European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

 

CASE OF KHAVA AZIYEVA AND OTHERS v. RUSSIA

 

(Application no. 30237/10)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

23 April 2015

 

 

 

 

 

 

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 Khava Aziyeva and Others v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Elisabeth Steiner, President,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 31 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 30237/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Russian nationals, listed below (“the applicants”), on 31 May 2010.

2.  The applicants were represented by Mr Dokka 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.

3.  The applicants alleged that their relative had disappeared as a result of a special operation carried out by State agents in October 2009 in Chechnya and that the authorities had failed to investigate the matter effectively.

4.  On 27 August 2010 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants are:

1) Ms Khava Aziyeva, who was born in 1983,

2) Ms Aysha Aziyeva, who was born in 2008, and

3) Mr Abdurrakhman Aziyev, who was born in 2010.

They live in Grozny, the Chechen Republic. They are the relatives of Mr Rizvan Aziyev, who was born in 1979. The first applicant is his sister, the second and third applicants are his children.

A.  Abduction of Mr Rizvan Aziyev

1.  Background information

6.  At the material time the applicants and Mr Rizvan Aziyev lived at 23 Gagarina Street, in the settlement of Staraya Sunzha in Grozny. The first applicant’s two other brothers, Mr I.A. and Mr Kh.A., had been convicted for the participation in illegal armed groups and were serving their sentences.

7.  In 2005 Mr Rizvan Aziyev was arrested in Irkutsk, Russia, and then convicted for the participation in illegal armed groups. In 2008 he was released upon completion of the sentence.

8.  For an unspecified period of time, prior to August 2008, the first applicant was married to Mr A.Kh. who was wanted by the authorities for active membership in illegal armed groups. On 31 October 2009 he had been killed as a result of a special operation carried out by the authorities in Grozny (see application Gaysanova v Russia, no. 62235/09 concerning alleged abduction of the applicant’s daughter Ms Zarema Gaysanova by State agents during that special operation).

2.  The events of 31 October 2009

9.  On 31 October 2009 the applicants and their relatives were at home. Mr Rizvan Aziyev was not there. The applicants’ neighbours in the house across the street (at 20 Gagarina Street) were preparing a wedding dinner; their house was full of guests.

10.  In the evening on that date a large group of servicemen in military camouflage or black uniforms arrived in about fifteen UAZ and VAZ model civilian vehicles and cordoned off several streets around the applicants’ house. According to the applicants’ neighbours, the servicemen blocked access to the nearby streets to its residents explaining that they were conducting a special operation.

11.  At about 7 p.m. a group of about twenty to thirty armed men arrived at the applicants’ house in Gagarina Street in several vehicles. The men were in military camouflage uniforms, they were armed with automatic rifles, had portable radios and special military ammunition belts. The men spoke Chechen and Russian. The applicants and their relatives thought that these men were police officers.

12.  Three of the men went into the applicants’ house whereas the rest remained outside blocking the building and the nearby houses. One of the three men, who was in charge of the group, demanded in Chechen that the first applicant telephoned her brother Mr Rizvan Aziyev and asked him to come home without mentioning that the police were waiting for him. Meanwhile, two other men quickly searched the house. One of the intruders received a phone call on his mobile phone and explained to someone that he was at work.

13.  The first applicant called Mr Rizvan Aziyev and asked him to come home as soon as possible. Mr Rizvan Aziyev told her that he would be there in about ten minutes. The man in charge of the intruders’ group stood next to the applicant and listened to the conversation. As soon as the conversation was over he took the phone away from her and went outside whilst one of his colleagues remained in the house.

14.  The first applicant looked out from the window and saw that a group of about fifteen other men was standing under the shed in the yard.

15.  About twenty minutes later one of the policemen opened the house door and asked his colleague to come out. The first applicant tried to follow the man, but he closed the door from the outside. About two minutes later he opened it and left the yard. Immediately afterwards the first applicant heard several cars starting their engines and driving away from the house.

16.  According to the applicants’ neighbour, Ms R.A., she saw Mr Rizvan Aziyev being taken away by the abductors who had waited for him next to the applicants’ house.

17.  A number of the applicants’ neighbours and the wedding guests at 20 Gagarina Street witnessed the arrival of the group of the men, who had resembled police officers, to the applicants’ house and Mr Rizvan Aziyev’s removal by them. According to the applicants, the overall duration of the special operation was about half an hour.

3.  Subsequent events

18.  About an hour after the abduction, the first applicant’s relative Mr A. - M.A. went to the Leninskiy district department of the interior in Grozny (the ROVD) and complained in writing about the arrest of Mr Rizvan Aziyev. The officers at the ROVD denied any involvement into the events.

