FIRST SECTION
CASE OF VAKHAYEVA
v. RUSSIA
(Application no. 27368/07)
JUDGMENT
STRASBOURG
10 July 2012
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 Vakhayeva v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
NinaVajić,
President,
AnatolyKovler,
PeerLorenzen,
ElisabethSteiner,
KhanlarHajiyev,
MirjanaLazarova Trajkovska,
JuliaLaffranque, judges,
and SørenNielsen, Section Registrar,
Having deliberated in private on 19 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 27368/07)
against the Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, MsTamara Vakhayeva(“the applicant”), on 8
June 2007.
The applicantwas represented by lawyers of the
Stitching Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of Human Rights.
On 1 July 2010 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
applicationto the Government. Under the provisions of former Article 29 §
3 of the Convention, it decided to examine the merits of the applicationat the
same time as itsadmissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1947 and lives in
Urus-Martan. She is the mother of Ruslanbek (also spelled as Rustambek)
Vakhayev, who was born in 1974.
A. Disappearance of Ruslanbek Vakhayev
1. The applicant’s account
(a) The detention of Ruslanbek Vakhayev
At the material time the Urus-Martan district was
under the full control of the Russian federal forces. A strict curfew was
enforced in the area. Military checkpoints manned by Russian servicemen were
located on the roads leading to and from the town of Urus-Martan and other
settlements in the district. One of the checkpoints, called “Roshnya” (“Рошня”) (from the documents
submitted it follows that it was also known as KPP-206 (контрольно-пропускнойпункт
206)), was located on the south-west outskirts of Urus-Martan, on the road
leading from Urus‑Martan to the village of Roshni-Chu.
On 5 October 2001 Ruslanbek Vakhayev and his
friend Mr M.D. drove in the latter’s white VAZ-2106 car with registration
number K674XT95 from Urus-Martan to Roshni-Chu. The young men were going to
visit Mr M.D.’s fiancé to discuss wedding plans. On the way to Roshni‑Chu
they picked up a woman with anill child to give thema lift. The woman was
returning to the village after seeing a doctor at the Urus‑Martan central
district hospital.
At about 4 p.m. the car was stopped by military
servicemen at the “Roshnya” checkpoint for an identity check. After the check
the officers told the passengers that they were detaining the driver, Mr M.D.,
and ordered everyone to get out of the car.
After that the servicemen started to beat Mr M.D.
Ruslanbek Vakhayev tried to talk to the officers, but one of them pulled the
cap off his head and threw it on the ground. Then Ruslanbek hit the officer in
the face. Next the servicemen started to beat him with rifle-butts and kicks
and closed the passage through the checkpoint. As a result, a large crowd of
local residents gathered at the roadblock awaiting the opening of the passage
and witnessing the beating of Ruslanbek Vakhayev and Mr M.D. The servicemen did
not allow anybody to approach and opened gunfire to keep the crowd away.
One of the officers called someone via his
portable radio set. Shortly afterwards an APC (armoured personnel carrier)
arrived at the checkpoint. The servicemen forced Ruslanbek Vakhayev into the
APC and Mr M.D. into the boot of his white VAZ-2106 car. The latter managed to
shout his name and address into the crowd and asked the witnesses to inform his
relatives about the arrest.
After that the APC and the white VAZ-2106 car
drove away in the direction of the town centre of Urus-Martan.
(b) Subsequent events
. On 6 October
2001 the applicant’s daughter,Ms M.V., went to Mr M.D.’s relatives to find
out the whereabouts of her brother Ruslanbek, who had not returned home the
night before.
The mother of Mr M.D. told her that she had
heard about the arrest of two young Chechen men in a white VAZ-2106 car on 5
October 2001 at the checkpoint located on the road leading from Urus-Martan to
Roshni‑Chu.
The applicant’s daughter returned home and
informed the family about the events at the checkpoint. Then the applicant and
her relatives went to the building of the Urus-Martan temporary district
department of the interior (the VOVD) in the town centre to find out whether
the State authorities had any information about their relative. The applicant
joined the crowd of local residents which had gathered outside the building.
The applicant asked around whether anyone had heard about the arrest of two men
at the checkpoint. Several women confirmed that they had witnessed the arrest
of two Chechen men at the checkpoint on 5 October 2001 and suggested that the
applicant talk to local taxi drivers who had closely witnessed the events.
After that the applicant went to the taxi stand
where she spoke to taxi drivers working on the route between Urus-Martan and
Roshni-Chu. One of them confirmed that he had seen the servicemen at the
checkpoint stopping a white VAZ car with two young men and a woman with a child
in it, and the subsequent apprehension of the two men. The woman with the child
had been taken from the checkpoint to Roshni-Chu by another taxi driver.
Meanwhile, a man visited the house of Mr M.D.
and informed his relatives that he had witnessed Mr M.D.’s arrest at the
checkpoint. The man had been able to find Mr M.D.’s relatives as the latter had
managed to shout out his name and address before being forced into the boot of
the car.
In the evening of 6 October 2001 the woman with
the child visited the applicant’s home. She told the applicant that on 5
October 2001 she had visited a doctor in Urus-Martan and was looking for a lift
back home to Roshni-Chu. Mr M.D. and Ruslanbek Vakhayev had picked her up to
give her a lift to the village. At the “Roshnya” checkpoint the car had been
stopped by military servicemen and the two men had been arrested and taken
away. The applicant did not note the woman’s name and address.
Several days later the applicant spoke to Mr
L.M., the deputy head of the Urus-Martan district administration. The latter
confirmed that Ruslanbek Vakhayev and Mr M.D. had been arrested at the
checkpoint located on southwest outskirts of Urus-Martan and were detained in
the Urus-Martan district military commander’s office (the district military
commander’s office) located in the centre of the town. Mr L.M. promised the
applicant that he wouldhelp get her son released. He was unable to assist the
applicant as at some point later he was killed.
Sometime after the abduction the applicant’s
daughter, Ms M.V. saw the white VAZ-2106 car with registration number K674XT95
on the premises of the district military commander’s office. She recognised the
car by its colour, registration number and the curtains with the tiger head
pattern in the back window of the car. For about two months after the abduction
she saw the car on numerous occasions in the town centre; men in military
uniforms were driving in it.
There has been no news of Ruslanbek Vakhayev and
Mr M.D. since their arrest.
In support of her statements the applicant
submitted the following documents: a statement by Ms N.M. dated 15 March 2007;
a statement by Ms Ya.I. dated 15 March 2007; a statement by Ms A.Ch. dated 23
March 2006, a statement by Ms M.V. dated 4 April 2007, a statement by the
applicant dated 5 April 2007 and copies of the
documents received from the authorities.
