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FIRST
SECTION
CASE OF
SAMBIYEV AND POKAYEVA v. RUSSIA
(Application
no. 38693/04)
JUDGMENT
This
version was rectified on 27 July 2009
under
Rule 81 of the Rules of the Court
STRASBOURG
22 January 2009
FINAL
05/06/2009
This
judgment may be subject to editorial revision.
In the case of Sambiyev and Pokayeva v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and
André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 16 December 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 38693/04) 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 two Russian nationals, Mr Sharfudin
Saydkhasanovich Sambiyev and Mrs Rukiyat Supyanovna Pokayeva
(“the applicants”), on 8 October 2004.
- The
applicants were represented by lawyers of the Stichting Russian
Justice Initiative (“SRJI”), an NGO based in the
Netherlands with a representative office in Russia. The Russian
Government (“the Government”) were represented by Ms V.
Milinchuk, the former Representative of the Russian Federation at the
European Court of Human Rights and subsequently by their new
representative, Mr G. Matyushkin.
- On
21 January 2008 the Court decided to apply Rule 41 of the Rules
of Court and to grant priority treatment to the application and to
give notice of the application to the Government. Under the
provisions of Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1955 and 1958 respectively. They live in
Stariye Atagi, the Chechen Republic. They are the parents
of Mr Anzor Sambiyev (also known as Anzor Pokayev), born in 1980.
A. Death of Mr Anzor Sambiyev
1. The applicants' account
- According
to the applicants, after the disappearance of their other son, Mr
Amir Pokayev, in March 2002 (see Arzu Akhmadova and Others
v. Russia, no. 13670/03), the second applicant sent Mr Anzor
Sambiyev to live with her sister in Nazran where she believed him to
be safe. Servicemen often enquired after his whereabouts and asked
for his photographs, although they never explained why. The second
applicant never told them where he was and removed all his
photographs.
- On
8 April 2004 Mr Anzor Sambiyev came to Stariye Atagi to visit his
family.
- On
10 April 2004 at approximately 9 p.m. the second applicant and
Mr Anzor Sambiyev were at home. Suddenly armed servicemen of
federal troops wearing camouflage uniform rushed into the yard of the
house. There were about fifty servicemen who had arrived in armoured
personnel carriers (APCs) and a “Ural” vehicle. Some of
them surrounded the house. The second applicant told Mr Anzor
Sambiyev to jump out of the window into the garden. After he did, she
went to the yard and asked the servicemen what was wrong and what
they were looking for. They told her to step out of the house. When
she refused, they forced her into the yard. At that moment she heard
shooting.
- The
second applicant was not allowed to enter her house for approximately
half an hour while the servicemen were inside. She went into her
neighbours' yard. While she remained there she heard the neighbours'
children, who managed to see something through the fence, saying:
“They killed someone, they are dragging someone”.
- When
the servicemen left, the second applicant returned home and found
that everything had been thrown around the house. She noticed that
they had taken the first applicant's passport, driving licence,
medical certificate and a car certificate.
- In
the morning the next day the applicants went to the head of the
village administration and told him about the events of the previous
evening. At the same time a body was found on the outskirts of the
village of Prigorodnoye, which was identified as Mr Anzor Sambiyev.
At approximately 10 a.m. his body was brought to Stariye Atagi and
buried. He had a large wound near his heart, his arm was broken and
there was a bullet mark on his watch.
2. The Government's account
- According
to the Government, on 10 April 2004 at around 9 p.m. unidentified men
wearing camouflage uniform and masks, and armed with automatic
weapons, approached the house at 91 Nasrudilova Street in Stariye
Atagi in an Ural vehicle. Mr Anzor Sambiyev, who was inside the
house, jumped out of the window, and his mother, the second
applicant, did not want to leave the house but was forced to by the
armed men. After a short time she heard shooting and went out to the
yard, where one of her neighbours told her that Mr Anzor Sambiyev had
been taken away in the Ural vehicle. The neighbours also told her
that they had seen two APCs.
- On
11 April 2004 at around 9 a.m. the body of Mr Anzor Sambiyev, showing
signs of having died a violent death, was found on the left-hand side
of the Grozny – Shatoy road in the direction of Shatoy within
20 metres of the turning to the village of Prigorodnoye in the Grozny
District.
B. Official investigation
- On
11 April 2004 the Grozny District Prosecutor's Office opened criminal
investigation no. 34046 into Mr Anzor Sambiyev's abduction and
murder.
- During
an inspection of the place where the body had been found, conducted
on the same date, a cartridge case of 5.45 mm calibre was found under
the body. According to the report no. 526/K of the forensic
ballistic examination conducted on 9 May 2004, the cartridge could
have been fired either from a Kalashnikov assault rifle or from a
Kalashnikov light machine gun.
- On
13 and 19 April 2004 the applicants applied to the head of the Grozny
District Police Department, the Grozny District Prosecutor's Office,
the head of the village administration and the internal passport
authority (паспортный
стол)
with a description of the circumstances leading to the death of Mr
Anzor Sambiyev. They sought the identification and punishment of
those responsible for their son's murder and the return of the
documents stolen from their house during the search.
