NAZYROVA AND OTHERS v. RUSSIA - 21126/09 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 160 (09 February 2016)

In the case of Nazyrova and Others v. Russia,

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

          Luis López Guerra, President,
          Helena Jäderblom,
          Helen Keller,
          Johannes Silvis,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 19 January 2016,

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

PROCEDURE

1. The case originated in five applications (nos. 21126/09, 63620/09, 64811/09, 32965/10 and 64270/11) 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 the Appendix I.

2. The applicants were represented before the Court by Mr Said Mushayev, a lawyer practising in Russia, Mr Nino Parravicini, a lawyer practising in France and lawyers from the NGO Stichting Russian Justice Initiative (SRJI) (in partnership with the NGO Astreya). The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicants alleged that on various dates between 2000 and 2003 their five relatives had been abducted by State servicemen in the Chechen Republic, and that the authorities had failed to investigate the matter effectively.

4. On the dates indicated in the Appendix I the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants are Russian nationals who, at the material time, lived in various districts of the Chechen Republic. They are close relatives of individuals who disappeared after being unlawfully detained by servicemen during special operations. In each of the applications, the events concerned took place in areas under the full control of the Russian federal forces. The applicants have had no news of their missing relatives since the alleged arrests.

6. The applicants reported the abductions to law-enforcement bodies and official investigations were opened; however, the proceedings were repeatedly suspended and resumed, and have remained pending for several years without achieving any tangible results. The investigations have consisted mainly of requests for information and formal requests for operational-search measures to be carried out by counterparts in various parts of Chechnya and other regions of the North Caucasus. The requests received either negative responses or none at all.

7. From the documents submitted, it appears that the relevant State authorities were unable to identify the State servicemen allegedly involved in the arrests or abductions.

8. In their observations, the Government did not challenge the description of the circumstances of the abductions as presented by the applicants; however, they stated that there was no evidence to prove beyond reasonable doubt that State agents had been involved in the incidents.

9. Summaries of the facts in respect of each individual application are set out below. Each account is based on statements provided by the applicants and their relatives and/or neighbours to both the Court and domestic investigative authorities. The personal details of the applicants and their missing relatives, and some other key facts, are summarised in the Appendix I.

A. Application no. 21126/09, Nazyrova v. Russia

10. The applicant, Ms Maret Nazyrova, was born in 1968 and lives in Gekhi in the Urus-Martan district of the Chechen Republic. She is the sister of Mr Badrudi Nazyrov, who was born in 1973.

1. Abduction of Mr Badrudi Nazyrov

11. On 20 April 2000, during the daytime, Mr Nazyrov and his friend, Mr Said-Selim Aguyev, were at the applicant’s house in Gekhi when a group of about thirty to forty armed servicemen from the Police Special Task Unit (Отдел милиции особого назначения (ОМОН)) (hereinafter “the OMON”) comprised of servicemen from the Perm Region arrived at the settlement in several vehicles. Some of them were wearing balaclavas. They cordoned off the area and ordered the residents to stay inside. About fifteen servicemen broke into the applicant’s house and searched it. Then they beat up the applicant’s brother and his friend, pulled their T-shirts over their heads, put them into UAZ-type minivans and took them to the Urus-Martan military commander’s office. The applicant and a number of local residents witnessed the events.

12. The Perm OMON unit was stationed on the premises of an orphanage in the vicinity of the applicant’s house. At the material time, two brothers of the Kuznetsov family were in charge of the OMON unit. It appears that they were involved in the abduction as they were not wearing masks and could therefore be identified by the applicant. The following day the military commander’s office accepted a food package for Mr Nazyrov, but the next day the servicemen denied that he had ever been detained on their premises.

13. The applicant has not seen Mr Nazyrov since the abduction on 20 April 2000.

14. The above account is based on witness statements provided by the applicant and copies of documents from the investigation file furnished by the Government.

2. Official investigation and relevant developments

15. From the documents furnished by the applicant and six pages of documents from criminal case no. 24074 submitted by the Government, information about the ensuing official investigation can be summarised as follows.

16. On 4 May 2000 Mr Nazyrov’s father, Mr Sh.N., reported the abduction to the Urus-Martan military commander’s office and the Urus-Martan military prosecutor’s office, stating that his son had allegedly been taken to the Urus-Martan military commander’s office with Mr Aguyev, and that the two men had been detained as the latter had had no identity documents on him.

17. On or around 14 May 2000 the abduction report was forwarded to the Urus-Martan temporary police department (Временный отдел внутренних дел (ВОВД)) (hereinafter “VOVD”) and from there to the Urus-Martan district prosecutor’s office.

18. On 16 May 2000 the Urus-Martan district prosecutor’s office returned the complaint to the VOVD stating that it had been submitted “prematurely”.

19. On 17 May 2000 investigators from the VOVD refused to initiate criminal proceedings into the abduction.

20. On 25 November 2000 the Urus-Martan district prosecutor’s office overruled the refusal and opened criminal case no. 24074. The decision stated that the applicant’s brother had been detained “during a special operation, the lawfulness of which has not been confirmed”.

21. From the documents submitted, it appears that between November 2000 and January 2007 the investigation was suspended and no investigative steps were taken. The applicant was not informed thereof.

22. It appears that on an unspecified date in January or February 2007 the investigation was resumed at the request of the applicant and on 2 February 2007 she was granted victim status in the criminal case.

