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FIRST
SECTION
CASE OF
BABUSHEVA AND OTHERS v. RUSSIA
(Application
no. 33944/05)
JUDGMENT
STRASBOURG
24 September 2009
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Babusheva and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 3 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33944/05) 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 the seven Russian nationals listed below (“the
applicants”), on 20 September 2005.
-
The applicants were represented by lawyers of the Stichting Russian
Justice Initiative (“SRJI”), an NGO based in the
Netherlands with a representative office in Russia.Note
The Russian Government (“the Government”) were
represented by Mr A. Savenkov, First Deputy Minister of Justice, and,
subsequently,
by Mr G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
- On
31 March 2008 the Court decided to apply
Rule 41 of the Rules of Court, grant priority treatment to the
application and give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having
considered the Government's objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are:
1) Ms
Roza Babusheva, born in 1966,
2) Mr
Kharon Babushev, born in 1928,
3) Mr
Lomali (also spelled as Lom-Ali) Babushev, born in 1986,
4) Ms
Khadizhat Babusheva, born in 1988,
5) Ms
Nura Babusheva, born in 1993,
6) Mr
Turpal-Ali Babushev, born in 1994 and
7) Ms
Nurseda Babusheva, born in 2003.
The
applicants live in the village of Makhkety, in the Vedeno district,
Chechnya.
- The
first applicant is the wife of Ramzan (also known as Vakha) Babushev,
who was born in 1960; the second applicant is his father; and the
third to seventh applicants are his children.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. Disappearance of Ramzan Babushev
1. The applicants' account
a. The abduction of the applicants'
relative
- At
the material time Ramzan Babushev worked as a car mechanic. On 4
February 2003 the first, second and sixth applicants and Ramzan
Babushev were at their home at 27 Zarechnaya Street (in the submitted
documents the address was also referred to as 37 Zarechnaya Street)
in Makhkety, Chechnya. The third, fourth and fifth applicants were at
school. The first applicant was pregnant with the seventh applicant.
Two neighbours had come to visit and were also in the applicants'
house.
- At
around 11 a.m. a military UAZ car arrived at the house. A group of
about ten to fifteen Russian military servicemen got out of the car;
some of them remained in the street next to the house, whereas others
went inside. The men spoke Russian without an accent and were of
Slavic appearance. The person who was apparently in charge of the
group introduced himself as Mr Y. B., the head of the department of
the interior of Khattuni (also spelled as Khatuni) village (the
Khattuni OVD). It appeared that he was on mission in Chechnya from
the OMON (special police forces) unit of the Perm region, Russia. The
servicemen asked Ramzan Babushev to repair their car. He agreed and
they moved the car into the applicants' yard. Ramzan Babushev changed
into his work clothes and started the repair work.
- Meanwhile,
the servicemen contacted someone via their portable radio set.
Approximately 10-15 minutes later an armoured personnel carrier
(“APC”) carrying a group of about twenty masked
servicemen arrived at the applicants' house. The servicemen from the
APC ran into the yard and put handcuffs on Ramzan Babushev and a dark
sack over his head. They ordered the first applicant to go into the
house, threatening to kill her if she stayed in the yard. After that
they put Ramzan Babushev into the APC. The
servicemen neither introduced themselves nor produced any documents.
Almost all of them were wearing masks; three of them, who did not
have masks, were of Slavic appearance. The first applicant asked them
who their commander was and why they were taking her husband away.
She did not receive any answer to her questions.
- After
that Mr Y. B. asked the servicemen from the APC whether his group was
free to go. They received permission and the UAZ car and the
servicemen left. Immediately after their departure, the servicemen
from the APC started to search the applicants' house. The search took
about one and a half hours. During the search
the servicemen seized a number of the applicants' possessions,
including a videocassette recorder, a TV set, Ramzan Babushev's
clothing and tools, the first applicant's jewellery, the family
photographs, two car engines and car repair parts. The servicemen
loaded the applicants' belongings into the APC and drove away.
- The
abduction of Ramzan Babushev was witnessed by a number of the
applicants' neighbours and relatives.
b. Subsequent events
- The
applicants immediately started their search for Ramzan Babushev. On
the same day, 4 February 2003, the first applicant and her relatives
went to the local department of the Federal Security Service (the
FSB) in the village of Khattuni, in the Vedeno district, Chechnya. At
the checkpoint located at the entrance to the building they met the
deputy head of the department of the FSB, who introduced himself as
officer V. He confirmed that they had arrested Ramzan Babushev in
order to assist the servicemen of the Khattuni OVD, which at the time
was staffed with policemen from the Perm region. Officer V. told the
first applicant that the military commander of the Vedeno district
(the district military commander) had issued an order for the arrest
of Ramzan Babushev as the local authorities had opened criminal
proceedings against him. According to the officer, at some point
Ramzan Babushev was supposed to be transferred from the Khattuni OVD
to the Vedeno temporary district department of the interior (the
Vedeno VOVD). Officer V. had seen Ramzan Babushev after the arrest
and agreed to take a warm jacket from the first applicant and pass it
on to him.
- On
4 February 2003, at the checkpoint in Khattuni, the first applicant
and her relatives saw the three servicemen who had participated in
the arrest of Ramzan Babushev and had not been wearing masks during
the abduction.
- On
5 February 2003 the first applicant and a relative spoke to the
deputy district military commander officer Yr., who assured them that
their office had not opened any criminal proceedings against Ramzan
Babushev and had not issued any orders for his arrest.
- In
the middle of February 2003 the first applicant went to the
department of the FSB in Khattuni, together with the head of Makhkety
village administration. There they met with the officer V. who showed
them a written statement certifying that on 4 February 2003 at 6 p.m.
hours the head of the local department of the FSB, Mr M.G., had
handed Ramzan Babushev over to the head of the Khattuni OVD, Mr Y.B.
- In
the beginning of March 2003, during their visit to the Khattuni OVD,
the first applicant met with a serviceman who introduced himself as
an operational-search officer V. K. The applicant recognized him as
one of the servicemen who had participated in the abduction of Ramzan
Babushev. Officer V. K. told the first applicant that her husband had
been transferred from the Khattuni OVD to “the Chechen special
task group” (чеченская
группа
специального
назначения)
and that from there he had been transferred to a prison in Vedeno.
The officer confirmed that he had seen Ramzan Babushev in prison, and
that he had asked him to say hello to his family. V. K. took a
package from the first applicant to pass to her husband.
- On
the following day the first applicant again met with officer V.K. He
told her that he had passed on the package to her husband and that
Ramzan Babushev had been beaten up, but that he was feeling better
and recovering.
- Some
time later in March 2003 the first applicant spoke again to the head
of the Khattuni OVD, Mr Y. B. He told her that Ramzan Babushev had
been transferred to the Vedeno ROVD. He suggested to the first
applicant that she speak to the head of the Vedeno ROVD, officer V.P.
- After
that, in March 2003, the first applicant went to the Vedeno ROVD and
spoke to officer V.P. He told her that Ramzan Babushev had not been
guilty of anything and promised that he would assist in expediting
his release. However, it appears that this officer left Chechnya on
or about 10 April 2003 without having helped the applicants.
- On
a number of occasions the first applicant complained in person to the
Vedeno district prosecutor's office (the district prosecutor's
office) requesting that they conduct a confrontation between her and
the head of the Khattuni OVD, Mr Y.B. Her requests were ignored.
