In the case of Kaykharova and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section
Registrar,
Having deliberated in private on 9 July 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in four applications (see
Annex I) 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 Russian nationals (“the applicants”), on the dates indicated in Annex I.
The applicants were represented before the Court
by Mr D. Itslayev, a lawyer practising in Grozny, lawyers of Stichting Russian Justice Initiative (SRJI), an NGO based in the Netherlands with a
representative office in Russia (in partnership with the NGO Astreya). The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The applicants alleged that their eight relatives
had disappeared in Grozny or Grozny District, Chechnya, between 2000 and 2002
in four unrelated episodes and that no effective investigation had taken place.
On 22 March 2011 the Court decided to communicate
the applications to the Government. It was also decided to rule on the
admissibility and merits of the applications at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
Two applicants in case no. 56745/08 reside in Austria; the remaining applicants live in different districts of the Chechen Republic.
The applicants are close relatives of eight
individuals who disappeared in the Chechen Republic after being apprehended by groups
of armed men whom the applicants believed to have belonged to the Russian
military or security forces. In all cases the applicants' relatives were
abducted in Grozny or the Grozny District of the Chechen Republic between 2000
and 2002. In one case (Gakayev and Others, no. 56745/08), two
bodies of the victims have been found with signs of violent deaths. In each
case a criminal investigation file was opened by the local prosecutor's office.
Afterwards, the proceedings were suspended and resumed on several occasions.
Judging from the documents submitted by the parties, the investigations
consisted mainly of collecting the applicants' testimonies, forwarding
inquiries and making formal requests to the authorities in Chechnya and the North Caucasus to carry out operative search measures.
At the end of 2011 the investigation in each case
remained pending without having produced any tangible results as to the
whereabouts of the applicants' missing relatives or the identity of the
perpetrators of the crimes.
In their observations the Government did not
challenge the essential facts as presented by the applicants, but noted that as the investigations were pending, it would be premature to draw any
conclusions about the exact circumstances of the cases. They argued further
that there was no evidence to prove beyond reasonable doubt that State agents
had been involved in the abduction and/or subsequent killing of the applicants'
relatives, or that the missing persons were dead.
Summaries of the facts relevant to each complaint
are set out below. The personal data of the applicants and their disappeared
relatives and some other key facts are summarised in the attached table (Annex
I).
A. Application no. 11554/07, Kaykharova v. Russia
1. Abduction of
Gelani Kaykharov
. Gelani
(also referred to as “Gilani”) Kaykharov, the second applicant (his wife) and their minor daughter lived at 4 Vagonnaya Street in
the Oktyabrskiy District of Grozny, in a single-storey apartment block. The building
was located near the Oktyabrskiy District department of the interior (“the Oktyabrskiy
ROVD”), the district military commander's office and the local administration
office. In 2002 military checkpoints manned by Russian servicemen were located
on the roads leading to and from Grozny.
According to the two applicants of this
application, on the night of 20 December 2002 the second applicant, Gelani Kaykharov and their minor daughter were at home. At about 5 a.m. approximately eight to
ten men wearing camouflage uniforms, gloves, masks and black hats and armed with automatic
weapons, jumped over the fence of the apartment block, broke through the doors
and burst into the apartment. The men neither identified themselves nor
produced any documents. They spoke Russian without an accent. They locked the
second applicant in her bedroom with the child. She heard one of the men
ordering her husband to put clothes on and to dress warmly. The second
applicant called out from the room to ask where her husband was being taken.
One of the men answered that they would run a check on his identity and would
then release him by 9 a.m.
As soon as the intruders left the house, the second applicant went outside the building. She saw her husband being led on foot along
Dalnyaya Street (adjacent to the Oktyabrskiy ROVD building) by the same group
of armed men. She later discovered that some of her family's belongings, such as clothing, medicines and silverware, had disappeared. Various documents, including her
daughter's birth certificate, her husband's passport and his car registration
documents, were also gone.
At about 4.45 a.m. on the same date the first
applicant (Gelani Kaykharov's mother) went to the ROVD in order to apply for a
new passport. On her way she passed her son's house and noticed two military
vehicles - a large white armoured UAZ jeep and a smaller grey UAZ car with two
blue stripes on the side and without a registration plate - parked nearby. The
registration number of the white UAZ jeep was either 307 or 317 - the car was
dirty so the numbers were partly obscured. On the same day the first applicant
noticed the same two UAZ vehicles parked outside the ROVD building.
There has been no news of Gelani Kaykharov since
20 December 2002.
In support of their statements, the applicants submitted the following documents: the second applicant's account dated 13
September 2006; a complaint by Mr A. Kh, Gelani's father, dated 20 December
2002; the first applicant's complaints to the authorities dated 15 January, 30 May and 17 June 2003, containing a detailed description of the events; and witness
testimonies by Mr M. (dated 10 September 2006), Mr Kh. (submitted on
11 September 2006) and Mr G. (given on 12 September 2006).
2. Official
investigation
The Government submitted a copy of the entire
criminal case file no. 52159 on the abduction of Gelani Kaykharov (588
pages). The relevant information may be summarised as follows.
(a) Opening of a
criminal investigation
On 20 December 2002 the first applicant
complained about the abduction to the Oktyabrskiy ROVD in the following terms:
“I ask you to search for my son, Gilani
Arturovich Kaykharov, born in 1972, who on the night of 20 December
2002 was taken away by armed men in camouflage uniforms in an unknown direction...”
On the same date the investigator of the ROVD
examined the crime scene. No evidence such as fingerprints or tyre tracks was
collected. The investigator questioned the applicants and several other
witnesses and forwarded the materials to the Grozny prosecutor's office.
On 25 December 2002 the Grozny prosecutor's
office opened an investigation into the disappearance of Gelani Kaykharov under
Article 126 § 2 of the Criminal Code of the Russian Federation (aggravated
kidnapping). The case file was assigned no. 52159.
(b) Main witness
statements taken by the investigator
On 20 December 2002 the investigator of the
Oktyabrskiy ROVD collected statements from several persons. The first applicant
stated that at 5.40 a.m. on the same date the second applicant had come to her
house in tears and told her that a group of approximately eight to ten armed
masked men in camouflage uniforms had broken into their home and abducted
Gelani.
The second applicant stated that on 20 December
2002 she had been at home with her husband and their minor daughter. At 4.20
a.m. approximately eight to ten armed masked men in camouflage uniforms had
burst into their apartment. They spoke Russian without an accent. They searched
the house and took Gelani's passport, their child's birth and medical
certificates, family photos and some of their belongings. One of the abductors
told her that they would carry out an identity check and release Gelani by
9 a.m. on the same day. She had not seen any cars, but had seen the
abductors leading Gilani on foot down the street.
Their neighbours, A.K., R.K and Sh.K., stated that they had heard nothing during the night of Gelani's abduction.
Between 10 and 13 January 2003 the investigator
again questioned the applicants and several other witnesses. R.K., in addition
to his initial submissions, stated that on 19 November 2002 he and Gelani
had been called to the prosecutor's office to give evidence as witnesses in the
investigation of the murder of V.'s family.
An officer of the ROVD, Mr M.M., stated that he
did not know Gelani's whereabouts, but had been sent by the investigator to
deliver a summons to Gelani so that he could be questioned as a witness in the
case of the murder of V.'s family.
On 29 March 2006 the first applicant stated that
during the search for her son, she had found out from N.S., the deputy head of
the criminal investigation division of the Oktyabrskiy ROVD, that her son had been suspected of the murder of V.'s family. N.S. also said that to his
knowledge her son was being beaten in order to extract information from him but
had not confessed. However, N.S. told her that he did not know where Gelani was
being detained and promised to help in his search. Thereafter, N.S. had avoided
meeting her. The first applicant subsequently learnt from I., the head of the
criminal investigation division of the ROVD, about the involvement of N.S. in
her son's abduction. She also submitted that in July 2005 at the premises of
the Grozny administration, V.M., the deputy head of the military commander's
office, had showed her a register in which her son's name and the date of his
conviction (25 June 2003) had been recorded.
(c) Main
investigative steps
On 10 January 2003 the first applicant was
granted victim status.
On 15 January 2003 the investigator sent
requests to the Chechen Republic department of the Federal Security Service
(“the FSB”) and the military commander's office of the Oktyabrskiy District
about Gelani Kaykharov's arrest and detention. Both agencies replied that they
had no information on the subject. The investigator also asked the ROVD to
carry out operative search measures in order to establish Gelani Kaykharov's
whereabouts and to identify his abductors. The ROVD replied that it was not
possible to establish Mr Kaykharov's whereabouts.
On 2 August 2003 the ROVD informed the investigator
that on 29 March 2003 Gelani Kaykharov's name had been added to the list
of persons wanted on suspicion of involvement in the robbery and murder of V.'s
family in September 2002.
On 18 August 2003 the first applicant complained
to a number of prosecutors' offices. The relevant parts of her complaint read
as follows:
“Between 20 December 2002 and 17 June 2003 I have addressed
law-enforcement agencies on numerous occasions asking them to search for my son, Kaykharov Gelani Arturovich, who was abducted by unidentified men in masks and camouflage
uniforms armed with machine guns ...