23. On 1 March 2007 the investigation was suspended. The applicant was informed thereof.

24. On 21 August 2008 the applicant complained to the Urus-Martan Town Court that the investigation into the abduction was protracted and asked for it to be resumed.

25. On 9 September 2008 the court rejected the applicant’s complaint, as the investigation had been resumed on 1 September 2008.

26. On 30 September 2008 the investigation was again suspended. The applicant was informed thereof.

27. From the documents submitted, it appears that the investigation is still pending.

B. Application no. 63620/09, Babuyeva v. Russia

28. The applicant, Ms Satsita Babuyeva, was born in 1958 and lives in Grozny, the Chechen Republic. She is the wife of Mr Muma Babuyev, who was born in 1958.

1. Abduction of Mr Muma Babuyev

29. At the material time, Mr Babuyev worked as a driver for the Department of Technological Equipment (Управление производственно-технологической комплектации (УПТК)) based on the premises of the main military base of the Russian federal troops in Khankala, Chechnya. On the morning of 30 August 2002, on his last day of work, he went there with the applicant to the military base to collect a year’s salary arrears. The couple arrived at the checkpoint at the entrance to the base at about 10 a.m. The applicant’s husband went inside, while she was told to wait for him at the entrance.

30. The applicant spent the entire day waiting for her husband but he never came out. In the evening she had to return home. She spent the next two days at the checkpoint waiting for him but to no avail. On 2 September 2002 she managed to speak to a woman from the admissions office who issued entrance passes to the military base. She confirmed that on 30 September she had issued a pass for Mr Babuyev. She had also made one for him for 1 September 2002 but he had not picked it up, which meant that he must have remained inside and not left the premises. The applicant’s husband has been missing ever since.

31. The above account is based on statements provided by the applicant and copies of documents from the investigation file.

2. Official investigation and relevant developments

32. The Government submitted copies of a small number of documents from criminal case file no. 52112 opened into the disappearance of Mr Babuyev, covering the period between September and November 2002. The relevant information may be summarised as follows.

33. On 22 September 2002 the applicant reported her husband’s disappearance at the military base to various authorities. Her statements concerning the circumstances of the incident were similar to the account she submitted to the Court.

34. On the same date the Grozny city prosecutor’s office initiated a criminal investigation into the events, under Article 126 § 1 of the Criminal Code (kidnapping). The case file was given the number 52112. The relevant parts of the decision read as follows:

“...On 30 August 2002 [Muma Babuyev] went to the military settlement of Khankala in Grozny to collect his salary arrears; other employees of [the department] saw [him] on the premises... [He] did not exit the premises and did not return home...”

35. On 16 October 2002 the applicant was granted victim status in the criminal case.

36. On 21 October 2003 the military prosecutor’s office of military unit no. 20102 informed the applicant that further to her complaints, they had conducted a prosecutor’s inquiry into her husband’s disappearance which had not established the involvement of military servicemen in the incident.

37. On 22 November 2002 the investigation was suspended. The applicant was not informed thereof.

38. On an unspecified date in April and on 18 May 2003 the applicant reported her husband’s unlawful arrest and subsequent disappearance to the Chechnya Prosecutor’s office and requested its assistance in the search for him.

39. On 2 October 2003 the Main Military Prosecutor’s office informed the applicant that their inquiry had not established the involvement of military servicemen in her husband’s disappearance.

40. On 2 November 2004 the Staropromyslovskiy District Court of Grozny declared Mr Babuyev missing at the request of the applicant.

41. On an unspecified date between 2004 and 2009 investigators replied to requests by the applicant for information by providing her with a statement to the effect that the investigation into her husband’s abduction was in progress but his whereabouts had not yet been established.

42. On 10 September and then on 3 November 2009 the applicant asked the investigators to inform her of the progress of the investigation and for access the case file. No replies were given to these requests.

43. On 4 August 2011 the investigation was resumed at the request of the applicant. From the documents submitted, it appears that it is still pending.

C. Application no. 64811/09, Kagermanov and Yakhayeva v. Russia

44. The applicants are Mr Adam Kagermanov, who was born in 1971 (“the first applicant”) and Ms Zura Yakhayeva (also spelled Yakhyayeva), who was born in 1977 (“the second applicant”). The applicants, who live in Gekhi in the Urus-Martan district of the Chechen Republic, are the brother and niece of Mr Ruslan Kagermanov (“Mr Kagermanov ”), who was born in 1963.

1. Abduction of Mr Ruslan Kagermanov

45. The applicants’ family home consisted of four dwellings with a shared courtyard. Mr Kagermanov lived alone in a separate dwelling. At the material time, Gekhi was under curfew. At around 4 a.m. on 4 February 2002 the first applicant learnt from a family member that Mr Kagermanov had been abducted earlier that night by a group of armed servicemen, who had arrived at his home in a Ural lorry and broken down the door. The neighbours had heard the abductors driving off in the direction of Urus-Martan. The applicant thought that his brother had been taken by State servicemen, as at the time many young men had been abducted in a similar manner during curfew hours. In addition, local residents had seen servicemen driving armoured personnel carriers (APCs) in the vicinity that night.

46. Later that morning the applicants found Ural lorry tyre tracks and footprints of military boots in the snow next to Mr Ruslan Kagermanov’s dwelling.

