IBRAGIM TSECHOYEV v. RUSSIA - 18011/12 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 546 (21 June 2016)

In the case of Ibragim Tsechoyev v. Russia,

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

          Luis López Guerra, President,
          Helen Keller,
          Johannes Silvis,
          Dmitry Dedov,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 31 May 2016,

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

PROCEDURE

1. The case originated in an application (no. 18011/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Ibragim Tsechoyev (“the applicant”), on 27 March 2012.

2. The applicant was represented before the Court by 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 applicant alleged that in March 2012 his brother had been abducted by State servicemen in Ingushetia and that no effective investigation into the matter had taken place.

4. On 16 July 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1983 and lives in Ordzhenikidzevskaya, Ingushetia. He is the brother of Mr Abubakar (also spelt as Abu-Bakar) Tsechoyev, who was born in 1978.

A. Abduction of Mr Abubakar Tsechoyev

1. The applicant’s submission

6. At the material time the applicant’s brother Mr Abubakar Tsechoyev worked at the water-pumping station in Ordzhenikidzevskaya, Ingushetia.

7. In the evening of 22 March 2012 Mr Abubakar Tsechoyev was at work at the pumping station with his colleagues Mr A.A., Mr K.Kh and Mr I.G. At about 10 p.m. a group of about ten men in camouflage uniforms and balaclavas armed with automatic weapons broke into the pumping station, quickly and noiselessly tied up the employees, blindfolded them and dragged them into separate rooms where they were subjected to beatings. Approximately forty minutes later they took Mr Abubakar Tsechoyev, who was unconscious, outside, placed him in one of their UAZ-brand vehicles and drove away in the direction of Chechnya. They had been due to pass through a checkpoint located on the border between Ingushetia and Chechnya, on the Ordzhenikidzevskaya to Sernovodsk motorway. Later that night, at about 2 a.m. or 3 a.m., one of the colleagues of the abducted man, Mr I.G., managed to free himself; he untied the two others, went to the applicant’s house and informed him of his brother’s abduction.

8. According to the applicant, as soon as he learnt of the abduction, he went to the Sunzhenskiy district police station and informed the duty officer of the abduction of his brother from the water-pumping station. The officer didn’t believe him. The applicant, therefore, left and returned with Mr I.G. who bore the marks of the beatings and whose clothing was torn. Then an investigator questioned Mr I.G. and at about 6 a.m. on 23 March 2012 a group of police officers went to the crime scene to inspect it.

9. The applicant arrived at the pumping station with the police and walked around the grounds. He examined the ground, which was wet, as it had rained at night. A couple of hundred metres from the pumping station, the applicant found the tyre marks of a Lada Niva car. The only road leading to the pumping station passed by the building of school no. 6 in Ordzhenikidzevskaya, which was equipped with CCTV cameras.

2. The Government’s submission

10. The Government did not dispute the circumstances of the abduction as presented by the applicant. At the same time, they pointed out the following: the applicant had not witnessed the incident and had learnt of its circumstances from third persons; the eyewitnesses’ statements were incomplete and imprecise, as the perpetrators had blindfolded them. The Government further submitted that the events had taken place in 2012, in Ingushetia, and not in the Chechen Republic, and that there had been no counterterrorist operations going on and no limitations on free movement of vehicles in the area. In addition, the domestic authorities had found “not far from the water-pumping station [the crime scene] traces of the whereabouts of illegal armed groups.” In sum, the Government submitted that was no evidence of State agents’ involvement in the abduction of the applicant’s brother.

B. Official investigation into the incident

11. In reply to the Court’s requests for a copy of the contents of the investigation file, the Government submitted partial copies of its contents, some 639 pages in total, which showed the steps taken by the investigators from March 2012 to October 2015. From the documents submitted, the investigation can be summarised as follows.

1. Main steps taken by the investigation

12. Early in the morning of 23 March 2012 the applicant lodged an abduction complaint with the Sunzhenskiy district department of the interior (Сунженский районный отдел внутренних дел (РОВД)) (hereinafter “the Sunzhenskiy ROVD”) and the Sunzhenskiy district prosecutor. In his complaint the applicant stated the following:

“... Yesterday, on 22 March 2012, at about 9 p.m. my brother Abubakar Tsechoyev, who was born in 1978, was abducted from his place of work (he worked as the operator of the Vodokanal water-pumping station). The abductors were a group of ten persons, all armed with automatic weapons, dressed in camouflage uniforms and with balaclavas covering their faces. Three more men who were at work at the pumping station with my brother (an electrician, a machinist and a guard), were tied up and prohibited from moving under threat of being shot. One of them was beaten using the butt of a sub-machine gun. At least three persons attacked Abubakar; they beat him with their guns, hands and kicked him; they handcuffed him and dragged him from the pumping station. Then they drove away in a vehicle, presumably, a UAZ. Overall, the abductors spent about an hour at the pumping station. According to our information, the abductors drove through a checkpoint situated on the road between Ordzhenikidzevskaya and Sernovodsk.