On 17 June 2003 I again addressed the issue concerning the
abduction of my son to the prosecutor of the Oktyabrskiy District, [R.]. After
examination of the case file, the prosecutor [R.] told me that my son was alive
and was detained in the SIZO of the Tsentralniy District of Grozny and that the
criminal case had been assigned to [D.]...I addressed [D.] who denied the
existence of such a criminal case...”
In response to
the first applicant's inquiries the investigative authorities on several
occasions informed her that they were taking steps to establish Gelani
Kaykharov's whereabouts.
On 27 March 2004 the first applicant complained
to the prosecutor's office of the Chechen Republic and other State agencies
about the abduction of her son. She noted that the operation had been led by
N.S. and that despite her numerous complaints to various prosecutor's offices
and other law-enforcement agencies, neither N.S. nor his colleagues had been
questioned.
On 10 September 2004 the Criminal Investigations
Department of the Ministry of the Interior of Chechnya informed the first
applicant that a warrant had been issued for
the arrest of N.S. on suspicion of unspecified crimes
in Chechnya, but that his whereabouts were unknown.
On 21 December 2004 the investigator asked the
ROVD for N.S.'s service history and residential address in order to question
him.
On 15 January 2005 the ROVD provided the
investigator with copies of N.S.'s employment records.
On 3 April 2006 the ROVD informed the
investigator of the following:
“... it has been established that [N.S.], the former deputy
head of the criminal investigation division of the VOVD, resident of Yaroslavl, with the rank of Police Major, was involved in [Gelani]'s abduction. [N.S.]
arrested [Gelani] and brought him to the [premises of the ROVD].
At present [N.S.] has been put on the federal wanted list ...”
On 4 April 2006 the second applicant was granted
victim status.
On 28 September 2006 the investigator informed
the department of the interior of the Yaroslavl Region (“the UVD”) that N.S.,
who had been involved in Gelani Kaykharov's abduction, had been seconded to Chechnya by their department, and asked them to establish his whereabouts and provide his
residential address.
On 31 May 2007 the UVD informed the investigator
that it was not possible to establish N.S.'s whereabouts.
On 9 October 2008 the investigator showed the
second applicant photographs from which she identified N.S.
On 21 October 2008 the Oktyabrskiy ROVD informed
the investigator that it was not possible to establish N.S.'s whereabouts. The
relevant parts of the report read as follows:
“...The prosecutor's office of Chechnya asked the UVD to
provide information concerning [N.S.] to which they replied that the Police
Major [N.S.], was not listed among the officers of the UVD. Nor is [N.S.]
listed in [the database of registered residents] of
the Yaroslavl region. Therefore, it is logical to assume that the documents in
the name of [N.S.] are false, that such a person does not exist and that this
individual is an officer of the secret services ...”
It appears that the investigation is still
pending.
B. Application no. 7862/08, Muzayeva and Others v. Russia
1. Abduction of
Suleyman Surguyev, Adam Suleymanov and Mirza Elmurzayev
In 1999 the three applicants of this application
and their relatives mentioned above were living in the Stroiteley settlement in
Grozny. In January 2000, when the hostilities began in Grozny, about thirty local residents, including the first applicant, Suleyman
Surguyev, Adam Suleymanov and Mirza Elmurzayev, hid in the basement of
school no. 50. By the end of January 2000 the Chechen fighters had left the
settlement, and by the beginning of February 2000 it was under the control of
the federal forces.
According to the applicants, in the afternoon of 2 February 2000 three APCs arrived at the school building and several
armed servicemen wearing camouflage uniforms got out. They ordered everyone to
leave the basement, forced the men to stand up against a wall and searched
them. Then they took Suleyman Surguyev, Adam Suleymanov, Mirza Elmurzayev and another man, S.A., to an infantry fighting
vehicle (“IFV”) with the registration number 318. When the neighbours attempted
to intervene, one of the servicemen, addressed by his colleagues as S., removed the safety pin from a hand grenade and threw it at the crowd; it exploded but no one
was hurt.
The first applicant asked where the men were
being taken. A serviceman replied that the four men were being taken for
“interrogation”. The vehicles then left the schoolyard, taking Suleyman
Surguyev, Adam Suleymanov, Mirza Elmurzayev and S.A. with them. The settlement inhabitants ran after the vehicles, but were stopped by gunfire from two other IFVs parked near the school. One of the soldiers
told the first applicant that the men were being taken to a military unit.
On 3 February 2000 military servicemen under the
command of Major A. went to the schoolyard. Major A. told the first applicant
and her mother that the previous day the four arrested men had been taken to a
military base. He suggested that the women went to the military unit and discussed
the detainees' release on their personal guarantee. On the same day the
servicemen took the first applicant and four other women to a military base
located within half an hour's drive from the school. The first applicant
submitted that they had passed the Karpinka settlement and a cemetery on their
way to the base.
Once the women arrived, the servicemen told the
first applicant that the detainees were no longer there and the women should
leave. On the way back one soldier told the applicant that the detainees had
been transferred to “Alkhan-Kala”. The first applicant thought that he must
have meant Khankala, the headquarters of the Russian military forces in Chechnya.
On 7 March 2000 the Itogi magazine
published an article about “filtration points” where individuals whom the
federal authorities suspected of being linked to illegal armed groups were
taken. It was accompanied by a picture of four men detained in a pit guarded by
two armed servicemen. The applicants identified them as Suleyman Surguyev, Adam Suleymanov, Mirza Elmurzayev and S.A.
The applicants furnished the following documents
in support of their submissions: the first applicant's account dated 3 August
2007; a witness testimony by R.A. dated 8 September 2007; an account by
witness A.M. given on 23 September 2007; and a testimony by witness Kh.T., produced on 20 September 2007. The applicants also submitted a copy of the article
published in the Itogi magazine together with the photograph.
2. Official
investigation
The Government submitted a copy of the entire
criminal case file no. 10/01/0412-02 on the abduction of Suleyman Surguyev, Adam Suleymanov and Mirza Elmurzayev (221 pages). The relevant information may be
summarised as follows.
(a) Opening of a
criminal investigation
On 10 March 2000 F.D. reported the abduction of
her spouse, Adam Suleymanov, to the Zavodskoy temporary department of the
interior of Grozny (“the Zavodskoy VOVD”). On 15 March 2000 the first and third
applicants also reported the abduction of their sons, Suleyman Surguyev and
Mirza Elmurzayev, to the Zavodskoy VOVD.
On 13 and 19 March 2000 the investigator decided
not to open a criminal investigation into the complaints for lack of corpus
delicti.
On 10 and 17 November 2000 the Grozny prosecutor's
office quashed the above decision and ordered a criminal investigation into the
abduction of Suleyman Surguyev (case no. 12276), Adam Suleymanov (case no.
12779) and Mirza Elmurzayev (case no. 12258).
(b) Main witness
statements taken by the investigators
On 15 March 2000 several witnesses were
questioned by the investigator. The first applicant stated that on 2 February
2000 armed servicemen from regiment no. 245 of the Ural military circuit had
arrived at the school in an IFV with registration number 318. There were twenty
women and eight men in the basement, and the servicemen checked the documents
of all present. Afterwards, they moved in the direction of the stadium, where a
fight had taken place. Some time later the same group returned, forced the men
to stand up against a wall and searched them. The group, led by Se., put Suleyman Surguyev, Adam Suleymanov, Mirza Elmurzayev and another man, S.A., in the IFV and took them to “Solyanaya balka”
(a military unit) for questioning. The first applicant further noted that on 6
February 2000 the same serviceman, Se., had visited them in the basement
of the school. He said that he had taken the abducted men in the heat of the
moment and they would be released once their identities had been checked. On 17
February 2000 A.A., the head of the administration of Zavodskoy District, told
the first applicant that he had learnt from the commander of the military unit,
F., that the abducted men had been detained in Naurskaya village.
N.K., M.M. and M.R. stated that on 2 February
2000, armed men had arrived in an IFV with registration number 318 at the
school where they had been living. They had burst into the basement and taken
four men away.
The third applicant stated that following her
return to Grozny on 16 February 2000, she had learnt from others that her
husband had been abducted by armed men from a military unit of the Ural
circuit.
F.D., Adam Suleymanov's spouse, was questioned on 14 November 2000. She stated that on 2 February 2000 four servicemen had
come to check their documents and had abducted her husband with three other
men. The servicemen came from a military unit of the Ural circuit and the
commander's name was Se. They took the men away in the IFV with the
registration number 318.
(c) Main
investigative steps
On 16 November 2000 the third applicant was
granted victim status.
On 29 November 2000 the first applicant was
granted victim status.
On 20 December 2000 the criminal cases on the
abduction of Suleyman Surguyev and Adam Suleymanov were joined under no. 12276.
On 21 December 2000 the criminal case was
forwarded to the military prosecution office of Grozny. The case file was
registered under no. 14/33/0023-01.
On 14 February 2001 a military prosecutor of
military unit no. 20102 ordered an extension of the investigation in order
to question the commander of regiment no. 245, to identify the vehicle with
registration number 318 and to establish the whereabouts of the abducted men.
The investigation was further resumed and suspended
on several occasions.
On 15 January 2002 the investigator decided to
append a copy of the Itogi magazine to the material evidence of the
criminal case.
On 10 April 2001 the military prosecutor decided
to suspend the investigation as being time-barred. The relevant parts of the
decision read as follows:
“On 2 February 2000 during a passport check of the local
residents, unidentified servicemen found among others [Adam Suleymanov], [Suleyman Surguyev], [Mirza Elmurzayev] and [S. A.]. On the same day those men were taken away
in an armoured vehicle with registration number 318 in an unknown direction...