2. Information submitted by the Government
The Government did not challenge the matter as
presented by the applicant.At the same time they submitted that there was no
evidence that Ruslanbek Vakhayev was dead or that State servicemen were
involved in his alleged abduction.
B. The official
investigation into the abduction
1. Information submitted by the applicant
According to the applicant, on 7 October 2001
she complained in writing about her son’s abduction to a number of local
law-enforcement agencies. She did not retain a copy of her complaint.
On 2 June 2002 the applicant complained about
the abduction of her son by military servicemen at the checkpoint to the
district prosecutor, the head of the VOVD and the district military commander.
She stated that his abduction had been witnessed by a large number of local
residents, including the woman with the ill child.
On 30 June 2002 the Chechnya department of the
Federal Security Service (the FSB) informed the applicant that they had
forwarded her complaint about her son’s abduction to the Chechnya prosecutor’s office.
On 14 August 2002, 30 May and 7 July 2003 the military
prosecutor’s office of the United Group Alignment (the UGA) forwarded the
applicant’s complaints about the abduction to the military prosecutor’s office
of military unit no. 20102.
On 17 September 2002 and 12 May 2003 the
Prosecutor General’s office in the Southern Federal Circuit forwarded the
applicant’s complaint about the ineffectiveness of the investigation into her
son’s abduction and request for assistance in the search for him to the Chechnya prosecutor’s office for examination.
On nine occasions, that is, on 23 and 30
September 2002 and then on 9 and 17 June and 18 August 2003, and 4 March,
24 June, 28 November and 21 December 2005 the Chechnya prosecutor’s office forwarded
the applicant’s complaints about her son’s abduction from the checkpoint and
her requests for assistance in the search for him to the district prosecutor’s
office for examination.
On 3 November 2002 (in the submitted materials
the date was also stated as 18 October 2000) the Urus-Martan district
prosecutor’s office instituted an investigation into the abduction of Ruslanbek
Vakhayev under Article 126 of the Criminal Code (kidnapping). The case
file was given the number 61153 (in the submitted documents the number was also
referred to as 24048).
On 25 December 2002 the investigators granted
the applicant victim status in the criminal case.
On 14 January 2003 the investigators informed
the applicant that on an unspecified date they had suspended the investigation
in the criminal case for failure to establish the identities of the
perpetrators.
On 29 April 2003 the Chief Military Prosecutor’s
office forwarded the applicant’s complaint about her son’s abduction from the
checkpoint to the military prosecutor’s office of the UGA.
On 10 June 2003 the Chechnya Ministry of the Interior
(the Chechnya MVD) forwarded the applicant’s complaint about her son’s
abduction to the VOVD for examination.
On 17 and 30 June 2003 the military prosecutor’s
office of military unit no. 20102 informed the applicant that the
examination of her complaints had not established any involvement of military
servicemen in the abduction of Ruslanbek Vakhayev.
On 20 June 2003 and 8 December 2005 the VOVD
informed the applicant that neither military servicemen,nor representatives of
law enforcement agencies of the Urus-Martan district had arrested her son and
that he was not detained on the premises of the VOVD. In the first letter the
authorities referred to criminal case no. 24048, and in the second letter
they referred to criminal case no. 61153.
On 3 July 2003 the district military commander’s
office informed the applicant that they had conducted an inquiry into her
allegations about the abduction of her son at the checkpoint and stated the
following:
“...as of 30 June 2003 the Urus-Martan district military
commander’s office does not have any information concerning the whereabouts of
your son and the reasons for his arrest. The absence of information is
explained by the fact that the [current] military commander’s office has been
fulfilling its tasks in the Urus-Martan district only since 28 December 2002
and the fact that the reference to [your son’s] arrest ‘in the autumn of 2001’
is not precise enough.”
On 5 August 2003 the applicant complained to the
Chechnya prosecutor. In her letter she stated that her son had been detained
at the checkpoint of the Russian military forces and had disappeared since and
that none of the law-enforcement or military agencies had acknowledged the
involvement of their servicemen in his abduction. The applicant further
complained that the district prosecutor’s office had opened the investigation
into the disappearance more than one year after the events and that the
investigators had failed to identify the military servicemen who had manned the
checkpoint on 5 October 2001. She requested that the prosecutor’s office resume
the suspended investigation and inform her about its progress.
On 20 October 2003 the Chechnya FSB informed the
applicant that they had not arrested her son and that he had not been suspected
by them of any criminal activities.
On 16 January 2004 the district prosecutor’s office
informed the applicant that on 14 January 2004 they had resumed the
investigation in the criminal case.
On 4 March 2004 the Chechnya prosecutor’s office
informed the applicant that the investigation of the criminal case was in
progress.
On 12 April 2004 the applicant complained to the
district military commander about her son’s abduction at the checkpoint and
requested assistance in the search for him.
On 30 March 2005 the district prosecutor’s
office informed the applicant that on 15 March 2005 they had resumed the
investigation in the criminal case.
On 15 June 2005 the applicant complained to the
military prosecutor of the UGA. In her letter she described in detail the
circumstances of her son’s abduction at the checkpoint and stated that her son
had been arrested by representatives of State agencies in broad daylight and in
the presence of numerous witnesses. She further complained that the
investigation in the criminal case had been ineffective, that the investigators
had failed to identify the servicemen who had manned the checkpoint at the
material time and failed to question any of the witnesses to the arrest; that
the VAZ-2106 car which had been taken away by the abductors, had been seen for
a long time after the abduction in the yard of the district military
commander’s office and that military officers had driven around Urus-Martan in
it. In the light of the inaction of the district prosecutor’s office and the
circumstances surrounding the abduction, the applicant asked the military
prosecutor to request the investigation file from the district prosecutor’s
office, to conduct the investigation into the events and to identify and
prosecute the servicemen who had manned the checkpoint on 5 October 2001 and
abducted her son.
On 4 July 2005 the district prosecutor’s office
replied to the applicant and stated that they had examined her complaint and
that operational-search measures were being taken to identify the perpetrators.
On 30 July 2005 the military prosecutor’s office
of military unit no. 20102 informed the applicant that the investigation
in criminal case no. 61153 had not established the involvement of military
servicemen in her son’s abduction and that, therefore, theinvestigation should
be carried out by the district prosecutor’s office.
On 27 August 2005 the military prosecutor’s
office of the UGA informed the applicant that the inquiry conducted by the
military prosecutor’s office of military unit no. 20102 had not
established the involvement of military servicemen in the abduction and that
the abduction was being investigated by the district prosecutor’s office in the
framework of criminal case no. 24048.
On 4 November and 5 and 28 December 2005 the
district prosecutor’s office informed the applicant that they had suspended the
investigation in the criminal case for failure to identify the perpetrators and
that operational-search measures were being taken to identify the culprits.
On 28 February 2006 the Chechnya prosecutor’s office forwarded the applicant’s complaint about the abduction to the
district prosecutor’s office for examination.