47. At around 10 a.m. about fifty to sixty Russian servicemen in several APCs and Ural lorries arrived at the Kagermanov family home. They blew up Mr Kagermanov’s household small oil refinery in his backyard and searched the premises. According to the applicants, the servicemen had carried out a sweeping-up operation in the area and had searched other houses with oil refineries.

48. The applicants have not seen Mr Kagermanov since 4 February 2002.

2. Official investigation of the abduction

49. The Government did not furnish any documents from the investigation file. From the documents submitted by the applicants, the steps taken by the investigative authorities may be summarised as follows.

50. On 4 February 2002 Mr Kagermanov’s mother, Ms P.K., reported her son’s abduction by military servicemen to the Urus-Martan district prosecutor’s office.

51. On 18 February 2002 the Urus-Martan district prosecutor’s office opened criminal case no. 61023.

52. On unspecified dates in February 2002 investigators questioned the applicants, who both stated they had discovered that Mr Kagermanov had disappeared at about 3.20 a.m. on 4 February 2002. They had found the entrance to his home broken down, footprints of military boots, his belongings scattered around and his broken watch indicating 3.10 a.m. on the floor. The applicants further stated that at about 10 a.m. the same morning a group of fifty to sixty Russian military servicemen in several APCs and Ural lorries had arrived at their house, searched it and destroyed Mr Kagermanov’s oil refinery.

53. In February and March 2002 investigators questioned the applicants and their family members. The statements received were similar to the account furnished by the applicants to the Court.

54. On 18 April 2002 the investigation was suspended. The applicants were not informed thereof.

55. On 4 May 2009 the second applicant requested access to the investigation file. Her request was refused by the investigators on 9 June 2009.

56. On an unspecified date between June and August 2009 she requested victim status in the criminal case. On 11 August 2009 the investigators granted this request and questioned her. Her statement was similar to the account she submitted to the Court.

57. On 18 August 2009 the investigators questioned the first applicant, whose statement was similar to the account he submitted to the Court.

58. On various dates in August 2009 the investigators also questioned the applicants’ relatives and neighbours, Mr Z.K., Ms R.G., Mr M.I. and Ms P.K., whose statements were similar to those of the applicants. No new information was obtained.

59. On 25 August 2009 the investigators examined the crime scene. No evidence was collected.

60. On 11 September 2009 the investigation was suspended. The applicants were informed thereof.

61. On 15 September 2009 the second applicant complained to the Achkhoy-Martan District Court that the investigation had been ineffective and requested access to the investigation file.

62. On 12 October 2009 the second applicant’s complaint was partially allowed by the Achkhoy-Martan District Court. It noted, inter alia, that for seven years, between 2002 and 2009, the proceedings had been dormant and no tangible steps had been taken by the investigators. The court instructed the investigators to provide her with access to the case file.

63. From the documents submitted, it appears that the investigation is still pending.

D. Application no. 32965/10, Tchapanova v. Russia

64. The applicant, Ms Khedi Tchapanova, who was born in 1974, lives in Nice, France. She is the wife of Mr Eduard Zaynadinov (also spelled Zainadinov), who was born in 1974.

1. Events surrounding the abduction of Mr Eduard Zaynadinov

65. According to the applicant, her husband was an active member of illegal armed groups between 1994 and 1996 and then between 1999 and 2000. During the more recent period, the applicant and her two children lived in Shali. In January and February 2000 Russian servicemen regularly visited their dwelling. They searched for firearms and asked the applicant questions concerning her husband’s whereabouts. Fearing for her family’s safety, the applicant moved to the “Kavkaz” neighbourhood in Shali. In June 2002 her husband joined them there. On 24 June 2002 servicemen in APCs took him from his home. He was released a week later.

66. Between 3 and 4 a.m. on 30 July 2002 a group of armed servicemen in balaclavas broke into the applicant’s flat in Shali. They pulled a plastic bag over Mr Zaynadinov’s head and took him to an unknown destination in an APC.

67. Several days later the servicemen returned to the applicant’s house. They searched the premises and asked her about her husband’s involvement in illegal armed groups. During the search they found a list of members of illegal armed groups and a number of identity documents, as well as firearms hidden in the garden.

68. The applicant has not seen Mr Zaynadinov since 30 July 2002. In 2007 she moved to France.

2. Official investigation and relevant developments

69. The Government submitted copies of seventeen pages of documents from criminal case file no. 59229 opened into the abduction of Mr Zaynadinov. The information concerning the criminal proceedings as submitted by both parties may be summarised as follows.

70. On 6 August 2002 the Chechnya prosecutor’s office forwarded the abduction report lodged by Mr Zaynadinov’s father, Mr A.Z. to the Shali district department of the interior (Шалинский районный отдел внутренних дел (РОВД) (hereinafter “ROVD”).

71. On 6 September 2002 investigators questioned Mr A.Z., who stated that at about 3 a.m. or 4 a.m. on 30 July 2002 armed men in camouflage uniforms had arrived in two APCs at their house. They had broken in and checked some identity documents. Afterwards they had taken his son outside, put him into one of the APCs and driven off.

72. On 7 September 2002 two of the applicant’s neighbours (their names were illegible on the documents submitted) stated that on the night of 29 July 2002, they had been woken up by the sound of women crying. They had gone outside and had seen their neighbours on the street and several APCs driving off. They had then learnt that Mr Zaynadinov had been abducted.