...The most probable version [of the crime] is that Suleymanov
and Surguyev were abducted by servicemen of military unit no. 69771...
The military unit of the Ural military circuit that took part
in the military actions in Grozny in February 2000 was unit no. 69771 [which
was] withdrawn to Yekaterinburg on 2 May 2000.
According to the statements of V.Ch., the deputy commander of
that unit, the first battalion had an armoured vehicle with the registration
number 318...”
On 25 May 2001 the investigator ordered the
examination of the record book of weapons and equipment of military unit no.
69771. According to the report, the military vehicle with the registration
number 318 was listed among the vehicles attached to that unit.
On 15 June 2001 the criminal case on the
abduction of Mirza Elmurzayev was joined to case no. 14/33/0023-01. On the same
date the investigation was suspended for failure to identify the perpetrators,
but later resumed.
On 4 March 2002 the military prosecutor of
military unit no. 20102 decided to forward the criminal case for jurisdiction
to the military prosecutor's office of the Privolzhsk-Ural military circuit.
The relevant parts of the decision read as follows:
“On 29 January 2000 during persistent military actions ... on
the western outskirts of Grozny in the vicinity of school no. 50... the
battalion of motorised infantry regiment no. 276 incurred the loss of four
servicemen ... whose bodies were left on the battlefield ...
On 2 February 2000 during military actions an assault group
consisting of sixteen servicemen commanded by [Se.] found the bodies of the
above servicemen ... afterwards [Se. ] ordered them to arrest [Surguyev],
[Suleymanov], [S.A.] and [Elmurzayev], who were found in the basement of school
no. 50, and to bring them to the command post of regiment no. 276, in order to check their possible involvement in the killing of the servicemen.
The investigation has established that the above persons were
forced at gunpoint from the basement of school no. 50, put in IFV number 318
and taken to the command post of the regiment.
...
Upon arrival [Se.] reported to [U.] and [E]., the commander and the deputy commander of the regiment... afterwards under [E.]'s instructions
the civilians were put in a pit specially dug for this purpose located at the
command post.
...
These circumstances were proved by the witness statements of
[Se.] [and other officers] of the regiment.
It was established that between 3 and 5 February 2000 the above
persons were indeed held in a pit located at the command post under the guard
of the servicemen ...
It appears from the statements of [U.], the former commander of
military unit no. 69771, that on 3 February 2000 after it had been reported
that there was no information about the involvement of the detained men in the
illegal armed units, [U.] ordered their release. However, he does not remember
to whom he gave that order.
...
It was also established that on 5 February 2000 ... military
journalist [S.] had taken a photograph of the detained persons. This photograph
was published in the Itogi magazine on 7 March 2000 ... and the
photographed men were further identified by their relatives.
...
It was established that the guard of the command post of the
regiment was assigned to a separately deployed platoon of military unit no.
69771 ... commanded by [O.] who performed tasks and instructions given by [U.] ...
At present [U.] is serving in military unit no. ... stationed
in Chebarkul, the Chelyabinsk Region. Other servicemen of [O.]'s platoon also
live mainly in the Chelyabinsk and Kurgansk Regions...
Having regard to the data collected by the investigation, it is necessary to carry out investigative and operative measures in respect of [O.] and
[other servicemen]...”
On 9 December 2002 the criminal case with a new number, 10/01/0412-02, was assigned to the
military prosecutor's office of the Yekaterinburg Garrison,
who suspended and then, upon the applicants' complaints, resumed the investigation.
It transpires from the case file that throughout the investigation, and up until September 2008, the applicants regularly complained to various authorities about
the abduction of their relatives and the procrastination in the criminal
inquiry, and sought access to the investigation case file. Their complaints
were routinely forwarded to the relevant investigative authorities, who
informed them of the suspensions and reopening of the proceedings. The case is
pending at present.
C. Application no.
56745/08, Gakayev and Others v. Russia
1. Abduction of Markha
Gakayeva, Raisa Gakayeva and Zavalu Tazurkayev
The facts of this application are linked to the
application Luluyev and Others v. Russia (no. 69480/01, ECHR 2006-XIII (extracts)) in that the three relatives of the ten applicants in the
present case were abducted together with Nura Luluyeva, a relative of Turko
Luluyev, on 3 June 2000 at Mozdokskaya Street in Grozny.
According to the applicants, on 3 June 2000 Markha Gakayeva and Raisa Gakayeva, along with their cousin Nura Luluyeva, went to the market place at Mozdokskaya Street in the northern part of Grozny. Markha Gakayeva
had 30,000 Russian roubles (RUB) with her.
Between 7 a.m. and 9 a.m. that morning an
armoured personnel carrier (“APC”) with the registration number 110 appeared at
the market. It was accompanied by two other vehicles: a Ural truck and a UAZ
all-terrain vehicle. A group of servicemen wearing camouflage uniforms and
masks and armed with machine guns disembarked from the vehicles. The servicemen
detained several persons, mostly women, put sacks over their heads and loaded
them into the APC. Markha Gakayeva, Raisa Gakayeva, Nura Luluyeva and Zavalu Tazurkayev
were among those detained.
The eighth and the ninth applicants (the wife
and daughter of Zavalu Tazurkayev), informed of the events by a neighbour, called the Leninskiy temporary district department of the interior (“the Leninskiy VOVD”),
which was situated a few hundred metres from the scene. When the police
appeared and tried to intervene, the soldiers started shooting in the air with
a machine gun. They told the police that a special operation was being carried
out at the market place. Having received this explanation the police left the
site. The APC then drove away.
On 24 February 2001 the blindfolded bodies of
Nura Luluyeva, Markha Gakayeva and Raisa Gakayeva were found in a mass grave in
Zdorovye, an abandoned holiday
village on the outskirts of Grozny, less than one kilometre from the Khankala
military base.
The fate and whereabouts of Zavalu Tazurkayev
have not been established; his relatives have had no news of him since his
abduction.
The applicants refer to the eighth applicant's
written testimony dated 18 March 2007, the seventh, ninth and tenth
applicants' written statements dated 26 March 2007, and the testimonies of the eighth
applicant's sisters, K.T. and L. Ya., dated 22 and 26 March 2007, in support of their account of the events.
2. Official
investigation
The Government submitted a copy of the entire
criminal case file no. 12073 on the abduction and murder of Nura Luluyeva, Markha Gakayeva and Raisa Gakayeva and the abduction of Zavalu
Tazurkayev (2,550 pages). The relevant information may be summarised as
follows.
(a) Opening of a
criminal investigation
On 6 June 2000 the eighth applicant wrote to the
prosecutor's office with a request to investigate her husband's disappearance.
On 23 June 2000 the Grozny prosecutor's office
opened a criminal investigation into the abduction of Nura Luluyeva, Raisa Gakayeva, Markha Gakayeva, Zavalu Tazurkayev and M.S.
(b) Main witness
statements taken by the investigators
On 6 June 2000 T.S. stated that she had
witnessed the events. At 9 a.m. on 3 June 2000 near 15 Mozdokskaya
street in Grozny she saw masked servicemen arresting civilians - three
women and one man. She ran to the local department of the interior to alert the
police. When the police appeared at the scene, the soldiers opened fire and the
police could not stop them. Afterwards, she found out that the abducted persons
had been Nura Luluyeva, Markha Gakayeva, Raisa Gakayeva and Zavalu Tazurkayev.
S.L., the spouse of Nura Luluyeva, stated that he had learnt from his wife's relative that between 8 a.m. and 9 a.m. on 3 June
2000 his wife and two other women had been apprehended by masked servicemen in
Mozdokskaya street in Grozny. They had been taken away in an APC.
The eighth applicant stated that on 5 June 2000
she had found out that on 3 June 2000 her husband, Zavalu Tazurkayev, had been apprehended by masked servicemen.
The ninth applicant stated that on 3 June 2000
while at work she had heard shouts coming from nearby and had seen an APC
driving away with a large group of armed men.
The tenth applicant (daughter of Zavalu
Tazurkayev) stated that on 3 June 2000 she and her father had been at home when
a woman had visited them searching for her husband. Zavalu Tazukayev went out
to help her. Shortly afterwards, the woman returned and told her that her
father had been apprehended.
K.T. submitted that on 3 June 2000, after she
had learnt that a military operation was being carried out near her house and
that a relative of hers had been apprehended, she had arrived at the scene and
seen armed men in an APC. When she, together with other local residents, attempted to approach the servicemen, they started shooting in the air. Afterwards, the APC drove away in the direction of the 9th city hospital.
On 10 May 2004 S.L. was additionally questioned
by the investigator. The relevant parts of his statements read as follows:
“To my initial statements given at the first questioning as a
victim, I can only add that as a lawyer I cannot understand the conduct of
certain prosecution and interior officers whose job, according to the law, is
to identify and punish those responsible. First of all, I could not seek the
opening of an investigation into the abduction of my wife, Luluyeva N.S., and her sisters, Gakayevy, for a long time, even though there were many witnesses [of
the abduction]. The criminal case was opened only on 23 June 2000 whereas
the abduction had taken place on 3 June 2000 and I had reported it on 3 June
2000. I contacted [B.], the acting prosecutor of Grozny, several times. He was
always drunk and threatened me that if I bothered him, people would search for
me as well. After the criminal investigation was opened, investigators and high
officials of the prosecution office told me during informal meetings that the
military were preventing them from uncovering the truth and conducting the
necessary operative search measures... At the Leninskiy VOVD of Grozny there were ... [officers K., M. and U.] ... who tried to help me. At the beginning
they were actively involved in the search for the abducted persons. It was them
who established that the abducted persons had been driven away in an APC with
the registration number 110 of regiment no. 245 of the Sofrinskiy brigade and
that serviceman [F.] had been driving that APC. However, after a while they
told me that they sympathised with me but they valued their own lives and they
were afraid to continue to handle this case ...”.