- The
forensic report no. 156 of
6 May 2004 recorded the following injuries on Mr Anzor
Sambiyev's body: two perforating bullet wounds to the chest and
stomach and two perforating bullet wounds to the right forearm. The
report described the perforating bullet wounds to the chest and
stomach as life-threatening and said that death could have been
caused by either of them. The report no. 156 was drawn up on the
basis of a previous report of an examination of the body on 11 April
2004.
- On
15 May 2004, during an inspection of their house, a cartridge case of
5.45 mm calibre was found in their garden. According to the report
no. 580/K of the forensic
ballistic examination conducted on 22 May 2004, the cartridge
could have been fired either from a Kalashnikov assault
rifle or from a Kalashnikov light machine gun
- On
15 May 2004 the applicants were granted victim status in the criminal
proceedings.
- The
second applicant was questioned on 15 May 2004, 15 May 2005 and 13
March 2008. She submitted that on 10 April 2004 she had been at home
with her son, Mr Anzor Sambiyev. At approximately 9 p.m. he had
said that “Russians” had come. She had told him to try to
escape through their neighbours' garden, which he had tried to do,
having jumped out of the window. Then she had gone out to the yard
where there had been a lot of men in camouflage uniform and masks
armed with automatic weapons. In the street, behind the gates, she
had seen an Ural vehicle. At that moment she had heard shooting. She
had tried to enter the house, but the armed men would not let her.
After a while she had entered the neighbours' yard and somebody had
told her that Anzor had been taken away in the Ural vehicle. At the
back of the yard, within approximately 10 metres of the window out of
which Mr Anzor Sambiyev had jumped she had noticed a spot of
blood and traces of a body being dragged from the window to the place
where the Ural vehicle had been parked.
- The
first applicant was questioned on 15 May 2004 and 13 March 2008. He
submitted that on the date in question he had been away and had
learned from the second applicant what had happened.
- Mr
S., a relative of the Sambiyevs, was questioned on 15 May 2004
and 29 February 2008. He stated that on 11 April 2004 at 7 a.m.
he had left for Grozny and on the road, within six kilometres from
Grozny, he had noticed a group of residents and a body lying on the
edge of the road wrapped in polyethylene. After the residents had
unwrapped the body, he had realised that it was his relative,
Mr Anzor Sambiyev.
- Mr
A. S., Mr Anzor Sambiyev's uncle, was questioned on 15 May 2004
and 22 January 2005. He submitted that on 10 April 2004, while at
home, he had heard shooting. In the evening of that day he had
learned that men in camouflage uniform had abducted his nephew, whose
body had been found the next day with multiple wounds.
- The
investigating authorities also questioned other residents of Stariye
Atagi, in particular: Ms Ya. S. on 14 May 2004, Mr R. A. and Mr A.
Ch. on 12 January 2005, Ms M.Ch., Mr M.A., Mr Z. D and Mr I. Ch on
16 January 2005, and Ms R. S. and Ms Z. Ch. on 22 January 2005.
They all stated that they had seen a group of armed men arrive at the
village in two APCs and two Ural vehicles. Otherwise their
submissions had been identical to those of Mr A. S.
- On
15 July 2004 the Grozny District Prosecutor's Office issued the
applicants with the following certificate:
“...[O]n 11 April 2004 the Grozny District
Prosecutor's Office instituted a criminal case no. 34046 ... in
respect of the following fact[s]:
On 10 April 2004 at approximately 9 p.m. a group of
persons wearing camouflage and masks and armed with automatic weapons
and accompanied by two APCs and two “Ural” vehicles
abducted Mr Anzor Sharpudinovich Pokayev, born in 1980, from his
house at 91, Kh. Nuradilova Street in the village of Stariye Atagi,
the Grozny District, the Chechen Republic.
On 11 April 2004 at approximately 9 a.m. on the
left-hand side of the Grozny to Shatoy road, in the direction of
Shatoy, within twenty metres from the turning to the village of
Prigorodnoye, in the Grozny District, A. Sh. Pokayev's body was
found. [The] body had multiple shotgun and stab wounds.
In the course of the preliminary investigation victim
status was granted to the parents of A. Sh. Pokayev.”
- On
5 and 16 July 2004 and 2 November 2005 the SRJI applied, on behalf of
the first applicant, in writing to the Grozny District Prosecutor's
Office asking for information on the progress of the investigation
and on the measures taken in order to identify the culprits.
- On
26 November 2005 the Grozny District Prosecutor's Office replied to
the SRJI that the investigation was being suspended, but that certain
investigative measures were nevertheless being carried out. It
further stated that, as had been noted in previous correspondence,
should the first applicant wish to study the case file, he should
come to the Grozny District Prosecutor's Office on any weekday from 9
a.m. to 6 p.m.
- On
24 December 2004 the investigating authorities questioned Mr Sh.,
an officer of the Grozny Department of the Interior (ROVD). He
submitted that on 11 April 2004 he had been informed that a body with
shotgun wounds had been found on the edge of the Grozny –
Shatoy road which had been identified by relatives as Mr Anzor
Sambiyev.
- On
25 December 2004 and 18 January 2005 the investigating authorities
questioned six officers of the Grozny ROVD. They stated that they had
information to the effect that Mr Anzor Sambiyev was a member of
an illegal armed group and had been involved in a number of killings.