73. On 16 September 2002 the Shali district prosecutor’s office opened criminal case no. 59229 into the abduction and informed the applicant thereof.

74. On 16 November 2002 the investigation was suspended. The applicant and her relatives were not informed thereof.

75. On 10 June 2004 the Shali ROVD replied to a request by the applicant for information stating, amongst other things:

“ ... in connection with the abduction of Mr E. Zaynadinov, the Shali district prosecutor’s office opened criminal case no. 59229... the police operational search unit opened search file no. 71373 and has been taking measures to search for Mr E. Zaynadinov, whose whereabouts as of 10 June 2004 have not yet been established [...]”

76. According to the applicant, on 16 November 2004 she had to leave the Chechen Republic out of fear for her and her children’s lives. Since January 2007 she has resided in France.

77. On 16 May 2007 the Shali Town Court declared Mr Zaynadinov missing.

78. On 18 March 2008 Mr A.Z. asked the investigators to provide him with copies of documents from the investigation file. His request was granted on 19 March 2008.

79. On 28 October 2008 the Shali Town Court declared Mr Zaynadinov dead at the request of the applicant’s representative.

80. On 12 December 2011 the investigation was resumed further to a complaint by the applicant’s relatives.

81. On various dates in December 2011 and then in February 2012 the investigators questioned several of the applicant’s relatives and neighbours and examined the crime scene. No new information was obtained.

82. On 13 February 2012 the investigation was again suspended. From the documents submitted, it appears to be still pending.

E. Application no. 64270/11, Alkhotova v. Russia

83. The applicant, Ms Ayna (also spelled Aina) Alkhotova, was born in 1975 and lives in Grozny, the Chechen Republic. She is the wife of Mr Ayndi (also spelled Aindi) Diniyev, who was born in 1971.

1. Abduction of Mr Ayndi Diniyev

84. At the material time Grozny was under curfew. The applicant and her husband resided in a block of flats at 186 Pugacheva Street in the Staropromyslovskiy district of Grozny.

85. At about 1 a.m. on 16 August 2003 a group of about ten to fifteen armed servicemen in camouflage uniforms and balaclavas arrived at the flats in three grey UAZ vehicles and an APC. They broke into the applicant’s flat, quickly searched it, dragged Mr Ayndi Diniyev outside, forced him into one of their vehicles and drove off through checkpoint 24 in the direction of the city centre.

86. The applicant has not seen her husband since his abduction on 16 August 2003.

87. The above account is based on a statement provided by the applicant and copies of documents from the criminal case file.

2. Official investigation and relevant developments

88. On 18 August 2003 the applicant reported her husband’s abduction to the Staropromyslovskiy ROVD stating, amongst other things, that the abductors had arrived in three UAZ minivans and an APC without registration numbers.

89. On 18 August 2003 investigators from the Staropromyslovskiy district prosecutor’s office (“the prosecutor’s office”) examined the crime scene. No evidence was collected.

90. On the same date the investigators questioned the applicant and her relatives, Mr R.E. and Ms M.A., whose statements concerning the incident were similar to the account the applicant submitted to the Court.

91. On 29 August 2003 the prosecutor’s office opened criminal case no. 50094 into the abduction of Mr Diniyev.

92. On 22 September 2003 the investigators questioned the applicant’s mother Ms M.A., whose statement was similar to the account the applicant submitted to the Court.

93. On 22 September 2003 the applicant was granted victim status in the criminal case and questioned. Her statement was similar to her earlier statement of 18 August 2003. In addition, she stated that she would not be able to identify any of the abductors as their faces had been covered.

94. On 29 October 2003 the investigation was suspended for failure to identify the perpetrators. The applicant was not informed thereof.

95. On 7 December 2004 the Staropromyslovskiy District Court of Grozny declared Mr Diniyev missing.

96. On 12 May 2005 the investigation was resumed.

97. On 28 May 2005 the investigators again questioned the applicant, who reiterated her earlier statements.

98. On 12 June 2005 the investigation was suspended again. The applicant was not informed thereof.

99. On 8 April 2008 the Leninskiy inter-district investigations department in Grozny replied to a request by the applicant for information and provided her with copies of two documents from the investigation file.

100. It appears that on 20 August 2010 she was again granted victim status in the criminal case at her request.

101. On 1 June 2011 the supervising prosecutor criticised the investigators for their failure to take basic steps and ordered that the investigation be resumed. On 7 June 2011 the proceedings were resumed.

102. On 24 June 2011 the investigators again questioned Mr E.R. and the applicant, who reiterated their earlier statements. In addition, the applicant stated that about a month prior to the abduction unidentified armed men had robbed her mother-in-law and had even fired several shots at her.

103. On 7 July 2011 the investigation was suspended.

104. On 14 July 2011 the applicant complained to the Leninskiy District Court of Grozny that the investigation of the abduction had been ineffective and asked for the proceedings to be resumed. On 2 August 2011 the court rejected the applicant’s complaint as the investigation had been resumed earlier the same day.

105. On 2 September 2011 the investigation was suspended again and then resumed on 23 April 2012.

106. The criminal proceedings are still pending.

II. RELEVANT DOMESTIC LAW

107. For a summary of the relevant domestic law and international and domestic reports on disappearances in Chechnya and Ingushetia, see Aslakhanova and Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 43-59 and §§ 69-84, 18 December 2012).