19.  On the same evening, 31 October 2009, an officer who introduced himself as Mr Isa, the district police officer, arrived at the applicants’ house, although neither the applicants nor their relatives had informed him about the events. The officer knew that Mr Rizvan Aziyev had been arrested and asked the applicants and their relatives about him and Ms Zarema Gaysanova (see paragraph 8 above). He denied having any knowledge about the whereabouts of the applicants’ relative but promised to assist the applicants in his release. Next morning the applicants’ relative, Mr A.-M.A., spoke with him. The officer denied having any information concerning Mr Rizvan Aziyev’s whereabouts. Subsequently, the applicants found out that Mr Isa had not been a district police officer but a high-ranking officer of a Chechen law-enforcement agency.

20.  The following days the applicants and their relatives complained about the abduction to a number of local law-enforcement agencies. None of them accepted the responsibility for arresting or detaining Mr Rizvan Aziyev.

21.  On 5 February 2011 the first applicant watched the video footage of the special operation conducted by the authorities against Mr A.Kh. on 31 October 2009 (see paragraphs 8 and 19 above) and recognised one of the law-enforcement officers who had participated in the special operation against Mr A.Kh. as the commanding officer of the group of the abductors who had taken away Mr Rizvan Aziyev later on the same date. That officer on the video had spoken with the Chechnya Minister of the Interior Mr Alkhanov. It is unclear whether the first applicant informed the authorities thereof.

22.  The applicants’ submission concerning the circumstances of the abduction and the surrounding events is based on the statements of the first applicant lodged with the application and the additional statement dated 10 February 2011, the statement of the applicants’ neighbour Mr M.T. dated 4 February 2011, the statement of the applicants’ relative Mr A.A. dated 4 February 2011 and copies of the contents of the investigation file opened in connection with Mr Rizvan Aziyev’s abduction.

23.  The Government did not dispute the facts as presented by the applicants. At the same time they pointed out that the abduction had been perpetrated by unidentified armed persons, whose outfits and firearms had been common among ordinary criminals, that the body of Mr Rizvan Aziyev was never found and that the witnesses to the abduction had not been sufficiently precise in the description of the abductors’ appearance.

B.  The official investigation of the abduction

1.  Main investigative steps taken by the authorities

24.  On 1 November 2009 the first applicant complained in writing about the abduction to the Leninskiy inter-district prosecutor’s office (the prosecutor’s office).

25.  On 2 November 2009 the investigator from the ROVD forwarded information requests to various district police departments in Chechnya asking whether Mr Rizvan Aziyev’s body had been found and/or whether he had been detained by their agents.

26.  On 4 November 2009 a group of investigators from the prosecutor’s office arrived at the applicants’ house and briefly examined the crime scene. They only took photographs of the house and questioned Ms R.A. who stated that she had seen the abductors taking away Mr Rizvan Aziyev (see paragraph 42 below).

27.  On 6 November 2009 the investigators again examined the crime scene and collected photos and the passport of Mr Rizvan Aziyev.

28.  On 11 November 2009 the Leninskiy district investigating department of the prosecutor’s office (the investigating department) instituted an investigation into the abduction of Mr Rizvan Aziyev under Article 126 § 2 (aggravated kidnapping). The case file was given the number 66093.

29.  On 12 November 2009 the interim head of the investigating department ordered that by 30 November 2009 the investigators into the abduction took, amongst others, the following steps:

“... the murder of Mr Rizvan Aziyev could have been committed by servicemen of law-enforcement agencies.

To investigate the matter fully and thoroughly and identify the perpetrators, it is necessary to ... establish eye-witness to the crime and obtain their information concerning its circumstances and the culprits ...”

30.  On 14 November 2009 the investigators forwarded information requests to local hospitals and detention centres asking whether they had any information concerning Mr Rizvan Aziyev. The replies received were in the negative.

31.  On 16 November 2009 the applicants’ relatives, Ms Kha.A. and Mr A.-M.A., were granted victim status in the criminal case and questioned (see paragraphs 41 and 44 below).

32.  On 16 and 17 November 2009 the investigators reiterated their information requests to various district police departments in Chechnya asking whether Mr Rizvan Aziyev’s body had been found and/or whether he had been detained by their agents. The replies received were in the negative.

33.  On 10 December 2009 the deputy head of the Chechnya investigating committee criticised the investigation in the criminal case and ordered that, amongst others, that the following steps be taken:

“... to correct the deficiencies of the investigation in the criminal case... it is necessary:

-  to examine again the crime scene to find such evidence as fingerprints with the participation of the [relevant] forensic expert;...

-  to obtain list of phone calls made by Mr Rizvan Aziyev ... and the list of all mobile phone calls made in the vicinity of the crime scene between 6 and 8 p.m. on 31 October 2009 and establish the owners of the phone numbers from which they had originated ...”