- On an unspecified date the first
applicant lodged a claim with the Vedeno District Court of Chechnya
seeking to have her husband Ramzan Babushev declared a missing
person. On 27 February 2004 the district court granted her claim and
declared him a missing person as of 4 February 2003.
- In
support of their statements, the applicants submitted: an
account by the applicants' neighbour Ms I.A. given on 13 March 2005;
an account by the applicants' relative Mr I.B. given on 15 March
2005; an account by the applicants' neighbour Mr V.T. given on 16
March 2005; an account by the applicants' relative Ms A.A. given on
16 March 2005 and an account by the applicants' neighbour Mr
S.A. given on 20 March 2005.
2. Information submitted by the Government
- The
Government did not challenge most of the facts as submitted by the
applicants. According to their submission “...in connection
with the abduction by unidentified persons of R.Kh. Babushev on
4 February 2003 in Makhkety in the Vedeno district, on 12
February 2003 the Vedeno district prosecutor's office instituted a
criminal investigation...”
B. The search for Ramzan Babushev and the investigation
1. Information submitted by the applicants
- Since
4 February 2003 the applicants have repeatedly applied in person
and in writing to various public bodies. They have been supported in
their efforts by the NGO SRJI. In their letters to the authorities
the applicants referred to their relative's detention and asked for
assistance and details of the investigation. Mostly these enquiries
have remained unanswered, or purely formal replies have been given in
which the applicants' requests have been forwarded to various
prosecutors' offices. The applicants submitted some of the letters to
the authorities and the replies to the Court, which are summarised
below.
- On
12 February 2003 (in the submitted documents the date is also
referred to as 6 February 2003) the district prosecutor's office
instituted an investigation into the
disappearance of Ramzan Babushev under Article 126 § 2
of the Criminal Code (aggravated kidnapping). The decision stated,
inter alia,
the following:
“... at about 12 noon on 4 February 2003, during a
special operation, a resident of Makhkety in the Vedeno district R.
Kh. Babushev was detained by unidentified military servicemen at his
house in Makhkety and taken away in an APC to an unknown destination
...”
The
case file was given number 24012 (in the submitted documents the case
file is also referred to under no. 25137).
- On
14 February 2003 the first applicant was granted victim status in
criminal case no. 24012. The decision stated, inter
alia, the following:
“...on 4 February 2003, during a special operation
in Makhkety in the Vedeno district, unidentified military servicemen
took away all property from the household at 37 Zarechnaya Street,
and detained Ramzan Babushev whom they took away to an unknown
destination...”
- On
14 July 2003 the first applicant wrote to the head of the department
of the search for missing persons of the Vedeno ROVD, to the military
prosecutor's office of military unit no. 20116 and to the
military prosecutor's office of the United Group Alignment (“the
military prosecutor's officer of the UGA”). In her letters she
described in detail the circumstances of her husband's abduction and
stated that he had been abducted by officers of the Khattuni OVD
under the command of Mr Y.B. and by servicemen of Russian military
forces who had arrived in an APC and taken him away in this vehicle.
She pointed out that the servicemen had searched the house and had
taken away family possessions; that some time later she had found out
that her husband had been transferred from the local department of
the FSB to the Khattuni OVD; that officer V. K. had seen Ramzan
Babushev in prison in Vedeno; and that, in spite of all this
information, the investigative authorities had failed to establish
the whereabouts of Ramzan Babushev.
- On
17 July 2003 the military prosecutor's officer
of the UGA forwarded a letter from the applicants' relative
concerning the search for Ramzan Babushev to the military
prosecutor's office of military unit no. 20116 for examination.
- On
22 July 2003 the Chechnya prosecutor's office forwarded the first
applicant's request for assistance in the search for Ramzan Babushev
to the district prosecutor's office for inclusion in criminal case
no. 25137.
- On
22 July 2003 the military prosecutor's officer
of the UGA forwarded the first applicant's request to the military
prosecutor's office of military unit no. 20116. The letter
stated that the latter was to examine the first applicant's version
of the involvement of servicemen of the 45th airborne regiment
of the Russian military forces in the abduction of her husband.
- On
12 September 2003 the Chechnya prosecutor's office forwarded the
first applicant's request for assistance in the search for Ramzan
Babushev to the district prosecutor's office for examination.
- On
17 January 2004 the military prosecutor's
officer of the UGA informed the first applicant that the examination
of her complaint had not established any involvement of the Russian
military forces in the abduction of Ramzan Babushev.
- On
28 January 2004 the first applicant wrote to the military
prosecutor's officer of the UGA. She stated that her husband had been
abducted by Russian military servicemen together with representatives
of the Khattuni OVD and complained that the criminal investigation
had failed to establish the whereabouts of Ramzan Babushev.
- On
4 February 2004 the military
prosecutor's officer of the UGA informed the first applicant that her
complaint had not disclosed any information demonstrating the
involvement of the Russian military forces in the abduction of Ramzan
Babushev.
- On
18 February 2004 the military prosecutor's office of the
North-Caucasus military circuit forwarded the first applicant's
request concerning the search for her husband to the military
prosecutor's officer of the UGA.
- On
20 February 2004 the Chechnya Ministry of the Interior forwarded the
first applicant's complaint about her husband's abduction to the
Vedeno ROVD for examination.
- On
26 February 2004 the department of the Prosecutor General's office in
the Southern Federal Circuit informed the first applicant that her
complaint had been forwarded to the Chechnya prosecutor's office.
- On
3 March 2004 the Chechnya prosecutor's office forwarded the first
applicant's request for assistance in the search for her husband to
the district prosecutor's office.
- On
27 March 2004 the military prosecutor's
officer of the UGA forwarded the first applicant's request for
assistance in the search for her husband to the military prosecutor's
office of military unit no. 20116 for examination.
- On
20 April 2004 the Chief Military Prosecutor's office forwarded the
first applicant's request for assistance in the search for her
husband to the military prosecutor's
officer of the UGA for examination.
- On
22 April 2004 the Perm regional department of the interior (the Perm
UVD) informed the first applicant of the following:
“...Your complaint was examined by the chiefs of
the Perm UVD. Our inquiry established that the arrest of your husband
Ramzan Babushev had been conducted at the initiative of the local
[Chechen] law-enforcement bodies. Officers of the Vedeno VOVD had
participated only in his detention; his further whereabouts were
unknown to them...”
- On
8 June 2004 the military prosecutor's
officer of the UGA informed the first applicant that the examination
of her complaint had established that the Russian military servicemen
had not been involved in the abduction of Ramzan Babushev.
- On
25 June 2004 the Vedeno ROVD informed the first applicant that in
order to establish the whereabouts of her abducted husband, they had
opened operational-search file no. 141395 and the search was
under way.
- On
24 August 2004 the Chechnya prosecutor's office forwarded the first
applicant's complaint about the search for her husband to the
district prosecutor's office. The letter stated that the
investigation of criminal case no. 24012 had been taken over by
the Chechnya prosecutor's office.
- On
13 January 2005 the first applicant wrote to the district
prosecutor's office about her husband's abduction. She said that he
had been arrested by Russian military servicemen together with the
representatives of the Khattuni OVD and that for two years the
criminal investigation had failed to establish his whereabouts. She
also requested to be informed of the reasons for the suspension of
the investigation in the criminal case and that the proceedings be
resumed.