The applicant submitted that she received no
further information from the authorities concerning the investigation into her
son’s disappearance.
2. Information submitted by the Government
On 27 July 2002 the applicant complained in
writing about her son’s abduction from the checkpoint to the Urus-Martan ROVD.
She described the abductionand stated that it had taken placeon 5 October
2001in the vicinity of Roshni-Chu.
On 3 November 2002 the district prosecutor’s
office initiated a criminal investigation “into the detention on 5 October 2001
of Ruslanbek Vakhayev and Mr M.D. at the checkpoint next to Roshni-Chu...”. The
criminal case file was given the number 61153.
On 10 and 19 November 2002 the investigators
questioned the applicant,who stated that her son Ruslanbek had been abducted at
the checkpoint by military servicemen after having been stopped there with
Mr M.D. in the latter’s white car and that this car had later been seen on
the premises of the military commander’s office.
On 22 November 2002 the investigators requested
that the district military commander’s office, the district FSB, the temporary
district police group (ОГВОГОиПМВД)
and military unit no. 6779 inform them whether they had arrested or detained
Ruslanbek Vakhayev.
On 29 and 30 November 2002 the district FSB,
military unit no. 6779 and the temporary district police group replied
that they had neither arrested nor detained the applicant’s son.
On an unspecified date in November 2002 the head
of the checkpoint KPP-206 (Roshnya) informed the investigators that they
did not have any information about the alleged arrest or detention of Ruslanbek
Vakhayev as their service at the checkpoint had commenced on 25 October 2002
and that no documents regarding this incident had been handed over from the
previous military unit who had manned the checkpoint.
On 25 December 2002 the applicant was granted
victim status in the criminal case.
On 2 January 2003 the investigators questioned
the father of Mr M.D. The Government only furnished the Court with a part
of his statement, from which it followed that his unofficial search for his son
had not brought any tangible results.
On 3 January 2003 the investigation of the
criminal case was suspended for failure to identify the perpetrators. The
applicant was informed thereof on 14 January 2003.
On 20 June 2003 the supervising prosecutor
ordered that the investigation be resumed on account of the investigators’
failure to take crucial steps. On the same date the proceedings were resumed
and the applicant was informed thereof.
On 11 July 2003 the investigators again
questioned the applicant who reiterated her previous statements and added that
her son Ruslanbek had been in the car with Mr M.D. and a woman with her
paralysed son when they had been stopped at the checkpoint, and that after the
abduction Mr M.D.’s car had been seen on the premises of the military
commander’s office.
On 20 July 2003 the investigation of the criminal
case was again suspended for failure to identify the perpetrators. The
applicant was informed thereof on the same date.
On 20 August 2003 the applicant complained to
the Chechnya Prosecutor that the investigation into her son’s abduction had
been ineffective. She stated that the proceedings had been suspended in spite
of the investigators’ failure to take such basic steps as identification of the
servicemen who had manned the checkpoint on 5 October 2001. The applicant requested
that the investigation be resumed and the servicemen who had manned the
checkpoint be identified and questioned.
On 10 September 2003 the applicant complained to
the Prosecutor General that the investigation into the abduction had been
ineffective. She described the circumstances of the events and stated that the
investigators had failed to take basic steps to identify the culprits.
On 14 January 2004 the supervising prosecutor
ordered that the investigation be resumed on account of the investigators’
failure to take crucial steps and provided the investigators with a list of
measures to be taken. On the same date the proceedings were resumed and the
applicant was informed thereof.
On 15 January 2004 the investigators provided
the supervising prosecutor with a brief report on the progress of the
investigation in the criminal case. The document stated, amongst other things,
the following:
“... the investigation established that on 5 October 2001
Ruslanbek Vakhayev, who was born in 1974, and Mr M.D., who was born in 1978,
had been detained at the checkpoint next to the village of Roshni-Chu. No information concerning their whereabouts has been available since...”
On 18 January 2004 the investigators questioned
the applicant’s daughter, Ms M.V., who stated that on 5 October 2001 her
brother Ruslanbek Vakhayev and Mr M.D. had told her that they had been going to
Roshni-Chu to visit Mr M.D.’s fiancé.They had left in Mr M.D.’s white VAZ-2106
car. On 6 October 2001 the witness had spoken to the mother of Mr M.D. and then
learnt about the arrest of two young men at the checkpoint on 5 October 2001. The
arrest had been witnessed by the taxi‑drivers at the taxi stand located
close to the checkpoint. One of the drivers had arrived at the applicant’s home
with the woman who had been in the car with Ruslanbek and Mr M.D. when they had
been stopped at the checkpoint. Both of them had informed the witness and the
applicant about the circumstances of the incident.
On 18 January 2004 the investigators again
questioned the applicant, whose statement was similar to the one madeby her daughter
Ms M.V. on the same date.
On 28 January 2004 the investigators questioned
the mother of Mr M.D., Ms A.D., whose statement was similar to the one madeby
Ms M.V. on 18 January 2004.
On 29 January and 5 February 2004 the
investigators questioned Ms Z.D. and Mr Sh.D., both of whom stated that on
5 October 2001 they had driven together to Roshni-Chu. At the checkpoint
outside the village they had had to stop owing to the traffic jam caused by the
arrest of two young men by the military servicemen who had beenmanning the
checkpoint. According to the witnesses, they had met an acquaintance of theirs,
Mr Kh., who had witnessed the events along with many other people awaiting the
opening of the passage. On the following day the witnesses had been told that
the two men were Ruslanbek Vakhayev and Mr M.D.
On 29 January and 4 February 2004 the
investigators questioned the applicant’s relatives, Ms A.V. and Ms Z.S., whose
statements about the events were similar to the one made by Ms M.V. on 18
January 2004.
On 14 February 2004 the investigation of the
criminal case was again suspended for failure to identify the perpetrators. The
applicant was informed thereof.
On 2 March 2004 the supervising prosecutor
ordered that the investigation be resumed on account of the investigators’
failure to take crucial steps and provided the investigators with a list of
measures to be taken. On the same date the proceedings were resumed and the
applicant was informed thereof.
On 2 April 2004 the investigation of the
criminal case was again suspended for failure to identify the perpetrators. The
applicant was informed thereof on the same date and appealed against this
decision to the Urus-Martan Town Court (see paragraph 104 below).
On 27 August 2004 the supervising prosecutor
ordered that the investigation be resumed for the failure to take necessary
steps. On the same date the proceedings were resumed and the applicant was
informed thereof.
On 27 September 2004 the investigation of the
criminal case was again suspended for failure to identify the perpetrators. The
applicant was informed thereof on the same date and appealed against this
decision to the Urus-Martan Town Court (see paragraph 107 below).