34.  On 15 or 16 December 2009 the investigators again examined the crime scene. No evidence was collected.

35.  On 11 February 2010 the investigation in the criminal case was suspended for failure to identify the perpetrators.

36.  On 20 April 2010 the first applicant was granted victim status in the criminal case.

37.  On an unspecified date between January and April 2010 the investigators obtained a detailed list of connections made from the Mr Rizvan Aziyev’s mobile telephone on the date of the abduction, 31 October 2009. According to the list, after the abduction, text-messages were received by the phone in the vicinity of the town of Argun which was about fifteen kilometres from Grozny.

38.  According to the applicants, the investigators did not inform them of the progress in the criminal case. The applicants were able to familiarise themselves with the contents of the investigation file only after having been provided with a copy of its contents furnished by the Government upon the Court’s request to this end made on 27 August 2010.

39.  On 4 February 2011 the first applicant complained to the head of the Chechnya investigating department that the investigation of her brother’s abduction was ineffective, stating, amongst other things, the following:

“... I familiarised myself with the contents of the criminal case file as a result of which the following has been established:

1.  My brother had been detained at about 7.20 p.m. on 31 October 2009. The case file contains the list of his mobile phone connections for that day. According to that list, after the abduction, my brother’s mobile telephone had received a text message while being in Argun. At that time a checkpoint had been functioning on the roads leading from Grozny to Argun. Therefore, the persons who had detained my brother had taken him or his telephone to Argun; they had passed through two checkpoints of the law enforcement agencies. However, there is nothing in the case file showing that the investigators had taken any steps in respect of the staff who had manned those checkpoints on 31 October 2009.

2.  On 31 October 2009 the persons who had detained my brother had carried out a special operation in Staraya Sunzha. From the information obtained from the local residents, they had condoned off several streets and had not allowed anyone into the sealed off area.... In addition, these persons had used at least ten vehicles ... from the case file it does not follow that the investigation took steps to verify this information.

3.  The investigators, when questioning the local residents, could have asked them not only of the vehicles used by the abductors, but also of the direction in which they had left. However, no such steps have been taken.

4.  Mr Rizvan Aziyev had been abducted by a large group of armed persons who had arrived in at least ten vehicles and cordoned off significant area in Staraya Sunzha. Every time if a member or several members of illegal armed groups resurface in Chechnya, the authorities take urgent steps to eliminate them. In my brother’s case, the law-enforcement agencies had failed to take any steps to search for his abductors. They had arrived at the crime scene to inspect it several days later after the crime had been reported to them, in spite of the fact that already in about an hour after the abduction my cousin Mr A.-M.A. had informed the Leninskiy ROVD of the abduction. From this it is possible to conclude that the authorities had known that the persons who had detained my brother, had belonged to law-enforcement agencies. It also follows that the investigation in the criminal case should have questioned law-enforcement officials responsible for the Leninskiy district in Grozny in order to find out the reasons for their failure to take urgent steps to apprehend the abductors ...

5.  The persons who detained my brother on 31 October 2009 had been armed, in camouflage uniforms, had arrived as a large group, driven openly around Grozny and cordoned off large areas in the town. Nonetheless, the law enforcement authorities, having received the information about the abduction, had taken no steps to identify and arrest them. Such circumstances provide me with grounds to believe that my brother had been a victim of the State agents as a result of their special operation. In spite of those clear facts, the authorities had failed to establish the law-enforcement agencies empowered to carry out such operations in the Leninskiy district in Grozny and to questions their servicemen.

6.  From the above it follows that the investigation should have obtained information of all special operations conducted in Grozny on 31 October 2009 and their results. From the case file it follows that no such information was requested by the investigators.

7.  ... I and my relatives believe that Zarema Gaysanova provided the authorities with information about my brother which served as the basis for his arrest. Of course, Rizvan had known my former husband [Mr A.Kh.]. In connection with this the investigation in the criminal case should verify the theory of my brother’s abduction by the same persons who had abducted Zarema Gaysanova and question the law-enforcement officer known as Mr Isa who had asked me about Zarema Gaysanova. From the case file it follows that no steps have been taken to follow up on this information.

... In the light of the above, the actions of the investigation in the criminal case which led to failure to take the above and other investigative steps are unlawful and unsubstantiated...

On the basis of the above ... I request that you:

1.  Recognise as unlawful and unsubstantiated the actions of the investigators in criminal case no. 66093 for the failure to take all of the above investigative steps;

2.  Oblige the investigators in the criminal case to resume the proceedings and take the above steps;

3.  Inform me of the results of the examination of this request in accordance with the law...”

It is unclear whether any reply has been given to this request.

40.  No further information was submitted to the Court on the progress of the proceedings; but from the documents submitted it follows that the investigation is still pending.

2.  Main witness statements taken by the investigation

41.  On 4 November 2009 the investigators questioned the applicants’ relative Ms Kha.A. who provided detailed description of the abduction similar to the applicants’ account submitted to the Court.