- According
to the Government, the Grozny ROVD obtained information from the
villagers to the effect that Mr Anzor Sambiyev had been a member
of an illegal armed group under the command of Magomed, born in
Stariye Atagi, nicknamed “Nasrula”. Magomed, in turn, was
under the command of emir Isa Sadayev who headed an illegal armed
group called “Dzhamat”. Isa Sadayev was wanted for the
commission of particularly grave offences. The group of which
Mr Anzor Sambiyev had formed part was conducting terrorist acts
against the federal forces, officers of the Ministry of the Interior
and representatives of the local authorities. In particular, Mr Anzor
Sambiyev was suspected of complicity in the murder of four officials
of the department of the Federal Security Service (FSB) in the
Chechen Republic in Stariye Atagi in 2002. Mr S. K., a member of the
illegal armed group under the command of “Nasrula”,
submitted that apart from him Mr Anzor Sambiyev and eight other
residents of Stariye Atagi formed part of the group.
- In
order to establish the circumstances of the case, the investigating
authorities sent numerous requests for information to other
law-enforcement authorities, in particular: to the FSB department in
the Grozny District on 12 April and 20 December 2004, and on 4
and 27 February and 3 March 2008; to Bureau no. 2 of the
Investigation and Search Department of the Ministry of the Interior
on 12 April and 2 May 2004; to the Grozny ROVD on 17 May, 8 June
and 18 December 2004, 1 April 2005, and on 4 and 6 February
2008; to the Main Information Centre of the Ministry of the Interior
on 21 August 2004; to the Directorate on Combating
Organised Crime of the Ministry of the Interior and the Temporary
Alignment of Departments of the Ministry of the Interior on 4 and 27
February and 3 March 2008.
- In
order to establish whether a special operation had been conducted in
Stariye Atagi on 10 and 11 April 2004, the investigating authorities
sent the following requests for information: to the archive of the
North Caucasia military district of internal troops of the Ministry
of the Interior and to the archive of the North Caucasia military
district of the Ministry of Defence on 2 May 2004; to the military
prosecutor of military unit no. 20102 on 18 May, 8 June and 25
August 2004 and 18 December 2005; to the FSB department in the Grozny
District on 20 January 2005; to the Temporary Alignment of
Departments of the Ministry of the Interior on 20 January 2005.
- According
to the information received, no special operations had been conducted
in Stariye Atagi on 10 and 11 April 2004. At the same time, it was
confirmed that Mr Anzor Sambiyev had been a member of the
illegal armed group “Dzhamat” and since 1999 had been
involved in military actions against federal servicemen under the
nickname “Dzhandula”.
- The
Government submitted that the investigation in the case had been
suspended and resumed a number of times on account of the failure to
identify a person to be charged with the offence. The most recent
decision suspending the investigation of 15 March 2008 was quashed on
17 March 2008 and the investigation was resumed.
C. The Court's request for the investigation file
- Despite
a specific request by the Court, the Government did not submit a copy
of the entire file of the investigation into the abduction of
Mr Anzor Sambiyev. However, they submitted sixty-four pages of
case-file materials containing copies of expert reports, records of
questioning and various procedural decisions. The Government stated
that the investigation was in progress and that disclosure of the
documents would be in violation of Article 161 of the Code of
Criminal Procedure, since the file contained personal data concerning
the witnesses or other participants in the criminal proceedings.
II. RELEVANT DOMESTIC LAW
- For
a summary of relevant domestic law see Akhmadova and Sadulayeva v.
Russia, no. 40464/02, § 67-69, 10 May 2007.
THE LAW
I. The government's
objection regarding non-exhaustion of domestic remedies
A. The parties' submissions
- The
Government contended that the application should be declared
inadmissible for non-exhaustion of domestic remedies. They submitted
that it had been open to the applicants to challenge in court any
actions or omissions of the investigating or other law-enforcement
authorities, but that the applicants had not availed themselves of
that remedy. They also argued that it had been open to the applicants
to pursue civil complaints but they had failed to do so.
- The
applicants contested that objection. Referring to the other cases
concerning abductions in the Chechen Republic reviewed by the Court,
they also alleged that the existence of an administrative practice of
non-investigation of crimes committed by State servicemen in the
Chechnya rendered any potentially effective remedies inadequate and
illusory in their case. Also with reference to the Court's case-law,
they argued that they had not been obliged to apply to the courts
with a civil claim in order to exhaust domestic remedies.
B. The Court's assessment
- The
Court will examine the arguments of the parties in the light of the
provisions of the Convention and its relevant practice (for a
relevant summary, see Estamirov and Others v. Russia, no.
60272/00, § 73-74, 12 October 2006).
-
The Court notes that the Russian legal system provides, in principle,
two avenues of recourse for the victims of illegal and criminal acts
attributable to the State or its agents, namely civil and criminal
remedies.
- As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, the
Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention. A civil
court is unable to pursue any independent investigation and is
incapable, without the benefit of the conclusions of a criminal
investigation, of making any meaningful findings regarding the
identity of the perpetrators of fatal assaults or disappearances,
still less of establishing their responsibility (see Khashiyev and
Akayeva v. Russia, nos. 57942/00 and 57945/00,
§§ 119-121, 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.
- As
regards criminal-law remedies, the Court observes that the
investigation into the abduction and killing of Mr Anzor Sambiyev has
been pending since 11 April 2004. The applicants and the Government
dispute the effectiveness of the investigation.
