KUSHTOVA AND OTHERS v. RUSSIA (No. 2) - 60806/08 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2017] ECHR 199 (21 February 2017)

In the case of Kushtova and Others v. Russia (no. 2),

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

          Luis López Guerra, President,
          Helena Jäderblom,
          Helen Keller,
          Dmitry Dedov,
          Branko Lubarda,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 31 January 2017,

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

PROCEDURE

1. The case originated in an application (no. 60806/08) 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 seven Russian nationals, (“the applicants”), on 15 January 2008.

2. The applicants were represented by the Stichting Russian Justice Initiative NGO in partnership with the Astreya NGO (SRJI/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, in particular, that in January 2006 their relative Mr Ibragim Kushtov had disappeared in Ingushetia after his abduction by State agents and that the authorities had failed to investigate the matter effectively.

4. On 20 October 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants are:

1) Ms Marzhan Kushtova, who was born in 1925,

2) Mr Magomet (in the documents submitted also spelt as Magomed and Magomed-Bashir) Kushtov, who was born in 1950,

3) Ms Minovsi (also spelt as Minuosi) Tsitskiyeva, who was born in 1954,

4) Ms Madina Kushtova, who was born in 1960,

5) Mr Musa Kushtov, who was born in 1961,

6) Ms Fatima Kushtova, who was born in 1966 and

7) Ms Khulimat Kushtova, who was born in 1968.

The applicants are Russian nationals who live in the Republic of Ingushetia, Russia. The first applicant is the mother of the other six applicants and of Mr Ibragim Kushtov, who was born in 1971.

6. The facts of the case, as submitted by the parties, may be summarised as follows.

A. Alleged abduction and subsequent disappearance of Mr Ibragim Kushtov

7. At the material time, Mr Isa Kushtov, Mr Ibragim Kushtov’s older brother, was wanted by the authorities on terrorism charges. Mr Isa Kushtov was killed in Ingushetia in July 2006, about six months after the events in question (see the Court’s judgment in Kushtova and Others v. Russia, no. 21885/07, §§ 7-9, 16 January 2014).

8. On 25 January 2006 Mr Ibragim Kushtov was driving his VAZ-21074 car with registration number B309TX15 (in the documents submitted the number was also referred to as B309КX15) near Magas airport in Ingushetia when he was stopped by policemen, forced into a Niva vehicle and taken away. His car was left behind. The circumstances of the incident were described by a witness, M., who submitted as follows:

“On 25 January 2006 I witnessed the capture of a young man who was about 30 to 35 years old at around 5.30 p.m. ... I saw two traffic police officers stop ... a white VAZ-2107. When the driver got out of the car, one of the police officers hit him in the face twice and they started fighting. Suddenly two Niva cars (one white and one blue) drove up. Six military personnel jumped out of them. They were wearing camouflage uniforms and masks ... Some of them were not wearing masks. They looked Slavic and spoke Russian without an accent. I have seen only Federal Security Service members wear such uniforms. The people who got out of the blue Niva were wearing dark uniforms. The driver did not wear a uniform. He spoke like a local. All the men assaulted the [young man] and started beating him. Somehow, he managed to break free and started running down the road. I saw one of the servicemen shoot at him ... A bit later [the young man] stumbled and fell down. I cannot say whether he was wounded. [The other men] caught up with him and beat him again. They opened the back door of the white Niva and pushed him in. They then left ... I have no doubt that they were with the Federal Security Service. Only those people can move around freely and without hindrance.”

It is unclear whether the witness’s statement, which was submitted by the applicants to the Court and dated 3 April 2007, was also given to the authorities.

9. According to the applicants, State agents abducted Mr Ibragim Kushtov in order to “lure Isa Kushtov out of hiding” and that holding suspected terrorists’ relatives in order to make suspects surrender had occurred several times in the region. They referred to the report of the Human Rights Watch NGO “Disappearances in Chechnya as a Crime Against Humanity”[1].

10. The Government did not dispute the applicants’ version of events, but stressed that the perpetrators of Mr Ibragim Kushtov’s abduction had been unidentified individuals and not State agents as alleged.

B. Investigation of the abduction

11. In reply to a request from the Court to submit a copy of documents on the steps taken by the investigation into Mr Ibragim Kushtov’s abduction, the Government furnished copies of criminal case file no. 066000005, running up to 434 pages. The information submitted may be summarised as follows.