THE LAW

108. The Court will deal with the procedural matters in the case before considering the applicants’ complaints concerning the abduction of their relatives and the allegedly ineffective investigation.

I. JOINDER OF THE APPLICATIONS

109. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.

II. COMPLIANCE WITH THE SIX-MONTH RULE

A. The parties’ submissions

1. Government

110. In their observations in respect of the Nazyrova (no. 21126/09), Babuyeva (no. 63620/09), Kagermanov and Yakhayeva (no. 64811/09) and Tchapanova (no. 32965/10) applications, the Government submitted that as no final domestic decisions had been taken in respect of the applicants’ complaints and the investigation was still pending, the six-month time-limit was not applicable.

111. In respect of the Alkhotova (no. 64270/11) application the Government, in their initial observations on the admissibility and merits, submitted that the applicant had complied with the six-month time-limit. In their additional observations, however, they stated that she had failed to demonstrate “a certain amount of diligence and initiative” in contacting the authorities to justify the belated lodging of her application with the Court.

2. The applicants

112. The applicants in all the applications submitted that they had complied with the admissibility criteria concerning the six-month time-limit. They had taken all possible steps within a reasonable time-limit to initiate the search for their missing relatives and assist the authorities in the proceedings. They submitted that there had been no excessive or unexplained delays in submitting their applications to the Court, and that they had lodged their complaints as soon as they had become convinced that the investigations into the abductions of their relatives had been ineffective.

113. Referring to the case of 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), the applicants argued that the six-month rule did not apply to continuing situations of enforced disappearances, and that in any event they had lodged their applications within between seven and nine years of the dates of the abductions, which appeared to be a reasonable time-frame in the circumstances. The applicants submitted that that they had complained to the authorities shortly after the incidents and had hoped that the criminal investigations initiated thereafter would produce results, just as they would in any other official investigation initiated by the authorities in the Russian Federation. They lodged their applications with the Court after realising that the domestic investigations had been ineffective. The applicants further maintained that the armed conflict in Chechnya had led them to believe that investigative delays were inevitable. Moreover, owing to their lack of legal knowledge and financial means to hire a lawyer, and in the absence of any domestic provisions for free legal assistance to victims of enforced disappearances, they had been unable to assess the effectiveness of the investigations. It was only with the passage of time and a lack of information from the investigating authorities that they began to doubt the effectiveness of the investigation and started looking for free legal assistance to assess the effectiveness of the proceedings and then, subsequently, to lodge their applications with the Court without undue delay.

B. The Court’s assessment

1. General principles

114. Although the respondent Government did not raise any objection under this head in respect of four out of the five applications (see paragraph 110 above), this issue calls for the Court’ s consideration proprio motu (see Palić v. Bosnia and Herzegovina, no. 4704/04, § 48, 15 February 2011).

115. A summary of the principles concerning the compliance with the six-month rule in disappearance cases may be found in Sultygov and Others v. Russia (nos. 42575/07, 53679/07, 311/08, 424/08, 3375/08, 4560/08, 35569/08, 62220/10, 3222/11, 22257/11, 24744/11 and 36897/11, §§ 369-74, 9 October 2014).

2. Application of the principles to the present case

116. Turning to the circumstances of the applications at hand, the Court notes that the investigations were pending when the applicants lodged their respective applications with the Court and are still in progress. It further notes that in each case the applicants complained to the authorities after the abduction and lodged their application with the Court within less than ten years of the incident and the initiation of the investigation (see Varnava and Others, cited above, § 166).

117. The Court observes significant breaks in the criminal proceedings, when the investigation remained suspended. For instance, there was a break of almost six years and two months in Nazyrova (no. 21126/09), eight years and eight months in Babuyeva (no. 63620/09), seven years in Kagermanov and Yakhayeva (no. 64811/09), nine years in Tchapanova (no. 32965/10) and six years in Alkhotova (no. 64270/11). It further observes that the applicants were not informed of the decisions to suspend before these breaks, and that the proceedings were resumed at their request (see paragraphs 22, 43, 55, 80 and 104 above).

118. The Court notes that such long periods of inactivity on the part of the authorities could have cast doubt on the effectiveness of the pending investigations and could have compelled the applicants to lodge their applications with the Court at an earlier date. However, it also notes the authorities’ failure to provide the applicants with information concerning the investigations, including the decisions to suspend them (see paragraphs 21, 37, 42, 54, 74 and 98 above).

119. From the documents submitted, it appears that in all of the cases at hand the applicants did all that could be expected of them to assist the authorities with the investigations into their relatives’ disappearance. Taking into account the applicants’ explanations concerning their compliance with the six-month rule and their efforts to resume the dormant proceedings (see paragraphs 22, 43, 55, 80 and 104 above), keeping in mind the overall time frame for lodging their applications with the Court and having regard to the complexity of the cases and the nature of the alleged human rights violations at stake, the Court concludes that it was reasonable for the applicants to wait for developments that could have resolved crucial factual or legal issues (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 142, ECHR 2012). The Court notes that having no information on the progress of the proceedings, the applicants or their relatives either lodged requests for information, asked to familiarise themselves with the contents of the investigation files or complained about the investigations in the hope of expediting the proceedings (see paragraphs 24, 41-42, 55-56, 75, 75, 99 and 104 above). Further to their requests, the authorities resumed the dormant proceedings and took steps to obtain evidence (see paragraphs 22, 43, 56, 62, 80 and 104 above). The Court therefore considers that the breaks in the domestic investigations cannot be held against the applicants or interpreted as their failure to comply with the six-month requirement by unreasonably waiting for the pending investigation to yield results (see, for a similar situation, Sultygov and Others, cited above, §§ 375-80).