(c) Main
investigative steps
On 6 July 2000 the investigator examined the crime
scene. No evidence was collected.
On 9 August 2000 the Grozny prosecutor's office informed
the eighth applicant that criminal proceedings had been instituted in
accordance with Article 126 § 2 of the Criminal Code under file no. 12073.
On 26 November 2000 the eighth applicant and, at
some time in December 2000, the seventh applicant (husband of Raisa Gakayeva) were
granted victim status.
On 2 March 2001 a forensic examination of the
bodies (see paragraph 73 above) was carried out at the premises of
the Ministry for Emergency Situations (Emercom) in Grozny.
On 4 March 2001 the seventh applicant and three
other relatives went to the Emercom premises to identify the bodies. The bodies
were in an advanced stage of decomposition and the relatives could only
identify them by earrings and clothes. The body of Raisa Gakayeva was also
identified by a gold tooth. On the same date the relatives transported the
bodies to the Gudermes District and buried them.
On the same date the sixth applicant (son of
Raisa Gakayeva) was granted victim status.
On 15 May 2003 Mr S.G., another relative of
Markha Gakayeva and Raisa Gakayeva, was granted victim status in criminal case
no. 12073.
On 9 November 2006 the European Court of Human
Rights delivered the judgment in the case of Luluyev and Others v. Russia
(cited above) concerning the disappearance of Nura Luluyeva.
The investigation was suspended and resumed on
several occasions. The investigators mainly carried out additional questioning
of witnesses and re-sent information requests. It transpires from the case file
that the applicants regularly complained to various State bodies about the
abduction and killing of their relatives and the delays in the investigation,
and sought access to the criminal case file. The latest such request seen by
the Court was dated 2 April 2008, when the applicants sent the
Investigative Committee of the Russian Federation an inquiry about the progress
of the investigation and requested access to the criminal case file. The
investigation is still pending.
3. Civil proceedings
On 26 March 2002 the seventh applicant brought
civil proceedings against the Russian Government claiming non-pecuniary damage
caused as a result of the abduction and killing of his wife by State agents.
There is no information about the outcome of the proceedings.
D. Application no.
61274/09, Vagapova v. Russia
1. Abduction of
Shaaman Vagapov
According to the sole applicant in this application,
who is the wife of Shaaman Vagapov, on 23 February 2000 her husband was driving his KAMAZ lorry with the registration number
C059AB from the village of Ilyinskoye to Petropavlovskaya, in the Grozny
District.
. At
1 p.m. Shaaman Vagapov was stopped by military servicemen at a checkpoint
located approximately one kilometre from Ilyinskoye. The applicant submitted
that the checkpoint had only been set up on 23 February 2000 for about an hour.
It was manned by servicemen aged between 30 and 50 - none of them were
conscripts -armed with automatic weapons. One serviceman was of Asian origin
and spoke Chechen. A Ural lorry and an UAZ car were parked next to it. The
servicemen took Shaaman Vagapov and his lorry to the military base in Khankala.
. The
applicant has had no news of her husband ever since.
. In
support of her allegations, the applicant provided the following documents: her
complaints to the authorities containing a detailed description of the events, dated 5 September 2000 and 15 April 2002, and an account by Shaaman Vagapov's mother,
dated 29 July 2000.
2. Official
investigation
The Government submitted a copy of the entire
criminal case file no. 18059 on the abduction of Shaaman Vagapov (213 pages).
The following information may be summarily drawn from the case file.
(a) Opening of a
criminal investigation
The case file does not contain a copy of the
applicant's first complaint about the abduction of Shaaman Vagapov. However, it follows from a copy of the applicant's complaint to the Special Envoy, dated 29 July
2000, that she reported her husband's abduction at 2 p.m. on 23 February
2000 to the temporary department of the interior of the Grozny District (“the
Grozny District VOVD”), but no action was taken despite her repeated and
numerous complaints. Moreover, a copy of her complaint to the General
Prosecutor's Office of the Russian Federation (“the General Prosecutor's
Office”), which was received by the latter on 19 October 2000, reads in the relevant parts as follows:
“... During [the past] 6-7 months I have been writing numerous
complaints about the fact that on 23 February 2000 my husband, Shaaman Vagapov , born in 1964, was stopped at a checkpoint and
driven away in his own KAMAZ lorry in the direction of Khankala. The complaints
were sent to the following State bodies within an hour of his abduction and on
the following day:
1.
The Prosecutor of the Grozny District ...
2. The head of the police department of the Grozny District ...
3. The head of the temporary government of the Chechen Republic ...
4. The acting prosecutor of the Chechen Republic ...
5. The head of the department of the interior of the Chechen Republic ...
6. The
Special Envoy of the Russian President in the Chechen Republic for rights and
freedoms ...
I do not know about the stage of the search for my husband
since the above-mentioned agencies did not find it necessary to meet with me,
or to inform me in writing. Therefore, I have come to the conclusion that no
one was looking for my husband, a father of five children. This terrible
conclusion has led me to apply to you ...
... I would like to submit to you the information which the
relatives, friends of [my] husband and residents of the same village have
collected:
1.
On 23 February 2000 a military checkpoint was
set up within a few minutes about one kilometre away from Ilyinskoye, the Grozny District. [The checkpoint] existed only for one hour on 23 February 2000 and
afterwards was not located there.
2.
There were no conscripts. According to
eyewitnesses, these were heavily built servicemen aged between 30 and 50.
3.
One of these servicemen was of Asian origin
and spoke a little Chechen, and asked our shepherd to give him several cows.
4.
These servicemen had automatic weapons with
silencers.
5.
At the checkpoint the servicemen had a Ural
and a grey UAZ-469 car; neither vehicle had a registration plate. All the
witnesses have expressed their willingness to provide assistance in identifying
the servicemen. 30-40 minutes after the events, [his] brothers followed
[Shaaman Vagapov] and established that [Shaaman Vagapov]'s white KAMAZ
accompanied by Ural and UAZ vehicles had driven through three checkpoints and
entered Khankala, where naturally the relatives are not allowed to enter.
On their way back through these checkpoints the relatives were
told that the servicemen accompanying the KAMAZ lorry had introduced themselves
as counter-intelligence officers. The KAMAZ lorry stayed on the territory of
[the military base in] Khankala for three days, but the law-enforcement
officers of the Grozny District whom I had addressed did not take any measures
to return to the children their innocent detained father.
[My] husband's relatives, by their own efforts, managed to
establish that the servicemen were from the 20th division of the Volgograd intelligence battalion of military unit no. 12209, which had been stationed on
the territory of Khankala ...”
On 30 October 2000 the VOVD sent inquiries to
various law-enforcement agencies about Shamaan Vagapov's possible arrest.
On 4 November 2000 the VOVD forwarded the
materials concerning the disappearance of the applicant's husband to the Grozny district prosecutor's office.
On 14 November 2000 the Grozny district
prosecutor's office initiated a criminal investigation into the disappearance
of Shaaman Vagapov. The file was assigned no. 18059.
(b) Main witness
statements taken by the investigators
On 27 November 2000 the applicant was
questioned and stated that on 23 February 2000 her husband had driven his white
KAMAZ lorry to Novy-Tsentoroy. She had had no news of
him ever since. She learnt that on 23 February 2000 servicemen of the 20th division
from Volgograd, who were stationed in Khankala, had manned a checkpoint near Ilyinskoye.
On 26 February 2001 S.U., an Ilyinskoye
resident stated that at 10.30 a.m. on 23 February 2000 he had been grazing
cattle when he had seen a Ural lorry without registration plates parking at the
military checkpoint. Servicemen got out of the vehicle and two armed men in
camouflage uniforms approached him saying that they would take some cattle from
him. At around 12 noon he saw Shaaman Vapagov in his white KAMAZ driving from
Ilyinskoe. The Ural lorry blocked the road and stopped Shaaman, who got out of
the lorry with his documents. Then two servicemen got into the KAMAZ, seated Shaaman between them and drove away in the direction of Petropavlovskaya village.
On 27 February 2001 M.D., Shaaman's brother, was questioned and stated that on 23 February 2000 he had been at home when his neighbour had
come and told him that armed men in camouflage uniforms driving the Ural lorry
had stopped his brother's vehicle at the exit of Ilyinskoye. He and his
neighbour then drove there. However, when they arrived, the checkpoint and
servicemen were no longer there. They drove to the checkpoints in
Petropavlovskaya and Novy-Tsentoroy, where police officers told them that the
white KAMAZ lorry accompanied by Ural and UAZ vehicles had passed those
checkpoints and that the persons inside had identified themselves as servicemen
of a counter-intelligence division. M.D. and his neighbour drove further in the
direction of Grozny, but at a checkpoint near Primykaniye they were stopped and
not allowed to go any further.