1. Main steps taken by the investigation

12. The applicants immediately complained about the abduction to various authorities, including the Sunzhenskiy district prosecutor’s office (hereinafter “the prosecutor’s office”), the Ministry of the Interior (hereinafter “the police”) and the Federal Security Service (Федеральная Служба Безопасности (ФСБ)) (hereinafter “the FSS”).

13. On 26 January 2006 the police interviewed the second applicant, who stated that he had learnt of his brother’s abduction from his relatives and that his brother’s white VAZ-2107 car had been taken to the premises of the Sunzhenskiy district police department ( Сунженский районный отдел внутренних дел (РОВД)) (hereinafter “the ROVD”).

14. On 28 January 2006 the prosecutor’s office opened criminal case no. 066000005 in connection with the abduction.

15. On 9 February 2006 the investigators received a request for information from the human rights NGO Memorial which stated that the first applicant had requested their assistance in the search for her son who had been abducted by law-enforcement officers. The investigators were requested to provide information about which State agency had arrested the first applicant’s relative and on what charges.

16. On 15 February 2006 the first applicant wrote to the Prosecutor General of the Russian Federation asking him to provide security for her and the other applicants. She said in the letter: “Our house has been raided on several occasions by law-enforcement officers in camouflage uniforms and masks, who swore and hit us with rifle butts ... our family has faced a great deal of threats from the law-enforcement agencies and the other State special services”. The complaint was included in the criminal case file. No reply was given to it.

17. On 29 March 2006 the investigators searched the applicant’s house in the village of Troitskaya (also spelled Troitskoye). No evidence was collected.

18. On 1 April 2006 the prosecutor’s office refused to open a criminal case related to the first applicant’s allegations of harassment by the law-enforcement agencies.

19. On 10 April 2006 the Ingushetia FSS informed the investigators that they had not conducted any special operations in Troitskaya on 31 December 2005.

20. On 13 April 2006 the investigators obtained information on the calls made to and from Mr Ibragim Kushtov’s mobile telephone on the date of the abduction.

21. On 10 May 2006 the first applicant requested that the investigators provide her with information on the progress of the investigation into her son’s abduction. She was informed in reply that the whereabouts of her son had not been established but that search measures were being taken.

22. On 17 May 2006 the Ingushetia FSS replied to a request for information from the investigators that the second applicant’s allegations of the possible involvement of FSS agents in the abduction and detention of his brother were not true.

23. On 28 May 2006 the investigation of the criminal case was suspended for failure to establish the identity of the perpetrators. On 29 May 2006 the applicants were informed of that decision.

24. On various dates between February and May 2006 the investigators sent numerous information requests to various law-enforcement agencies and penal institutions concerning the possible arrest or detention of Mr Ibragim Kushtov. All of the replies were negative.

25. On 28 June 2006 the investigation was resumed.

26. On 26 July 2006 the investigators granted victim status to the second applicant in response to his request of 19 June 2006.

27. On an unspecified date in June or July 2006 the first applicant again complained to the Prosecutor General, the head of the Federal Security Service and the Minister of the Interior, stating that her family was being threatened by law-enforcement agents, who had harassed her and her relatives and that her son Mr Ibragim Kushtov had been abducted in order to make him confess to crimes he had not committed.

28. On 28 August 2006 the investigation was suspended for failure to identify the perpetrators.

29. On 28 December 2006 the first applicant requested that the investigators question the many people who had witnessed the abduction. In particular, she stressed that the perpetrators had stopped the traffic during the abduction and that therefore many drivers had stopped and witnessed the events. In addition, Mr Ibragim Kushtov’s car had been stopped by policemen in traffic police uniforms and the incident had taken place about 200 metres from the traffic police station. She enclosed a hand-drawn map of the area in question and the police station’s location. No reply was given to the request.

30. On 27 November 2006, 29 April 2007 and on 21 December 2007 the investigators refused requests from the first and second applicants to have access to the investigation file.

31. The investigation was suspended between 22 October 2006 and 25 December 2014, when it was resumed. It is still ongoing.