- On
13 January 2005 the first applicant complained to the Prosecutor
General. She requested that the authorities investigate the
involvement of representatives of the Perm UVD in the abduction of
Ramzan Babushev.
- On
22 January 2005 the district prosecutor's office informed the first
applicant that on an unspecified date the investigation in criminal
case no. 24012 had been suspended and that on 22 January 2005 it
had been resumed.
- On
9 February 2005 the Chechnya prosecutor's office informed the first
applicant that they had instructed the district prosecutor's office
to undertake a number of operational-search measures in the
investigation of the abduction.
- On
24 February 2005 the Chechnya Ministry of the Interior (the MVD)
informed the first applicant that they had instructed the Vedeno ROVD
to activate their operational-search measures to solve the abduction
of Ramzan Babushev.
- On
22 July 2005 the Chechnya prosecutor's office forwarded the first
applicant's request for assistance in the search for her husband to
the district prosecutor's office.
- On
an unspecified date the first applicant again complained to the
Prosecutor General. In her letter she said, in particular, that her
husband Ramzan Babushev had been abducted by representatives of the
Khattuni OVD under the command of Mr Y.B. and representatives of
Russian military forces; that they had taken her husband away in an
APC; that they had searched the house and taken away family
possessions; that officer V. K. had later seen her husband
in prison in Vedeno; and that the criminal investigation initiated by
the district prosecutor's office had failed to establish her
husband's whereabouts.
- On
an unspecified date the district prosecutor's office informed the
first applicant that the investigation in criminal case no. 24012
had been suspended for failure to establish the identities of the
perpetrators.
2. Information submitted by the Government
- The
Government submitted that the investigation into Ramzan Babushev's
abduction by “unidentified persons” had commenced on
12 February 2003.
- On
6 February 2003 the investigators requested information about the
detention of Ramzan Babushev from military unit no. 45 stationed
in Khattuni. According to their reply of 22 February 2003, the Vedeno
district military commander's office had not detained Ramzan Babushev
and had no information about his whereabouts.
- On
7 February 2003 the investigators requested information about the
arrest of Ramzan Babushev from the Chechnya FSB and the Khattuni OVD.
They also requested to be informed whether the applicants' relative
was suspected of participation in illegal armed groups. According to
the replies from the Khattuni OVD of 11 February 2003 and the
Chechnya FSB of 14 February 2003, Ramzan Babushev was on the wanted
list, but their offices had not detained him.
- On
14 February 2003 the investigators questioned the first applicant's
sister-in-law, Ms E.B. She stated that on 4 February 2003 the first
applicant had come to her house and told her that at about 11 a.m. on
that day the head of the Khattuni OVD and police officers had arrived
at their house and asked Ramzan Babushev to repair their car. Then a
group of military servicemen had arrived at their house in an APC and
taken Ramzan Babushev away without providing any explanation; they
had also searched the first applicant's house. After that the witness
and the first applicant had gone to the checkpoint in Khattuni and
asked the duty officer for news of Ramzan Babushev. They were told
that he had been arrested on the order of the Vedeno military
commander and that he would be transferred to Vedeno. The next day, 5
February 2003, the witness and the first applicant went to Vedeno and
met the deputy military commander, who told them that Ramzan Babushev
had not been delivered to their office. The Vedeno VOVD also denied
that Ramzan Babushev was detained on their premises. On the same
date, 5 February 2003, at the checkpoint in Khattuni, officer V., the
deputy head of the local department of the FSB, informed the witness
and the first applicant that he had a receipt confirming that Ramzan
Babushev had been taken by officers of the Vedeno VOVD.
- On
an unspecified date the investigators granted the first applicant
victim status and questioned her. She stated that on 4 February 2003
she and her husband Ramzan Babushev had been at home, at 27
Zarechnaya Street in Makhkety. At about 11 a.m. a group of six
officers from the Khattuni OVD had arrived at their house in an UAZ
vehicle. One of them had introduced himself as the head of the
Khattuni OVD officer B. He and the driver of the vehicle went into
the applicant's house and spoke to Ramzan Babushev about some repair
work for the UAZ vehicle. Then Ramzan suggested that the officers
move the car into the yard and changed into his work clothes. When
the driver moved the car into the yard and the applicant's husband
started inspecting it, an APC pulled up to the house. A group of
about fifteen masked men, supposedly military servicemen, got out of
it. They rushed into the yard and demanded that the OVD officers turn
their faces to the UAZ. After that, without providing any
explanation, they grabbed Ramzan Babushev, put handcuffs on him and
placed him in the APC. Then the servicemen and the OVD officers left.
According to the first applicant, she told her sister-in-law about
the events and went with her to the checkpoint located at the
entrance to the Khattuni military commander's office. The officer on
duty called officer V. over from the FSB who had informed the
applicant that Ramzan Babushev had been arrested on the order of the
Vedeno military commander. The next day, 5 February 2003, the
applicant and her sister-in-law went to Vedeno, where the deputy
military commander and the head of the Vedeno VOVD informed her that
they had not detained her husband and that they had not issued any
orders to that effect.
- On
an unspecified date the investigators questioned the applicants'
neighbour, Ms A.A. who stated that on 4 February 2003, at about 11
a.m., she had gone to the house of the first applicant. When she was
there, an UAZ car without registration numbers arrived at the house.
Five or six men in camouflage uniform, of Slavic appearance, got out
of the car. They introduced themselves as police officers and
explained that they had brought the car for repairs. Some time later,
from the window of her house, the witness had seen an APC which had
arrived at the applicants' house. About ten men in masks had got out
of the APC, cordoned the street and went into the applicants' house.
They spent about an hour there; after that they took some sacks from
the house outside and loaded them into the APC. After these men had
left, the witness learnt from the first applicant that they had taken
Ramzan Babushev away.
- On
an unspecified date the investigators questioned the applicants'
relative, Mr M.B., who provided a statement similar to the one given
by Ms A.A.
- On
an unspecified date the investigators questioned another witness, Mr
A. Kh., who provided a statement similar to one given by Ms A.A. In
addition, he stated that after the unidentified men had left the
applicants' house, he had gone there and spoken to the first
applicant. The latter told him that the men had searched the house
and taken away valuables. According to the witness, the first
applicant and other local residents had applied to the Khattuni OVD
on a number of occasions trying to obtain information about her
husband's whereabouts. The police officers had denied having any
information about him.
- According
to the Government, on unspecified dates the investigators requested
information, inter alia, about special operations conducted in
the area between 1 and 5 February 2003 and officers who had served in
the Vedeno district at the material time, from various State
authorities, including a number of the district prosecutor's officers
in Chechnya, the district military commander's offices and military
unit no. 20116. The investigators also requested that the
Chechnya FSB inform them whether they had detained Ramzan Babushev
and transferred him to the Vedeno district military commander's
office.
- The
investigation failed to establish the whereabouts of Ramzan Babushev,
even though the investigating authorities sent requests for
information to the competent State agencies and took other steps to
have the crime resolved. At the same time the investigation found no
evidence to support the involvement of the federal forces in the
crime. The law enforcement authorities of Chechnya had never
arrested or detained Ramzan Babushev on criminal or administrative
charges and had not carried out a criminal investigation in his
respect. No special operations had been carried out in Makhkety on 4
February 2003.