On 25 February and 9 May 2005 the applicant
again complained to the Chechnya prosecutor and the Prosecutor General. She
provided a detailed description of the circumstances surrounding the abduction
and stressed that there had been numerous witnesses to the incident and that
Mr M.D.’s car had afterwards been seen on the premises of the military
commander’s office. She further stated that the investigation of the abduction
had been ineffective andthat her complaints against the investigators’
decisions,including those to the local court, had been to no avail and
requested that the servicemen who had manned the checkpoint on 5 October 2001
be identified and prosecuted.
On 15 March 2005 the supervising prosecutor
ordered that the investigation be resumed on account of the investigators’
failure to take crucial stepsand provided the investigators with a list of
measures to be taken. On the same date the proceedings were resumed and the
applicant was informed thereof.
On 11 April and subsequently on 7 October 2005 the
investigators requested that the Central Archives of the Russian Ministry of
the Interior inform them which military units had manned the checkpoint on 5
October 2001, stating, amongst other things, that
“... [from] the materials collected by the investigation it
follows that on 5 October 2001 at about 12 a.m. Ruslanbek Vakhayev and Mr M.D.
were detained at the checkpoint by representatives of state forces ...”
On 30 May 2005 the Central Archives of the
Russian Ministry of the Interior replied that they did not have any relevant
information and suggested that the investigators ask for information from the
Archives of the North-Caucasus Military Circuit. No reply was received to the
request of 7 October 2005.
On 16 March 2005 the investigators questioned Mr
A.B. The Government did not furnish the Court with a copy of his statement.
On 18 March 2005 the investigators again
questioned the applicant’s daughter, Ms M.V., who stated that about three or
four days after the abduction she had learnt from Mr M.D.’s younger brother
that the white car in which Ruslanbek and Mr M.D. had been detained at the
checkpoint had been parked in the yard of the Urus-Martan military commander’s
office. She also stated that she had met a taxi driver who had witnessed the
abduction and described it to her in detail. On the evening of 6 October 2001
she and her cousin, Ms Z.S.,had gone to see the head of the local
administration, Mr L.M., who had told them that both young men had been
detained at the military commander’s office. Mr L.M. had been killed six months
after the events.
On 21 March 2005 the investigators questioned Mr
R.M. The Government did not furnish the Court with a copy of his statement.
On 21 March 2005 the investigators again
questioned the applicant, who stated that she had found out about her son’s
abduction by the servicemen from witnesses to the events. She could not recall
the names of the witnesses, but stated that one of them was a cashier at the
State Pensions Fund in Roshni –Chu. For about two months after the abduction
she had been promised that Ruslanbek would be released, but to no avail.
Therefore, about a year later she had given up hope and lodged a written
complaint with the authorities.
On 24 March 2005 the investigators questioned
the cousin of Ms M.V., Ms Z.S., who confirmed the latter’s statement made
on 18 March 2005.
On 25 March 2005 the investigators again
questioned the mother of Mr M.D., Ms A.D., who stated that her husband, who had
conducted the search for their son, had told her that the local administration
had informed him that M.D. and Ruslanbek Vakhayev had been detained in the
building of the military commander’s office and that they had waited for the
release of the two men for several months.
On 5 April 2005 the investigators again
questioned the father of Mr M.D., Mr Ma.D., who stated that after his
son’s abduction at the checkpoint he had learnt that his son’s car had been
parked for sometime on the premises of the Urus-Martan military commander’s
office. He stated that military commander Gadzhiyev, with whom he had been
acquainted, had promised to assist him in obtaining the release of his son and
Ruslanbek, but to no avail, and that Gadzhiyev had been killed several months
later.
On 15 April 2005 the investigation of the
criminal case was again suspended for failure to identify the perpetrators. The
applicant was informed thereof.
On 15 June 2005 the applicant complained to the
military prosecutor of military unit no. 20102,providing a detailed description
of the circumstances surrounding the abduction and naming witnesses to the
events. She stated that in spite of havingthe necessary information, the
investigators had failed to identify the servicemen who had manned the
checkpoint on 5 October 2001, to question numerous witnesses to the incident
who had been waitingto go through the checkpoint and to establish the
circumstances under which the car of the abducted men had happened to be used
by servicemen from the military commander’s office. She pointed out that her
complaints to the local courts against the investigators’ decisions had failed
to prompt the investigators to take those steps.
On 4 October 2005 the supervising prosecutor
again ordered that the investigation be resumed on account of the
investigators’ failure to take crucial steps and provided the investigators
with a list of measures to be taken. In particular, he instructed the
investigators to identify and question the witnesses to the abduction,
including the taxi driver who had informed the applicant and Ms M.V. about the
events and the cashier from the State Pension Fund. On the same date the proceedings
were resumed and the applicant was informed thereof.
On 6 October 2005 the applicant refused to
familiarise herself with the contents of the criminal case file owing to the
state of her health.
On 8 October 2005 the investigators again questioned
the applicant. The Government did not furnish a copy of this statement to the
Court.
On various dates in October 2005 the
investigators questioned three local residents,Ms L.R., Ms B.E. and Ms Z.A.,
all of whom stated that they had not witnessed the abduction and were not aware
of the incident.
On 4 November 2005 the investigation of the
criminal case was again suspended for failure to identify the perpetrators. The
applicant was duly informed.
On 15 December 2005and 26 February 2006 the
applicant again complained to the Chechnya prosecutor, providing a detailed
description of the circumstances surrounding the abduction and naming witnesses
to the events. She stated that in spite of having the relevant information, the
investigators had failed to identify the servicemen who had manned the
checkpoint on 5 October 2001, to question numerous witnesses to the incident
who had been waiting to go through the checkpoint and to establish the
circumstances under which the car of the abducted men had happened to be used
by servicemen from the military commander’s office. She requested that the
investigatorstake the above measures and pointed out that her complaints to the
local courts against the investigators’ decisions had failed to prompt the
investigators to take those steps.
On several dates in 2006 the applicant was
informed by the prosecutors’ offices of various levels that the investigation
of her son’s abduction was in progress and that the investigators were taking
all possible steps to identify the culprits.
On 15 May 2007 the applicant complained to the
Urus-Martan district prosecutor,stating that she had not been informed as to
whether the investigators had taken the steps necessary to comply with the
court order of 30 September 2005 (see paragraph 110 below). She requested that
the investigation be resumed and that she be allowed to examine the case file.
On 17 May 2007 the Urus-Martan district
prosecutor partially allowed the applicant’s complaint, stating that it would
be up to the investigator in charge of the criminal case to decide when and to
what extent she would be able to view the case file.
On 22 June 2007 the applicant again complained
to the Urus-Martan district prosecutor, stating that she had attempted on
several occasions to gain access to the investigation file at the district
prosecutor’s office, but that it had not been possible as the investigator in
charge of the case had been either busy or absent. The applicant requested to
be provided with access to the case file.