My brother is not a criminal, he has not been charged with any administrative or criminal offences, he had never had any problems with the law ... on the date of his abduction he was at work.

On the basis of the above I ask for your assistance in the search for my brother Abubakar Tsechoyev and the persons who abducted him ...”

13. On 23 March 2012 investigators examined the crime scene. Several pieces of evidence, including adhesive tape, pieces of fabric used by the abductors to tie-up the employees and a cut-off piece of the barbed wire from the pumping station’s fence were collected from the scene.

14. On 23 March 2012 the applicant requested that the investigators obtain the CCTV footage from the building of school no. 6 in Ordzhenikidzevskaya which was located in the vicinity of the water-pumping station. He informed the investigators that the footage would be available for seven days as after that subsequent recording would automatically overwrite it. On 30 March 2012 the investigators collected the CCTV footage. However, the video recorded between 20 and 23 March 2012 had already been overwritten by the footage of subsequent dates.

15. On 24 March 2012 the Investigative Department in Sunzhenskiy district (Следственный отдел по Сунженскому району) (hereinafter “the investigations department”) initiated a criminal investigation into the abduction under Articles 126 § 2 of the Criminal Code (aggravated abduction) and the case file was given the number 12600026.

16. On the same date, 24 March 2012, the applicant was granted victim status in the criminal proceedings and questioned (see paragraph 36 below).

17. On 24 March 2012 the investigators took the applicant’s fingerprints to exclude them from the future expert examination of the adhesive tape collected at the crime scene.

18. On 26 March 2012 the investigators granted Mr I.G. victim status in the criminal case (see paragraph

37 below) and ordered a forensic medical examination of the bruises received during the abduction. On 4 April 2012 the expert concluded that Mr I.G. could have obtained the injuries under the circumstances described in his statements to the investigation.

19. On various dates in March and April 2012 the investigators forwarded information requests to a number of State agencies, hospitals, morgues and detention centres in the North Caucasus and the neighbouring regions asking whether they had any information on Mr Abubakar Tsechoyev. The replies received were in the negative.

20. On 6 April 2012 the Sunzhenskiy District Court granted the investigators permission to obtain the phone records for the period between 1st and 30 March 2012 of the mobile telephones of the four employees of the water-pumping station, Mr Abubakar Tsechoyev, Mr A.A., Mr K.Kh and Mr I.G.

21. On 10 April 2012 the investigators informed their supervisor that on that date they had wanted to “inspect” the applicant’s house but the applicant had refused to let them in. From the document submitted it is unclear whether the judicial authorisation for it had been obtained.

22. On 19 April 2012 the applicant refused, for unspecified reasons, to familiarise himself with the decisions to order an expert examination of the evidence and the examination’s conclusions in the criminal case opened in connection with his brother’s abduction.

23. On 27 April 2012 the investigators ordered a forensic expert examination of the piece of fabric which had been used to tie-up Mr K.Kh. during the abduction to establish whether any DNA or smells could be derived from the evidence (see paragraph 13 above).

24. On 3 May 2012 the investigators examined the phone records and the calls made on and around the time of the abduction.

25. On 10 or 11 May 2012 the investigators granted Ms R.Ts., the mother of Mr Abubakar Tsechoyev, victim status in the criminal case and questioned her (see paragraph 41 below).

26. On 20 May 2012 the investigators obtained blood samples from Ms R.Ts. and on 21 May 2012 ordered that they be forensically examined to determine her blood type and to add them to the DNA database.

27. On 21 May 2012 the investigators obtained permission from Ms R.Ts. to search her house; this was carried out on the same date. As a result, Mr Abubakar Tsechoyev’s passport and a black sweatshirt were collected as evidence and a forensic examination of these items was ordered.

28. On an unspecified date between 24 March and 19 May 2012 the Sunzhenskiy ROVD informed the investigators that not far from the pumping station they had found a concealed bunker belonging to members of illegal armed groups.

29. On 24 August 2012 the investigation was suspended for failure to identify the perpetrators. The decision stated that the investigation had four theories concerning the reasons for the abduction: the abduction had been perpetrated due to the hostile relationship between the perpetrators and Mr Abubakar Tsechoyev; he had been arrested by State agents; he had become a member of an illegal armed group; his alleged abduction had been staged by his accomplices in that illegal armed group.