2. Witness statements taken by the investigation

32. On 26 January 2006 the investigators questioned Officer M.B. of the traffic police who stated that at about 5.30 p.m. on 25 January 2006 he and two of his colleagues, B.G. and A. Kh., had been on duty at the traffic police station near the airport. An officer of the ROVD, Yu.E., had arrived and told them that unidentified men in two Niva cars had abducted the driver of a white VAZ car about 500 metres from the station. The witness had immediately gone to the scene, where he had found a VAZ-21074 car with registration number B309TX15 and had taken it to the ROVD. The car had been searched there and a driver’s licence in the name of Mr Ibragim Kushtov had been found in it.

33. On 26 January 2006 the investigators questioned Officer B.G., whose statement was similar to that of M.B.

34. On 26 January 2006 the investigators also questioned Officer Yu.E. of the ROVD who stated that he had been driving in the vicinity of the airport when he had seen a group of five or six people standing next to a white VAZ-2107 car. They had told him that unidentified men in Nivas, one blue and one white, had just abducted the driver of the white VAZ.

35. On 30 January 2006 the investigators questioned the fifth applicant, who stated that he and his relatives had found two Chechen women who had witnessed his brother’s abduction by men in two Niva cars. According to the applicant, both women worked at the service station next to where the crime had taken place. Furthermore, on 31 December 2005 a group of ROVD policemen and FSS officers had visited the Kushtov family, looking for Mr Isa Kushtov, who had been wanted by the authorities. The applicant had said during the search that no one in the family, including Mr Ibragim Kushtov, had known Mr Isa Kushtov’s whereabouts since 2002.

36. On 30 January 2006 the investigators again questioned the ROVD officer Yu. E. who stated that at about 5.30 p.m. on 25 January 2006 he had been off duty and driving home when, about 300 metres from the airport roundabout, he had seen a group of about ten armed men in camouflage uniforms of a black and sand colour in two four-door Nivas, one light and one dark one, with blackened windows. The men had stopped a white VAZ-2107 car with the registration number B309TX15, forced out its driver and detained him. The witness had wanted to pull over to find out what was going on, but one of the armed men had waved him on. The witness had then driven further, about 300 metres, and had seen officers from the ROVD at the airport roundabout. He had informed them about the abduction and then reported the incident to the head of the ROVD. According to the witness, the abductors had been armed with Kalashnikov machine guns, had prevented passing cars from pulling over at the scene and had carried out the abduction in the space of a few minutes.

37. On 30 January 2006 the investigators questioned Ms R.I. who stated that she worked at the service station situated close to the road leading to the airport roundabout. On 25 January 2006 she and her colleague Ms S.S. had seen a crowd of men next to the service station. The witnesses had thought that the men were fighting and wanted to approach them. One of them waved them away. Then a young man had broken away from the crowd and gone about five metres, but the other men had dragged him back and forced him into the back of one of two Niva cars that had been there. Then the abductors had driven off in the direction of the airport. A number of cars had passed by during the incident, but none of them had pulled over.

38. On 30 January 2006 the investigators also questioned Ms S.S. whose statement about the abduction was similar to that of Ms R.I. In addition, she stated that the abductors, a group of at least five people, had been in uniforms, armed with machine guns and that judging by the position of the VAZ-02107 car, it had been blocked in by the abductors’ two Nivas.

39. On 31 January 2006 the investigators granted victim status to the first applicant and questioned her. The applicant stated that she had four daughters and five sons, of which Mr Ibragim Kushtov was the youngest. On 25 January 2006, at about 4.50 p.m. Mr Ibragim Kushtov had spoken with someone on the telephone and had left the house. Later in the evening their family had learnt from the Troitskiy district police officer that Mr Ibragim Kushtov had been abducted by men in two Nivas, one white and one grey, and that his car had been left at the crime scene. She further stated that her other son, Mr Isa Kushtov, was wanted by the authorities and that their family had not kept in contact with him.

40. On 1 and 6 February 2006 the investigators questioned the police officers M.B., B.G and A.Kh. They all stated that at about 5.30 p.m. on 25 January 2006 they and their colleague Kh.B. had been on duty at the police station at the airport roundabout when Officer Yu.E. had informed them that armed men in camouflage uniforms in two white and dark Niva cars had abducted a man from a white VAZ-2107 a few hundred metres from the station and had driven off, leaving the VAZ at the scene. Having reported the incident to their superiors, the witnesses had gone to the crime scene and had found documents in the VAZ-2107 in the name of Mr Ibragim Kushtov.

41. On 4 February 2006 the investigators questioned the third applicant, who stated that she had learnt of the abduction from her relatives and that on 31 December 2005 local law-enforcement agents had arrived at her relatives’ house looking for Mr Isa Kushtov.