120. The Court thus considers that investigations, albeit sporadic, were being conducted during the periods in question, and that the applicants explained the delay in their applications to the Court by the way in which the domestic proceedings developed (see Varnava and Others, cited above, § 166). In the light of the foregoing, the Court finds that the applicants complied with the six-month time-limit.

III. COMPLIANCE WITH THE EXHAUSTION RULE

A. The parties’ submissions

1. Government

121. The Government argued that the applicants had failed to exhaust domestic remedies, as the investigations into the disappearances were still in progress. In addition, the applicants could have appealed against the investigators’ decisions in the domestic courts or lodged a civil claim for damages.

2. The applicants

122. The applicants, referring to the Court’s case-law, submitted that they were not obliged to pursue civil remedies, and that lodging complaints against the investigators would not have remedied the shortcomings of the investigations. They submitted that the only effective remedy - a criminal investigation - had proved to be ineffective.

B. The Court’s assessment

123. As regards a civil claim for damages, the Court has already found in a number of similar disappearance cases that this procedure alone cannot be regarded as an effective remedy (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005). Accordingly, the objection in this regard is dismissed.

124. As regards criminal-law remedies, the Court has concluded that the ineffective investigation of disappearances that have occurred in Chechnya between 2000 and 2006 constitutes a systemic problem, and that criminal investigations are not an effective remedy in this regard (see Aslakhanova and Others, cited above, § 217).

125. In such circumstances, and noting the absence over the years of tangible progress in any of the criminal investigations into the abductions of the applicants’ relatives, the Court concludes that this objection must be dismissed, since the remedy relied on by the Government is not effective in the circumstances.

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

A. The parties’ submissions

1. The Government

126. The Government did not contest the essential facts underlying each application, but submitted that the applicants’ allegations were based on assumptions as there was no evidence proving beyond reasonable doubt that State agents had been involved in the alleged abductions, or that the applicants’ relatives were dead.

2. The applicants

127. The applicants submitted that it had been established “beyond reasonable doubt” that the men who had taken their relatives had been State agents. In support of that assertion, they referred to evidence contained in their submissions and documents from the criminal investigation files disclosed by the Government. They also submitted that they had each made a prima facie case that their relatives had been abducted by State agents, but the essential facts underlying their complaints had not been challenged by the Government. Given the lack of any news about their 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 their relatives dead.

B. The Court’s assessment

1. General principles

128. A summary of the principles concerning assessment of evidence and establishment of facts in disappearance cases and the life-threatening nature of such incidents may be found in Sultygov and Others (cited above, §§ 393-96).

2. Application of the above principles to the present case

(a) Application no. 21126/09, Nazyrova v. Russia

129. Witness statements collected by the applicant, along with documents from the investigation file furnished by the Government, confirm that her brother, Mr Nazyrov, was abducted in Gekhi on 20 April 2000 by a group of servicemen during a special operation (see, for example, paragraphs 16 and 20 above). In view of all the material in its possession, the Court finds that the applicant has presented a prima facie case that her brother was abducted by State agents in the circumstances set out by her.

130. The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof.

131. Bearing in mind the general principles enumerated above, the Court finds that Mr Nazyrov was taken into custody by State agents on 20 April 2000. Given the lack of any news about him since that date and the life-threatening nature of such detention (see paragraph 128 above), it also finds that Mr Nazyrov may be presumed dead following his unacknowledged detention.

(b) Application no. 63620/09, Babuyeva v. Russia

132. Witness statements collected by the applicant, along with documents from the investigation file furnished by the Government, confirm that her husband, Mr Babuyev, was abducted in Khankala on 30 August 2002 by State servicemen (see, for example, paragraphs 33 and 34 above). In view of all the material in its possession, the Court finds that the applicant has presented a prima facie case that her husband was abducted by State agents in the circumstances set out by her.

133. The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof.

134. Bearing in mind the general principles enumerated above, the Court finds that Mr Babuyev was taken into custody by State agents on 30 August 2002. Given the lack of any news about him since that date and the life-threatening nature of such detention (see paragraph 128 above), it also finds that Mr Babuyev may be presumed dead following his unacknowledged detention.

135. Witness statements collected by the applicants and copies of part of the investigation file submitted by them to the Court confirm that their relative, Mr Kagermanov, was abducted from his home in Gekhi on 4 February 2002 during curfew hours by a group of servicemen during a special operation (see, for example, paragraphs 52 and 53 above). In view of the material in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances set out by them.

136. The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof.

137. Bearing in mind the general principles enumerated above, the Court finds that Mr Kagermanov was taken into custody by State agents on 4 February 2002. Given the lack of any news about him since that date and the life-threatening nature of such detention (see paragraph 128 above), it also finds that Mr Kagermanov may be presumed dead following his unacknowledged detention.