(c) Main
investigative steps taken by the authorities
On 27 November 2000
the applicant was questioned and granted victim status in criminal case no. 18059.
On 19 January 2001 the military prosecutor's
office of the Volgograd Garrison informed the investigator that, according to the information provided by the acting head of military unit no. 12209, no servicemen of that unit had been stationed on 23 February 2000 at
the checkpoint located near Ilyinskoye in the Grozny
District.
. On
26 and 27 February 2001 the investigator questioned S.U., a local resident, and M.D., Shamaan Vagapov's brother (see above). It appears that no further investigative
steps were taken until 2005.
. On
26 January 2005 the investigation was resumed.
. In
February and March 2005 the investigator questioned several police officers,
who stated that they had no information about Shaaman Vagapov's abduction. Later,
the investigator also sent inquiries to various law-enforcement agencies, but received no pertinent information in reply.
. On
16 October 2009 the investigator examined the crime scene. The investigation is
still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
For a recent summary, see Aslakhanova and
Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 43-59, 18 December 2012).
THE LAW
I. JOINDER OF THE APPLICATIONS
. In
accordance with Rule 42 § 1 of the Rules of Court, the Court has decided to join the applications, given their similar factual and legal
background.
II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A. Compliance with the six-month rule
1. The parties' submissions
(a) The Government
116. In their observations the Government submitted that none of the applicants
had complied with the six-month rule. They noted, in particular, that the applicants had failed to appeal against the investigators' decisions by way of
judicial review, and the application of the six-month rule was triggered by the
appeal decision, which had not been given in the applicants' cases.
(b) The applicants
(i) Application no. 11554/07, Kaykharova v. Russia
The applicants noted that the investigation in
their case had been suspended and reopened approximately twenty times. In such
circumstances it would be unreasonable to expect them to have challenged each
decision suspending the criminal investigation. According to the applicants, they had participated in the investigation and had not unduly delayed in lodging their
application before the Court.
(ii) Applications no.
7862/08, Muzayeva and Others v. Russia and no. 61274/09, Vagapova v. Russia
The applicants stated that there had been no
excessive and unexplained delays in the submission of their applications to the
Court. After the criminal investigations had been instituted they had had no
reason to doubt their effectiveness. They also drew attention to their lack of
legal knowledge, as they had not had the means to hire a lawyer and the Russian
legislation did not provide victims with the right to free legal assistance.
Moreover, whenever the applicants found out that the investigations had been
suspended, they addressed various State officials requesting that the
investigation be resumed. As soon as the applicants had realised that the
investigations were ineffective owing to the delays, they applied to the Court.
Referring to the case Varnava and Others v. Turkey [GC] (nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, ECHR 2009), they also argued that the six-month rule did not apply to continuing situations
such as in cases of enforced disappearances.
(iii) Application no.
56745/08, Gakayev and Others v. Russia
The applicants submitted that they had taken
all the steps which could have been expected of them within reasonable
time-limits to initiate the search for their missing relatives. There had been
no excessive or unexplained delays on their behalf in submitting their
complaint to the Court. Moreover, they argued that the violations of Article 2
were of a continuing nature. Referring to the case Varnava and Others (cited
above), they noted that the six-month rule did not apply to continuing
situations such as in cases of enforced disappearances. Lastly, they stated
that there had been no considerable lapses of time or significant delays and
lulls in the investigation activity, which could have an impact on the
application of the six-month time-limit. The investigation had been pending for
more than eleven years and had been suspended and resumed on numerous
occasions.
2. The Court's
assessment
The Court first notes that the Government
failed to indicate, in any of the cases, a particular date or decision which
could serve as a trigger for the calculation of the six-month time-limit.
Moreover, it appears from the Government's argument on exhaustion of domestic
remedies (below) that they consider the pending criminal investigations to be
effective. Thus, their argument in this respect appears to be inconsistent with
their position on the exhaustion of domestic remedies.
Nevertheless, the Court reiterates that the purpose of the six-month rule is to promote security of law
and to ensure that cases raising issues under the Convention are dealt with
within a reasonable time. It ought also to protect the authorities and other
persons concerned from being under any uncertainty for a prolonged period of
time. The rule also affords the prospective applicant time to consider whether
to lodge an application and, if so, to decide on the specific complaints and
arguments to be raised (see, for example, Worm
v. Austria,
29 August 1997, §§ 32 and 33, Reports of
Judgments and Decisions 1997-V). The rule
should ensure that it is possible to ascertain the facts of the case before
that possibility fades away, making a fair examination of the question at issue
next to impossible (see Baybora and Others v.
Cyprus (dec.), no. 77116/01, 22 October 2002, and Abuyeva and Others v. Russia, no. 27065/05, § 175, 2 December 2010).
. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic
remedies. Where it is clear from the outset, however, that no effective remedy
was available to the applicant, the period runs from the date of the acts or
measures complained of. Article 35 § 1 cannot be interpreted, however, in a
manner which would require an applicant to bring a complaint before the Court
before his position in connection with the matter has been finally determined
at the domestic level. Where, therefore, an applicant avails himself of an
apparently existing remedy and only subsequently becomes aware of circumstances
which render the remedy ineffective, it may be appropriate for the purposes of
Article 35 § 1 to calculate the six-month time-limit from the date when the
applicant first became, or ought to have become, aware of those circumstances
(see, among others, Zenin v. Russia (dec.), no. 15413/03, 24 September
2009).
. In
a number of cases concerning ongoing investigations into the deaths of
applicants' relatives the Court has examined the period of time from which the
applicant could or should start doubting the effectiveness of a remedy and its
bearing on the six-month time-limit provided for in Article 35 § 1 of the
Convention (see Şükran Aydın and
Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005; and Narin v.
Turkey, no.
18907/02, § 50, 15 December 2009). The determination of whether the applicant
in a given case has complied with this admissibility criteria will depend on
the circumstances of the case and other factors, such as the diligence and
interest displayed by the applicants as well as the adequacy of the
investigation in question (see Narin, cited above, § 43, and Abuyeva and Others, cited above, § 174).
. In
cases concerning disappearances, the Court has held that allowances must be
made for the uncertainty and confusion that frequently mark the aftermath of a
disappearance (see Varnava, cited above, §§ 162-63). The nature of the
investigations into disappearances is such that the relatives of a disappeared
person may be justified in waiting lengthy periods of time for the national
authorities to conclude their investigations.
. However, as explained in the above-cited Varnava judgment:
“165. ... the Court considers
that applications can be rejected as out of time in disappearance cases where
there has been excessive or unexplained delay on the part of applicants once
they have, or should have, become aware that no investigation has been
instigated or that the investigation has lapsed into inaction or become
ineffective and, in any of those eventualities, there is no immediate, realistic prospect of an effective investigation being provided in the future. Where there are
initiatives being pursued in regard to a disappearance situation, applicants may reasonably await developments which could resolve crucial factual or legal
issues. Indeed, as long as there is some meaningful contact between families
and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a
considerable lapse of time, and there have been significant delays and lulls in
investigative activity, there will come a moment when the relatives must
realise that no effective investigation has been, or will be provided. When
this stage is reached will depend, unavoidably, on the circumstances of the
particular case.
166. In a complex disappearance situation
such as the present, arising in a situation of international conflict, where it is alleged that there is a complete absence of any investigation or meaningful
contact with the authorities, it may be expected that the relatives bring the
case within, at most, several years of the incident. If there is an
investigation of sorts, even if sporadic and plagued by problems, the relatives may reasonably wait some years longer until hope of progress being made has
effectively evaporated. Where more than ten years has elapsed, the applicants would generally have to show convincingly that there was some ongoing, and concrete, advance being achieved to justify further delay in coming to Strasbourg.
Stricter expectations would apply in cases where the applicants have direct
domestic access to the investigative authorities.”
. Applying
the above principles, the Court recently found in the case of Er and Others v. Turkey (no. 23016/04, §§ 55-58, 31 July 2012) that the
applicants who had waited for a period of almost ten years after the
disappearance of their relative before lodging their application had complied
with the six-month rule because an investigation, even if sporadic, was being
conducted at the national level. The Court reached similar conclusions in
another case, where the domestic investigation into the events had been pending
for over eight years without any significant periods of inactivity by the time
of the application to Strasbourg, and where the applicants were doing all that
could be expected of them to assist the authorities (see Bozkır
and Others v. Turkey, no. 24589/04, § 49, 26 February
2013).
. On
the contrary, the Court has declared inadmissible applications where the
applicants waited for more than ten years to lodge their complaints, and where there had been, for a long time, no elements allowing them to believe that the
investigation would be effective (see Yetişen and
Others v. Turkey (dec.), no. 21099/06, 10 July 2012; Findik
v. Turkey and Omer v. Turkey (decs.), nos. 33898/11 and
35798/11, 9 October 2012; and Taşçi and Duman v. Turkey (dec.), no. 40787/10, 9 October 2012). In Açış
v. Turkey (no. 7050/05, §§ 41-42, 1 February 2011) the Court rejected as out of time an Article 2 complaint which had
been introduced more than twelve years after the kidnapping and disappearance
of the applicants' relative, because the applicants had not shown that any
concrete advance was being made in the investigation to justify the delay of
more than ten years.