42. On 6 February 2006 the investigators questioned the ROVD Officer Ab.B. who stated that at about 8 a.m. on 31 December 2005 he and six or seven colleagues had been ordered to detain Mr Isa Kushtov. They had arrived at the first applicant’s house in three cars whose make and model he could not recall. On the way they had been joined by two other vehicles with men in civilian clothing in them. At the applicants’ house they had checked the identity documents of two men and a woman. After about ten minutes, the officers had left the house. He had learnt of Mr Ibragim Kushtov’s abduction only on 6 February 2006.

43. On 6 February 2006 the investigators questioned Ms M.A. and Ms R.K., both of whom stated that on 25 January 2006 they had been driving with an acquaintance in the latter’s car when they had seen a group of armed men in dark-green camouflage uniforms in two Niva cars, who had been forcing a young man into one of their vehicles. After that, the abductors had driven off, leaving a white VAZ-2107 at the scene. In addition, Ms R.K. stated that she had noticed two traffic police officers sitting in a silver VAZ-21099 parked at the scene of the incident and that she had been surprised to see traffic police officers there as usually they patrolled another area in the vicinity of the airport.

44. On 7 February 2006 the investigators questioned the head of the ROVD, Officer M. Ev., who stated that on 30 December 2005 his police station had received a request for assistance from the Sunzhen department of the FSS. On 31 December 2005 they and the FSS officers had gone to the village of Troitskaya. The group had comprised twenty officers in four or five vehicles. They had searched the applicants’ house for Mr Isa Kushtov, but to no avail.

45. On 7 February 2006 the investigators also questioned the second applicant who stated, amongst other things, that in his search for Mr Ibragim Kushtov he had been told by a lawyer, Ms N., that his brother had been detained on FSS premises under the command of Officer S.G. According to the lawyer, Mr Ibragim Kushtov would be released in exchange for his brother Isa. He had been summoned through the lawyer to the FSS for questioning on 7 February 2006, to Officer S. G. Earlier that day S.G. had told the applicant that the FSS was not involved in the abduction and that Mr Ibragim Kushtov might have been detained on the premises of the police’s Department for the Fight Against Organised Crime in Khankala in Chechnya. The witness further stated that on 31 December 2005 a group of officers had visited his family’s house. They had looked for Mr Isa Kushtov and taken photos of Mr Ibragim Kushtov’s car, his identity documents and the house.

46. On 9 February 2006 the investigators questioned the sixth applicant, who stated that she had learnt of her brother’s abduction from Officer Yu. E., who had arrived at their house on 25 January 2006. Prior to that, on 31 December 2005, their house had been searched by law-enforcement agents who had been looking for her brother Isa.

47. On 7 February 2006 the investigators questioned the ROVD officer Kh.M. whose statement was similar to that of Officer M. Ev. (see paragraph 44 above).

48. On 31 March 2006 the investigators again questioned the first applicant. She stated that on several occasions before and after the abduction of her son, groups of armed servicemen from law-enforcement agencies, in camouflage uniforms and balaclavas, had forced their way into her house and searched it, but had found nothing of interest. The servicemen, who had prohibited the family from moving around during the search, had scared her relatives and had on one occasion hit Mr Ibragim Kushtov with their rifle butts. Before the abduction the servicemen had taken photos of Mr Ibragim Kushtov, his documents and the car.

49. On 19 April 2006 the investigators questioned the applicants’ relative Mr I.K. who stated that he had tried calling Mr Ibragim Kushtov’s mobile telephone at about 5.30 p.m. on 25 January 2006, but to no avail.

50. On various dates in April and May 2006 the investigators questioned several people who had called or received calls from Mr Ibragim Kushtov’s mobile telephone number on the date of the abduction. All of them either denied having spoken with him, stated that no conversation had taken place or that the telephone number used to call him had not been registered to them.

51. On 30 June 2006 the investigators made a request to the head of the Ingushetia police to take steps to identify a man who on around 20 March 2006 had arrived at the applicants’ house and told the fifth applicant that Mr Ibragim Kushtov was being detained in a remand prison under somebody else’s name and that he could assist in his release in exchange for money. During his second visit the man had told the applicant that Mr Ibragim Kushtov had been transferred from the remand prison, in Khankala, to “Kadyrov’s prison” in Tsentaroy, Chechnya. The man had been a Chechen, in camouflage uniform and had been armed with a Makarov pistol.

