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FIRST
SECTION
CASE OF
TAGIROVA AND OTHERS v. RUSSIA
(Application
no. 20580/04)
This
version was rectified on 6 April 2010
under
Rule 81 of the Rules of the Court
JUDGMENT
STRASBOURG
4 December 2008
FINAL
05/06/2009
This judgment may be
subject to editorial revision.
In the case of Tagirova and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 13 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20580/04) 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 listed below (“the
applicants”), on 7 May 2004.
- 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. The Russian
Government (“the Government”) were represented by Ms V.
Milinchuk, former Representative of the Russian Federation at the
European Court of Human Rights.
- On
1 September 2005 the Court decided to apply
Rule 41 of the Rules of Court.
- On
23 May 2007 the Court decided to 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
Zaynap Zhazhayevna Tagirova, born in 1950;
2) Mr
Taus Daudovich Tagirov, born in 1950;
3) Mr
Musa Tausovich Tagirov, born in 1982;
4) Ms
Zarema Abdullayevna Bazayeva,
born in 1983;
5) Ms
Madina Tausovna Tagirova, born in 1983;
6) Ms
Milana Tausovna Tagirova, born in 1981; and
7) Ms
Ratkha Tausovna Tagirova, born in 1972.
They
live in Urus-Martan in the Chechen Republic.
- The
first and second applicants are married to each other. They are the
parents of the third, fifth, sixth and seventh applicants and Mr
Movsar Tausovich Tagirov, born in 1978. Movsar Tagirov was married to
the fourth applicant. At the material time the second applicant was
an officer of the special task force of the Chechen Republic. Movsar
Tagirov was a trainee of the special task force of the Chechen
Republic.
A. Disappearance of Movsar Tagirov
1. The applicants' account
- On
the night of 6 to 7 February 2003 the Tagirovs were sleeping in their
family house at 86 Sovetskaya Street, Urus-Martan, in the Chechen
Republic.
- At
about 3 a.m. on 7 February 2003 around twenty men wearing camouflage
uniforms burst into the applicants' courtyard. They broke down the
entrance door of the house; nine or ten of them entered. The men wore
masks and were armed with sniper rifles («винторезы»)
equipped with silencers; they did not identify themselves but the
applicants believed that they were Russian servicemen.
- Having
broken into the house, the armed men found in the living room the
second applicant's duty machine gun and portable radio transmitter;
one of them unloaded the machine gun and pulled a battery out of the
radio transmitter.
- An
armed man examined the second applicant's officer's badge and asked
him whether there were other men in the house. The second applicant
replied that there was his son, a task force trainee.
- Then
the armed men compelled the Tagirovs to proceed to the courtyard.
They did not allow Movsar Tagirov to dress himself properly with the
result that he left the house without jacket or shoes. The armed men
forced him to stand face to the wall and ordered that someone bring
his identity papers. The fourth applicant produced a task force
trainee's badge; the armed men examined it and then took Movsar
Tagirov from the courtyard to the street.
- Meanwhile
three armed men forced the applicants back inside the house and
threatened to open fire should they attempt to leave it. The
applicants obeyed. Having entered the house, the first applicant
looked out of the window and observed the armed men leading Movsar
Tagirov down Sovetskaya Street.
- Some
fifteen minutes later the remaining three armed men unblocked the
entrance door, proceeded to the courtyard and disconnected a portable
radio transmitter installed in the second applicant's car. Then they
left.
- The
second applicant ran to his car, turned on the radio transmitter and
sent a message about his son's abduction to special task force units,
but was unable to discover where he had been taken.
- According
to written statements made by the applicants' neighbours, on the
night of 6 to 7 February 2003 the armed men allegedly belonging to
the Russian military visited and searched other houses in Sovetskaya
Street, Urus-Martan. The neighbours refused to disclose their
identities, implying that they feared for their safety.
- On
31 March 2004 Ms R.T., the applicant's neighbour in Sovetskaya
Street, provided the SRJI with her written statement. She submitted
that at 3 a.m. on 7 February 2003 armed men in masks and
camouflage uniforms had entered her house and searched it. They had
also demanded the identity papers of her fifteen-year-old son, who
happened to be a namesake of Movsar Tagirov, checked them and left.
Later Ms R.T. had been questioned by the district prosecutor's
office.
- On
16 May 2005 the first applicant provided the SRJI with her additional
submissions. She reported that on the night of 7 February 2003 the
armed men had arrived at her house on foot after travelling in an
Ural vehicle and an armoured personnel carrier (“APC”).
The military vehicles had been parked some 100 metres away from her
house at Andreyev Street near the crossroads with Sovetskaya Street.