30. On 25 September 2012 the investigators’ supervisor overruled the decision to suspend the investigation as premature and unlawful and ordered that the proceedings be resumed. The applicant was informed thereof.

31. On 25 December 2012 the investigation was suspended for failure to identify the perpetrators. The applicant was informed thereof.

32. On 13 October 2015 the investigation was resumed in order to take a number of steps, such as questioning several police officers who had manned checkpoints Angara-120 and Kavkaz-1 in the vicinity of Ordzhenikidzevskaya on the night of the abduction, and further questioning Mr Abubakar Tsechoyev’s relatives.

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

2. Main witness statements taken by the investigation

34. On 23 March 2012 the investigators questioned the applicant and two employees of the water-pumping station, Mr I.G. and Mr K.Kh., whose scrappy statements were furnished to the Court. From the copies submitted, the contents of the documents were unclear.

35. On the same date, 23 March, and then on 24 March 2012 the investigators questioned another employee of the pumping station, Mr A.A., who stated that in the evening of 22 of March 2012 he had been on-duty at work with three other colleagues, including Mr Abubakar Tsechoyev. At about 9.40 p.m. the lights in the pumping station had gone out. The witness had gone to see what had happened to the electric wires when he had heard Mr Tsechoyev screaming while being beaten by three men in camouflage uniforms, black balaclavas and armed with sub-machine guns; two more men in similar uniforms and balaclavas had been guarding the window and the door. Then the man at the door had grabbed the witness and pointed his gun at his chest and ordered him in Russian not to move. The witness had understood that as a result of the beating Mr Abubakar Tsechoyev had passed out. Then the men had bound the witness’ hands, blindfolded him with a piece of a blanket and adhesive tape and dragged him over to the control room, and then to the prayer room where the intruders had wrapped him in a rug and thrown him to the floor. The witness had remained in the room until about 2 a.m. when his colleagues Mr I.G. and Mr K.Kh. had untied his hands. Then the three of them had seen that the intruders had taken Mr Abubakar Tsechoyev along with their two-way radios, their mobile telephones and the battery from Mr Abubakar Tsechoyev’s VAZ-21099 car which had been parked in the courtyard. The witness stated that he would not be able to identify the perpetrators but that he was sure that the abduction had been perpetrated by professionals who had spoken unaccented Russian and had acted quickly and had been able to incapacitate the employees within a few minutes without making any noise.

36. On 24 March 2012 the investigators questioned the applicant who stated that at about 3 a.m. on the night between 22 and 23 March 2012 Mr I.G. had arrived at his house, informed him of the abduction of Mr Abubakar Tsechoyev by armed masked men in camouflage uniforms and described the circumstances of the incident. The applicant had immediately gone to the Sunzhenskiy ROVD but the duty officer had refused to register the complaint; the applicant had returned to the police station with Mr I.G. who had described the events and shown the bruises received as a result of the abductors’ beating. The applicant further stated that his relatives had previously been detained by the authorities - his elder brother Mr Islam Tsechoyev had been detained and tortured by State agents on the suspicion of membership of an illegal armed group and subsequently had successfully complained of those events to the European Court of Human Rights (see Khadisov and Tsechoyev v. Russia, no. 21519/02, §§ 123 and 133, 5 February 2009) - and that his cousin Mr Aslan Tsechoyev had been killed in 2011 during a special operation carried out by the authorities against members of illegal armed groups.

37. On 24 and then on 26 March 2012 the investigators questioned an employee of the water-pumping station Mr I.G. whose statements were similar to the ones given by his colleague Mr A.A. on 23 and 24 March (see paragraph 35 above). In addition, he stated that the perpetrators had used physical force during the abduction, that they had beaten him and that they had been in camouflage uniforms, including special military boots and armed with sub-machine guns. When he had been taken to the control room, the abductors had pulled a plastic bag over his head leaving just a small opening for the air. Several minutes later he had managed to free himself and gone to the other rooms to find his colleagues. The lights had been off in the entire station. The witness had found Mr K.Kh. and unbound his hands. Then the two of them had found Mr A.A., who had been wrapped in a rug in the prayer room. Then all of them had searched for Mr Abubakar Tsechoyev but they had not been able to find him as he had been taken by the abductors along with their mobile telephones. Then the witness had gone to the applicant’s house and informed him of the incident.

38. On unspecified dates in 2012 (the pages with the dates and the names of the persons questioned were not furnished to the Court) the investigators questioned twelve police officers who had been manning checkpoint Assa situated between the settlement of Nesterovskaya in Ingushetia and the settlement of Assinovskaya in Chechnya between 11 p.m. on 22 March and 11 p.m. on 23 March 2012. All of the officers stated that they had checked each vehicle passing through and that on the night of the abduction they had not seen any vehicles of State agencies going through and had no information pertaining to the incident.