Turning to the circumstances of the cases at
hand, the Court notes that the applicants lodged their complaints with the
Court within a period ranging from four years and two months in the case of Kaykharova
(no. 11554/07) to nine years and seven months in the case of Vagapova
(no. 61274/09). In each of the cases
the investigations were formally pending at the time when their complaints were
lodged before the Court. The applicants in each of the cases maintained
reasonable contact with the authorities, cooperated with the investigation and, where appropriate, took steps in order to achieve a more effective outcome of the proceedings.
Taking into account the above-mentioned case-law in respect of disappearance
complaints, the overall duration of the proceedings in each of the cases does
not justify the application of the admissibility criteria under Article 35 § 1.
. The Court discerns certain periods
of inactivity in the course of the proceedings, when it seems that no new
information was communicated to or sought from the investigation authorities by
the applicants. The longest such period occurred in the case of Vagapova, no. 61274/09, where it amounted to four years (see paragraph 110 above). Such period of
inactivity could be considered significant enough to raise suspicions about the
continuing effectiveness of the investigation. However, the Court notes that,
as it follows from the documents that it has examined, the proceedings in case
no. 61274/09 were resumed as a result of the applicant's complaints in
2005, following which a number of relevant measures have been taken (see
paragraph 112 above). In view of these circumstances, and bearing in mind the
specific context of disappearance cases, the Court
is unable to conclude that the periods of inactivity in this case were such
that the application should be rejected for failure to comply with the
six-month rule.
. Lastly,
the Court finds that it should address the situation in the case of Gakayev
and Others, no. 56745/08, where the bodies of two out of three missing
persons were discovered and identified in 2001. The question arises as to
whether the relatives of Raisa Gakayeva and Markha Gakayeva should be placed
under a more stringent obligation to pursue their complaints and to apply to the
Court sooner, since they had learnt of their relatives' deaths. The Court has
previously concluded that the discovery of the remains bearing signs of
violence and buried in circumstances highly suggestive of extra-judicial
execution or murder trigger a renewed obligation on the authorities to take
investigative steps to identify the remains, the likely cause and circumstances
of death and the identity of the perpetrators of any unlawful violence. The
finding of the bodies in a particular location, bearing signs from which the
cause of death may be ascertained and allowing the pursuit of leads that might
possibly lead to identification of those responsible for the killings must be
regarded as crucial evidence casting new light on the case (see Charalambous and Others v. Turkey (dec.), nos. 46744/07 et al., § 58, 1 June 2010).
. However, in the present case the circumstances in which all four victims (including Nura Luluyeva) were
abducted and killed were never elucidated and the finding of the bodies was
preceded by a significant period during which they, too, had been considered
missing. The applicants maintained relatively regular contacts with the
investigating authorities throughout the period in question, and thus it does not appear that they perceived the remedy as ineffective. The Court does not
find that it could penalise the relatives of the identified victims for not
having grasped the ineffectiveness of the investigation sooner, as in the present case this would constitute a rather artificial distinction.
. Having examined the documents in the
cases at hand, the Court finds that the conduct of each of the applicants
vis-à-vis the investigation has been determined not by their perception of the
remedy as ineffective, but rather by their expectation that the authorities
would, of their own motion, provide them with an adequate answer in the face of
their serious complaints. They furnished the
investigating authorities with timely and sufficiently detailed accounts of
their relatives' abductions, assisted them with finding witnesses and other
evidence and fully cooperated in other ways. They thus reasonably expected
further substantive developments from the investigation. It could not be said
that they failed to show the requisite diligence by waiting for the pending
investigation to yield results (see, mutatis mutandis, Abuyeva and Others, cited above, § 179).
. The
Court thus considers that an investigation, albeit a sporadic one, was being conducted during the periods in question in each of the four cases, and that the applicants did all that could be expected of them to assist the authorities (see Varnava and Others, cited above, § 166, and Er and Others, cited above, § 60). In the light of the foregoing, the Court dismisses the Government's
objection as to the admissibility of these complaints based on the six-month
time-limit.
B. Exhaustion of domestic remedies
1. The parties' submissions
(a) The Government
134. The Government argued that the applications should be dismissed due to the
applicants' failure to exhaust domestic remedies. They stressed that the
applicants had had, and currently had, various remedies at their disposal to
which they could have recourse with respect to the ongoing investigation. They
further noted that the applicants had failed to appeal against the
investigators' decisions by way of judicial review. They also stated that that
the investigations were still pending and it was premature to conclude that the
applicants had exhausted domestic remedies and that the remedies had not been
effective.
(b) The applicants
The applicants argued that the investigations
had been pending for a long time without producing any tangible results. This remedy had proved to be ineffective and their complaints
had been futile.
2. The Court's assessment
In a recent judgment the Court concluded that
the non-investigation of disappearances that occurred, principally, in Chechnya between 1999 and 2006 constitutes a systemic problem and that criminal
investigations are not an effective remedy in this respect (see Aslakhanova
and Others, cited above, §§ 217 and 219).
In such circumstances, and noting the absence
of tangible progress in any of the criminal investigations over the years, the Court concludes that this objection should be dismissed, since the
remedy relied on by the Government was ineffective in the circumstances.
III. THE COURT'S
ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS
A. The parties' submissions
1. The applicants
The applicants in all the
cases maintained that it was beyond reasonable doubt that the men who had taken
away their relatives had been State agents. In support of this assertion they
referred to the evidence contained in their submissions and the criminal
investigation files. They submitted that they had each made a prima facie case that their
relatives had been abducted by State agents and that the essential facts
underlying their complaints had not been challenged by the Government. In view
of the absence of any news of their six missing relatives for a long time and
the life-threatening nature of unacknowledged detention in Chechnya at the
relevant time, they asked the Court to consider dead their relatives whose
whereabouts have not been established.
2. The Government
139. The Government did not contest the essential facts of each case as presented
by the applicants. At the same time, they claimed that during the investigation
no information had been obtained proving beyond reasonable doubt that State
agents had been involved in the abductions and deaths. The mere fact that the
abductors had been armed and had worn camouflaged uniforms without distinctions
was not enough to presume so.
B. The Court's assessment
1. General principles
A number of principles
have been developed in the Court when it is faced with the task of establishing
facts on which the parties disagree (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012).
. More
specifically, the Court has adjudicated a series of cases concerning
allegations of disappearances in the Russian Northern Caucasus. Applying the
above-mentioned principles, it has concluded that it would be sufficient for
the applicants to make a prima facie case of abduction of the missing person by servicemen, thus falling within the control of the authorities, and it would then be for the Government to
discharge their burden of proof either by disclosing the documents in their
exclusive possession or by providing a satisfactory and convincing explanation
of how the events in question occurred (see, among many examples, Aziyevy v. Russia, no. 7626/01, § 74, 20 March 2008; Utsayeva and Others v. Russia, no. 29133/03,
§ 160, 29 May 2008; and Khutsayev and Others v. Russia, no. 16622/05, § 104, 27 May 2010). If the Government failed to rebut this presumption, this would entail a
violation of Article 2 in its substantive part. Conversely, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Tovsultanova v. Russia, no. 26974/06, §§ 77-81, 17 June 2010; Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011; and Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012).
The Court has also made
findings of fact to the effect that a missing person could be presumed dead.
Having regard to the previous cases concerning disappearances in Chechnya and
Ingushetia which have come before it, the Court has found that in the
particular context of the conflict, when a person was detained by unidentified
State agents without any subsequent acknowledgment of the detention, this could be regarded as life-threatening (see, among many others, Bazorkina v. Russia, no. 69481/01, 27 July 2006; Imakayeva
v. Russia, no.
7615/02, ECHR 2006-XIII (extracts); Luluyev
and Others, cited
above; Akhmadova and Sadulayeva v. Russia, no. 40464/02, 10 May 2007; and Velkhiyev and Others v. Russia, no. 34085/06, 5 July 2011).
. Turning
to the cases at hand, the Court finds the following.
2. Application no. 11554/07, Kaykharova v. Russia
The second applicant witnessed her husband's
abduction by a group of armed and masked men who had burst into their apartment
in Grozny during the curfew hours. The first applicant witnessed two military
vehicles, in all probability used by the abductors, which she later saw at the
Oktyabrskiy ROVD. The applicants immediately alerted the law-enforcement
authorities, which were eventually able to identify N.S., who at the time
occupied the position of deputy head of the ROVD, was in charge of their
relative's arrest and was later put on the wanted list in relation to this
incident (see paragraphs 11-13 and 35 above). However, the true identity and
the whereabouts of N.S. have not been established by the investigation, most probably because he was using a “cover name” as a member of the security services (see
paragraph 40 above). No other potential perpetrators have been identified, and the fate of the detainee remains unknown.
The Government referred
to the unfinished nature of the criminal investigation and to the lack of
evidence of special operations and of the detention or death of the applicants'
relative. However, the Court considers that the fact that the investigation has
failed to progress beyond establishment of the basic facts should not be
detrimental to the applicants' arguments. The Government further alluded to the
possibility that the abductors might not have been State servicemen. However, this suggestion is not supported by any credible evidence reviewed by the Court and stands in
contradiction to the established facts of the case, in particular concerning
N.S.'s involvement.
. Bearing
in mind the general principles outlined above, the Court finds it sufficiently
established that Gelani Kaykharov was taken into custody by State agents on 20
December 2002. In the absence of any news of him since that date and given the
life-threatening nature of such detention (see paragraph 142 above), the Court also finds that Gelani Kaykharov could be presumed dead following his unacknowledged
detention.