52. On 30 June 2006 the investigators again questioned the fifth applicant, who provided a detailed description of the man who had contacted him around 20 March 2006 concerning the whereabouts of his abducted brother.

53. On 20 November 2006 the investigators questioned the FSS officer S.G., who stated that he was responsible for the search for Mr Isa Kushtov, who was wanted for a number of crimes. The witness stated that he had no information on the whereabouts of Mr Ibragim Kushtov and that the second applicant’s statement in that regard was untrue (see paragraph 45 above).

3. Proceedings against the investigators

54. On 28 August 2006 the investigation of the criminal case was suspended for failure to identify the perpetrators of the crime. The first applicant appealed against the suspension to the Sunzhenskiy District Court (the District Court).

55. On 22 September 2006 the supervising prosecutor annulled the decision of 28 August 2006 and ordered that the investigation be resumed. On the same date, 22 September 2006, the District Court dismissed the first applicant’s complaint without examination.

56. On 22 October 2006 the investigation was suspended again for failure to identify the perpetrators. The applicants appealed against the suspension to the District Court.

57. On 22 January 2007 the District Court upheld the suspension of the proceedings. The applicants appealed to the Supreme Court of Ingushetia (“the Supreme Court”) stating, amongst other things, that the investigators had failed to take various basic steps, such as questioning the police officers who had been on duty at the checkpoints on the roads leading to and from the crime scene, or requesting information from the FSS and the police about agents who had been using Niva cars on the date of the abduction.

58. On 20 February 2007 the Supreme Court dismissed the applicants’ appeal as unsubstantiated and upheld the decision to suspend the proceedings.

II. RELEVANT DOMESTIC LAW AND PRACTICE

59. For a summary of the relevant domestic law and practice and for international and domestic reports on disappearances in Chechnya and Ingushetia between 1999 and 2006, 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

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

60. The applicants complained under Article 2 of the Convention that their relative Mr Ibragim Kushtov had disappeared after being detained by State agents and that the domestic authorities had failed to carry out effective investigations into the matter. 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

61. The Government submitted that the applicants had failed to comply with the six-month requirement as they had lodged their application more than a year after the final domestic decision, taken by the Supreme Court of Ingushetia on 20 February 2007 (see paragraph 58 above).

62. The Government further alleged that in the absence of Mr Ibragim Kushtov’s body there was no proof that he was dead and that therefore Article 2 of the Convention was inapplicable in the applicants’ case.

63. The applicants argued that they had complied with the six-month rule. In particular, they had immediately reported the abduction to the authorities and maintained contact with them. On several occasions, they had requested access to the investigation file, but to no avail. In the absence of access to the file, they could not assess the effectiveness of the ongoing proceedings and had lodged their application with the Court as soon as they had become convinced of their ineffectiveness.

64. The applicants submitted that they had made out a prima facie case for the abduction and subsequent killing of Mr Ibragim Kushtov by State agents. They stressed that the Government had not disputed their version of events or provided any other explanation for the incident but had just denied the involvement of State agents. The abduction had taken place in life-threating circumstances and Mr Ibragim Kushtov’s whereabouts had remained unknown since then.

B. The Court’s assessment

1. Admissibility

(a) Compliance with the six-month rule

65. 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).

66. The Court observes that the applicants lodged their application almost two years after the abduction and the beginning of the criminal investigation. Throughout that period they maintained regular contact with the authorities by providing statements and lodging various complaints and requests concerning the investigation.

67. The Court further observes that at the time of the lodging of the application, the investigation was ongoing and that no final domestic decision on its results had been taken. The decision of 20 February 2007 referred to by the Government concerned a procedural step taken within the framework of ongoing criminal proceedings and, therefore, could not serve as a final domestic decision capable of triggering the time-limit.

68. In the light of the foregoing, the Court finds that the applicants have complied with the time-limit and dismisses the Government’s objection under that head.

(b) Compliance ratione materiae

69. The Government maintained that since the body of Mr Ibragim Kushtov had not been found then Article 2 of the Convention was inapplicable.