39. On 23 April 2012 the investigators questioned the former director of the water-pumping station Mr B.K. who stated that he had learnt of the incident from Mr I.G. and that he had quit his job after the abduction.

40. On 1 May 2012 the investigators again questioned the applicant’s brother Mr Is.Ts. who stated that he had learnt of the abduction from Mr Abubakar Tsechoyev’s colleague Mr I.G. His statement was similar to that of the applicant (see paragraph 36 above). The witness stated that his family members had been detained and ill-treated by State agents. He referred to his brother, Mr Islam Tsechoyev, who had been detained and tortured by State agents, and that his cousin, Mr Aslan Tsechoyev, had been killed in 2011 during a special operation carried out by the authorities against members of illegal armed groups.

41. On 11 May 2012 the investigators questioned the mother of Mr Abubakar Tsechoyev, Ms R.Ts., who stated that she had learnt of the abduction from Mr I.G. and that her relatives had been detained and ill-treated by State agents. Similarly to her sons, the applicant and Mr Is.Ts. (see paragraphs 36 and 40 above), she referred to the detention and torture of her son Mr Islam Tsechoyev and the killing of Mr Aslan Tsechoyev as a result of a special operation against members of illegal armed groups.

42. On 28 May 2012 the investigators questioned the former head of the security service of the water-pumping station, Mr Ya.G., who stated that he had learnt of the incident from Mr I.G. and that he had quit his job after the abduction.

3. Proceedings against the investigators

43. On 12 April 2013 the applicant complained to the Sunzhenskiy District Court (hereinafter “the District Court”) that the investigation of his brother’s abduction had been ineffective. He stated, in particular, the following:

“... on 25 December 2012 the investigation was suspended for failure to establish the perpetrators.

Abubakar did not have hostile relationships with anybody; he was not involved in a feud nor had he any debts. In 2001 our elder brother Islam Tsechoyev was abducted and taken to the military base in Khankala where he was subjected to severe beatings. In 2007 the European Court of Human Rights in Strasbourg delivered a judgement in Islam’s favour. I do not know that the reasons were for Abubakar’s abduction but I am sure that it was perpetrated by servicemen from within the power structure [of the State].

The investigation failed to take the full range of operational investigative steps. The case file contains the witness statement of a shepherd who had seen a suspicious four-door Niva car with heavily tinted windows next to the water-pumping station. Such vehicles are usually used by special forces ...That car was seen at the pumping station on the day of the abduction and two days prior to it. The investigators also ignored the statement of the guard of the husbandry team who had seen that car at 5 p.m. on the day of the abduction ... I personally inspected the area and found the place where the car had pulled over leaving clear tyre tracks. During that inspection I was with the district police officer [Dz.] from Ordzhenikidzevskaya. I informed the investigator [G.] about my findings but the investigation took no steps to identify the vehicle. No expert examination of the tyre tracks was carried out. The investigation failed to establish which State agency possessed such vehicles and in what quantity. From the very beginning of the investigation, it had been necessary to examine vehicles from the operational search units of State agencies; this has not been done.

In addition, despite my repeated requests, the information from the CCTV cameras situated next to the school was not obtained in time ... On 23 March [2012] I requested that the footage be examined as every seven days the video recorded was automatically destroyed and, therefore, it could be lost. I asked the investigator [G.], amongst other persons, about it, but the investigation obtained the disks only on 30 March [2012], when everything had already been erased.

Based on the above ... I request that ...

- the decision to suspend the investigation of 25 December 2012 be found unsubstantiated; ...

- servicemen of the bodies responsible for my brother’s abduction be identified and prosecuted ...”

44. On 22 April 2013 the District Court rejected the applicant’s complaint as unsubstantiated having found that the impugned decision had been taken lawfully and on sufficient grounds. The court did not examine the applicant’s allegations concerning the possible involvement of State officers in the abduction and the alleged lack of investigative steps to verify that theory.

45. The applicant appealed against that decision to the Ingushetia Supreme Court stating, amongst other things, the following:

“... on 24 March 2012 criminal case no. 12600026 was opened in connection with my brother’s abduction ...

We [the relatives of Abubakar Tsechoyev] do not know the reasons for the abduction, but I am sure that this crime was perpetrated by servicemen of State agencies.

The investigators failed to take all the operational-search meaures such as ... steps to identify the vehicle [seen at the crime scene]. An expert examination of the tyre tracks was never ordered ...; the investigation’s first step should have been to check the vehicles used by the operational units [of law-enforcement agencies] which was never done.