- According
to the Government, the investigation of the criminal case had been
suspended and resumed on a number of occasions. However, it was still
in progress and operational-search measures aimed at establishing the
whereabouts of Ramzan Babushev were being taken.
- Despite
specific requests by the Court the Government did not disclose any
documents of criminal case no. 24012. The Government stated that
the investigation was in progress and that disclosure of the
documents would be in violation of Article 161 of the Code of
Criminal Procedure, since the file contained personal data concerning
the witnesses or other participants in the criminal proceedings.
II. RELEVANT DOMESTIC LAW
-
For a summary of the relevant domestic law see Akhmadova and
Sadulayeva v. Russia (no. 40464/02, §§ 67-69,
10 May 2007).
THE LAW
I. THE GOVERNMENT'S
OBJECTION as to abuse of the right of petition
- The
Government submitted that the application had not been lodged in
order to restore the allegedly violated rights of the applicants.
According to them, the actual object and purpose of the application
were incompatible with the tasks and activities of the European Court
of Human Rights. They concluded that the application should be
dismissed pursuant to Article 35 § 3 of the
Convention.
- The Court considers that the Government may be
understood to be suggesting that there was an abuse of the right of
petition on the part of the applicants. It observes in this
connection that the complaints the applicants brought to its
attention concerned genuine grievances. Nothing in the case file
reveals any appearance of abuse of their right of individual
petition. Accordingly, the Government's objection must be dismissed.
II. THE GOVERNMENT'S
OBJECTION REGARDING
the
VALIDITY
OF THE APPLICATION FORM
- The
Government suggested that the applicants had probably been unaware of
the contents of the application form,
which had been signed not by the applicants, but by the lawyers
working for SRJI.
- The
Court considers that the Government may be understood to be
suggesting that the lawyers are not acting under instructions of the
applicants. The Court observes that the applicants gave the SRJI and
its lawyers powers of attorney, thus duly authorising this NGO to
represent their interests in the Strasbourg proceedings, and in
particular to sign on their behalf the application form submitted to
the Registry. There are no grounds to indicate that there has been
anything inappropriate in the lodging of this application.
Accordingly, the Government's objection must be dismissed.
III. THE GOVERNMENT'S OBJECTION REGARDING NON EXHAUSTION
OF DOMESTIC REMEDIES
A. The parties' submissions
- The
Government contended that the application should be declared
inadmissible for non-exhaustion of domestic remedies. They submitted
that the investigation into the disappearance of Ramzan Babushev had
not yet been completed. They further argued that it had been open to
the applicants to lodge court complaints about any acts or omissions
of the investigating or other law-enforcement authorities, but that
the applicants had not availed themselves of that remedy. They also
argued that it had been open to the applicants to pursue civil
complaints but that they had failed to do so.
- The
applicants contested that objection. They stated that the criminal
investigation had proved to be ineffective. With reference to the
Court's practice, they argued that they were not obliged to claim
damages through civil proceedings in order to exhaust domestic
remedies.
B. The Court's assessment
- The
Court will examine the arguments of the parties in the light of the
provisions of the Convention and its relevant practice (for a
relevant summary, see Estamirov and Others v. Russia, no.
60272/00, §§ 73-74, 12 October 2006).
- The
Court notes that the Russian legal system provides, in principle, two
avenues of recourse for the victims of illegal and criminal acts
attributable to the State or its agents, namely civil and criminal
remedies.
- As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, the
Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention (see
Khashiyev and Akayeva v. Russia, nos. 57942/00
and 57945/00, §§ 119-21, 24 February 2005, and
Estamirov and Others, cited above, § 77). In the
light of the above, the Court confirms that the applicants were not
obliged to pursue civil remedies.
- As
regards criminal-law remedies, the Court observes that the applicants
complained to the law-enforcement authorities immediately after the
kidnapping of Ramzan Babushev and that an investigation has been
pending since 12 February 2003. The applicants and the Government
dispute the effectiveness of the investigation of the kidnapping.
- The
Court considers that the Government's objection raises issues
concerning the effectiveness of the investigation which are closely
linked to the merits of the applicants' complaints. Thus, it decides
to join this objection to the merits of the case and considers that
the issue falls to be examined below.
IV. THE COURT'S ASSESSMENT OF THE EVIDENCE AND THE
ESTABLISHMENT OF THE FACTS
A. The parties' arguments
- The
applicants maintained that it was beyond reasonable doubt that the
men who had taken Ramzan Babushev away had been State agents. In
support of their complaint they referred to the following facts. At
the material time the village of Makhkety had been under the total
control of federal troops. There were Russian
military checkpoints on the roads leading to and from the settlement.
Russian federal forces had conducted a special operation on 4
February 2003, as had been confirmed by the investigation (see
paragraphs 26, 27 and 42). Ramzan Babushev was wanted by the
authorities (see paragraph 56 above). The armed men who had abducted
Ramzan Babushev had had Slavic features and had spoken Russian
without an accent, which proved that they were not of Chechen origin.
The men had arrived in a military APC in broad daylight, which
indicated that they were able to pass through the roadblocks and were
not afraid to be seen by the authorities. The men were wearing
specific camouflage uniform, were armed and had portable radios. They
acted in a manner similar to that of special forces carrying out
identity checks. All the information disclosed to the applicants from
the criminal investigation file supported their assertion as to the
involvement of State agents in the abduction. Since Ramzan Babushev
had been missing for a very lengthy period, he could be presumed
dead. That presumption was further supported by the circumstances in
which he had been arrested, which should be recognised as
life-threatening.
- The
Government submitted that unidentified armed men had kidnapped Ramzan
Babushev. They further contended that the investigation of the
incident was pending, that there was no evidence that the men had
been State agents and that there were therefore no grounds for
holding the State liable for the alleged violations of the
applicants' rights. They further argued that there was no convincing
evidence that the applicants' relative was dead. The Government
raised an objection to the applicants' presentation of facts. The
fact that the perpetrators of the abduction spoke unaccented Russian,
were wearing camouflage uniforms and used military vehicles did not
mean that these men could not have been members of illegal armed
groups or criminals. They asserted that the crime could have
been attributable to illegal armed groups and pointed out that groups
of mercenaries had committed crimes in the Chechen Republic. They
further emphasised that a considerable number of armaments and APCs
had been stolen from Russian arsenals by insurgents in the 1990s and
that members of illegal armed groups could have possessed military
vehicles.
B. The Court's evaluation of the facts
- The
Court observes that in its extensive jurisprudence it has developed a
number of general principles relating to the establishment of facts
in dispute, in particular when faced with allegations of
disappearance under Article 2 of the Convention (for a summary of
these, see Bazorkina v. Russia, no. 69481/01, §§ 103-09,
27 July 2006). The Court also notes that the conduct of the parties
when evidence is being obtained has to be taken into account (see
Ireland v. the United Kingdom, § 161, Series A no. 25).
- The
Court notes that despite its requests for a copy of the investigation
file into the abduction of Ramzan Babushev, the Government produced
none of the documents from the case file. The Government referred to
Article 161 of the Code of Criminal Procedure. The Court observes
that in previous cases it has already found this explanation
insufficient to justify the withholding of key information requested
by the Court (see Imakayeva v. Russia, no. 7615/02, §
123, ECHR 2006- ... (extracts)).