70. The applicants maintained their complaint.

71. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It also decides to join to the merits the issue of the applicability of Article 2 of the Convention (see Mikiyeva and Others v. Russia, nos. 61536/08, 6647/09, 6659/09, 63535/10 and 15695/11, § 156, 30 January 2014, and Ireziyevy v. Russia, no. 21135/09, § 66, 2 April 2015).

72. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. Therefore, it must be declared admissible.

2. Merits

(a) The parties’ submissions

73. The Government stated that the investigation had not obtained any evidence proving either the alleged involvement of State agents in the disappearance of Mr Ibragim Kushtov or his death. The investigation of his abduction had been effective as the domestic authorities had taken all the possible measures to solve the crime.

74. The applicants stated that State agents had abducted and killed their relative Mr Ibragim Kushtov and that the authorities had failed to investigate the matter effectively. They referred, in particular, to the life-threating nature of the incident in the light of its circumstances and the overall situation in the region at the material time. Referring to the Court’s case-law, they submitted that the ineffective investigation of disappearances perpetrated in Ingushetia at the material time represented a systemic problem (see Aslakhanova and Others, cited above, §§ 217-19).

(b) The Court’s assessment

(i) Establishment of the facts

75. The Court will examine the application at hand in the light of the general principles applicable in cases where the factual circumstances are in dispute between the parties (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR-2012).

76. The Court has addressed a series of cases concerning allegations of disappearances in the Russian North Caucasus. Applying the above-mentioned principles, it has concluded that if applicants make a prima facie case of abduction by servicemen, then that is sufficient for them to show that their relatives fell within the control of the authorities, and it is then for the Government to discharge their burden of proof, either by disclosing documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 99). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012, and Buzurtanova and Zarkhmatova v. Russia, no. 78633/12, § 96, 5 November 2015).

77. The Court has also found in many cases concerning disappearances that a missing person may be presumed dead. Having regard to the numerous cases of disappearance in Chechnya and Ingushetia which have come before it, the Court has found that in the particular context of the conflict in the region, when a person has been detained by unidentified State agents without any subsequent acknowledgment of the detention, that could be regarded as life-threatening (see, among many others, Mutsolgova and Others v. Russia, no. 2952/06, § 104, 1 April 2010; Khatuyeva v. Russia, no. 12463/05, § 59, 22 April 2010; and Aslakhanova and Others, cited above, § 101).

78. The Court has made findings of the presumption of death in the absence of any reliable news about disappeared persons for periods ranging from four years (see Askhabova v. Russia, no. 54765/09, § 137, 18 April 2013) to more than ten years.

79. In view of the parties’ submissions concerning the circumstances of the abduction (see paragraphs 8, 36, 37-38 and 43 above), the Court concludes that the materials in its possession demonstrate the validity of the applicants’ allegation, for the following reasons. The abductors, who arrived in civilian vehicles, acted as an organised group and did not hesitate to block traffic in the vicinity of the airport, within a few hundred metres of a traffic police station, in broad daylight, in the presence of witnesses and two traffic police officers. The abductors were in dark-green camouflage uniform and openly carried machine guns. Subsequently, in spite of the applicants’ complaint that the abductors must have been State agents (see paragraphs 15, 16, 22, 27, 29, 43, 45 and 48 above), the authorities took no active steps to verify that information other than sending formal information requests. In contrast, several weeks before and after the abduction, the applicants’ house was searched by the police on suspicion of involvement in terrorist activities (see paragraphs 17, 27, 35, 41, 42, 44, 46 and 48 above). Furthermore, the investigators took no meaningful steps to check whether the abduction could have been perpetrated for other reasons, such as a blood feud, or for ransom, if it was related to drug trafficking, or simply owing to hostility towards Mr Ibragim Kushtov. No serious steps were taken to verify or discount such motives and no information was obtained indicating that the abductors could have been anyone other than State agents (see, by contrast, Zubayrayev v. Russia, no. 67797/01, § 81, 10 January 2008). Lastly, the procrastination of the authorities in their investigation, along with the applicants’ allegations that law-enforcement officers had been involved in the incident, provide the Court with grounds for concluding that the applicants have made a prima facie case that their relative Mr Ibragim Kushtov was abducted by State agents. The Government’s statement that the investigators have found no evidence that members of law-enforcement authorities were involved in the disappearance is insufficient to discharge them of the above-mentioned burden of proof. Having examined the documents submitted by the parties, and drawing inferences from the Government’s failure to provide another explanation for the events in question, the Court finds that Mr Ibragim Kushtov was detained on 25 January 2006 by State agents (see, in respect of a similar situation, Askhabova, cited above, § 135).