- The
Court considers that this limb of the Government's preliminary
objection raises issues concerning the effectiveness of the criminal
investigation which are closely linked to the merits of the
applicants' complaints. Thus, it considers that these matters fall to
be examined below under the substantive provisions of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained under Article 2 of the Convention that their
relative had been abducted and killed by Russian servicemen and that
the domestic authorities had failed to carry out an effective
investigation of the matter. Article 2 reads:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. The parties' submissions
- The
Government submitted that the domestic investigation had obtained no
evidence to the effect that any servicemen of the federal
law-enforcement agencies had been involved in Mr Anzor Sambiyev's
abduction or killing. They pointed out, firstly, that no special
operation had been conducted in Stariye Atagi on the dates in
question. Secondly, no witness statements had been obtained by the
applicants themselves. Furthermore, the witnesses questioned by the
investigation had merely said that the men who had abducted Mr Anzor
Sambiyev had spoken Russian, had been wearing camouflage uniform and
had arrived in two APCs and two Ural vehicles. However, no more
precise description of those men had been provided. In particular,
there was no information about any military insignia which would
permit it to be established to which particular troops belonged those
men if they were indeed servicemen. The Government further submitted
that both camouflage uniform and weapons could easily have been
available to paramilitary groups in Chechnya. They referred to a
number of domestic decisions in respect of members of illegal armed
groups who had committed crimes dressed in camouflage uniform and had
identity documents of law-enforcement or other State authorities. The
Government further noted that, as had been established by the
domestic investigation, Mr Anzor Sambiyev had been a member of an
illegal armed group. They alleged that he could have been killed by
other members of the illegal armed group so as to prevent a possible
information leak or by other persons on account of a feud for
instance. The Government also claimed that the domestic investigation
had met the Convention requirement of effectiveness, as evidenced by
the questioning of witnesses by the investigating authorities and
requests sent by them to other State agencies.
- The
applicants argued that Mr Anzor Sambiyev had been abducted and killed
by State servicemen, which was confirmed by statements of other
residents who stated that on the date in question they had seen
servicemen arrive at the village in military vehicles. They further
argued that the investigation had not met the requirements of
effectiveness and adequacy required by the Court's case-law on
Article 2. The applicants noted that the investigation had been
adjourned and reopened a number of times, thus delaying the taking of
the most basic steps, and that they had not been properly informed of
the most important investigative measures.
B. The Court's assessment
1. Admissibility
- The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits.
Further, the Court has already found that the Government's objection
concerning the alleged non-exhaustion of domestic remedies in the
part related to criminal remedies should be joined to the merits of
the complaint (see paragraph 42 above). The complaint under Article 2
of the Convention must therefore be declared admissible.
2. Merits
(a) The alleged violation of Mr Anzor
Sambiyev's right to life
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 within 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 in the evening of 10 April 2004 their son, Mr
Anzor Sambiyev, had been apprehended by Russian servicemen and then
disappeared. The second applicant witnessed servicemen arriving at
their house, which was supported by statements by several other
witnesses. According to the applicants, the fact that his dead body
had been found the next morning proved that he had been killed by the
servicemen.
- The
Government conceded that Mr Anzor Sambiyev had been abducted by
unknown armed men on 10 April 2004 and subsequently killed by them.
However, they denied that any special operations had been carried out
in Stariye Atagi on that date. The Government referred to the absence
of reliable evidence which, in their view, would support the
conclusion that servicemen had been involved in the offence. In
particular, the applicants had failed to obtain any witness
statements themselves and, furthermore, the mere fact that the
abductors had been armed and had been wearing camouflage was not
sufficient to reach the above conclusion.
- The
Court observes that the Government did not deny that Mr Anzor
Sambiyev had been abducted by armed men; however, they denied that
those men were State agents. It notes that the second applicant was
an eyewitness to the events and that her account had been confirmed
by statements of ten other residents of Stariye Atagi questioned in
the course of the investigation. They all stated, in particular, that
they had seen a group of armed men arrive at the village in two APCs
and two Ural vehicles. The Court thus considers that the applicants
have presented a coherent and convincing picture of their son's
abduction on 10 April 2004.
-
The Court further notes that, according to the applicants and other
witnesses to the events, not only had Mr Anzor Sambiyev's abductors
been armed and dressed in camouflage uniform, but they had arrived in
two Ural vehicles and two APCs, which could not have been available
to paramilitary groups. This fact strongly supports the applicants'
allegation that they were State servicemen. In their application to
the authorities the applicants consistently maintained that Mr Anzor
Sambiyev had been detained by unknown servicemen and requested the
investigating authorities to look into that possibility. It notes in
addition that after four years the domestic investigation has
produced no tangible results.
- The
Court further observes that, although the Government refused to
provide a copy of the entire investigation file, they submitted a
significant part of the case file containing key elements that
considerably facilitated the examination of the present case by the
Court. Thus, from the materials available it can be established that,
although the investigation has not rendered any conclusive results,
the applicants' account of the events as supported by witness
statements was largely accepted by the investigating authorities. In
particular, on 15 July 2004 the Grozny District Prosecutor's Office
issued the applicants with a certificate stating that on 10 April
2004 a group of persons wearing camouflage and masks armed with
automatic weapons and accompanied by two APCs and two “Ural”
vehicles abducted Mr Anzor Sambiyev. However, the investigating
authorities failed to establish the identity of Mr Anzor Sambiyev's
abductors. In the Court's view, the information obtained by the
investigation to the effect that no special operations had been
conducted in Stariye Atagi on the dates in question is not sufficient
to refute the allegations that these were servicemen. The supposition
that, being a member of an illegal armed group, he could have been
abducted by other members or by unrelated persons, is likewise too
vague to disprove them.