42.  On 4 or 6 November 2009 (the date is illegible) the investigators questioned the applicants’ neighbour Ms R.A. whose statement was similar to that of the applicants submitted before the Court. In addition, she stated that the abductors had told her in Chechen to get back in the house and stay inside. From the conversation she had overheard between them, the witness had understood that the fair-haired intruder of medium height and solid built in embroidered scullcap (tubeteyka) had been in charge of the group.

43.  On 6 November 2009 the investigators questioned the first applicant whose statement was similar to the applicants’ account submitted before the Court.

44.  On 6 November 2009 the investigators also questioned Mr A.-M.A. whose statement was similar to the applicants’ account submitted to the Court.

45.  On 16 November 2009 the investigators again questioned Ms Kha.A. and Mr A.-M.A., both of whom reiterated their previously given statements.

46.  On 23 November 2009 the investigators again questioned the first applicant who reiterated her previously given statement.

47.  On 23 November 2009 the investigators also questioned the applicants’ relative and the father of Mr Rizvan Aziyev, Mr L.A., whose statement was similar to the applicants’ account submitted to the Court.

48.  On 25 November 2009 the investigators questioned the applicants’ neighbour Ms R.M. whose statement was similar to the applicants’ account submitted before the Court. In addition, she stated that the abductors had spoken Chechen and that she had subsequently learnt from the first applicant that when the abductors had arrived at their house, Mr Rizvan Aziyev had been in a shop in the 3^rd district in Grozny.

49.  On 16 December 2009 the investigators again questioned Ms Kha.A. and the first applicant both of whom reiterated their previously given statements.

II.  RELEVANT DOMESTIC LAW

50.  For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007) and for the relevant reports and statements by the national authorities see Aslakhanova and Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 80-84, 18 December 2012).

III.  INTERNATIONAL AND DOMESTIC REPORTS ON DISAPPEARANCES IN CHECHNYA AND INGUSHETIA

51.  For a summary of the relevant international and domestic reports see Makayeva v. Russia, no. 37287/09, §§ 67-77, 18 September 2014.

THE LAW

I.  THE GOVERNMENT’S PRELIMINARY OBJECTION

A.  The parties’ submissions

52.  The Government contended that the complaint should be declared inadmissible as premature, as the investigation of the disappearance of Mr Rizvan Aziyev had not yet been completed. They further argued, in relation to the complaint under Article 13 of the Convention, that it had been open to the applicants to lodge complaints with the courts about any acts or omissions on the part of the investigating authorities. They could also have claimed civil damages.

53.  The applicants contested the Government’s submission, stating that the only supposedly effective remedy, the criminal investigation, had proved to be ineffective. As for the possibility to complain to the courts about the investigators’ acts or omissions, the applicant stated that the effectiveness of the investigation should not have depended on their efforts to point out the investigation’s deficiencies; the authorities should have taken all measures possible of their own motion.

B.  The Court’s assessment

54.  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).

55.  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.

56.  As regards a civil action to obtain redress for damage sustained as a result of illegal acts or unlawful conduct on the part 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, §§ 119-21, 24 February 2005). In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed.

57.  As regards criminal remedies provided for by the Russian legal system, the Court, having found that criminal investigations into disappearances perpetrated in the region between 1999 and 2006 do not constitute effective remedy (see Aslakhanova and Others, cited above, §§ 217 and 219), observes that the abduction in the case at hand took place in 2009 and that an investigation has been pending since 11 November 2009. The applicants and the Government dispute the effectiveness of the investigation.

58.  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.  THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS

A.  The parties’ submissions

59.  The applicants maintained that it was beyond reasonable doubt that State agents had taken away Mr Rizvan Aziyev and subsequently killed him. In support of their complaint they referred to the following facts. The abductors had arrived as a large group of armed men in uniforms in numerous civilian vehicles which were typically used by the local law-enforcement agencies; the abductors had used portable radio-stations and condoned off a large area, which would have been impossible for an illegal armed group. The abductors had acted openly, without any fear of being discovered by the authorities and openly spoken with the applicants’ neighbours. The abductors had acted as an organised group under chain of command and had been able to drive unobstructed through checkpoints in the area. The authorities had not taken any urgent steps to establish the whereabouts of Mr Rizvan Aziyev in spite of the applicants’ immediate complaint about it. Finally, the authorities had motives for the abduction of Mr Rizvan Aziyev owing to his past as a member of illegal armed groups and his acquaintanceship with Mr A.Kh. who had been killed during the special operation carried out in another neighbourhood in Grozny on the same date. The applicants submitted that they had made a prima facie case that their relative had been abducted by State agents and that the essential facts underlying their complaints had not been challenged by the Government. They stressed that Mr Rizvan Aziyev had disappeared in life-threatening circumstances, that he had been missing for a long period of time and that therefore, he must be presumed dead.