In addition, in spite of my requests, the information from the CCTV cameras ... was not retrieved on time. On 23 March 2012 I asked for it to be done as every seven days the footage got erased. I personally asked the investigators, including investigator G., about it, but they obtained the footage only on 30 March [2012], when everything had been already erased ...”

On 11 June 2013 the Ingushetia Supreme Court upheld the decision of the District Court on appeal in a summary fashion.

II. RELEVANT DOMESTIC LAW

46. For a summary of the relevant domestic law see Turluyeva v. Russia (no. 63638/09, §§ 56-64, 20 June 2013).

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

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

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 13 OF THE CONVENTION

48. The applicant complained under Article 2 of the Convention that his brother, Mr Abubakar Tsechoyev, had been abducted and subsequently deprived of his life by State agents and that the domestic authorities had failed to carry out an effective investigation of the matter. He also alleged that the domestic investigation’s failure to take rapid and effective measures amounted to a violation of the obligation to protect Mr Abubakar Tsechoyev’s life. The applicant further claimed that he had no effective domestic remedies against the above violations. Articles 2 and 13 of the Convention read, in so far as relevant, as follows:

Article 2

“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;

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.”

49. The Government contested those arguments. They stressed that the investigation, conducted in compliance with the relevant domestic regulations and the Convention standards, was still pending, and that there was no evidence of either the State agent’s involvement into the abduction of Mr Abubakar Tsechoyev or of a failure to take steps to protect his life. The Government further contended that the applicant had domestic remedies at his disposal, such as appeals against the investigators’ acts or omissions to domestic courts.

A. Admissibility

50. In so far as the Government argue that the investigation is still pending, the Court finds that this objection is closely linked to the substance of the complaints concerning the effectiveness of the investigation and, therefore, should be joined to the merits of the case. It further notes that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Alleged violation of the substantive limb of the right to life

(a) The parties’ submissions

51. The Government contended that the domestic investigation had obtained no evidence to the effect that Mr Abubakar Tsechoyev had been killed or that any State agents had been involved in his abduction. In particular, they stressed that the applicant’s allegations were based on suppositions, as he had not witnessed the incident. The three eyewitnesses to the abduction had been blindfolded and, therefore, could not provide reliable statements. The fact that the abductors had been wearing camouflage uniforms and military-type boots did not imply that they were State agents as such items were freely available for purchase; no traces of firearms (with which the abductors had been allegedly armed) having been used had been found at the crime scene; the perpetrators used regular, non-military-type, vehicles, commonly used in the area. The logbooks of the checkpoints situated in the vicinity of Ordzhenikidzevskaya did not contain any records concerning the passage of a vehicle carrying law-enforcement officers on the night of the abduction. The events in question had taken place in 2012, when no counterterrorist operations had been taking place and no limitations on free movement for civilians had been in place. Referring to the case of Shafiyeva v. Russia (no. 49379/09, 3 May 2012) the Government contended that the applicant had failed to make a prima facie case of State agents’ involvement in the abduction. The applicant had furnished no evidence of the alleged violation of the positive obligation by the State either. Furthermore, the authorities had demonstrated prompt and effective reaction to the report of the abduction. The Government further claimed that the investigation met the Convention requirement of effectiveness, as all possible measures available under national law were being taken to have the crime solved.

52. The applicant maintained that it was beyond reasonable doubt that the men who had abducted Mr Abubakar Tsechoyev had been State agents. In support of his complaint, he referred to the following facts. The abductors’ uniforms and military boots had been similar to those of State agents. The abductors, who had spoken unaccented Russian and had arrived as a group of ten persons in an UAZ-brand vehicle, had been physically well-trained and had not displayed any fear of being caught. After the incident, which resembled a sweeping-up operation and lasted for at least fifty minutes, the perpetrators had driven away in the direction of Chechnya. Their vehicle would have had to pass through one of checkpoints stationed on each road leading to and from the settlement and it would have had free passage through only if it had been of a State agency. In spite of the information that a large group of armed men had just committed such a serious crime, the authorities had not organised an immediate large-scale operation to apprehend the culprits, which meant that the relevant State agencies must have been aware of the events. Besides this, Mr Abubakar Tsechoyev did not belong to a law-enforcement agency and so would not have become a target of an illegal armed group. In sum, the manner in which the abduction had been carried out demonstrated that law-enforcement officers or other State agents had been involved in it. In addition, the applicant referred to reports of NGOs, such as Amnesty International, concerning a number of abductions allegedly perpetrated by State agents in Ingushetia in 2012.