-
Accordingly, on the basis of the body of evidence submitted by the
parties, the Court finds that on 10 April 2004 Mr Anzor Sambiyev was
apprehended by servicemen at his house in Stariye Atagi.
- The
Court further notes that in the morning of 11 April 2004 his dead
body, with bullet wounds, was found on the edge of the Grozny-Shatoy
road. Taking into account that no information has been submitted by
the Government concerning Mr Anzor Sambiyev's possible release or
escape following his apprehension by servicemen in the evening of 10
April 2004 and no other explanation has been provided as to his
subsequent death, and having regard to the general principles cited
in paragraph 47 above, the Court finds that Mr Anzor Sambiyev was
killed by State servicemen between 10 and 11 April 2004.
- Accordingly,
the Court finds that the evidence available permits it to establish
to the requisite standard of proof that on 10 April 2004 Mr Anzor
Sambiyev was apprehended by State servicemen and that he was killed
by them between 10 and 11 April 2004.
iii. The State's compliance with Article 2
- Article 2, which safeguards the right to life and sets
out the circumstances when deprivation of life may be justified,
ranks as one of the most fundamental provisions in the Convention, to
which no derogation is permitted. In the light of the importance of
the protection afforded by Article 2, the Court must subject
deprivation of life to the most careful scrutiny, taking into
consideration not only the actions of State agents but also all the
surrounding circumstances (see, among other authorities, McCann
and Others v. the United Kingdom, 27 September 1995, §§
146-47, 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' son was
killed by State servicemen following his apprehension. Noting that
the authorities do not rely on any ground of justification in respect
of the 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 Mr Anzor Sambiyev.
(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 1998-I). The essential purpose of such
an investigation is to secure the effective implementation of the
domestic laws which protect the right to life and, in those cases
involving State agents or bodies, to ensure their accountability for
deaths occurring under their responsibility. This investigation
should be independent, accessible to the victim's family, carried out
with reasonable promptness and expedition, effective in the sense
that it is capable of leading to a determination of whether the force
used in such cases was or was not justified in the circumstances or
otherwise unlawful, and afford a sufficient element of public
scrutiny of the investigation or its results (see Hugh Jordan v.
the United Kingdom, no. 24746/94, §§ 105-09,
4 May 2001, and Douglas-Williams v. the United Kingdom
(dec.), no. 56413/00, 8 January 2002).
- Turning
to the facts of the present case, the Court notes that the
authorities were immediately notified of the discovery of Mr Anzor
Sambiyev's body in the morning of 11 April 2004. The investigation
was instituted on the same date and the inspection of the place where
the body had been found was carried out. Accordingly, the Court is
satisfied that the authorities' reaction was sufficiently prompt.
- The
Court further notes that significant investigative steps were taken
by the authorities between 11 April 2004 and May 2005. In particular,
several forensic examinations were conducted, the applicants and
other numerous witnesses were questioned and a large number of
requests were sent to various state authorities which could have
provided relevant information in respect of the events in question. A
substantial amount of
information was obtained by the investigation as a result of these
measures.
- However,
the Court notes a subsequent period of inactivity of almost three
years until February 2008, when certain witnesses were again
questioned and certain requests were re-sent. The Court notes that a
period of inactivity that long, for which no explanation has been
provided, may not as such be considered compatible with the
requirement of “reasonable promptness” of the
investigation. Furthermore, it could only be detrimental to the
prospects of establishing the circumstances of the case and ensuring
the accountability of those responsible. The Court further notes that
it has no information about any efforts to trace the APCs and the
Ural vehicles after they had left Stariye Atagi. The Court considers
that the above failures of the investigating authorities constitute a
breach of the obligation to exercise exemplary diligence and
promptness in dealing with such a serious crime (see Paul and
Audrey Edwards v. the United Kingdom, no. 46477/99, § 86,
ECHR 2002-II).
- As
regards the interests of the next of kin, the Court notes that the
applicants were granted victim status on 14 May 2004, that is, less
then one month following the institution of the investigation. It
takes note of the applicants' allegation that they had not been
informed about the investigative measures taken. However, in the
letter of 26 November 2005 the Grozny District Prosecutor's Office
invited the first applicant to study the case file. From the text of
the letter it appears that the invitation was contained in previous
correspondence as well. No evidence has been submitted by the
applicants indicating that their right to study the case file was
subsequently denied or restricted. In the absence of such
information, the Court finds that the investigators took sufficient
measures to safeguard the interests of the next of kin in the
proceedings.
- Having
regard to the limb of the Government's preliminary objection that was
joined to the merits of the complaint, the Court observes that the
investigation was resumed by the prosecuting authorities themselves a
number of times, presumably due to the need to take additional
investigative steps. However, they still failed to investigate
the applicants' allegations properly. 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. Therefore, it is
highly doubtful that the remedy relied on would have had any
prospects of success. Accordingly, the Court finds that the remedy
relied on by the Government was ineffective in the circumstances and
dismisses their preliminary objection as regards the applicants'
failure to exhaust domestic remedies within the context of the
criminal investigation.