60.  The applicants further argued that the investigation of the abduction had been ineffective. In particular, they alleged that the investigators had either failed to take a number of crucial investigative steps or they had taken important steps with major delays and deficiencies. In spite of being informed of the abduction shortly after the events, the authorities opened the criminal case only on 11 November 2009 and carried out the crime scene examination without forensic experts only on 6 November 2009, almost in a week after the report of the abduction. By December 2009 the crime scene had not been examined by forensic experts (see paragraph 33 above) that had led to the loss of such evidence as the culprits’ fingerprints, and the tracks of their boots and the vehicles’ tires. Not all the witnesses to the events had been established and those who had been identified and questioned had been questioned belatedly and in a superficial manner. The investigation into the abduction had accepted the theory that the perpetrators belonged to the State authorities and forwarded information requests to verify whether Mr Rizvan Aziyev had been in State custody whereas the other theories had not been verified. Despite the clear indications to the special operation against Mr Rizvan Aziyev, the investigators neither took steps to identify and question the law-enforcement officials as to the reasons for their belated reaction to the abduction nor requested information on special operations carried out in the area on 31 October 2009. The investigation was suspended in spite of the investigators’ failure to take basic steps (see paragraph 38 above).

61.  Referring to the cases Shaipova and Others v. Russia, no. 10796/04, § 85, 6 November 2008 the Government contended that the applicants had failed to make a prima facie case of State agents’ involvement into the abduction as the witnesses had not been sufficiently precise in the description of the perpetrators; the vehicles, uniforms and the firearms of the abductors could have been used by any other criminals and that there was no proof that Mr Rizvan Aziyev had been dead as his body was never found. They further claimed that the investigation of the incident had met the Convention requirement of effectiveness, as all possible measures available under national law were being taken to have the crime solved.

B.  The Court’s assessment of the facts

62.  The Court points out that a number of principles have been developed in its case-law as regards applications in which it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). 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 v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII).

63.  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.

64.  The period of time that has elapsed since the person disappeared, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time that goes by without any news of the disappeared person, the greater the likelihood that he or she has died. The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2 (see, among other authorities, Timurtaş v. Turkey, no. 23531/94, § 83, ECHR 2000-VI).

65.  The Court reiterates that where the applicant makes out a prima facie case, it is for the Government 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).

66.  The Court notes that in reply to its request for a copy of the investigation file into the abduction of Mr Rizvan Aziyev, the Government furnished its contents reflecting the period of the investigation between November 2009 and August 2010. The Government furnished no further updates on the progress of the proceedings. The applicants, on their part, updated the Court on the progress in the proceedings to the extent known to them.

67.  The Court notes that the criminal case materials in its possession reflect primarily the first year of the investigation into the circumstances of the abduction. Taking into account the importance of the first several months of an investigation into disappearance for the subsequent progress of the proceedings, the Court finds that the materials furnished by the parties suffice for the examination of the application.

68.  In view of the parties’ submission, the Court’s task is to decide whether the circumstances of the case could warrant the conclusion that State agents were responsible for the abduction of the applicants’ relative. As for the Government’s reference to Shaipova and Others, cited above, § 85, the Court notes, that unlike in that case where the abductors had arrived on foot and where the applicants’ statements concerning the perpetrators had been vague, in the present one there are materials in its possession demonstrating the validity of the applicants’ allegation of special operation for the following reasons. In spite of the absence at the material time of curfew in the area and the abductors arrival at the applicants’ house in civilian vehicles - unlike in numerous other cases concerning abductions perpetrated by State agents in the same district several years prior to the events in question (see, for example, Askhabova v. Russia, no. 54765/09, § 135, 18 April 2013 concerning abduction perpetrated in August 2009) the Court would like to point out the following. Firstly, the abductors arrived as a large group in at least ten vehicles; they cordoned off several streets and acted as an organised group. Their vehicles were able to drive freely through the military checkpoints situated in vicinity of Staraya Sunzha. The abductors had informed the local residents that they had been conducting a special operation (see paragraphs 10 and 12 above). Secondly, from the investigation file it follows that the investigators took no meaningful steps to check whether the abduction could have been perpetrated for other reasons, such as a blood feud, ransom, drugs or hostility. No serious steps were taken to verify those hypotheses and no information was obtained that the abductors could have been other than State agents (see, by contrast, Zubayrayev v. Russia, no. 67797/01, § 81, 10 January 2008). Lastly, the reluctance of the authorities to verify the information concerning the connection between the abduction of Mr Rizvan Aziyev and the killing on the same date as a result of the special operation of Mr A.Kh. (see paragraphs 8, 19, 21 and 39 above) provide the Court with the grounds to conclude that the applicants have made a prima facie case that their relative was abducted by State agents. The Government’s statement that the investigators found no evidence proving the involvement of members of law-enforcement authorities in Mr Rizvan Aziyev’s disappearance is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties and drawing inferences from the Government’s failure to provide another plausible explanation for the events in question, the Court finds that Mr Rizvan Aziyev was arrested on 31 October 2009 by State servicemen.