On 25 and 26 June 2007 the investigators again
questioned the applicant’s daughter, Ms M.V., and the father of Mr M.D., Mr
Ma.D., both of whom reiterated their previous statements.
On 2 July 2007 the Urus-Martan district
prosecutor replied to the applicant’s complaint of 22 June 2007, stating that
it was up to the investigator in charge of the criminal case to decide when and
to what extent she would be able to view the case file. On the same date the
investigator sent the applicant a letter stating that she could view the case
fileat the prosecutor’s office on 4 July 2007. It is unclear whether the
applicant received the letter. On 5 July 2007 the investigator in charge of the
criminal case reported to the district prosecutor that the applicant had failed
to show up to view the case file.
On various dates between the end of 2002 and
2007 the investigators forwarded numerous requests for information to various
departments of the interior, the FSB, the prosecutors’ offices,the military
commanders’ offices, detention centres and hospitals in other regions in
Chechnya and the Russian Federation asking whether they had arrested or
detained Ruslanbek Vakhayev,provided him with medical help or found his corpse
or had any information about his whereabouts or fate. Only replies in the
negative were received.
On 9 September 2010 the investigation of the
criminal case was resumed and the applicant was informed thereof.
The Government further submitted that although
the investigation had failed to establish the whereabouts of Ruslanbek Vakhayev,
it was still in progress. The authorities were taking all possible steps to
have the crime resolved. The law-enforcement authorities had never arrested or
detained Ruslanbek Vakhayev.
Despite specific requests by the Court the Government
disclosedonly part of the investigation file in criminal case no. 61153, running up to 373 pages. No explanation was given forthe
failure to submit a copy of the entire contents of the case file.
C. Proceedings
against the investigators
1. The first set of
proceedings
On 28 July 2004 the applicant complained about
the ineffectiveness of the investigation into her son’s abduction to the Urus-Martan Town Court (hereafter “the Town Court”). She stated that in spite of numerous
witnesses to the abduction and the relative simplicity with which such
information could have been obtained by the investigators, the district
prosecutor’s office had failed to identify the servicemen who had manned the
checkpoint on the date of the abduction. The applicant asked the court to order
the district prosecutor’s office to conduct a thorough and effective
investigation into the events, to prosecute the perpetrators, to grant her the
status of civil plaintiff in the proceedings and provide her with access to the
investigation file.
On 13 August 2004 the Town Court partially
allowed the applicant’s complaint and ordered the district prosecutor’s office
to conduct a thorough and effective investigation of the abduction. The text of
the decision included the following:
“...it follows from the investigation file, that the
investigation has not been conducted in full. For instance, the investigators
did not identify and question the officers ... who had manned the checkpoint on
the southwest outskirts of Urus‑Martan and participated in the arrest of
Ruslanbek Vakhayev; the investigators failed to identify and question the woman
who had been in the same car with the abducted men; not all of the steps listed
in the operational-search plan have been taken during the criminal
investigation...”
The remainder of the complaint was rejected.
The court stated that the applicant would have the right to view the
investigation file only after the completion of the investigation.
2. The second set of proceedings
Around 20 October 2004 the applicant again
complained to the Town Court about the ineffectiveness of the investigation in
the criminal case and the lack of access to the investigation file.
On 1 November 2004 the Town Court rejected her
complaint. The decision stated, amongst other things, the following:
“... During the investigation the district prosecutor’s
office carried out the court’s orders of 13 August 2004. In these circumstances
the applicant’s request for a more thorough and effective investigation is
unsubstantiated...”
The applicant appealed against that decision to
the Chechnya Supreme Court. On 7 September 2005 the Chechnya Supreme Court
overruled the decision and remitted the applicant’s complaint to the Town Courtfor a fresh examination.
On 30 September 2005 the Town Court allowed the
applicant’s complaint and ordered the investigators to conduct a thorough and
effective investigation of the abduction and allow the applicant to view the
investigation file. The text of the court’s decision included the following:
“...from the case-file materials it follows that the
investigation failed to take all the necessary steps to establish the
whereabouts of the abducted man and identify the perpetrators. In particular,
they failed to:
- identify and question the witnesses who had been at the
checkpoint during R. Vakhayev’s arrest on 5 October 2001;
- identify and question the state servicemen who had manned
the checkpoint on the day of R. Vakhayev’s apprehension;
-take measures to find the car in which R. Vakhayev had
arrived [at the checkpoint] in spite of the statement by witness Ms T.V. that
this car had been parked in the yard of the district military commander’s
office and, moreover, that its officers had driven around in this car;
These circumstances demonstrate that the applicant’s request
for a more thorough and effective investigation of the criminal case is
substantiated...”
II. RELEVANT DOMESTIC LAW
For a summary of the relevant domestic law, see
Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69,
10 May 2007).
THE LAW
I. ISSUE CONCERNING THE EXHAUSTION OF DOMESTIC
REMEDIES
A. The parties’ submissions
The Government submitted that the investigation
into the disappearance of Ruslanbek Vakhayev 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 applicant to lodge court complaints
about any acts or omissions on the part of the investigating authorities and
that she had availed herself of this remedy. Besides,she could have lodged a
claimfor civil damages.They also added that the applicant, having officially
complained to the prosecutor’s office almost a year after the abduction, had
undermined the efficiency of the investigation.
The applicant contested the Government’s
submission. She stated that the only effective remedy,the criminal
investigation, had proved to be ineffective.
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 and 74, 12 October 2006).
The Court notes that the Russian legal system
provides, in principle, two avenues of recourse for the victims of illegal and
criminal acts attributable to the State or its agents, namely, civil and
criminal remedies.
As regards a civil action to obtain redress for
damage sustained through the alleged illegal acts or unlawful conduct of State
agents, the Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the context of
claims brought under Article 2 of the Convention (see Khashiyev and Akayeva
v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24
February 2005, and Estamirov and Others, cited above, § 77). In the
light of the above, the Court confirms that the applicantwas not obliged to
pursue a civil remedy. The Government’s objection in this regard is thus
dismissed.
As regards criminal-law remedies, the Court
observes that the applicant complained to the law-enforcement authorities after
the abduction of Ruslanbek Vakhayev, and that an investigation has been pending
since 3 November 2002. The applicant and the Government dispute the
effectiveness of the investigation of the incident.
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 applicant’s complaints. Thus, it
decides to join this objection to the merits of the case and considers that the
issue falls to be examined below.