The armed men had taken her son to the crossroads and then driven
east down Andreyev Street where a military unit had been located. The
first applicant had not seen any military vehicles herself and had
obtained the information on them from residents of Andreyev Street
who preferred to remain anonymous as they feared for their safety.
2. Information submitted by the Government
- At
about 3 a.m. on 7 February 2003 unidentified persons armed with
machine guns and wearing camouflage uniforms entered the house at
86 Sovetskaya Street and kidnapped Movsar Tagirov.
B. The search for Movsar Tagirov and the investigation
1. The applicants' account
- From
7 February 2003 onwards the applicants repeatedly complained about
Movsar Tagirov's abduction to various official bodies, such as the
prosecutors' offices at different levels, the military commander's
office of the Urus-Martan District, the Department of the Federal
Security Service of the Chechen Republic (“the FSB Department”)
and the local administration of the Urus-Martan District. In their
efforts the applicants were assisted by the SRJI.
- On
15 February 2003 the prosecutor's office of the Urus-Martan District
(“the district prosecutor's office”) instituted an
investigation into Movsar Tagirov's disappearance under Article 126 §
2 of the Russian Criminal Code (aggravated kidnapping) and notified
the first applicant accordingly. The number assigned to the case file
was not mentioned.
- On
22 February 2003 the district prosecutor's office granted the first
applicant victim status in case no. 34020 concerning Movsar Tagirov's
kidnapping by “unidentified men in masks and camouflage
uniforms”.
- On
4 April 2003 the first applicant wrote to the district prosecutor's
office enquiring about progress in the investigation in case no.
34020. On 10 April 2003 the district prosecutor's office replied that
the investigation had been instituted on 15 February 2003 and was
under way. They noted that the first applicant would be informed of
its outcome.
- On
11 April 2003 the first applicant wrote to the military commander of
the Urus-Martan District, the FSB Department and the local
administration describing in detail the circumstances of her son's
abduction and asking for assistance in establishing his whereabouts.
She mentioned that her son had been abducted by military servicemen
driving a grey “UAZ” all-terrain vehicle.
- On
15 April 2003 the district prosecutor's office suspended the
investigation in case no. 34020 for failure to identify those
responsible and ordered that the department of the interior of the
Urus-Martan District organise the search for Movsar Tagirov and his
kidnappers. On 16 April 2003 they informed the first applicant
accordingly.
- On
22 April 2003 the FSB Department informed the first applicant that
they had not instituted any criminal proceedings against Movsar
Tagirov. They further noted that they had carried out a fruitless
inquiry into Movsar Tagirov's disappearance and suggested that he
might have been kidnapped by members of illegal armed groups
disguised in military uniforms.
- On
30 May 2003 the Southern Federal Circuit Department of the Prosecutor
General's Office informed the first applicant that they had forwarded
her complaint to the prosecutor's office of the Chechen Republic.
- On
5 and 18 June 2003 the prosecutor's office of the Chechen Republic
forwarded the first applicant's complaints to the district
prosecutor's office.
- On
3 July 2003 the military commander's office of the Urus-Martan
District informed the first applicant that they had carried out an
inquiry into her son's kidnapping and that they had no information on
his whereabouts or reasons for his abduction.
- On
16 July 2003 the first applicant wrote to the military prosecutor's
office of the United Group Alignment (“the UGA prosecutor's
office”) asking them to help her find her son. She mentioned
that her son had been abducted by military servicemen driving a grey
“UAZ” all-terrain vehicle.
- On
22 July 2003 the UGA prosecutor's office forwarded the first
applicant's letter to the military prosecutor's office of military
unit no. 20102 (“the unit prosecutor's office”) and
ordered that it be verified whether Russian federal servicemen had
been involved in Movsad Tagirov's kidnapping.
- On
5 September 2003 the unit prosecutor's office informed the first
applicant that they had carried out an inquiry, which had not
established any implication of military personnel in her son's
kidnapping.
- On
25 October 2003 the SRJI requested the district prosecutor's office
to inform them of progress in the investigation in case no. 34020, to
allow the first applicant access to the investigation file and to
resume the investigation if it had been suspended. They received no
reply and repeated the request on 20 December 2003 with a copy sent
to the prosecutor's office of the Chechen Republic.
- On
2 February 2004 the prosecutor's office of the Chechen Republic
informed the SRJI that the investigation into Movsar Tagirov's
kidnapping was under way and that investigative measures were being
taken to solve the crime.
- On
20 September 2004 the SRJI requested the district prosecutor's office
to inform them of progress in the investigation in case no. 34020 and
of investigative measures taken.