(d) Application no. 32965/10, Tchapanova v. Russia

138. Witness statements collected by the applicant, along with a small number of documents from the investigation file furnished by the Government, confirm that her husband, Mr Zaynadinov, was abducted in in Shali on 30 July 2002 by a group of servicemen (see, for example, paragraphs 71 and 75 above). In view of all the material in its possession, the Court finds that the applicant has presented a prima facie case that her husband was abducted by State agents in the circumstances set out by her.

139. The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof.

140. Bearing in mind the general principles enumerated above, the Court finds that Mr Zaynadinov was taken into custody by State agents on 30 July 2002. Given the lack of any news about him since that date and the life-threatening nature of such detention (see paragraph 128 above), the Court also finds that Mr Zaynadinov may be presumed dead following his unacknowledged detention.

(e) Application no. 64270/11, Alkhotova v. Russia

141. Witness statements collected by the applicant, along with documents from the investigation file furnished by the Government, confirm that her husband, Mr Diniyev, was abducted in Grozny on 16 August 2003 by a group of servicemen (see, for example, paragraphs 88 and 92 above). In view of all the material in its possession, the Court finds that the applicant has presented a prima facie case that her husband was abducted by State agents in the circumstances set out by her.

142. The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof.

143. Bearing in mind the general principles enumerated above, the Court finds that Mr Diniyev was taken into custody by State agents on 16 August 2003. Given the lack of any news about him since that date and the life-threatening nature of such detention (see paragraph 128 above), it also finds that Mr Diniyev may be presumed dead following his unacknowledged detention.

3. Summary of the conclusions

144. The Court finds that in all the cases presently before it, the applicants’ allegations are supported by both the witness statements collected by them and the domestic investigations. In their submissions to the authorities, the applicants maintained that their relatives had been abducted by State agents. The investigative authorities accepted as fact the primary versions of events presented by the applicants and took steps to check whether State servicemen were involved in the abductions.

145. In summary, the facts of all the applications contain sufficient evidence 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 other authorities, Aslakhanova and Others, cited above, § 114). The Government’s arguments stand in contradiction to the evidence reviewed by the Court and are insufficient to discharge them of the burden of proof which has been shifted to them in such cases.

146. The detention in life-threatening circumstances of Mr Badrudi Nazyrov, Mr Muma Babuyev, Mr Ruslan Kagermanov, Mr Eduard Zaynadinov and Mr Ayndi Diniyev, together with the lack of any news about them for a number of years, leads the Court to conclude that they may be presumed dead.

V. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

147. The applicants complained, under Article 2 of the Convention, that their relatives had disappeared after being detained by State agents, and that the domestic authorities had failed to carry out investigations into the matter effectively. Article 2 of the Convention 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;

A. The parties’ submissions

148. The Government contended that the complaints should be rejected as manifestly ill-founded, as the applicants had failed to substantiate their allegations before the Court. They also submitted that no evidence had been obtained in the domestic investigations to suggest that the applicants’ relatives had been held under State control, or were dead. They pointed out that the mere fact that the investigative measures taken had not produced any specific results, or had yielded only limited results, did not mean that there had been any omissions on the part of the investigative authorities. They claimed that all necessary steps were being taken to comply with the obligation to conduct an effective investigation.

149. The applicants maintained their complaints.

B. The Court’s assessment

1. Admissibility

150. 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.

2. Merits

(a) Alleged violation of the right to life of the applicants’ relatives

151. The Court has already found that in all of the applications under examination, the applicants’ relatives may be presumed dead, following their unacknowledged detention by State agents. In the absence of any form of justification put forward by the Government, the Court finds that their deaths can be attributed to the State and that there has been a violation of the substantive aspect of Article 2 of the Convention in respect of Mr Badrudi Nazyrov, Mr Muma Babuyev, Mr Ruslan Kagermanov, Mr Eduard Zaynadinov and Mr Ayndi Diniyev.

(b) Alleged inadequacy of the investigations into the abductions

152. 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). 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 each set of criminal proceedings has been plagued by a combination of defects similar to those enumerated in the Aslakhanova and Others judgment (cited above, §§ 123-25). Each was subjected to several decisions to suspend the investigation, followed by periods of inactivity, which further diminished the prospects of solving the crimes. No meaningful steps have been taken to identify and question the servicemen who could have witnessed, registered or participated in the operations.

153. In the light of the foregoing, the Court finds that the authorities have failed to carry out effective criminal investigations into the circumstances of the disappearance and death of Mr Badrudi Nazyrov, Mr Muma Babuyev, Mr Ruslan Kagermanov, Mr Eduard Zaynadinov and Mr Ayndi Diniyev. Accordingly, there has been a violation of the procedural aspect of Article 2 of the Convention.

VI. ALLEGED VIOLATIONS OF ARTICLES 3, 5 AND 13 OF THE CONVENTION

154. The applicants complained of a violation of Articles 3 and 5 of the Convention on account of the mental suffering caused to them by the disappearance of their relatives and the unlawfulness of their relatives’ detention. They also argued that, contrary to Article 13 of the Convention, they had no available domestic remedies against the alleged violations, in particular those under Articles 2 and 3 of the Convention. Those 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.”

A. The parties’ submissions

155. The Government contested the applicants’ claims.

156. The applicants reiterated their complaints.

B. The Court’s assessment

1. Admissibility

157. 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.

2. Merits

158. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention 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 v. Russia, no. 7615/02, § 164, ECHR 2006-XIII (extracts)). Where the news about a missing person’s death has been preceded by a sufficiently long period when he or she has been deemed to have disappeared, there exists a distinct period during which the applicants have sustained uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances (see Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006-XIII (extracts).