- In
view of this and bearing in mind the principles referred to above,
the Court finds that it can draw inferences from the Government's
conduct in respect of the well-foundedness of the applicants'
allegations. The Court will thus proceed to examine crucial elements
in the present case that should be taken into account when deciding
whether the applicants' relative can be presumed dead and whether his
death can be attributed to the authorities.
- The
applicants alleged that the persons who had taken Ramzan Babushev
away on 4 February 2003 and then killed him had been State
agents.
- The
Government suggested in their submissions that the abductors of
Ramzan Babushev may have been members of paramilitary groups.
However, this allegation was not specific and the Government did not
submit any material to support it. The Court
takes note of the Government's allegation that the military vehicles,
firearms and camouflage uniforms had probably been stolen by
insurgents from Russian arsenals in the 1990s. Nevertheless, it
considers it very unlikely that several military vehicles, such as
APCs and Ural vehicles, unlawfully possessed by members of illegal
armed groups, could have moved freely through Russian military
checkpoints without being noticed. The Court would stress in
this regard that the evaluation of the evidence and the establishment
of the facts is a matter for the Court, and it is incumbent on it to
decide on the evidentiary value of the documents submitted to it (see
Çelikbilek v. Turkey, no. 27693/95, § 71,
31 May 2005).
- The
Court notes that the applicants' allegation is supported by the
witness statements collected by the applicants and by the
investigation. It finds that the fact that a large group of armed men
in uniform in broad daylight, equipped with military vehicles, was
able to move freely through military checkpoints and proceed to check
identity documents and arrest the applicants' relative at his home
strongly supports the applicants' allegation that these were State
servicemen conducting a security operation. In their application to
the authorities the applicants consistently maintained that Ramzan
Babushev had been detained by unknown servicemen and requested the
investigation to look into that possibility (see paragraphs 28, 31,
34, 46, 47, 52, 57 and 58 above). The domestic investigation accepted
factual assumptions as presented by the applicants (see paragraphs
26, 27 and 42 above) and took steps to check whether law-enforcement
agencies were involved in the kidnapping (see paragraphs 31, 35 and
43 above), but it does not appear that any serious steps have been
taken in that direction.
- The
Court observes that where the applicants make out a prima facie
case and the Court is prevented from reaching factual conclusions
owing to a lack of relevant documents, it is for the Government to
argue conclusively why the documents in question cannot serve to
corroborate the allegations made by the applicants, or to provide a
satisfactory and convincing explanation of how the events in question
occurred. The burden of proof is thus shifted to the Government and
if they fail in their arguments, issues will arise under Article 2
and/or Article 3 (see Toğcu v. Turkey, no. 27601/95,
§ 95, 31 May 2005, and Akkum and Others v. Turkey,
no. 21894/93, § 211, ECHR 2005 II).
- Taking
into account the above elements, the Court is satisfied that the
applicants have made out a prima facie case that their relative was
arrested by State servicemen. The Government's statement that the
investigators had not found any evidence to support the involvement
of the special forces in the kidnapping is insufficient to discharge
them from the above-mentioned burden of proof. Having examined the
documents submitted by the applicants, and drawing inferences from
the Government's failure to submit the documents which were in their
exclusive possession or to provide another plausible explanation for
the events in question, the Court finds that Ramzan Babushev was
arrested on 4 February 2003 by State servicemen during an
unacknowledged security operation.
- There
has been no reliable news of Ramzan Babushev since the date of the
kidnapping. His name has not been found in any official detention
facility records. Finally, the Government have not submitted any
explanation as to what happened to him after his arrest.
- Having
regard to the previous cases which have come before it concerning
disappearances in Chechnya (see, among others, Bazorkina,
cited above; Imakayeva, cited above; Luluyev and Others v.
Russia, no. 69480/01, ECHR 2006 ... (extracts);
Baysayeva v. Russia, no. 74237/01, 5 April 2007;
Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva
v. Russia, no. 68007/01, 5 July 2007), the Court finds
that in the context of the conflict in the Republic, when a person is
detained by unidentified servicemen without any subsequent
acknowledgment of the detention, this can be regarded as
life-threatening. The absence of Ramzan Babushev or of any news of
him for several years supports this assumption.
- Accordingly,
the Court finds that the evidence available permits it to establish
that Ramzan Babushev must be presumed dead following his
unacknowledged detention by State servicemen.
V. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained under Article 2 of the Convention that their
relative had been deprived of his life by Russian servicemen and that
the domestic authorities had failed to carry out an effective
investigation of the matter. Article 2 reads:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. The parties' submissions
- The
Government contended that the domestic investigation had obtained no
evidence to the effect that Ramzan Babushev was dead or that any
servicemen of the federal law-enforcement agencies had been involved
in his kidnapping or alleged killing. The Government claimed that the
investigation into the kidnapping of the applicants' relative met the
Convention requirement of effectiveness, as all measures available
under national law were being taken to identify those responsible.
- The
applicants argued that Ramzan Babushev had been detained by State
servicemen and should be presumed dead in the absence of any reliable
news of him for several years. The applicants also argued that the
investigation had not met the effectiveness and adequacy requirements
laid down by the Court's case-law. The applicants pointed out that in
spite of their numerous credible indications concerning the
involvement of Russian servicemen in the abduction of their relative,
the investigators had failed to take such basic investigative
measures as questioning representatives of law-enforcement agencies
or military structures or establishing the identity of the owners of
the APC used during the abduction. The investigation into Ramzan
Babushev's kidnapping had been opened eight days after the events and
then it had been suspended and resumed a number of times – thus
delaying the taking of the most basic steps – and the relatives
had not been properly informed of the most important investigative
measures. The fact that the investigation had been pending for such a
long period of time without producing any known results was further
proof of its ineffectiveness. They also invited the Court to draw
conclusions from the Government's unjustified failure to submit the
documents from the case file to them or to the Court.
B. The Court's assessment
1. Admissibility
- The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits.
Further, the Court has already found that the Government's objection
concerning the alleged non-exhaustion of domestic remedies should be
joined to the merits of the complaint (see paragraph 77 above). The
complaint under Article 2 of the Convention must therefore be
declared admissible.
2. Merits
(a) The alleged violation of the right to
life of Ramzan Babushev
- The Court has already found that the applicants'
relative must be presumed dead following unacknowledged detention by
State servicemen. In the absence of any justification put forward by
the Government, the Court finds that his death can be attributed to
the State and that there has been a violation of Article 2 in respect
of Ramzan Babushev.
(b) The alleged inadequacy of the
investigation of the kidnapping
- The
Court has on many occasions stated that the obligation to protect the
right to life under Article 2 of the Convention also requires by
implication that there should be some form of effective official
investigation when individuals have been killed as a result of the
use of force. It has developed a number of guiding principles to be
followed for an investigation to comply with the Convention's
requirements (for a summary of these principles see Bazorkina,
cited above, §§ 117-19).
- In
the present case, the kidnapping of Ramzan Babushev was investigated.
The Court must assess whether that investigation met the requirements
of Article 2 of the Convention.
- The
Court notes at the outset that none of the documents from the
investigation was disclosed by the Government. It therefore has to
assess the effectiveness of the investigation on the basis of the few
documents submitted by the applicants and the information about its
progress presented by the Government.