3. Application no. 7862/08, Muzayeva and others v. Russia
The documents reviewed by the Court contain
sufficient evidence to attest that Suleyman Surguyev, Adam Suleymanov and Mirza
Elmurzayev were detained on 2 February 2000 at school no. 50 in a
suburb of Grozny by a detachment of military unit no. 69771 and brought to
that unit's headquarters. On 5 February 2000 a journalist photographed them
being detained in a pit; the relatives later identified the three men by the
photograph published in the Itogi magazine (see paragraphs 43- 48, 53-56 and 64 above). Their fate and whereabouts after 5 February 2000 are unknown, and none of the perpetrators has been identified or charged.
The Government referred
to the unfinished nature of the criminal investigation and to the lack of evidence
that the applicants' relatives were dead. However, the Court considers that
that argument is insufficient to discharge their burden of proof in a case
where there is prima facie evidence of State control over the disappeared
prisoners. The Court finds it established that Suleyman Surguyev, Adam Suleymanov and Mirza Elmurzayev were taken into custody by State agents on 2 February
2000 and subsequently disappeared. For the reasons
summarised above (see paragraph 142 above), they can be presumed dead.
4. Application no. 56745/08, Gakayev and others v.
Russia
Numerous witness statements produced by the
applicants and collected by the investigation describe the circumstances in
which several individuals were detained on 3 June 2000 at the Grozny
market by a group of military servicemen, who were driving an APC and used
automatic weapons (see paragraphs 71, 75, 79 and 82-84 above). The bodies of
some of the detainees were found in a mass grave on the outskirts of Grozny, in the vicinity of a large military base. The bodies bore signs of violent death
(see paragraphs 73, 89 and 90 above). The body of Zavalu Tazukayev has not been
found.
. The
Court has already found that there existed a body of evidence attaining the
standard of proof “beyond reasonable doubt”, which made it possible to hold the
State authorities responsible for Nura Luluyeva's death (see Luluyev and
Others, cited above, § 85). It does not find anything which could
alter this conclusion in respect of the persons who were detained together with
her: Markha Gakayeva, Raisa Gakayeva and Zavalu Tazurkayev. Lastly, in the circumstances of the case, the Court finds that
Mr Tazurkayev can be presumed dead.
5. Application no. 61274/09, Vagapova v. Russia
The applicant consistently alleged, before both the Court and the domestic authorities, that on 23 February 2000 her husband had
been detained by a group of servicemen on the road near Ilyinskoye, and that he and his truck had been taken in the direction of the Khankala military base. She
gave the investigator information about the route the abductors had taken, as well as the possible provenance and identification number of the military unit involved.
She identified other witnesses who had seen the group and indicated the passage
of the vehicles through certain roadblocks on their way to the military base.
The investigation collected two separate witness statements corroborating that
information (see paragraphs 101 and 105-107 above). Bearing in mind the difficulties associated with obtaining the
evidence and the fact that, often, little evidence can be submitted by
applicants in support of their applications owing to the involvement of
military or security forces, the Court is satisfied that a prima facie case of
abduction by State agents has been made.
. The
Government referred to the unfinished criminal investigation and the lack of
information about the participation of military servicemen in the operation.
They alluded to the possibility that the perpetrators could have been other
than State agents. The Court finds that those arguments are insufficient to
discharge their burden of proof in a case where there is prima facie evidence
of State control over the disappeared person. As to the possibility that the
applicant's husband could have been abducted by common criminals, it is at variance with the available witness statements and has not been seriously pursued by
the domestic investigation. The Court therefore rejects it as a mere conjecture
which has no support in the case file.
. In
view of the above, the Court concludes that Shaaman Vagapov was detained
by State agents on 23 February 2000 and subsequently disappeared. For the reasons summarised above (see paragraph 142 above), he can be presumed dead.
C. Conclusions
The Court finds that in all cases the
applicants' relatives were abducted by armed men in uniforms, displaying conduct characteristic of security operations. Their conduct and appearance, their
ability to pass through roadblocks and their use of vehicles, in all probability, attest that these could not be anyone other than State servicemen. The
applicants' allegations are supported by the witness statements collected by
them and by the investigations. In their submissions to the authorities the
applicants consistently maintained that their relatives had been abducted by
State agents. The domestic investigations accepted as fact the version of
events as presented by the applicants and took steps to check whether the law-enforcement
agencies had been involved in the abductions. As it appears from the documents, the investigations regarded the possibility of abduction by servicemen as the only, or at least the main, plausible explanation of the events (see Aslakhanova and Others, cited above, § 113).
In summary, the facts of the cases contain
sufficient elements to enable the Court to make findings about the carrying out
of security operations and thus about the State's exclusive control over the
detainees (see, among many others, Betayev and Betayeva v. Russia, no. 37315/03, §§ 69-70, 29 May 2008, and Aslakhanova and Others, cited above, § 114). The Government's arguments are limited to references to the unfinished
criminal investigations, or are of a speculative nature and stand in
contradiction to the evidence reviewed by the Court. In any case, they are insufficient to discharge them of the burden of proof which has been shifted to them
in such cases.
The detention in life-threatening circumstances
of Gelani Kaykharov, Suleyman Surguyev, Adam Suleymanov , Mirza Elmurzayev, Zavalu Tazurkayev and Shaaman
Vagapov and the long absence of any news of them lead the Court to
conclude that they can be presumed dead.
IV. ALLEGED
VIOLATION OF ARTICLE 2 OF THE CONVENTION
157. The applicants complained under Article 2 of the Convention that their
relatives had disappeared after having been detained by State agents and that
the domestic authorities had failed to carry out an effective investigation
into the matter. Article 2 reads as follows:
“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
158. The Government contended that the domestic investigations had obtained no
evidence that the detainees had been held under State control or that the
missing persons were dead. They further noted that the mere fact that the
investigative measures had not produced any specific results, or had given only limited ones, did not mean that there were any omissions on the part of the
investigative authorities. They claimed that all necessary measures were being
taken to comply with the obligation to conduct an effective investigation.
159. The applicants reiterated their complaints.
B. The Court's assessment
1. Admissibility
The Court considers, in the light of the
parties' submissions, that the complaints raise serious issues of fact and law
under the Convention, the determination of which requires an examination of the
merits. The complaint under Article 2 of the Convention must therefore be
declared admissible.
2. Merits
(a) The alleged
violation of the right to life of the applicants' relatives
The Court has already
found it established that the applicants' eight family members died, or could be presumed dead, following their unacknowledged detention by State agents. The
liability for their deaths rests with the respondent State. Noting that the
Government do not rely on any grounds for the justification of the deaths, the Court finds that there have been violations of Article 2 in its substantive aspect in
respect of Gelani Kaykharov, Suleyman
Surguyev, Adam Suleymanov, Mirza Elmurzayev, Markha Gakayeva, Raisa Gakayeva, Zavalu Tazurkayev and Shaaman Vagapov.
(b) The alleged inadequacy of the investigation into the abduction
The Court has already found that a criminal
investigation does not constitute an effective remedy in respect of
disappearances which have occurred, in particular, in Chechnya between 1999 and
2006 and that such a situation constitutes a systemic problem under the
Convention (see Aslakhanova and Others, cited above, §§ 217 and 219). In the cases at hand, as in many previous similar cases
reviewed by the Court, the investigations have been pending for many years
without bringing about any significant developments as to the identities of the
perpetrators or the fate of the applicants' missing relatives. While the
obligation to investigate effectively is one of means and not of results, the Court notes that the proceedings in each of the criminal files have been plagued by a
combination of the same defects as enumerated in the Aslakhanova and Others
judgment (cited above, §§ 123-25). Each
of the cases at hand was affected by delays arising out of regular decisions to
adjourn the investigations without taking the most obvious steps, which
followed by periods of inactivity. These delays further diminished the
prospects of solving the crimes. No meaningful steps have been taken in any of
the criminal cases to identify and question the servicemen who could have
witnessed, registered or participated in the operations.
. In
the light of the foregoing, the Court finds that the authorities failed to
carry out effective criminal investigations into the circumstances of the
disappearance and death of the applicants' relatives. Accordingly, there has been a violation of Article 2 in its procedural aspect.
V. ALLEGED VIOLATIONS OF ARTICLES 3, 5 AND 13 OF THE CONVENTION
The applicants complained of violations of
Articles 3 and 5 of the Convention, as a result of the mental suffering caused
to them by the disappearance of their relatives and the unlawfulness of
detention. They also argued that, contrary to Article 13 of
the Convention, they had no available domestic remedies against the violations
claimed, in particular those under Articles 2 and 3. These Articles read, in so far as relevant:
Article 3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article
5
“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.”
Article 13
“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.”
. The
Government contested those arguments.
A. Admissibility
. The
Court notes that these complaints are not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. It further notes that they are
not inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
. The
Court has found on many occasions that a situation of enforced disappearance
gives rise to a violation of Article 3 in respect of the close relatives of the
victim. The essence of such a violation does not lie mainly in the fact of the
“disappearance” of the family member but rather concerns the authorities'
reactions and attitudes to the situation when it is brought to their attention
(see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva, cited above, § 164). Where the news about the missing person's
death was preceded by a sufficiently long period when he or she had been deemed
disappeared, there exists a distinct period during which the applicants
sustained uncertainty, anguish and distress characteristic to the specific
phenomenon of disappearances (see Luluyev and Others, cited above, § 115).