II. THE COURT’S ASSESSMENT OF THE EVIDENCE AND
THE ESTABLISHMENT OF THE FACTS
A. The parties’ arguments
The applicant maintained that it was beyond
reasonable doubt that Ruslanbek Vakhayevhad been detained by military
servicemen at the checkpoint and subsequently killed. In support of her
complaint she referred to the fact that the Government did not dispute her
account of the matter and that they had simplystated that she had failed to
prove that her son was either dead or detained by State servicemen.She pointed
out that numerous documents from the investigation file confirmed her theory
that her son had been detained at the checkpointand had then disappeared (see
paragraphs 50, 64, 68, 77, 84, 85 and 88above). She further stated that Ruslanbek
Vakhayevhad been missing for more than ten yearsand that, therefore, he could
be presumed dead as he had been arrested under life‑threatening
circumstances.
The Government submitted that she had failed to
prove beyond reasonable doubt that Ruslanbek Vakhayev was either dead or had
been abducted by State servicemen. They stated that the applicantherself had
not witnessed the events in question and that her application was based “on
rumours” and that aninvestigation into the incident was ongoing. The Government
argued that the applicant’s belated complaint to the law‑enforcement
agencies about the alleged abduction had impeded the progress of the
investigation.
B. The Court’s evaluation of the facts
The Court observes that in its extensive
jurisprudence it has developed a number of general principles relating to the
establishment of matters 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, §§ 103-09, 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 Court notes that despite its request for a
copy of the entire contents of the investigation file into the abduction of Ruslanbek
Vakhayev, the Government produced only some of thedocuments from it, without
giving an explanation for the failure to provide the rest.
In view of this, and bearing in mind the
principles referred to above, the Court finds that it can draw inferences from
the Government’s conduct in respect of the well-foundedness of the applicant’sallegations.
The Court will thus proceed to examine crucial elements in the present case
that should be taken into account when deciding whether the applicant’sson can
be presumed dead and whether his death can be attributed to the authorities.
The applicant alleged that her sonRuslanbek
Vakhayevhad been detained by State servicemen on 5 October 2001 at the military
checkpoint and subsequently killed. The Government neither disputedthe matter
as presented by the applicant nor provided their own version of the events,
stating that the applicant’s submission was unsubstantiated and based “on
rumours”.
The Court notes that little evidence has been
submitted by the applicant, which is understandable in the light of the
investigators’ reluctance to provide her with copies of important investigation
documents. Nevertheless, the Court notes that the applicant’s allegation is
supported by the numerous witness statements collected in the course ofthe
investigation(see paragraphs 51, 59, 65-69, 80, 82-85 and 98above). The
investigatorsalso accepted the factual descriptionpresented by the applicant,
and attempted to verify whether military servicemenhad indeed detained the
applicant’s son under the alleged circumstances (see paragraphs 52 and 77 above),
but it does not appear that these requests for information were meaningful and
consistent enough to bring a tangible result.
The Court observes that where the applicant
makes out a prima faciecase and the Court is prevented from reaching factual
conclusions owing to a lack of relevant documents, it is for the Government to
argue conclusively why the documents in question cannot serve to corroborate
the allegations made by the applicant, or to provide a satisfactory and
convincing explanation of how the events in question occurred. The burden of
proof is thus shifted to the Government, and if they fail in their arguments
issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005‑II (extracts)).
Taking into account the above elements, the
Court is satisfied that the applicant has made a prima facie case that
hersonwasarrestedat the checkpoint by State servicemen. The Government’s
general statement to the effect that her application was based on rumours 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 submit the remaining documents which were in their
exclusive possession or to provide another plausible explanation for the events
in question, the Court finds that Ruslanbek Vakhayevwasarrested by State
servicemen at the military checkpointon 5 October 2001.
There has been no reliable news of Ruslanbek
Vakhayev since the date of the arrest. His name has not been found in any
official detention facilityrecords. The Government have not submitted any
explanation as to what happened to himafterwards.
Having regard to a number of similar cases
concerning disappearances after arrestat a military checkpointin Chechnya (see,
among many others,Khaydayeva and Others v. Russia, no. 1848/04, 5 February
2009;Sadulayeva v. Russia, no. 38570/05, 8 April 2010;Abayeva and Others v. Russia, no. 37542/05, 8 April 2010;Malika Alikhadzhiyeva v.
Russia, no. 37193/08, 24 May 2011;Makharbiyeva
and Others v. Russia, no. 26595/08, 21
June 2011; and Sambiyeva v. Russia, no. 20205/07, 8 November 2011), the Court finds that in
the context of the conflict in the Republic, when a person is detained by
unidentified servicemen without any subsequent acknowledgment of the detention,
this can be regarded as life-threatening. The absence of Ruslanbek Vakhayev or
of any news of him for more than ten years supports this assumption.
Accordingly, the Court finds that the evidence
available permits it to establish that Ruslanbek Vakhayev must be presumed dead
following his unacknowledged detention by State servicemen.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicant complained under Article 2 of the
Convention that hersonhad been deprived of his life 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 contended that the
domestic investigation had obtained no evidence to prove that Ruslanbek
Vakhayevwasdead or that any State servicemen had been involved in hisalleged
abduction or killing. The Government claimed that the investigation into the abduction
of the applicant’ssonhad met the Convention requirement of effectiveness.
The applicant argued that Ruslanbek
Vakhayevhad been detained at the military checkpoint by State servicemen and
should be presumed dead in the absence of any reliable news of himfor more than
ten years. She also alleged that the investigation had not met the requirements
laid down by the Court’s case-law, as it had been ineffective and protracted.
She pointed out that the investigators had not taken some crucial investigative
steps, such as identification ofthe military servicemen who had manned the
checkpoint on the date of the abduction, or identification of witnessesamong
the local residents who had been waiting to go through the checkpoint and had
witnessed the incident.
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 issue of the
effectiveness of the investigation should be joined to the merits of the
complaint (see paragraph 118 above). The complaint under Article 2 of
the Convention must therefore be declared admissible.
2. Merits
(a) The alleged violation of the right to life of
Ruslanbek Vakhayev
The Court has already found that the applicant’ssonmust
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 deathcan be attributed to the State and that there has been a
violation of Article 2 in respect of Ruslanbek Vakhayev.
(b) The alleged inadequacy of the investigation of
the kidnapping
The Court has on many occasions stated that the
obligation to protect the right to life under Article 2 of 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. It has developed a number of guiding principles to be followed for an
investigation to comply with the Convention’s requirements (for a summary of
these principles see Bazorkina, cited above, §§ 117-19).
In the present case, the abduction of Ruslanbek
Vakhayev was investigated. The Court must assess whether that investigation met
the requirements of Article 2 of the Convention.
The Court notes at the outset that only part of
the documents from the investigation file was disclosed by the Government.