69.  There has been no reliable news of Mr Rizvan Aziyev since his arrest. The Government have not submitted any explanation as to what happened to him afterwards.

70.  The Court finds that, in a situation where a person is detained by unidentified police officers without any subsequent acknowledgment of the detention and is then missing for several years, that situation can be regarded as life-threatening. The absence of Mr Rizvan Aziyev or of any news of him for more than five years supports this assumption.

71.  Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Mr Rizvan Aziyev must be presumed dead following his unacknowledged detention by State agents.

III.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

72.  The applicants complained under Article 2 of the Convention that their relative Mr Rizvan Aziyev had been abducted and subsequently deprived of his life by State agents and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads:

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

A.  The parties’ submissions

73.  The Government contended that the domestic investigation had obtained no evidence to the effect that Mr Rizvan Aziyev was dead or that any State agents had been involved in his abduction. They further claimed that the investigation of the incident had met the Convention requirement of effectiveness, as all possible measures available under national law were being taken to have the crime solved.

74.  The applicants argued that Mr Rizvan Aziyev had been abducted by State agents and subsequently killed and that the investigation of the matter had been ineffective. In particular, they alleged that the investigators had either failed to take a number of crucial investigative steps or they had taken important steps with major deficiencies.

B.  The Court’s assessment

1.  Admissibility

75.  The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the issue concerning the exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 58 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

2.  Merits

(a)  Alleged violation of the right to life of Mr Rizvan Aziyev

76.  The Court has already found that Mr Rizvan Aziyev must be presumed dead following unacknowledged detention by State servicemen. In the absence of any justification put forward by the Government, the Court finds that his death can be attributed to the State and that there has been a violation of the substantive aspect of Article 2 in respect of him.

(b)  Effectiveness of the investigation into the abduction

(i)  General principles

77.  The obligation to protect the right to life under Article 2 of the Convention requires that there should be some form of effective official investigation (see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324). It is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Ögur v. Turkey [GC], no. 21954/93, §§ 91-92).

78.  The authorities must act of their own motion once the matter has come to their attention; they cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see, for example, mutatis mutandis, İlhan v. Turkey [GC] no. 22277/93, § 63).

79.  In this context, there must also be an implicit requirement of promptness and reasonable expedition (see Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87, 106). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation of a particular situation. However, a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.

80.  The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible (Ögur, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident (see, for example, Tanrikulu v. Turkey [GC], no. 23763/94, § 109). Any deficiency in the investigation which undermines its ability to establish the identity of the person responsible will risk falling below this standard.

81.  In addition, there must be a sufficient element of public scrutiny of the investigation or its results to ensure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see McKerr, cited above, § 115).

(ii)  Application of the principles to the present case

82.  In the present case, the abduction of Mr Rizvan Aziyev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

83.  The Court notes that the applicant reported the abduction to the authorities on 1 November 2009 at the latest (see paragraph 24 above). The official investigation was initiated on 11 November 2009 that is ten days after the receipt of the applicants’ official complaint. The crime scene examination was carried out three times, and only one and a half month after the receipt of the abduction complaint was it examined with the forensic experts which led to the loss of valuable evidence (see paragraphs 26, 27 and 34 above). From the beginning of the investigation, the applicants and their neighbours had stated that the abductors had been a large group of men looking like the police who had cordoned off several streets in the area. Despite the fact that the investigators received that information within the first week of the proceedings, by August 2010 they had not questioned any of the local law-enforcement officials to verify this information. The Court also notes that in spite of the numerous witnesses to the abduction (see paragraphs 9 and 10 above), the investigators limited themselves to the questionings of a few of them and in such a manner that it necessitated subsequent re-questionings (see paragraphs 41, 45 and 46 above). Further, in spite of the allegations that Mr Rizvan Aziyev could have been detained in connection with his affiliation with Mr A.Kh. (see paragraph 39 above), the investigators failed to take steps and verify this information. They made no attempts to question other persons, such as those who had manned the checkpoints in the vicinity of Staraya Sunzha and Argun on the date of the abduction (see paragraphs 37 and 39 above). In addition, the investigators failed to follow up on the information concerning the identity of one of the alleged abductors who had been seen and described to them by a neighbour (see paragraph 42 above). The investigators took no steps to establish whether the abductors’ vehicles could have belonged to the local law-enforcement agencies.