159. Equally, the Court has found on many occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 of the Convention and discloses a particularly serious violation of its provisions (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others, cited above, § 122).

160. The Court reiterates its findings regarding the State’s responsibility for the abductions and the failure to carry out meaningful investigations into the fates of the disappeared persons. It finds that the applicants, who are close relatives of the disappeared, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish they suffered, and 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.

161. The Court also 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 serious violation of the right to liberty and security of persons enshrined in Article 5 of the Convention.

162. The Court reiterates its findings regarding the general ineffectiveness of criminal investigations in cases such as those under examination. In the absence of the results of a criminal investigation, any other possible remedy becomes inaccessible in practice.

163. The Court thus finds that the applicants in these cases did not have at their disposal an effective domestic remedy for their grievances under Articles 2 and 3, in breach of Article 13 of the Convention.

VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

164. 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. Damage

165. The applicant in Nazyrova v. Russia (no. 21126/09) did not claim pecuniary damage, but claimed 60,000 euros (EUR) in respect of non-pecuniary damage.

166. The applicant in Babuyeva v. Russia (no. 63620/09) claimed 997,089 Russian roubles (RUB) (about EUR 20,000) in respect of pecuniary damage for loss of financial support from the main breadwinner. She based her calculations on the subsistence level provided for by domestic law and the Ogden Actuary Tables. She also claimed EUR 100,000 in respect of non-pecuniary damage.

167. The applicants in Kagermanov and Yakhayeva v. Russia (no. 64811/09) did not claim pecuniary damage, but claimed EUR 100,000 jointly in respect of non-pecuniary damage.

168. The applicant in Tchapanova v. Russia (no. 32965/10) did not claim pecuniary damage, but claimed EUR 40,000 in respect of non-pecuniary damage.

169. The applicant in Alkhotova v. Russia (no. 64270/11) did not claim pecuniary damage, but claimed EUR 60,000 in respect of non-pecuniary damage.

170. The Government submitted that in Babuyeva v. Russia (no. 63620/09) the applicant’s claim for pecuniary damage was unsubstantiated, and that there was a domestic mechanism for compensation in respect of pecuniary damage resulting from the loss of a breadwinner.

171. As regards the claims for non-pecuniary damage, the Government stated in respect of each application that the amount of compensation should be determined on an equitable basis, and that finding a violation of the Convention would constitute just satisfaction for the applicants.

B. Costs and expenses

172. The applicants in Nazyrova v. Russia (no. 21126/09) and Alkhotova v. Russia (no. 64270/11) were represented by Mr Said Mushayev. The aggregate claims in respect of costs and expenses related to their legal representation amounted to EUR 4,900 and EUR 2,500 respectively, which represented legal costs incurred before the national authorities and before the Court.

173. The applicants in Babuyeva v. Russia (no. 63620/09) and Kagermanov and Yakhayeva v. Russia (no. 64811/09) were represented by SRJI/Astreya. The aggregate claims in respect of costs and expenses related to their legal representation amounted to EUR 2,707 and EUR 4,062 respectively, which included the drafting of legal documents, translation services and administrative and postage costs. The applicants submitted copies of their legal representation contracts and invoices with breakdowns of the costs incurred.

174. The applicant in Tchapanova v. Russia (no. 32965/10) was represented by Mr Nino Parravicini. The aggregate claim in respect of costs and expenses related to the applicant’s legal representation before the Court amounted to EUR 5,000.

175. The Government submitted in respect of each claim for costs and expenses that the amount claimed was excessive and unreasonable, and that the claim should be rejected as unsubstantiated.

C. The Court’s assessment

176. The Court reiterates that there must be a clear causal connection between the damages claimed by 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 loss of earnings applies to close relatives of the disappeared persons, including spouses, elderly parents and children (see, among other authorities, Imakayeva, cited above, § 213).

177. 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 finding of a violation, and make a financial award.

178. As to costs and expenses, the Court has to establish whether they were actually incurred and whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

179. Having regard to the conclusions and principles set out above and the parties’ submissions, the Court awards the applicants the amounts detailed in the Appendix II, plus any tax that may be chargeable to them on those amounts. The awards in respect of costs and expenses are to be paid into the representatives’ bank accounts as indicated by the applicants.

D. Default interest

180. 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 applications admissible;

3. Holds that there has been a violation of Article 2 of the Convention in respect of the applicants’ relatives Mr Badrudi Nazyrov, Mr Muma Babuyev, Mr Ruslan Kagermanov, Mr Eduard Zaynadinov and Mr Ayndi Diniyev;

4. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate the disappearance 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’ 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

(a) that the respondent State is to pay the applicants, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the amounts as indicated in the Appendix II, plus any tax that may be chargeable to them. The payments in respect of costs and expenses to the applicants’ representatives are to be made to the representatives’ bank accounts as indicated by the applicants; the payments are to be made in euros in respect of the applicants represented by SRJI/Astreya and Mr Nino Parravicini, and to be converted into the currency of the respondent State in respect of the applicants represented by Mr Said Mushayev;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 9 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Luis López Guerra
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> NAZYROVA AND OTHERS v. RUSSIA - 21126/09 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 160 (09 February 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/160.html Cite as: [2016] ECHR 160