- The
Court observes that the authorities were immediately made aware of
the kidnapping by the applicants' submissions. The investigation in
case no. 24012 was instituted on 12
February 2003, that is, eight days after Ramzan Babushev's abduction.
Such a postponement was liable per se to affect the investigation of
the kidnapping in life-threatening circumstances, where crucial
action has to be taken in the first days after the event. In the
course of the following days the first applicants, her relative and
two of her neighbours were questioned. It appears that these were the
only investigative steps taken by the prosecutor's office. After that
a number of essential investigative measures were not taken at all.
For instance, the investigators failed to conduct a crime-scene
examination at the applicants' house; failed to identify and question
the officers from the Khattuni OVD who had been present during the
abduction; failed to question the Vedeno district military commander
or any other chief officers of local law-enforcement authorities who
could have issued an order for Ramzan Babushev's arrest; failed to
establish the identity of the owner of the APC which had been used by
the abductors or to question a number of residents of the village who
might have witnessed the abduction. It is obvious that these
investigative measures, if they were to produce any meaningful
results, should have been taken immediately after the crime was
reported to the authorities, and as soon as the investigation
commenced. Such delays, for which there has been no explanation in
the instant case, not only demonstrate the authorities' failure to
act of their own motion but also constitute a breach of the
obligation to exercise exemplary diligence and promptness in dealing
with such a serious crime (see Öneryıldız v. Turkey
[GC], no. 48939/99, § 94, ECHR 2004 XII).
- The
Court also notes that even though the first applicant was granted
victim status in the investigation concerning the abduction of her
husband, she was only informed of the suspension and resumption of
the proceedings, and not of any other significant developments.
Accordingly, the investigators failed to ensure that the
investigation received the required level of public scrutiny, or to
safeguard the interests of the next of kin in the proceedings.
- Finally,
the Court notes that the investigation was suspended and resumed on
numerous occasions and that there were lengthy periods of inactivity
of the district prosecutor's office when no proceedings were pending
- The
Government argued that the applicants could have sought judicial
review of the decisions of the investigating authorities in the
context of the exhaustion of domestic remedies. The Court observes
that the applicants, having no access to the case file and not being
properly informed of the progress of the investigation, could not
have effectively challenged acts or omissions of investigating
authorities before a court. Furthermore, the Court emphasises in this
respect that while the adjourning or reopening of proceedings is not
in itself a sign that the proceedings are ineffective, in the present
case the decisions to adjourn were made without the necessary
investigative steps being taken, which led to numerous periods of
inactivity and thus unnecessary protraction. Moreover, owing to the
time that had elapsed since the events complained of, certain
investigative measures that ought to have been carried out much
earlier could no longer usefully be conducted. Therefore, it is
highly doubtful that the remedy relied on would have had any
prospects of success. Accordingly, the Court finds that the remedy
cited by the Government was ineffective in the circumstances and
dismisses their preliminary objection as regards the applicants'
failure to exhaust domestic remedies within the context of the
criminal investigation.
- In
the light of the foregoing, the Court holds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the disappearance of Ramzan Babushev, in
breach of Article 2 in its procedural aspect.
VI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants relied on Article 3 of the Convention, submitting that as
a result of their relative's disappearance and the State's failure to
investigate it properly, they had endured mental suffering in breach
of Article 3 of the Convention. Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
- The
Government disagreed with these allegations and argued that the
investigation had not established that the applicants had
been subjected to inhuman or degrading treatment prohibited by
Article 3 of the Convention.
- The
applicants maintained their submissions.
B. The Court's assessment
1. Admissibility
- The
Court notes that this complaint under Article 3 of the Convention is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
2. Merits
- The Court has found on many occasions that in a
situation of enforced disappearance close relatives of the victim may
themselves be victims of treatment in violation of Article 3. The
essence of such a violation does not mainly lie in the fact of the
“disappearance” of the family member but rather concerns
the authorities' reactions and attitudes to the situation when it is
brought to their attention (see Orhan v. Turkey, no. 25656/94,
§ 358, 18 June 2002, and Imakayeva, cited above,
§ 164).
- In
the present case, the Court observes that the disappeared Ramzan
Babushev was the applicants' close relative. He was the husband of
the first applicant; the son of the second applicant and the father
of the third, fourth, fifth, sixth and seventh applicants. For
more than five years the applicants have not had any news of their
close relative. During this period the applicants have applied to
various official bodies with enquiries about their close relative,
both in writing and in person. Despite their attempts, the applicants
have never received any plausible explanation or information as to
what became of their family member following his kidnapping. The
responses received by the applicants mostly denied that the State was
responsible for his arrest or simply informed them that an
investigation was ongoing. The Court's findings under the procedural
aspect of Article 2 are also of direct relevance here.
- In view of the above, the Court finds that the
applicants suffered distress and anguish as a result of the
disappearance of their close relative and their inability to find out
what happened to him. The manner in which their complaints have been
dealt with by the authorities must be considered to constitute
inhuman treatment contrary to Article 3. At the same time the Court
notes that the seventh applicant was born in July 2003, more than
five months after Ramzan Babushev's disappearance. Having regard to
this, the Court does not find that this applicant has suffered such
distress and anguish as a result of the disappearance of her father
that it would amount to a violation of Article 3 of the Convention.
- The
Court therefore concludes that there has been a violation of Article
3 of the Convention in respect of the first six applicants. It
further finds that there has been no violation of Article 3 of the
Convention in respect of the seventh applicant.
VII. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants further stated that Ramzan Babushev had been detained in
violation of the guarantees contained in Article 5 of the Convention,
which reads, in so far as relevant:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law:...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. The parties' submissions
- The
Government asserted that no evidence had been obtained by the
investigators to confirm that Ramzan Babushev had been deprived of
his liberty. He was not listed among the persons kept in detention
centres and none of the regional law-enforcement agencies had
information about his detention.
- The
applicants reiterated the complaint.
B. The Court's assessment
1. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that the complaint is not inadmissible
on any other grounds and must therefore be declared admissible.
2. Merits
- The
Court has previously noted the fundamental importance of the
guarantees contained in Article 5 to secure the right of individuals
in a democracy to be free from arbitrary detention. It has also
stated that unacknowledged detention is a complete negation of these
guarantees and discloses a very grave violation of Article 5 (see
Çiçek v. Turkey, no. 25704/94, § 164,
27 February 2001, and Luluyev, cited above, § 122).
- The Court has found that Ramzan Babushev was arrested
by State servicemen on 4 February 2003 and has not been seen
since. His detention was not acknowledged, was not logged in any
custody records and there exists no official trace of his subsequent
whereabouts or fate. In accordance with the Court's practice, this
fact in itself must be considered a most serious failing, since it
enables those responsible for an act of deprivation of liberty to
conceal their involvement in a crime, to cover their tracks and to
escape accountability for the fate of a detainee. Furthermore, the
absence of detention records, noting such matters as the date, time
and location of detention and the name of the detainee as well as the
reasons for the detention and the name of the person effecting it,
must be seen as incompatible with the very purpose of Article 5 of
the Convention (see Orhan, cited above, § 371).
- The
Court further considers that the authorities should have been more
alert to the need for a thorough and prompt investigation of the
applicants' complaints that their relative had been detained and
taken away in life-threatening circumstances. However, the Court's
findings above in relation to Article 2 and, in particular, the
conduct of the investigation leave no doubt that the authorities
failed to take prompt and effective measures to safeguard him against
the risk of disappearance.