84.  Furthermore, from the documents submitted it appears that the supervisors had instructed the investigators to take the important steps (see paragraph 33 above) but it does not appear that those instructions were fully complied with.

85.  As regards the overall conduct of the proceedings, the Court notes that having been opened on 11 November 2009, the investigation was suspended already on 11 February 2010, without the necessary steps having been taken. Those premature suspensions in a situation in which vital steps had not been taken undermined the investigators’ ability to identify and prosecute the perpetrators (see Ögur, cited above, § 88).

86.  As for public scrutiny, the Court notes that the first applicant was granted victim status in April 2010 and her relatives shortly after the initiation of the criminal case in November 2009 (see paragraphs 31 and 36 above). It appears that they were not informed about the progress in the proceedings (see paragraphs 38 and 38 above). From the documents submitted it is unclear whether the applicants asked for access to the case file. Keeping the above factors in mind, it remains to be decided whether they were able to effectively pursue their legitimate interests in the proceedings.

87.  The Government argued that the applicants could have sought judicial review of the decisions of the investigating authorities as part of the exhaustion of domestic remedies. The Court accepts that, in principle, that remedy may offer a substantial safeguard against the arbitrary exercise of power by an investigating authority, given a court’s power to set aside the impugned decision and indicate the defects to be addressed.

88.  The Court, however, has strong doubts as to whether that remedy would have been effective in the circumstances of the present case for the following reasons. In the investigation of such a serious crime as abduction, it would be reasonable to presume that the authorities took all possible measures of their own motion to establish the whereabouts of the abducted man and to identify the culprits. Assuming that the applicants’ access to the case file would have provided them with the chance to assess the progress of the investigation, in the light of the shortcomings identified by the first applicant in February 2011 (see paragraph 39 above), it could have been presumed that these deficiencies would have been remedied and the necessary steps taken. However, the Government did not provide any information as to the status of the criminal proceedings afterwards. Nonetheless, even in the absence of the information about the investigative steps taken by the authorities upon the first applicant’s request, it is clear that they would have been taken only after February 2011.

89.  In such a situation, even if the applicants had appealed against the investigators’ actions, taking into account that the proceedings were ongoing for several months, it is highly questionable whether their appeal could have redressed the defects in the investigation by bringing them to the attention of a domestic court. In this connection, the Court reiterates that the authorities cannot leave it to the initiative of the next of kin to request particular lines of inquiry or investigative procedures (see, mutatis mutandis, İlhan, cited above, § 63): they must show their commitment by taking all steps of their own motion and demonstrating that they have taken the reasonable steps available to them to secure the evidence. Any deficiency in the investigation which undermines its ability to establish the identity of the person responsible will risk falling below this standard (see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; and Tanrikulu, cited above, § 109).

90.  However, the materials in the Court’s possession reveal that crucial investigative steps, which should have been taken as soon as the relevant information had been obtained, were never taken. This failure to act in a timely manner led to unnecessary protractions and a loss of time. It is highly doubtful that any appeals by the applicants against the investigators’ decisions would have had any prospects of spurring the progress of the investigation or effectively influencing its conduct. Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances of the present case and dismisses their objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation.

91.  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 Mr Rizvan Aziyev, in breach of Article 2 in its procedural aspect.

IV.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

92.  The applicants complained of a violation of Article 3 of the Convention as a result of the mental suffering caused to them by the disappearance of their close relative Mr Rizvan Aziyev. Article 3 stipulates:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

93.  The Government contested the argument.

94.  The applicants reiterated their complaint. 

The Court’s assessment

1.  Admissibility

95.  The Court notes that the complaint is linked to those examined above under Article 2 and must therefore likewise be declared admissible.

2.  Merits

96.  The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 in respect of close relatives of the victim. The essence of such a violation does not lie mainly in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva v. Russia, no. 7615/02, § 164, ECHR 2006-XIII (extracts)).

97.  In view of the above, the Court finds that the applicants suffered 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. At the same time the Court notes that the third applicant was born in February 2010, almost four months after his father’s disappearance. Having regard to this, the Court does not find that this applicant has suffered such distress and anguish as a result of his father’s disappearance that it would amount to a violation of Article 3 of the Convention (see, for a similar situation, Dokayev and Others v. Russia, no. 16629/05, § 105, 9 April 2009, and Babusheva and Others v. Russia, no. 33944/05, § 110, 24 September 2009).

98.  The Court, therefore, concludes that there has been a violation of Article 3 of the Convention in respect of the applicants, except for the third applicant. Consequently, there has been no violation of Article 3 of the Convention in respect of the third applicant.

V.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

99.  The applicant submitted that Mr Rizvan Aziyev 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.”

100.  The Government contested the argument.

101.  The applicants reiterated their complaint.

The Court’s assessment

1.  Admissibility

102.  The Court notes that the complaint is linked to those examined above under Article 2 of the Convention and must, therefore, likewise be declared admissible.