- In
the light of the foregoing, the Court holds that the authorities
failed to carry out an effective criminal investigation into the
circumstances of the abduction and killing of Mr Anzor Sambiyev, in
breach of Article 2 in its procedural aspect.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN
RESPECT OF THE APPLICANTS
- The
applicants relied on Article 3 of the Convention, submitting that as
a result of their son's abduction and killing and the State's failure
to investigate it properly, they had endured mental suffering in
breach of Article 3 of the Convention. They also stated that it was
highly probable that Mr Anzor Sambiyev had been subjected to
treatment contrary to Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
- The
Government accepted that the applicants must have suffered as a
result of their son's killing. However, since the involvement of
State agents in his abduction or killing had not been established,
the State could not be held responsible for their suffering. They
also stated that the investigation had not established that Mr Anzor
Sambiyev had been subjected to treatment prohibited by Article 3 of
the Convention.
- In
their observations on the admissibility and merits of the application
the applicants submitted that they no longer wished to have the
complaint regarding alleged ill-treatment of Mr Anzor Sambiyev
examined. They further reiterated the complaint concerning the mental
suffering endured.
B. The Court's assessment
1. Admissibility
(a) The
complaint concerning the alleged ill-treatment of Mr Anzor
Sambiyev
- The
Court, having regard to Article 37 of the Convention, finds that the
applicants do not intend to pursue this part of the application,
within the meaning of Article 37 § 1 (a). The Court also finds
no reasons of a general character, affecting respect for human
rights, as defined in the Convention, which require further
examination of the present complaints by virtue of Article 37 §
1 of the Convention in fine (see, for example, Chojak
v. Poland, no. 32220/96, Commission decision of 23 April
1998, unpublished; Singh and Others v. the United Kingdom
(dec.), no. 30024/96, 26 September 2000; and Stamatios
Karagiannis v. Greece, no. 27806/02, § 28,
10 February 2005).
- It
follows that this part of the application must be struck out in
accordance with Article 37 § 1 (a) of the Convention.
(b) The
complaint concerning the applicants' mental suffering
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The Court observes that the question whether a member
of the family of a “disappeared person” is a victim of
treatment contrary to Article 3 will depend on the existence of
special factors which give the suffering of the applicants a
dimension and character distinct from the emotional distress which
may be regarded as inevitably caused to relatives of a victim of a
serious human rights violation. Relevant elements will include the
proximity of the family tie, the particular circumstances of the
relationship, the extent to which the family member witnessed the
events in question, the involvement of the family member in the
attempts to obtain information about the disappeared person and the
way in which the authorities responded to those enquiries. The Court
would further emphasise that the essence of such a violation does not
mainly lie in the fact of the “disappearance” of the
family member but rather concerns the authorities' reactions and
attitudes to the situation when it is brought to their attention. It
is especially in respect of the latter that a relative may claim
directly to be a victim of the authorities' conduct (see Orhan,
cited above, § 358, and Imakayeva v. Russia,
no. 7615/02, § 164, ECHR 2006 ... (extracts)).
- In
the present case the Court notes that the applicants are the parents
of Mr Anzon Sambiyev, who was abducted in the evening of 10 April
2002 and whose dead body was found in the morning of the next day. It
observes that this case is distinct from the majority of other cases
concerning disappearances in the Chechen Republic that have come
before the Court in that the applicants' son could be considered a
“disappeared person” for no more than several hours. It
further notes that its findings under the procedural aspect of
Article 2 (see paragraph 64 above) to the effect that the
investigators took sufficient steps to safeguard the interests of the
next of kin in the proceedings are also of direct relevance here. In
view of the above, the Court considers that in the present case no
separate issues arise under this Convention provision beyond those
already examined under Article 2 of the Convention and Article 13 of
the Convention (below) (see Tangiyeva v. Russia, no. 57935/00,
§ 104, 29 November 2007).
- In
these circumstances, while the Court does not doubt that the death of
their son caused the applicants profound suffering, it nevertheless
finds no basis for finding a violation of Article 3 of the Convention
in this context.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants further stated that Mr Anzor Sambiyev had been detained in
violation of the guarantees of Article 5 of the Convention, which
reads, in so far as relevant:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. The parties' submissions
- In
the Government's opinion, no evidence was obtained by the
investigators to confirm that Mr Anzor Sambiyev had been deprived of
his liberty by State agents in breach of the guarantees set out in
Article 5 of the Convention.
- The
applicants reiterated the complaint.
B. The Court's assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that the complaint is not inadmissible on any other grounds and
must therefore be declared admissible.
2. Merits
- The
Court has previously noted the fundamental importance of the
guarantees contained in Article 5 to secure the right of individuals
in a democracy to be free from arbitrary detention. It has also
stated that unacknowledged detention is a complete negation of these
guarantees and discloses a very grave violation of Article 5 (see
Çiçek v. Turkey, no. 25704/94, § 164,
27 February 2001, and Luluyev and Others v. Russia,
no. 69480/01, § 122, ECHR 2006 ... (extracts)).
- The Court has found it established that Mr Anzor
Sambiyev was apprehended by State servicemen on 10 April 2004.