80. Considering the absence of any reliable news of Mr Ibragim Kushtov since January 2006 and the life-threatening nature of his arrest (see paragraph 78 above), the Court also finds that he may be presumed dead following his unacknowledged detention by State agents.

(ii) Alleged violation of the right to life of Mr Ibragim Kushtov

81. The Court notes at the outset that it is undisputed by the parties that the whereabouts of Mr Ibragim Kushtov were unaccounted for in the two years between the abduction and the lodging of the application with the Court. The question arises whether, as the Government submit, Article 2 of the Convention is applicable to the applicants’ situation.

82. The Court notes that the Government denied that Mr Ibragim Kushtov had either been detained by State agents or had been under the control of the authorities after his abduction. However, the Court has already found that he was under the control of State agents after the abduction. The period of time which has elapsed since the person was detained, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time that goes by without any news of the detained person, the greater the likelihood that he or she is dead. The passage of time may, along with other elements of circumstantial evidence before the Court, provide grounds to conclude that the person concerned is to be presumed dead. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2 of the Convention, which ranks as one of the most fundamental provisions in the Convention (see, among other authorities, Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999-IV, and Timurtaş v. Turkey, no. 23531/94, § 83, ECHR 2000-VI). Accordingly, the Court finds that Article 2 of the Convention applies and that the Government’s objection in this respect should be dismissed.

83. Based on the above, and noting that it has already found that Mr Ibragim Kushtov may be presumed dead following his unacknowledged detention by State agents, the Court finds, in the absence of any justification put forward by the Government, that his death can be attributed to the State and that there has been a violation of the substantive aspect of Article 2 of the Convention.

(iii) Alleged inadequacy of the investigation

84. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of the disappearances in Ingushetia between 1999 and 2006, and that such a situation constitutes a systemic problem in Convention terms (see Aslakhanova and Others, cited above, § 217). In the case at hand, as in many similar cases reviewed by the Court, the investigation has been ongoing for a number of years without bringing about any significant developments as to identifying the perpetrators or discovering the fate of the applicants’ missing relative. While the obligation to investigate effectively is one as to means and not results, the Court notes that the criminal proceedings have been plagued by a combination of defects similar to those enumerated in the Aslakhanova and Others judgment (cited above, §§ 123-25). For instance, the investigation had a significant period of inactivity which further diminished the prospects of solving the crime. No meaningful steps were taken to verify the applicants’ allegations concerning Mr Ibragim Kushtov’s detention on FSS premises (see paragraphs 45, 51 and 52 above) or to identify and question the traffic police officers in the silver VAZ-21099 car about the circumstances of the incident (see paragraphs 8 and 43 above). No steps were taken to identify and question the policemen who were patrolling near the airport on the date of the abduction or the drivers of local law-enforcement agencies concerning their deployment for special operations on that date.

85. In the light of the foregoing, the Court finds that the authorities have failed to carry out an effective criminal investigation into the circumstances of the disappearance and death of Mr Ibragim Kushtov. Accordingly, there has been a violation of Article 2 of the Convention in its procedural aspect.

II. ALLEGED VIOLATIONS OF ARTICLES 3, 5 AND 13 COMBINED WITH ARTICLES 2 AND 3 OF THE CONVENTION

86. 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 close relative and the unlawfulness of his detention. They also argued that, contrary to Article 13 of the Convention, there had been no available domestic remedies in respect of the alleged violations, in particular those under Articles 2 and 3 of the Convention. These Articles read, in so far as relevant:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties’ submissions

87. The Government contested the applicants’ claims. In particular, they submitted that the applicants’ complaint concerning their mental suffering was ill-founded as none of them had witnessed the abduction and that only the first and second applicants had maintained contact with the investigation of the abduction.

88. The applicants reiterated their complaints.

B. The Court’s assessment

1. Admissibility

89. 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

90. 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 news of the missing person’s death is preceded by a sufficiently long period in which he or she may be deemed disappeared, there exists a distinct period during which an applicant sustains uncertainty, anguish and distress characteristic to the specific phenomenon of disappearances (see Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006-XIII (extracts).

91. Further, 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 grave violation of its provisions (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, Luluyev and Others, cited above, § 122, and Aslakhanova and Others, cited above, § 132).