2.  Merits

103.  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, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others v. Russia, no. 69480/01, § 122, ECHR 2006-XIII (extracts)).

104.  The Court has found that Mr Rizvan Aziyev was arrested by State agents on 31 October 2009 and has not been seen since. His arrest was not acknowledged, was not logged in any custody records and no official trace of his subsequent whereabouts or fate exists. 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).

105.  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, to the conduct of the investigation, leave no doubt that the authorities failed to take prompt and effective measures to safeguard Mr Rizvan Aziyev against the risk of disappearance.

106.  In view of the foregoing, the Court finds that Mr Rizvan Aziyev was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

VI.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

107.  The applicants complained of a violation of Article 13 in conjunction with Article 2, which reads:

“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.”

108.  The Government contested that argument.

109.  The applicants reiterated their complaint. 

The Court’s assessment

1.  Admissibility

110.  The Court notes that the complaint is linked to those examined above under Article 2 and must therefore be declared admissible.

2.  Merits

111.  The Court reiterates that in circumstances where, as here, a criminal investigation of a 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).

112.  Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.

VII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

113.  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.  Damages

114.  In respect of pecuniary damage, the second and third applicants claimed 25,699 euros (EUR) and EUR 27,211 respectively for the loss of financial support which their father Mr Rizvan Aziyev could have provided to them. The applicants based their calculations on their own estimate on the basis of the subsistence level for children in the Chechen Republic in 2011 of 5,039 roubles (RUB) per month (approximately EUR 128).

115. In respect of non-pecuniary damage, the applicants claimed jointly EUR 200,000.

116.  The Government submitted that the applicants’ claim for pecuniary damage was unsubstantiated. In particular, they stressed that there was no proof that Mr Rizvan Aziyev had actually provided financial support to the second and third applicants, and pointed out the existence of domestic statutory machinery for the compensation for the loss of the family breadwinner. They further submitted that the amount claimed in respect of the non-pecuniary damage was excessive and that it should be determined on equitable basis.

B.  Costs and expenses

117.  The applicant was represented by Mr Dokka Itslayev. The aggregate claim in respect of costs and expenses related to the legal representation amounted to EUR 5,902. The amount claimed was due for the drafting of legal documents, translation services, and administrative and postal costs.

118.  The Government stated that the amounts claimed were unsubstantiated and that they were not reasonable.

C.  The Court’s assessment

1.  Damages

119.  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. The Court further finds that the loss of earnings applies to dependent children and that it is reasonable to assume that Mr Rizvan Aziyev would eventually have had some earnings from which the second and third applicants would have benefited (see, among other authorities, Babusheva and Others, cited above, § 148). Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article 2 in respect of Mr Rizvan Aziyev and the loss by the second and third applicants of the financial support which he could have provided to them.

120.  Having regard to the above and the applicants’ submission, the Court awards EUR 6,000 to the second applicant and EUR 6,000 to the third applicant in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

121.  The Court also notes that it has found violations of Articles 2, 5 and 13 of the Convention in respect of the applicants’ relative Mr Rizvan Aziyev and that the first and second applicants have been found to be the victim of a violation of Article 3 of the Convention. Having regard to this and the awards made in similar cases, the Court awards the applicants EUR 60,000 jointly plus any tax that may be chargeable thereon.

2.  Costs and expenses

122.  As to costs and expenses, the Court has to establish first whether these costs and expenses were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV).

123.  Having regard to its above conclusions, the principles enumerated above and the parties’ submissions, the Court awards the applicants EUR 2,000 under this head, plus any tax that may be chargeable to them on that amount. The award is to be paid into the representatives’ bank account, as identified by the applicants.

D.  Default interest

124.  The Court considers it appropriate that the default interest rate 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,

1.  Decides to join to the merits the issue of exhaustion of criminal domestic remedies and rejects it;

 

2.  Declares the application admissible;

 

3.  Holds that there has been a substantive violation of Article 2 of the Convention in respect of Mr Rizvan Aziyev;

 

4.  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 Mr Rizvan Aziyev disappeared;

 

5.  Holds that there has been a violation of Article 3 of the Convention in respect of the mental suffering caused to the first and second applicants and no violation of Article 3 of the Convention in respect of the third applicant;

 

6.  Holds that there has been a violation of Article 5 of the Convention in respect of Mr Rizvan Aziyev;

 

7.  Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;

 

8.  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 the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the second applicant;

(ii)  EUR 6,000 (six thousand euros) plus any tax that may be chargeable, in respect of pecuniary damage to the third applicant;

(iii)  EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicants jointly;

(iv)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account as indicated by 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.

 

9.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 23 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Søren Nielsen                                                                    Elisabeth Steiner
       Registrar                                                                              President