The Court notes that, as can be seen from
thedecisions of the supervisingprosecutors and the domestic courts(see
paragraphs58, 63, 71, 73, 76, 88, 105and 110 above), the investigators failed
to take a number of essential stepssuch as establishing the identities of the
servicemen who had manned the checkpoint on the date of the abduction, identifying
and questioning the eyewitnesses to the abduction and taking measures to find
Mr M.D.’s car, which had allegedly been seen after the abduction on the
premises of the military commander’s office. These measuresshould have been
taken immediately or as soon as possible after the investigation had been
initiated. From the submitted documents it follows that in spite of thedirect
ordersthese crucial stepswere not taken by the investigators (see paragraphs88,
93 and 110 above).Such delays, for which there has been no explanation in the
instant case, not only demonstrate the authorities’ failure to act of their own
motion but also constitute a breach of the obligation to exercise exemplary
diligence and promptness in dealing with such a serious matter (see Öneryıldız
v. Turkey [GC], no. 48939/99, § 94, ECHR 2004‑XII).
The Court also notes that even though the
applicantwas granted victim status in the investigation concerning her son’s
abduction, she was only sporadically and in a few words informed of the
progress in the proceedings (see, for example, paragraphs 36, 95-97 and 99
above), and mostly only of their suspensions and resumptions. Accordingly, the
investigators failed to ensure that the investigation received the required
level of public scrutiny, andto safeguard the interests of the next of kin in
the proceedings.
Lastly, the Court notes that the investigation
was suspended and resumed at least seven times; there were lengthy periods of
inactivity on the part of the authorities when no proceedings were pending. For
instance, the investigation was suspended between 4 November 2005 and 9
September 2010; thus, for almost five years no meaningful investigative steps
were taken by the authorities.
The Government alleged that the applicant had
sought judicial review of the decisions of the investigating authorities in the
context of the exhaustion of domestic remedies and that she should have
continued to avail herself of this remedy. They further argued that the
applicant, having belatedly complained to the authorities about the abduction,
had undermined the efficiency of the investigation.
As for the judicial review of the
investigators’ decisions, the Court observes that the applicant indeed challenged
acts andomissions on the part of the investigating authorities before the
domestic courtsand as a result the investigators were ordered to take a number
of necessary steps (see paragraphs 105 and 110 above). However, from the
documents submitted it follows that these orders were effectively ignored by
the investigators and therefore they failed to yieldany tangible results. If
the applicant had continued to lodge court complaints against the
investigators, and if the investigators had actually complied with the courts’
orders and carried out the required steps, it is highly doubtful that the
applicant’s complaints would have brought meaningful results, as certain
measures that should have been carried out much earlier could no longer
usefully be conducted.In addition, the applicant was neither properly informed
about the progress ofthe criminal proceedings nor provided with timely access
to the case file (see paragraph 140 above). In such circumstances, it is highly
doubtful that the remedy relied on would have had any prospects of success.
As for the argument concerning the applicant’s
allegedly belated complaint about the abduction, the Court notes thatalthough
she may not havelodged a complaint with the authorities shortly after the
abduction (see the applicant’s assertion to the contrary in paragraph 22
above), the Court notes that prior to the lodging of her presumably first official
written complaint with the prosecutor’s office on 27 July 2002 (see paragraph
49 above), the applicant had complained about the incidentto a number of
authoritieson earlier dates, starting from 2 June 2002 (see paragraphs 23-26
above).In their submission to the Court the Government did not contest this
information.Furthermore, even if the authorities had been unaware of the
abduction prior to June 2002, the delay between the applicant’s written
complaint of 2 June 2002 and the opening of the official investigation on 3 November
2002 comprised more than five months. Such a long delay in reacting to the
information concerning a life-threatening crime,along with the subsequent
protracted conduct of the criminal proceedings, cannot allowthe Court to
conclude in the circumstances of the case that it was the applicant’s belated
complaint which seriously impeded the conduct of the investigation.
Taking into account the above, the Court finds
that theremedy referred to by the Government was ineffective in the
circumstances of the case and dismisses their argument as regards the applicant’s
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 surrounding the disappearance of Ruslanbek Vakhayev, in
breach of Article 2 in its procedural aspect.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant relied on Article 3 of the
Convention, submitting that as a result of herson’s disappearance and the State’s
failure to investigate it effectivelyshe had endured mental suffering in breach
of Article 3 of the Convention. Article 3 reads:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. The parties’ submissions
The Government argued that the State
authorities had not subjected the applicant to inhuman or degrading treatment
prohibited by Article 3 of the Convention.
The applicant maintained her submissions.
B. The Court’s assessment
1. Admissibility
The Court notes that this complaint under
Article 3 of the Convention is not manifestly ill-founded within the meaning of
Article 35 § 3 (a)of
the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
The Court has found on many occasions that in a
situation of enforced disappearance close relatives of the victim may
themselves be victims of treatment in violation of Article 3. The essence of
such a violation does not mainly lie in the fact of the “disappearance” of the
family member but rather concerns the authorities’ reactions and attitudes to
the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18
June 2002, and Imakayeva v. Russia, no. 7615/02, § 164, ECHR 2006‑XIII
(extracts)).
In the present case the Court notes that the
applicantisthe mother of the disappeared person. For more than ten years she
has not had any news of him. During this period the applicanthasmade enquiries
of various official bodies, both in writing and in person, about her missing
son. Despite her attempts, shehas never received any plausible explanation or
information about what became of him following hisabduction. The responses
shereceived mostly denied State responsibility for herson’sabduction or simply
informed her that the investigation was ongoing. The Court’s findings under the
procedural aspect of Article 2 are also of direct relevance here.
The Court therefore concludes that there has
been a violation of Article 3 of the Convention in respect of the applicant.
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE
CONVENTION
The applicant further stated that Ruslanbek
Vakhayev had been detained in violation of the guarantees contained in Article
5 of the Convention, which reads, in so far as relevant:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his arrest and
of any charge against him.
3. Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his release ordered if
the detention is not lawful.
5. Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall have an
enforceable right to compensation.”
A. The parties’ submissions
The Government asserted that no
evidence had been obtained by the investigators to confirm that Ruslanbek
Vakhayev had been arrested or detained.
The applicantreiterated the complaint.
B. The Court’s assessment
1. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that the complaint is not inadmissible on
any other grounds and must therefore be declared admissible.
2. Merits
The Court has previously noted the fundamental
importance of the guarantees contained in Article 5, which 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‑XIII (extracts)).
The Court has found that Ruslanbek Vakhayevwasdetained
by State servicemen on 5 October 2001 and has not been seen since. His
detention was not acknowledged, was not logged in any custody records and there
exists no official trace of his subsequent whereabouts or fate. In accordance
with the Court’s practice, this fact in itself must be considered a most
serious failing, since it enables those responsible for an act of deprivation
of liberty to conceal their involvement in a crime, to cover their tracks and
to escape accountability for the fate of a detainee. Furthermore, the absence
of detention records noting such matters as the date, time and location of
detention and the name of the detainee, as well as the reasons for the
detention and the name of the person effecting it, must be seen as incompatible
with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).