53. The applicant further alleged that the investigators had either failed to take a number of crucial investigative steps or they had taken important steps with major deficiencies: the examination of the crime scene had been carried out superficially; the investigators had failed to seize and examine the CCTV camera footage from the local school which could have recorded the abductors’ passage to and from the crime scene; not all of the officers on duty at the checkpoint had been identified and questioned about the incident; the investigators had failed to establish whether any of the local State agencies had been conducting a special operation on the date of the abduction; the investigators had failed to establish whether any of the State agencies had been using service Niva vehicles and to question their drivers.

54. Finally, the applicant submitted, referring to the case of Turluyeva, cited above, that the investigative authorities, having been appraised by him of Mr Abubakar Tsechoyev’s abduction and his possible detention at the hands of State agents, had failed to take measures to prevent his disappearance. They had failed to provide a rapid and effective response to the incident in spite of the applicant’s prompt complaint about it and the Court’s request for information on the matter.

(b) The Court’s assessment

55. The Court observes that in its extensive case-law it has developed a number of general principles relating to the establishment of matters in dispute, in particular when faced with allegations of violations of fundamental rights (for the summary of these, see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012).

56. More specifically, the Court has adjudicated a series of cases concerning allegations of disappearances in the Russian North 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 persons by State agents, 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, for example, Alpatu Israilova v. Russia, no. 15438/05, 14 March 2013, and Umarovy v. Russia, no. 2546/08, 12 June 2012). If the Government failed to rebut this presumption, that would entail a violation of Article 2 of the Convention 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, 17 June 2010; Tsechoyev v. Russia, no. 39358/05, 15 March 2011; and Shafiyeva, cited above).

57. Turning to the circumstances of the present case, the Court notes that no assessment of evidence was carried out by the domestic courts. Therefore, it is for the Court to assess the facts of the case as presented by the parties.

58. It should be noted at the outset that the applicant’s submission was based on the statements of two eye-witnesses to the abduction (see paragraphs 35 and 37 above) according to whom the abductors had acted “professionally”; that is to say that they had been organised, well-trained, armed with automatic weapons and had spoken unaccented Russian. The incident had taken place at night, in the dark, and there had been no limitation on the free movement of vehicles in the area. The Court further notes that the applicant’s suspicions of the possible involvement of State agents in the incident were not communicated to the authorities either in his abduction complaint or in the statements to the investigation at the initial stage of the proceedings. The Court finds that, alone, the fact that the two witnesses described the perpetrators as being well-organised and efficient does not suffice to make a prima facie case that they were State servicemen.

59. Therefore, it has not been established to the required standard of proof - “beyond reasonable doubt” - that State agents were implicated in Mr Abubakar Tsechoyev’s disappearance; nor does the Court consider that the burden of proof can be entirely shifted to the Government.

60. In such circumstances, the Court finds no violation of the substantive limb of Article 2 of the Convention.

2. Alleged violation of the procedural limb of the right to life

(a) The alleged ineffectiveness of the investigation into the abduction

61. The applicant argued that the respondent State has also failed in its procedural obligation under Article 2 of the Convention as the investigation into his brother’s disappearance was ineffective. The Government disputed this allegation. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

(i) General principles

62. A summary of the principles concerning effectiveness of the investigation into an alleged violation of Article 2 of the Convention may be found in McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324, and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 169-82, 14 April 2015.

(ii) Application of the principles to the present case

63. The Court notes that the applicants immediately reported the abduction to the authorities (see paragraph 12 above) and that the eyewitnesses to the abduction along with the applicant were interviewed within the following days (see paragraphs 34-37 above). However, in spite of the seriousness of the allegations, the official investigation failed to follow up on time on the urgent information concerning the footage from the CCTV cameras situated in the nearby building (see paragraph 14 above). Further, the investigators failed to examine the registration logs of the checkpoints located in the vicinity (see paragraphs 12, 38 and 43 above) limiting themselves to questioning some of the officers who had manned them on the night of the abduction (see paragraph 32 above). Furthermore, in spite of the applicant’s request, the investigators did not question any of the local law-enforcement officials concerning the possible involvement of their agents in the abduction (see paragraph 43 above).

64. As regards the overall conduct of the proceedings, the Court notes that despite having been initiated on 24 March 2012, the investigation was suspended on 24 August 2012 without the necessary investigative steps having been taken. Such a premature suspension in a situation in which vital steps had not been taken undermined the investigators’ ability to identify and prosecute the perpetrators.

65. As for public scrutiny, the Court notes that the applicant was granted victim status in the criminal case as soon as the proceedings had been initiated (see paragraph 16 above). It remains to be decided whether he was able to effectively pursue his legitimate interests in those proceedings.