His dead body was found the next day. 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 and the reasons for the detention and the
name of the person effecting it, must be seen as incompatible with
the very purpose of Article 5 of the Convention (see Orhan,
cited above, § 371).
- In
view of the foregoing, the Court finds that Mr Anzor Sambiyev 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 6 OF THE CONVENTION
- The
applicants complained that under national law they were barred from
filing a civil claim to obtain compensation for their relative's
unlawful detention or death pending the outcome of the criminal
investigation. They relied on Article 6 § 1 of the
Convention, the relevant parts of which provide:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. The parties' submissions
- The
Government disputed this allegation.
- The
applicants made no further submissions.
B. The Court's assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that the complaint is not inadmissible on any other grounds and
must therefore be declared admissible.
2. Merits
- The
Court finds that the applicants' complaint under Article 6 concerns
essentially the same issues as those discussed under the procedural
aspect of Article 2 and, below, under Article 13. In these
circumstances, the Court finds that no separate issues arise under
Article 6 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants complained that they had been deprived of effective
remedies in respect of the violation of Article 2 of the Convention,
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 submitted that the applicants could actively participate
in the investigation and appeal against actions or omissions of the
investigating authorities in court, which they had failed to do.
Furthermore, they could file claims in respect of non-pecuniary
damage, which they had not done either. The Government argued that
the applicants thus had effective domestic remedies in respect of
their complaints. They referred, in particular, to several decisions
by courts of the Chechen Republic delivered in other cases upholding
complaints concerning certain actions of investigating authorities or
awarding non-pecuniary damages.
- The
applicants argued that in their case the State had failed to conduct
an adequate investigation into the abduction and killing of their
son, which undermined the effectiveness of other possible remedies.
B. The Court's assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The
Court reiterates that Article 13 of the Convention guarantees the
availability at the national level of a remedy to enforce the
substance of the Convention rights and freedoms in whatever form they
might happen to be secured in the domestic legal order. According to
the Court's settled case-law, the effect of Article 13 of the
Convention is to require the provision of a remedy at national level
allowing the competent domestic authority both to deal with the
substance of a relevant Convention complaint and to grant appropriate
relief, although Contracting States are afforded some discretion as
to the manner in which they comply with their obligations under this
provision. However, such a remedy is only required in respect of
grievances which can be regarded as “arguable” in terms
of the Convention (see, among many other authorities, Halford v.
the United Kingdom, 25 June 1997, § 64, Reports of
Judgments and Decisions 1997 III).
- As
regards the complaint of lack of effective remedies in respect of the
applicants' complaint under Article 2, the Court emphasises that,
given the fundamental importance of the right to protection of life,
Article 13 requires, in addition to the payment of compensation where
appropriate, a thorough and effective investigation capable of
leading to the identification and punishment of those responsible for
the deprivation of life and infliction of treatment contrary to
Article 3, including effective access for the complainant to the
investigation procedure leading to the identification and punishment
of those responsible (see Anguelova v. Bulgaria, no. 38361/97,
§§ 161-62, ECHR 2002-IV, and Süheyla Aydın
v. Turkey, no. 25660/94, § 208, 24 May 2005). The Court
further reiterates that the requirements of Article 13 are
broader than a Contracting State's obligation under Article 2 to
conduct an effective investigation (see Khashiyev and Akayeva,
cited above, § 183).
- In
view of the Court's above findings with regard to Article 2,
this complaint is clearly “arguable” for the purposes of
Article 13 (see Boyle and Rice v. the United Kingdom,
27 April 1988, § 52, Series A no. 131). The
applicants should accordingly have been able to avail themselves of
effective and practical remedies capable of leading to the
identification and punishment of those responsible and to an award of
compensation for the purposes of Article 13.
- It
follows that in circumstances where, as here, the criminal
investigation into the disappearance has been ineffective and the
effectiveness of any other remedy that may 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.
- Consequently,
there has been a violation of Article 13 in conjunction with Article
2 of the Convention.
VII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicants alleged that they had been discriminated against in the
enjoyment of their Convention rights, since the violations of which
they complained had taken place on account of their being resident in
Chechnya and their ethnic background as Chechens. This was contrary
to Article 14 of the Convention, which reads as follows:
“The enjoyment of the right and freedoms set forth
in [the] Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a national
minority, property, birth or other status.”
A. The parties' submissions
- The
Government argued that the allegations were unsubstantiated.
- The
applicants maintained the complaint.
B. The Court's assessment
- The
Court observes that no evidence has been submitted to it that
suggests that the applicants were treated differently from persons in
an analogous situation without objective and reasonable
justification, or that they have ever raised this complaint before
the domestic authorities. It thus finds that this complaint has not
been substantiated.
- It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
VIII. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
- The
applicants claimed that they had sustained damage in respect of the
loss of their son's earnings following his apprehension and
subsequent killing. The first applicant claimed 176,745.77 roubles
(RUR) (approximately 4,995 euros (EUR)) and the second applicant
claimed RUR 180,153.47 (approximately EUR 5,090) under this head.