. Equally, the Court has found on many occasions that unacknowledged detention is a complete negation of
the guarantees contained in Article 5 and discloses a particularly grave
violation of its provisions (see Çiçek v.
Turkey, no.
25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122).
. The
Court reiterates its findings regarding the State's responsibility for the
abductions and the failure to carry out a meaningful investigation into the
fates of the persons who had disappeared. It finds that the applicants, who are their close relatives, must be considered victims of a violation of Article 3 of the
Convention on account of the distress and anguish which they suffered, and/or continue to suffer, as a result of their inability to ascertain the fate of their
family members and of the manner in which their complaints have been dealt
with. For the reasons indicated above, this conclusion applies in full to the applicants
who are close relatives of Markha Gakayeva and Raisa Gakayeva (see Luluyev
and Others, cited above, § 115).
. The
Court furthermore confirms that since it has been established that the
applicants' relatives were detained by State agents, apparently without any
legal grounds or acknowledgement of such detention, this constitutes a
particularly grave violation of the right to liberty and security of persons
enshrined in Article 5 of the Convention.
. The
Court reiterates its findings of the general ineffectiveness of the criminal
investigations in cases such as those under examination. In the absence of the
results of the criminal investigation, any other possible remedy becomes
inaccessible in practice.
. The
Court thus finds that the applicants in these cases did not dispose of an
effective domestic remedy for their grievances under Articles 2 and 3, in breach of Article 13 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 38 OF THE
CONVENTION
The applicants in Muzayeva and Others v. Russia (application no. 7862/08) believed that a number of military servicemen had
been questioned during the criminal investigation. However, no records of their statements were submitted to the Court, even though they were the most
important documents in the criminal case. Therefore, the applicants invited the
Court to find a breach of Article 38 of the Convention, which reads:
“The Court shall examine the case together with the
representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all
necessary facilities.”
The Court reiterates that it is of utmost importance for the effective operation of the
system of individual petition instituted by Article 34 that States should
furnish all necessary facilities to make possible a proper and effective
examination of applications (see Tanrıkulu
v. Turkey [GC], no. 23763/94, § 70, ECHR 1999-IV, Velikova v. Bulgaria, no. 41488/98, § 77, ECHR 2000-VI). This obligation requires the
Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties
as regards the examination of applications. A failure on a Government's part to
submit such information which is in their hands without a satisfactory
explanation may not only give rise to the drawing of inferences as to the well-foundedness
of the applicants' allegations, but may also reflect negatively on the level of
compliance by a respondent State with its obligations under Article 38 of the
Convention (see Medova, cited above, § 76, and Timurtaş v. Turkey, no. 23531/94, § 66 and 70, ECHR 2000-VI).
. Turning
to the circumstances of the present case, the Court notes that the Government
alleged that the entire criminal investigation file had been produced (see
paragraph 49 above). In any event, the Court notes that it asked the Government
to produce such relevant documents from the
investigation file which were capable of rebutting the applicants' allegations
that their missing relatives had been abducted by State
servicemen, including witness statements.
Having regard to the above, and to the conclusions as to the double violation of Article 2 (see paragraphs 161 and 162
above), the Court finds that the allegedly incomplete
nature of certain documents and information did not prevent it from examining
the case (see Khatsiyeva and Others v. Russia, no. 5108/02, § 168, 17 January 2008, and Giuliani and Gaggio
v. Italy [GC], no. 23458/02, § 234, ECHR 2011 (extracts)).
There has accordingly been no breach of Article
38 of the Convention.
VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicants in application no. 61274/09 complained, in addition, about breach of their
property rights under Article 1 of Protocol No. 1; and applicants in application no. 11554/07 - about violation of Article 14 in
conjunction with Articles 2, 3 and 5. However, in the light of all the
material in its possession, and in so far as the matters complained of are
within its competence, the Court finds that these complaints do not disclose
any appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols.
It follows that these complaints are manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) 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. The applicants' claims
1. Damage
(a) Application no.
11554/07, Kaykharova v. Russia
The first and second applicants of this
application claimed 550,148 and 1,844,751 Russian roubles (RUB)
respectively in respect of pecuniary damage for the loss of financial support
by the breadwinner. They based their calculation on the
subsistence level provided for by Russian law.
The applicants jointly claimed 70,000 euros
(EUR) in respect of non-pecuniary damage.
(b) Application no. 7862/08, Muzayeva and Others v. Russia
In respect of non-pecuniary damage the three applicants
of this application asked the Court to award them an amount that it would deem
reasonable and appropriate to the level of pain and suffering that was
inflicted on the applicants by the disappearance of their close relatives.
(c) Application no.
56745/08, Gakayev and others v. Russia
The third applicant of this application claimed
RUB 741,699, the fourth applicant claimed RUB 6393, the sixth - RUB 16,860, the eighth - RUB 377,721, the ninth - RUB 10,506 and the tenth - RUB 16,860, in respect of pecuniary damage for the loss of financial support by the breadwinners. They
based their calculation on the subsistence level provided
for by Russian law. The seventh applicant also claimed RUB 15,000 for travel expenses incurred in the course of the search for his wife. The applicants
further claimed RUB 8,000 for the reimbursement of expenses incurred for the
burial of Markha and Raisa Gakayeva.
In respect of non-pecuniary damage the applicants
jointly claimed EUR 300,000.
(d) Application no. 61274/09, Vagapova v. Russia
The applicant of this application asked the
Court to award her non-pecuniary damage in the amount that the Court
would find appropriate.
2. Costs and expenses
(a) Application no 11554/07, Kaykharova v. Russia
The applicants were
represented by SRJI. The aggregate claim in respect of costs and expenses related
to their legal representation amounted to EUR 8,132, which included the drafting of legal documents, translation services, and administrative and postal costs. They submitted copies of the legal representation
contract and an invoice with a breakdown of the costs incurred.
(b) Application no. 7862/08, Muzayeva and
Others v. Russia
The applicants were
represented by D. Itslayev, a lawyer practising in Grozny. The aggregate claim in respect of
costs and expenses related to their legal representation amounted to EUR 7,294, which included the drafting of legal documents submitted to the
Court, translation services, and administrative and postal costs. They
submitted a copy of the legal representation contract with a breakdown of the
costs incurred.
(c) Application no. 56745/08, Gakayev and Others
v. Russia
. The
applicants were represented by SRJI. The aggregate claim in respect of costs and expenses related
to their legal representation amounted to EUR 8,161, which included the drafting of legal documents for the Court, translation, and administrative and postal costs. They submitted copies of the legal
representation contracts and invoices with a breakdown of the costs incurred.
(d) Application no. 61274/09, Vagapova v. Russia
. The
applicant was represented by D. Itslayev, a lawyer practising in Grozny. The aggregate claim in respect of
costs and expenses related to the applicant's legal representation amounted to
EUR 3,217, which included the drafting of legal
documents submitted to the Court, translation services, and administrative and
postal costs. She submitted a copy of the legal representation contract with a
breakdown of the costs incurred.
B. The Court's
assessment
The Court reiterates that there must be a clear
causal connection between the damages claimed by the applicants and the
violation of the Convention, and that this may, where appropriate, include
compensation in respect of loss of earnings. The Court further finds that the
loss of earnings applies to close relatives of the disappeared persons, including spouses, elderly parents and minor children (see, among other authorities, Imakayeva, cited above, § 213).
Wherever the Court finds a violation of the
Convention, it may accept that the applicants have suffered non-pecuniary
damage which cannot be compensated for solely by the findings of violations,
and make a financial award.
As to the costs and expenses, the Court has to establish first whether the costs and expenses indicated by the applicant's
representatives 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, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV).
Having regard to its above conclusions, the principles enumerated above and the parties' submissions, the Court awards the amounts to
the applicants as detailed in Annex II, plus any tax that may be chargeable to
the applicants on these amounts. The awards in respect of the costs and
expenses are to be paid into the representatives' bank accounts, as identified by the applicants.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join the applications;
2. Declares the complaints under Articles 2,
3, 5 and 13 admissible, and the remainder of the application inadmissible;
3. Holds that there has been a substantive violation of Article 2 of
the Convention in respect of the applicants' relatives: Gelani Kaykharov, Suleyman Surguyev, Adam Suleymanov, Mirza Elmurzayev, Markha Gakayeva, Raisa Gakayeva, Zavalu Tazurkayev and Shaaman Vagapov;
4. Holds that there has
been a procedural violation of Article 2 of the Convention in respect of the
failure to investigate effectively the disappearance and deaths of the
applicants' relatives;
5. Holds that there has
been a violation of Article 3 of the Convention in respect of the applicants,
on account of their relatives' disappearance and the authorities' response to
their suffering;
6. Holds that there has
been a violation of Article 5 of the Convention in respect of the applicants'
eight relatives, on account of their unlawful detention;
7. Holds there has been
a violation of Article 13 of the Convention in conjunction with Articles 2 and
3 of the Convention;
8. Holds that there has been no breach of
Article 38 of the Convention;
9. Holds
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the amounts indicated in Annex II, plus any tax that may be chargeable, to be converted into Russian roubles at the rate
applicable at the date of settlement, save in respect of costs and expenses to
the applicants represented by SRJI;
(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 applicants'
claim for just satisfaction.
Done in English, and notified in writing on 1 August 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