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

67. From the documents submitted it follows that the applicant did appeal the investigators’ inaction to the domestic courts in April 2013 (see paragraph 43 above). The Court, however, has strong doubts as to whether further judicial review of the investigation’s shortcomings would have been effective in the circumstances of the present case for the following reasons: in a number of other cases concerning allegations of abductions perpetrated in the northern Caucuses, the Court has stated that in the investigation of a crime as serious as abduction it would be reasonable to presume that the authorities took all possible measures on their own impetus to establish the whereabouts of the abducted man and to identify the culprits (see, for example, Shafiyeva, cited above, § 95, and Askhabova v. Russia, no. 54765/09, § 159, 18 April 2013). In the case at hand the applicant lodged a complaint in respect of the investigators’ inaction in the hope of spurring the proceedings and urging the authorities to take a number of steps (see paragraph 43 above).

68. In such a situation, when the applicant has challenged the investigators’ inaction, taking into account that the proceedings had been ongoing for a year, it is highly questionable whether a judicial review could have redressed the defects in the investigation by bringing them to the attention of a domestic court (see paragraphs 43-45 above). In this connection, the Court reiterates that the authorities cannot leave it to the initiative of the next of kin to request particular lines of inquiry or investigative procedures. They must show their commitment by taking all steps on their own initiative and demonstrating that they have taken every reasonable step available to them to secure the evidence. Any deficiency in the investigation which undermines its ability to establish the identity of the person responsible will risk falling below this standard (see, for example, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV).

69. However, the materials in the Court’s possession reveal that crucial investigative steps, which should have been taken as soon as the relevant information had been obtained, were never taken. This failure to act in a timely manner led to unnecessary protractions and a loss of time. Considering that the applicant’s appeal failed to effectively influence the conduct of the investigation and induce the authorities to take the requested steps (see paragraphs 44 and 45 above), the Court finds that any further remedy would have been ineffective in the circumstances of the present case. The Court, therefore, dismisses their objection as regards the applicant’s failure to exhaust domestic remedies within the context of the criminal investigation.

70. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Mr Abubakar Tsechoyev, in breach of Article 2 of the Convention in its procedural aspect.

71. As to the applicant’s complaint under Article 13 taken in conjunction with Article 2 of the Convention, having regard to the finding of a violation of Article 2 of the Convention in its procedural aspect, the Court considers that there is no need for a separate examination of it on its merits (see Saidova v. Russia, no. 51432/09, § 85, 1 August 2013, and Dobriyeva and Others v. Russia, no. 18407/10, § 89, 19 December 2013).

(b) The alleged failure to take measures to protect the right to life

72. Further, the Court notes that the applicant’s complaint under Article 2 of the Convention also encompasses an allegation of failure to take measures to protect his brother against a known risk to his life. The applicant submitted that the failure to provide a rapid and effective response to his complaint of abduction led to a missed opportunity to identify the perpetrators and save Mr Abubakar Tsechoyev’s life.

73. Article 2 of the Convention may also imply a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998-VIII). For the Court to find a violation of the positive obligation to protect life, it must be established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman, cited above, § 116; Paul and Audrey Edwards v. the United Kingdom, no. 6477/99, § 55, ECHR 2002-II; and Medova v. Russia, no. 25385/04, § 96, 15 January 2009).

74. The Court has already examined situations concerning abductions of applicants’ relatives in similar circumstances during the period in question. It observed that in the immediate aftermath of those abductions the applicants had informed the national authorities of a risk to life and asked those authorities to take steps to find their relatives. The Court considered in those cases that the disappearances of persons in life-threatening circumstances had required the State, pursuant to the obligation stipulated in Article 2 of the Convention, to take operational measures to protect the right to life of the disappeared persons in question because following their abductions their lives had been at more real and immediate risk than those of other persons at that time. It stated that the action which had been expected from the domestic authorities was not to prevent the abductions - which had already taken place - but to take preventive operational measures to protect their lives (see Turluyeva, cited above, §§ 97-101, and Makayeva, cited above, §§102-05).

75. In its judgment in the case of Turluyeva the Court was satisfied that the authorities should be regarded as having been aware of a risk to the life of the applicant’s son as prior to his disappearance he had been seen at the police station with signs of ill-treatment. Moreover, the applicant’s relatives had been threatened by the police shortly before the incident (see Turluyeva, cited above, §§ 14-16). In the case of Makayeva the applicant’s son had been seen prior to his disappearance under guard, with haematomas and wounds, in the local hospital (see Makayeva, cited above, §§ 13-14).