The Court further considers that the
authorities should have been more alert to the need for a thorough
investigation of the applicant’s complaints that hersonhad been abducted in
life-threatening circumstances. However, the Court’s findings above in relation
to Article 2 and, in particular, the conduct of the investigation leave no
doubt that the authorities failed to take effective measures to safeguard him
against the risk of disappearance.
In view of the foregoing, the Court finds that
Ruslanbek Vakhayevwas 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
The applicant complained that she had been
deprived of effective remedies in respect of the aforementioned violations,
contrary to Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
A. The parties’ submissions
The Government contended that the
applicant had had effective remedies at her disposal as required by Article 13
of the Convention and that the authorities had not prevented her from using
them. The applicant had had an opportunity to challenge the acts or omissions
of the investigating authorities in court as well as claim damages in civil
proceedings.
The applicant reiterated the complaint.
B. The Court’s assessment
1. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
The Court reiterates that in circumstances
where, as here, a criminal investigation into adisappearance has been
ineffective and the effectiveness of any other remedy that might have existed,
including civil remedies suggested by the Government, has consequently been
undermined, the State has failed in its obligation under Article 13 of the
Convention (see Khashiyev and Akayeva, cited above, § 183).
Consequently, there has been a violation of
Article 13 in conjunction with Article 2of the Convention.
As regards the applicant’s reference to Articles 3 and 5 of
the Convention, the Court considers that, in the
circumstances, no separate issue arises in respect of Article 13, read in
conjunction with Articles 3 and 5 of the Convention (see Kukayev v.
Russia, no. 29361/02, § 119, 15 November 2007, and Aziyevy
v. Russia, no. 77626/01, § 118, 20 March 2008).
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary damage
The applicant claimed damages in respect of
loss of earningsby herson afterhis arrest and subsequent disappearance. She
submitted that as his mother she would have been entitled to at least 30% of
his earnings. The applicant claimed a total of 679,431Russian roubles (RUB)
under this heading (approximately 17,550 euros (EUR)).
She claimed that her son had been unemployed at
the time of the abduction and that, in accordance with established practice in
such cases, the calculation should be made on the basis of the subsistence
level established by national law. She calculated his earnings for the period,
taking into account an average inflation rate of 10%. Her calculations were also based on the
actuarial tables for use in personal injury and fatal accident cases published
by the United Kingdom Government Actuary’s Department in 2007 (“the Ogden tables”).
The Government regarded these claims as
unsubstantiated, pointing out that the applicant had failed to provide
documents demonstrating that Ruslanbek Vakhayev had been the family
breadwinner. They also referred to the existence of domestic statutory
machinery for the provision of a pension for the loss of the family
breadwinner.
The Court reiterates that there must be a clear
causal connection between the damage claimed by the applicantand 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 also applies to elderly parents and that it is reasonable to
assume that Ruslanbek Vakhayev would eventually have had some earnings from
which the applicant would have benefited (see, among other authorities, Imakayeva,
cited above, § 213). Having regard to its above conclusions, it finds that
there is a direct causal link between the violation of Article 2 in
respect of the applicant’sson and the loss by the applicant of the financial
support which he could have provided. Having regard to the applicant’s
submissions, the Court awards EUR 12,000 to the applicant in respect of
pecuniary damage, plus any tax that may be chargeable on that amount.
B. Non-pecuniary damage
The applicant claimed EUR 100,000 in
respect of non-pecuniary damage for the suffering she had endured as a result
of the loss of herson, the indifference shown by the authorities towards her
and the failure to provide her with any information about the fate of herfamily
member.
The Government found the amount claimed
excessive.
The Court has found a violation of Articles 2,
5 and 13 of the Convention on account of the unacknowledged detention and
disappearance of the applicant’sson. The applicant herself has been found to
have been the victim of a violation of Article 3 of the Convention. The Court
thus accepts that she has suffered non-pecuniary damage which cannot be
compensated for solely by the findings of violations. It awards the applicant
EUR 60,000, plus any tax that may be chargeable thereon.
C. Costs and expenses
The applicant was represented by the SRJI. They
submitted an itemised schedule of costs and expenses that included research and
interviews in Ingushetia and Moscow at a rate of EUR 50 per hour, and the
drafting of legal documents submitted to the Court and the domestic
authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per
hour for SRJI senior staff. The aggregate claim in respect of costs and
expenses related to the applicant’s legal representation amounted to EUR 6,821.
The Government disputed the amount claimed.
They pointed out that the applicant’s representatives had submitted their
observations on the admissibility and merits of the application in one set of
documents, that they had made extensive use of phrases already used in
previsions observations in similar cases and that, therefore, legal research
had not been necessary to the extent claimed by the representatives.
The Court has to establish first whether the
costs and expenses indicated by the applicant’srepresentatives were actually
incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom,27
September 1995, § 220, Series A no. 324).
Having regard to the details of the information
and legal representation contract submitted by the applicant, the Court is
satisfied that these rates are reasonable.As to whether they were necessary and
actually incurred, the Court notes that even though this case required a
certain amount of research and preparation, due to the similarity of the
observations on the admissibility and merits of this application to those in a
number of other applications submitted in similar cases, legal research by the
applicant’s representatives was not necessary to the extent claimed.
Having regard to the details of the claim submitted
by the applicant, the Court awards her the amount of EUR 2,500together
with any value‑added tax that may be chargeable to the applicant, the net
award to be paid into the representatives’bankaccount in the Netherlands,
as identified by the applicant.
D. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join to the merits the issue as
to 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 Ruslanbek Vakhayev;
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 Ruslanbek
Vakhayevdisappeared;
5. Holds that there has been a violation of
Article 3 of the Convention in respect of the applicant;
6. Holds that there has been a violation of
Article 5 of the Convention in respect of Ruslanbek Vakhayev;
7. Holds that there
has been a violation of Article 13 of the Convention in conjunction with
Article 2of the Convention;
8. Holds that no
separate issues arise under Article 13 of the Convention in respect of the
alleged violations of Articles 3 and 5 of the Convention;
9. Holds
(a) that the respondent State is to pay, within
three months of the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Russian roubles on the date of settlement, save in the case of
the payment in respect of costs and expenses:
(i) EUR 12,000 (twelve thousand euros), plus
any tax that may be chargeable, in respect of pecuniary damage to the
applicant;
(ii) EUR 60,000 (sixtythousand euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage to the
applicant;
(iii) EUR 2,500 (two thousand and five
hundredeuros), plus any tax that may be chargeable to the applicant, in respect
of costs and expenses, to be paid into the representatives’bankaccount in theNetherlands;
(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;
10. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on10 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
