal.
The
Court has to establish first whether the costs and expenses indicated
by the applicants 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 applicants, the Court is satisfied that
these rates are reasonable and reflect the expenses actually incurred
by the applicants’ representative.
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 the former Article 29 §
3 in the present case, the applicants’ representatives
submitted their observations on the admissibility and merits in one
set of documents. Moreover, the case involved little documentary
evidence, in view of the Government’s refusal to submit most of
the case file. The Court thus doubts that research was necessary to
the extent claimed by the representatives. Furthermore, whilst
agreeing with the Government that the applicants did not submit any
documents in support of their claim for administrative costs, it does
not accept their submission concerning the lack of a seal on the
translation fee note.
Having
regard to the details of the claims submitted by the applicants, the
Court awards them the amount of EUR 3,500, together with any
value-added tax that may be chargeable to them.
D. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a substantive
violation of Article 2 of the Convention in respect of Valid
Gerasiyev;
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 Valid
Gerasiyev disappeared;
4. Holds that there has been a violation of
Article 3 of the Convention in respect of the applicants on
account of their mental suffering;
Holds that there has been a violation of
Article 5 of the Convention in respect of Valid Gerasiyev;
6. Holds
that there has been a violation of Article 13 of the Convention
in respect of the alleged violation of Article 2
of the Convention;
7. 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:
(i) EUR 3,000
(three thousand euros) to the first applicant and EUR 4,000
(four thousand euros) to the second applicant, plus any tax that may
be chargeable, in respect of pecuniary damage;
(ii) EUR 50,000
(fifty thousand euros) to the first and second applicants jointly,
and EUR 5,000 (five thousand euros) to the third and fourth
applicants each, plus any tax that may be chargeable to them, in
respect of non-pecuniary damage;
(iii) EUR 3,500
(three thousand five hundred euros), plus any tax that may be
chargeable to the applicants, in respect of costs and expenses;
(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 7 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