76. Turing to the present case, the Court notes that on 23 March 2012 the applicant lodged a formal complaint, followed by his statements, about his brother’s abduction from work. He provided the investigators with a general description of the abductors and the circumstances of the incident (see paragraph 12 above) stating that his brother had been beaten by the perpetrators. However, in spite of the serious nature of the incident, the applicant’s statements did not contain any indication of threats received by Mr Abubakar Tsechoyev prior to the abduction or the possible identities of the perpetrators (see, by contrast, Osmanoğlu v. Turkey, no. 48804/99, § 75, 24 January 2008, and Makayeva, cited above, § 99).

77. By contrast, the Court notes that the applicant in the present case did not dispute the Government’s assertion that there was no evidence showing that Mr Abubakar Tsechoyev had informed the authorities at any stage that his life was at risk or asked for protection. Moreover, the applicant did not mention that the authorities had failed in their obligation to take the necessary measures to protect his brother from disappearance when he brought proceedings against the investigators (see paragraph 43 above).

78. The Court considers that the applicant did not furnish evidence demonstrating that the national authorities had been aware of the possibility that Mr Abubakar Tsechoyev’s right to life had been at risk prior to his abduction and subsequent disappearance.

79. The Court further observes that in the present case the applicant did not, in the immediate aftermath of the disappearance, nor at a later stage of the proceedings, ask the authorities to investigate the allegations of the failure to protect his brother’s right to life.

80. Taking all these elements into account, the Court is unable to conclude that the authorities knew, or ought to have known at the time immediately following Mr Abubakar Tsechoyev’s disappearance, of the existence of a real and immediate risk to his life from the criminal acts of a third party. In such circumstances, the Court does not discern an additional violation of the positive obligation to protect life in respect of Mr Abubakar Tsechoyev (see, mutatis mutandis, Dobriyeva and Others, cited above, § 85).

II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

81. The applicant contended that Mr Abubakar Tsechoyev had been detained in violation of the guarantees contained in Article 5 of the Convention. Article 5 of the Convention reads, in so far as relevant, as follows:

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.”

82. The Government contested those arguments.

83. The Court has not found that the State bears responsibility for the abduction of Abubakar Tsechoyev. Nor is there any basis to presume that he was ever placed in unacknowledged detention under the control of State agents (see Tovsultanova, cited above, § 111).

84. The Court therefore considers that this part of the application should be dismissed as being incompatible ratione personae and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention (see, for example, Shaipova and Others v. Russia, no. 10796/04, § 117, 6 November 2008, and Shafiyeva, cited above, § 110).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

85. 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

86. The applicant did not submit a claim for pecuniary damage. As for non-pecuniary damage, the applicant claimed 90,000 euros (EUR).

87. The Government submitted that the amount claimed was excessive and was not in line with the relevant case law.

88. Regard being had to its findings in the present case and acting on equitable basis, the Court awards the applicant EUR 20,000 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.

B. Costs and expenses

89. The applicant was represented by SRJI and Astreya. He submitted an itemised schedule of costs and expenses relating to his representation before domestic authorities and the Court. The aggregate claim in respect of costs and expenses amounted to EUR 3,257.

90. The Government submitted that the applicant’s claim under this head was groundless. In particular, they stated that the case had involved little documentary evidence and that legal research and preparation had not been necessary to the extent claimed.

91. The Court has to establish whether the costs and expenses indicated by the applicant’s representatives were actually incurred and whether they were necessary (see McCann and Others, cited above, § 220).

92. Having regard to the details of the information submitted, the Court is satisfied that the rates are reasonable and reflect the expenses actually incurred by the applicant’s representatives.

93. As to whether the costs and expenses were necessary, the Court notes that this case required a certain amount of research and preparation. It notes at the same time that it has rejected part of the application and found no violation in respect of the substantive limb of Article 2 of the Convention.

94. Having regard to this and the details of the claim submitted by the applicant, the Court finds it appropriate to award the applicant’s representatives EUR 2,000, plus any tax that may be chargeable to the applicant, the award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicant.

C. Default interest

95. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

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

2. Declares the complaints concerning Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible;

3. Holds that there has been no substantive violation of Article 2 of the Convention in respect of Mr Abubakar Tsechoyev;

4. Holds that there has been a procedural violation of Article 2 of the Convention on account of the failure to conduct an effective investigation into the circumstances in which Mr Abubakar Tsechoyev disappeared;

5. Holds that no separate issue arises under Article 13 of the Convention taken in conjunction with Article 2 of the Convention;

6. Holds,

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

(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;

7. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 21 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> IBRAGIM TSECHOYEV v. RUSSIA - 18011/12 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 546 (21 June 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/546.html Cite as: [2016] ECHR 546