- In
view of the foregoing, the Court finds that Ramzan Babushev was held
in unacknowledged detention without any of the safeguards contained
in Article 5. This constitutes a particularly grave violation of the
right to liberty and security enshrined in Article 5 of the
Convention.
VIII. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION
AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicants alleged that the disappearance of their relative had
amounted to a violation of their right to respect for family life.
They also complained that the search carried out at their house on 4
February 2003 had been illegal and constituted a violation of their
right to respect for their home. It thus disclosed a violation of
Article 8 of the Convention. They also referred to the unlawful
seizure of their property during the search and relied on Article 1
of Protocol No. 1 to the Convention. These Articles provide as
follows:
Article 8
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others. ”
Article 1 of Protocol No. 1 (protection of property)
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government contended that State agents had not been involved in the
alleged search of the applicants' house and that the applicants had
failed to exhaust domestic remedies in respect of their complaints
under this head by failing to claim damages through domestic courts.
- The
applicants reiterated the complaint.
B. The Court's assessment
1. Admissibility
- The
Court considers, in the light of the parties' submissions, that the
applicants' complaints raise serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. Further, the Court has already found that the Government's
objection concerning the alleged non-exhaustion of domestic remedies
should be joined to the merits of the complaint (see paragraph 77
above). The complaints under Article 8 and Article 1 of Protocol
No. 1 to the Convention must therefore be declared admissible.
2. Merits
(a) The right to respect for home and
protection of property
- As
to the Government's objection that the applicants failed to exhaust
available domestic remedies, the Court points out that on several
occasions the applicants reported the events of 4 February 2003 to
the domestic authorities and mentioned, in particular, the unlawful
search of their house and the seizure of their property and documents
by the abductors (see paragraphs 27, 28, 52, 59 and 61 above). The
official bodies denied that those who had intruded into the
applicants' home and abducted Ramzan Babushev were State agents (see,
by contrast, Chitayev and Chitayev v. Russia,
no. 59334/00, §§ 64, 77 and 143, 18 January
2007). In the absence of any domestic findings of State
responsibility for the allegedly unlawful search and the seizure of
the applicants' property, the Court is not persuaded that the court
remedy referred to by the Government was accessible to the applicants
and would have had any prospects of success (see Betayev and
Betayeva v. Russia, no. 37315/03, § 112, 29 May 2008). The
Government's objection concerning non-exhaustion of domestic remedies
must therefore be dismissed.
- The Court further notes that the information
concerning the search and the seizure of the property was
communicated promptly to the domestic law-enforcement authorities;
however, the latter failed to take any measures to examine it.
Although the Government denied responsibility for the search and
seizure of the property, the Court has already found that the persons
who entered the applicants' home and detained their relative belonged
to the State military or security forces. Therefore, it finds that
the search of the applicants' house carried out on 4 February 2003
and the seizure of the applicants' property was imputable to the
respondent State.
- The Court also notes that the servicemen did not show
the applicants a search warrant. Neither did they indicate any
reasons for their actions. Furthermore, it appears that no search
warrant was drawn up at all, either before or after the events in
question. In sum, the Court finds that the search in the present case
was carried out without any, or any proper, authorisation or
safeguards.
- Accordingly,
there was an interference with the applicants' right to respect for
their home and for the protection of their property. In the absence
of any reference by the Government to the lawfulness and
proportionality of these measures, the Court finds that there has
been a violation of the applicants' right to respect for home
guaranteed by Article 8 of the Convention and their right to
protection of property guaranteed by Article 1 of Protocol No. 1
to the Convention.
(b) The right to respect for family life
- The
applicants' complaint concerning their inability to enjoy family life
with Ramzan Babushev concerns the same facts as
those examined above under Articles 2 and 3 of the Convention. Having
regard to its above findings under these provisions, the Court
considers that this complaint should be declared admissible. However,
it finds that no separate issue arises under Article 8 of the
Convention in this respect (see, mutatis mutandis, Ruianu
v. Romania, no. 34647/97, § 66, 17 June
2003; Laino v. Italy [GC], no. 33158/96, § 25,
ECHR 1999 I; and Canea Catholic Church v. Greece, 16
December 1997, § 50 Reports 1997 VIII).
IX. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants complained that they had been deprived of effective
remedies in respect of the aforementioned violations, contrary to
Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties' submissions
- The
Government contended that the applicants had had effective remedies
at their disposal as required by Article 13 of the Convention and
that the authorities had not prevented them from using them. The
applicants had had an opportunity to challenge the acts or omissions
of the investigating authorities in court and they could also claim
damages through civil proceedings. In sum, the Government submitted
that there had been no violation of Article 13.
- The
applicants reiterated the complaint.
B. The Court's assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The
Court reiterates that in circumstances where, as here, a criminal
investigation into the disappearance has been ineffective and the
effectiveness of any other remedy that might have existed, including
civil remedies suggested by the Government, has consequently been
undermined, the State has failed in its obligation under Article 13
of the Convention (see Khashiyev and Akayeva, cited above,
§ 183).
- Consequently,
there has been a violation of Article 13 in conjunction with Article
2 of the Convention.
- As
to the applicants' complaint under Article 13 in conjunction with
Article 8 and Article 1 of Protocol No. 1, the Court considers that
in a situation where the authorities denied involvement in the
alleged intrusion into the applicants' house and the taking of the
family belongings and where the domestic investigation had failed to
examine the matter, the applicants did not have any effective
domestic remedies in respect of the alleged violations of their
rights secured by Article 8 of the Convention and Article 1 of
Protocol No. 1. Accordingly, there has been a violation on that
account.
- As
regards the applicants' reference to Articles 3 and 5 of the
Convention, the Court considers that, in the circumstances, no
separate issue arises in respect of Article 13, read in conjunction
with Articles 3 and 5 of the Convention (see Kukayev v. Russia,
no. 29361/02, § 119, 15 November 2007, and
Aziyevy v. Russia, no. 77626/01, § 118, 20 March
2008).
137. As
for the complaint under Article 13 in conjunction with Article 8
concerning the right to family life, the Court notes that in
paragraph 128 above it has found that no separate issue arises under
that provision. Therefore, it considers that no separate issue arises
under Article 13 in this respect either.
X. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- In their initial submission the
applicants stated that they had been discriminated against on the
grounds of their ethnic origin, contrary to the provisions of Article
14 of the Convention. Article 14 provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- In their observations on the
admissibility and merits of the application the applicants stated
that they no longer wished to maintain this complaint.
- The Court, having regard to
Article 37 of the Convention, notes that the applicants do not intend
to pursue this part of the application, within the meaning of Article
37 § 1 (a). It finds no reasons of a general character affecting
respect for human rights as defined in the Convention which require
further examination of the present complaints by virtue of Article 37
§ 1 of the Convention in fine
(see, among other authorities, Chojak
v. Poland, no. 32220/96,
Commission decision of 23 April 1998, unpublished;
Singh and Others v. the United
Kingdom (dec.), no.
30024/96,
26 September 2000; and Stamatios
Karagiannis v. Greece, no. 27806/02,
§ 28, 10 February 2005).
- It follows that this part of the application must be
struck out in accordance with Article 37 § 1 (a) of the
Convention.