92. The Court reiterates its findings regarding the State’s responsibility for the abduction of Mr Ibragim Kushtov and the failure to carry out a meaningful investigation into his fate. It finds that the applicants, who are the mother and siblings of the disappeared man, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish which they have suffered, and continue to suffer, as a result of their inability to discover the fate of their son and brother who has disappeared and because of the manner in which their complaints have been dealt with.

93. Furthermore, the Court finds that since it has been established that Mr Ibragim Kushtov was detained by State agents, apparently without any legal grounds or acknowledgement of such detention, there has been a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention.

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

95. The Court thus finds that the applicants did not have an effective domestic remedy at their disposal for their grievances under Articles 2 and 3, in breach of Article 13 of the Convention (see, for example, Aslakhanova and Others, cited above, § 157).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

96. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Pecuniary damage

97. The first applicant, as the mother of Mr Ibragim Kushtov, claimed 439,219 Russian roubles (RUB) (about 6,400 euros (EUR)) in respect of pecuniary damage for the loss of financial support by a breadwinner. She based her calculations on the subsistence level provided for by domestic law and the Ogden Actuary Tables.

98. The Government submitted that the applicant’s claim was completely unsubstantiated and that there was a domestic mechanism for compensation in respect of pecuniary damage resulting from the loss of a breadwinner.

99. The Court reiterates that there must be a clear, causal connection between the damage claimed by applicants and a violation of the Convention, and that this may, in appropriate cases, include compensation in respect of loss of earnings. Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article 2 of the Convention in respect of Mr Ibragim Kushtov and the loss by the first applicant of the financial support which he could have provided as her son. Having regard to the parties’ submissions, the Court awards EUR 5,000 to the first applicant in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

B. Non-pecuniary damage

100. The applicants jointly claimed EUR 70,000.

101. The Government submitted that finding a violation would in itself constitute sufficient just satisfaction.

102. Considering its findings in the present case, as well as the parties’ submissions, and acting on an equitable basis, the Court finds it appropriate to award the applicants EUR 60,000 jointly under this head, plus any tax that may be chargeable to them.

C. Costs and expenses

103. The applicants were represented by SRJI/Astreya. The aggregate claim in respect of costs and expenses related to their legal representation amounted to EUR 3,504. The claim included the drafting of legal documents submitted to the Court and administrative and postal expenses. The applicants submitted copies of the legal representation contract and invoices with a breakdown of the costs incurred.

104. The Government stated that the claim was unsubtantiated and exsessive as the case did not involve the amount of research and preparation claimed.

105. The Court has to establish first whether the costs and expenses indicated were actually incurred and, second, whether they were necessary and reasonable (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324, § 220, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV).

106. In view of its conclusions, the principles enumerated above and the parties’ submissions, the Court awards the applicants EUR 3,000, plus any tax that may be chargeable to them. The award in respect of costs and expenses is to be paid into the representative’s bank account, as identified by the applicants.

D. Default interest

107. 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 Government’s objection as to the applicability of Article 2 of the Convention and rejects it;

2. Declares the application admissible;

3. Holds that there has been a substantive violation of Article 2 of the Convention in respect of Mr Ibragim Kushtov;

4. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate the abduction and death of Mr Ibragim Kushtov;

5. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants on account of their mental suffering;

6. Holds that there has been a violation of Article 5 of the Convention in respect of Mr Ibragim Kushtov on account of his unlawful detention;

7. Holds that 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 from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the first applicant;

(ii) EUR 60,000 (sixty thousand euros) to the applicants jointly, plus any tax that may be chargeable to them, in respect of non-pecuniary damage;

(iii) EUR 3,000 (three thousand euros) plus any tax that may be chargeable to the applicants, in respect of costs and expenses, the net award to be paid into the representative’s bank account, as identified by the applicants;

(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’ claim for just satisfaction.

Done in English, and notified in writing on 21 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

[1]. (https://www.hrw.org/legacy/backgrounder/eca/chechnya0305/3.htm#_Toc98759254)

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You are here: BAILII >> Databases >> European Court of Human Rights >> KUSHTOVA AND OTHERS v. RUSSIA (No. 2) - 60806/08 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2017] ECHR 199 (21 February 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/199.html Cite as: [2017] ECHR 199, ECLI:CE:ECHR:2017:0221JUD006080608, CE:ECHR:2017:0221JUD006080608