- The
applicants claimed that Mr Anzor Sambiyev had been temporarily
unemployed due to the situation in Chechnya. Having regard to the
provisions of the Civil Code on the calculation of lost earnings,
they claimed that the amount of an unemployed person's earnings
should be equal to the average remuneration of a person with similar
qualifications and could not be based on an amount lower than the
subsistence level determined by federal laws. They submitted that
they were dependent on their son and would have benefited from the
latter's financial support in the amounts indicated above, that is,
10% of his earnings in respect of each applicant. Their calculations
were based on provisions of the Civil Code and the actuarial tables
for use in personal injury and fatal accident cases published by the
United Kingdom Government Actuary's Department in 2007 (“the
Ogden tables”).
- The
Government argued that no compensation for pecuniary damage should be
awarded to the applicants since it had not been established that
State agents had been involved in his abduction and death.
Furthermore, the Government contested the applicants' use of the
Ogden tables arguing that the calculations should be based on the
national legislation. They also pointed out that the applicants
should have applied to the domestic courts with a claim for
compensation for damage caused by the death of the family's
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. Furthermore, under Rule 60 of the Rules of Court any
claim for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”. The
Court finds that there is indeed a direct causal link between the
violation of Article 2 in respect of the applicants' son and the
loss by them of the financial support which he could have
provided. It further notes that Mr Anzor Sambiyev was
unemployed. Nevertheless, the Court finds it reasonable to assume
that he would eventually have had some earnings and that the
applicants would have benefited from them. Having regard to the
applicants' submissions, the Court awards them jointly EUR 5,000 in
respect of pecuniary damage, plus any tax that may be chargeable on
that amount.
B. Non-pecuniary damage
- The
applicants claimed EUR 250,000 jointly in respect of
non-pecuniary damage for the suffering they had endured as a result
of the loss of their son and the indifference shown by the
authorities towards them.
- The
Government found the amount claimed exaggerated.
- The
Court has found a violation of Articles 2, 5 and 13 of the Convention
on account of the unacknowledged detention and killing of the
applicants' son. The Court thus accepts that they have suffered
non-pecuniary damage which cannot be compensated for solely by the
findings of violations. It awards the applicants jointly EUR 35,000,
plus any tax that may be chargeable thereon.
C. Costs and expenses
- The
applicants were represented by the SRJI. They submitted an itemised
schedule of costs and expenses that included research and interviews
in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the
drafting of legal documents submitted to the Court and the domestic
authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR
150 per hour for SRJI senior staff. They also claimed postal expenses
in the amount of EUR 59.99, translation expenses in the amount of EUR
64.80, as certified by invoices, and administrative expenses in the
amount of EUR 450.45. The aggregate claim in respect of costs
and expenses related to the applicants' legal representation amounted
to EUR 7,010.24.
-
The Government did not dispute the details of the calculations
submitted by the applicants, but pointed out that they should be
entitled to the reimbursement of their costs and expenses only in so
far as it had been shown that they had been actually incurred and
were reasonable as to quantum (see Skorobogatova v. Russia,
no. 33914/02, § 61, 1 December 2005).
- The
Court has to establish first whether the costs and expenses indicated
by the applicants were actually incurred and, second, whether they
were necessary and reasonable (see Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 54,
ECHR 2000-XI).
- Having
regard to the details of the information available, the Court is
satisfied that these rates are reasonable and reflect the expenses
actually incurred by the applicants' representatives. As
regards the necessity of the costs and expenses incurred for legal
representation, the Court notes that this case was rather complex and
required a certain amount of research and preparation. It notes at
the same time that, due to the application of Article 29 § 3 in
the present case, the applicants' representatives submitted their
observations on admissibility and merits in one set of documents. The
Court thus doubts that the legal drafting was necessarily
time-consuming to the extent claimed by the representatives.
- Having regard to the details of the claims submitted
by the applicants and acting on an equitable basis, the Court awards
them EUR 6,000, together with any value-added tax that may be
chargeable, the net award to be paid into the representatives' bank
account in the Netherlands, as identified by the applicants.
D. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the
Government's objection as to non-exhaustion of criminal domestic
remedies and rejects it;
- Declares the complaints under Articles 2, 3, 5,
6 and 13 of the Convention admissible, decides to strike the
application out of its list of cases in accordance with Article 37 §
1 (a) of the Convention in so far as it concerns the applicants'
complaint under Article 3 of the Convention in respect of Mr Anzor
Sambiyev, and declares the remainder of the application
inadmissible;
- Holds that there has been a violation of
Article 2 of the Convention in respect of Mr Anzor Sambiyev;
- 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 abduction and killing of Mr Anzor
Sambiyev;
5. Holds that there has been no violation of
Article 3 of the Convention in respect of the applicants;
6. Holds that there has been a violation of
Article 5 of the Convention in respect of Mr Anzor Sambiyev;
- Holds that no separate issues arise under
Article 6 of the Convention;
8. 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;
9. Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts:
(i) EUR 5,000
(five thousand euros), plus any tax that may be chargeable, to be
converted into Russian roubles at the rate applicable at the date of
settlement, in respect of pecuniary damage to the applicants jointly;
(ii) EUR 35,000
(thirty-five thousand euros), plus any tax that may be chargeable, to
be converted into Russian roubles at the rate applicable at the date
of settlement, in respect of non-pecuniary damage to the applicants
jointly;
(iii) EUR 6,000
(six 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 in the Netherlands;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants'
claim for just satisfaction.
Done in English, and notified in writing on 22 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Registrar President