XI. APPLICATION OF ARTICLE
41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. The Government's objection
- The
Government submitted that the document containing the applicants'
claims for just satisfaction had been signed by Mr R. Lemaitre and Mr
D. Itslayev, while, in the Government's opinion, the applicants had
been represented by Ms D.I. Straisteanu, Ms E. Ezhova, Ms A. Maltseva
and Mr A. Nikolayev. They insisted therefore that the applicants'
claims for just satisfaction were invalid.
- The
Court points out that the applicants issued powers of attorney in the
name of the SRJI, an NGO that works with a number of lawyers. Since
the SRJI lists Mr R. Lemaitre and Mr D. Itslayev as its staff member
and expert, the Court has no doubt that they were duly authorised to
sign the claims for just satisfaction on behalf of the applicants.
The Government's objection must therefore be dismissed.
A. Pecuniary damage
- The
applicants claimed damages in respect of loss of earnings by their
relative after his arrest and subsequent disappearance. The first
applicant, as the wife of Ramzan Babushev, claimed 172,322 Russian
roubles (RUB) under this head; the third and sixth applicants, as his
sons, claimed RUB 4,288 and RUB 44, 946 respectively; and the
fourth, fifth and seventh applicants, as his daughters, claimed RUB
11,829, RUB 38,711 and RUB 84,914 respectively. The applicants thus
claimed a total of RUB 357,010 under this head (EUR 10,200).
-
They claimed that Ramzan Babushev had been unemployed at the time of
his arrest and that in such a case the calculation should be made on
the basis of the subsistence level established by national law. Their
calculations were also based on the actuarial tables for use in
personal injury and fatal accident cases published by the United
Kingdom Government Actuary's Department in 2007 (“Ogden
tables”).
- The
Government regarded these claims as unsubstantiated. They also
referred to the existence of domestic statutory provisions for a
pension for the loss of the family breadwinner.
- The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicants and the violation of the
Convention, and that this may, in an appropriate case, include
compensation in respect of loss of earnings. The Court further finds
that the loss of earnings also applies to the dependent children and
that it is reasonable to assume that Ramzan Babushev would eventually
have had some earnings from which the applicants would have benefited
(see, among other authorities, Imakayeva, cited above, § 213).
Having regard to its above conclusions, it finds that there is a
direct causal link between the violation of Article 2 in respect
of the applicants' relative and the loss by the applicants of the
financial support which he could have provided. Having regard to the
applicants' submissions and the fact that Ramzan Babushev was not
employed at the time of his arrest, the Court awards EUR 8,000
to the first, third, fourth, fifth, sixth and seventh applicants
jointly in respect of pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Non-pecuniary damage
- The
applicants claimed EUR 70,000 jointly in respect of
non pecuniary damage for the suffering they had endured as a
result of the loss of their family member, the indifference shown by
the authorities towards them and the failure to provide any
information about the fate of their close relative.
- The
Government found the amounts claimed exaggerated.
- The
Court has found a violation of Articles 2, 5 and 13 of the Convention
on account of the unacknowledged detention and disappearance of the
applicants' relative. The applicants themselves have been found to
have been victims of a violation of Articles 3 and 8 of the
Convention. The Court thus accepts that they have suffered
non-pecuniary damage which cannot be compensated for solely by the
findings of violations. It awards the applicants jointly EUR 35,000
plus any tax that may be chargeable thereon.
C. Costs and expenses
- The
applicants were represented by the SRJI. They submitted an itemised
schedule of costs and expenses that included research and interviews
in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the
drafting of legal documents submitted to the Court and the domestic
authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR
150 per hour for SRJI senior staff and experts. The aggregate claim
in respect of costs and expenses related to the applicants' legal
representation amounted to EUR 6,550.
- The
Government disputed the reasonableness and justification for the
amounts claimed under this head. They questioned, in particular,
whether it had been necessary for the applicants to use courier mail.
- The
Court has to establish first whether the costs and expenses indicated
by the applicants' representatives were actually incurred and,
second, whether they were necessary (see McCann and Others v. the
United Kingdom, 27 September 1995, § 220, Series A no. 324).
- Having
regard to the details of the information and legal representation
contract submitted by the applicants, the Court is satisfied that
these rates are reasonable and reflect the expenses actually incurred
by the applicants' representatives.
- As
to whether the costs and expenses incurred were necessary, the Court
notes that this case was rather complex and required a certain amount
of research and preparation. It notes at the same time that, due to
the application of Article 29 § 3 in the present case, the
applicants' representatives submitted their observations on the
admissibility and merits in one set of documents. The Court thus
doubts that legal drafting was necessarily time-consuming to the
extent claimed by the representatives.
- Having regard to the details of the claims submitted
by the applicants, the Court awards them EUR 5,500 together with
any value-added tax that may be chargeable to the applicants, the net
award to be paid into the representatives' bank account in the
Netherlands, as identified by the applicants.
D. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government's objection as
to the abuse of the right of petition and their objection
regarding the validity of the application form;
- Decides
to strike the application out of its list of cases in accordance with
Article 37 § 1 (a) of the Convention in so far as it concerns
the applicants' complaint under Article 14 of the Convention;
3. Decides to join to the merits the Government's objection as
to non-exhaustion of domestic remedies and rejects it;
- Declares the complaints under Articles 2, 3, 5,
8, 13 and Article 1 of Protocol No. 1 to the Convention
admissible;
5. Holds that there has been a substantive violation of
Article 2 of the Convention in respect of Ramzan Babushev;
- Holds that there has been a violation of
Article 2 of the Convention in respect of the failure to conduct
an effective investigation into the circumstances in which Ramzan
Babushev disappeared;
7. Holds that there has been a violation of
Article 3 of the Convention in respect of all the applicants,
save the seventh one;
8. Holds that there has been a violation of
Article 5 of the Convention in respect of Ramzan Babushev;
- Holds that there has been a violation of the
applicants' right to respect for home guaranteed by Article 8 of
the Convention and their right to protection of
property guaranteed by Article 1 of Protocol No. 1 to the Convention;
- Holds that no separate issues arise under
Article 8 of the Convention regarding the applicants' right to
respect for family life;
- Holds that there has been a violation of
Article 13 of the Convention in conjunction with Article 2 of
the Convention;
- Holds that there has been a violation of
Article 13 of the Convention in conjunction with the violation
of the applicants' right to respect for home guaranteed by Article 8
of the Convention and the right to protection
of property guaranteed by Article 1 of Protocol No. 1 to the
Convention;
- Holds that no separate issues arise under
Article 13 of the Convention in respect of the alleged violations of
Articles 3, 5 and 8 regarding the applicant's right to respect for
family life;
- Holds
(a) that
the respondent State is to pay, 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
Russian roubles at the date of settlement, save in the case of the
payment in respect of costs and expenses:
(i) EUR 8,000
(eight thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage to the first, third, fourth, fifth, sixth
and seventh applicants jointly;
(ii) EUR 35,000
(thirty-five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the applicants jointly;
(iii) EUR 5,500
(five thousand five hundred euros), plus any tax that may be
chargeable to the applicants, in respect of costs and expenses, to be
paid into the representatives' bank account in the Netherlands;
(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;
- Dismisses the remainder of the applicants'
claim for just satisfaction.
Done in English, and notified in writing on 24 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