- On
27 October 2004 the prosecutor's office of the Chechen Republic
informed the SRJI that the investigation into Movsar Tagirov's
kidnapping had been opened and suggested that the first applicant
send her further queries to the district prosecutor's office.
- In
her additional submissions to the SRJI of 16 May 2005 the first
applicant noted that following her son's abduction she had contacted
numerous “intermediaries” who had connections with the
Russian military. According to one of them named “Baysi”,
a Russian serviceman named “Pet'ka” had told “Baysi”
that Movsar Tagirov upon his abduction had been brought to the
military commander's office of Urus-Martan and spent two or three
days there. Then he had been transferred to the temporary department
of the interior and then to “Pet'ka's” military unit.
“Pet'ka” had mentioned that the detainee in question had
an aquiline nose and a damaged left ear, which corresponded to Movsar
Tagirov's description. After a week spent in the military unit the
detainee had been transferred to Khankala military base by a
serviceman named “Alferov”. This information was not
communicated to the investigating authorities.
- On
18 March 2005 the SRJI requested that the district prosecutor's
office reply to their letter of 20 September 2004.
- On
4 and 7 October 2005 the SRJI requested information on case no. 34020
from the district prosecutor's office, but received no reply.
- On
20 October 2005 the prosecutor's office of the Chechen Republic
informed the SRJI that the first applicant had been receiving updates
on the course of the investigation. The applicants did not receive
any such information.
- On
13 December 2007 the first applicant requested the Achkhoy-Martan
Inter-District Investigative Committee of the Russian Prosecutor
General's Office to allow her access to interview records included in
the case file and permission to copy them.
2. Information submitted by the Government
- On
15 February 2003 the district prosecutor's office instituted an
investigation of Movsar Tagirov's abduction under Article 126 §
2 of the Russian Criminal Code (aggravated kidnapping). The case file
was assigned number 34020.
- On
22 February 2003 the first applicant was granted victim status and
questioned. She submitted that on 7 February 2003 unknown armed men
had entered her house, unloaded her husband's duty machine gun and
taken away her son. She did not know the perpetrators and had not
heard any noise of vehicles. Other relatives of Movsar Tagirov were
questioned in the course of the investigation and made statements
identical to that by the first applicant.
- Law
enforcement agencies of the Chechen Republic and the North Caucasus
Area replied to the district prosecutor's office's queries that
Movsar Tagirov had not been arrested, that no criminal proceeding had
been instituted against him and that he had not been suspected of
participation in illegal armed groups. Movsar Tagirov had not applied
for medical assistance to hospitals in the Chechen Republic and had
not been detained in remand prisons in the North Caucasus Area. His
dead body had not been found among unidentified corpses.
Investigative measures taken had not led to establishing his
whereabouts.
- The investigation was on several occasions suspended
for failure to identify the perpetrators. Higher prosecutors ordered
the resumption of the proceedings to verify information obtained from
the police.
- The
investigation failed to establish the whereabouts of Movsar Tagirov
and found no evidence of the involvement of federal troops in the
crime. It has not been completed and is pending before the
Achkhoy-Martan Inter-District Investigative Committee of the Russian
Prosecutor General's Office.
- Despite
specific requests by the Court, the Government did not disclose any
documents of the investigation file in case no. 34020. Relying
on the information obtained from the Prosecutor General's Office, 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 information
of a military nature and personal data concerning the witnesses or
other participants in the criminal proceedings.
II. RELEVANT DOMESTIC LAW
- For
a summary of relevant domestic law see Akhmadova and Sadulayeva v.
Russia, no. 40464/02, § 67-69, 10 May 2007.
THE LAW
I. The government's
objection REGARDING 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. The
actual object and purpose of the application was clearly political as
the applicants wanted to accuse the Russian Federation of being a
State which allegedly carries out a policy of violation of human
rights in the Chechen Republic. The Government concluded that there
had been an abuse of the right of petition on the part of the
applicants and that the application should be dismissed
pursuant to Article 35 § 3 of the Convention.
50. The
Court observes that the complaints the applicants brought to its
attention concerned their genuine grievances. Nothing in the case
file reveals any appearance of an abuse of their right of individual
petition. Accordingly, the Government's objection must be dismissed.
II. The government's
objection regarding LOCUS
STANDI
- 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 their representatives and two other
collaborators of the SRJI. They concluded that there was a lack of
locus standi in the present case.
- The
Court notes that the applicants gave the SRJI powers of attorney thus
duly authorising this NGO to represent their interests in Strasbourg
proceedings, and in particular to sign on their behalf application
forms submitted to the Registry. There are no grounds to believe that
the applicants issued those powers of attorney against their will.
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 applicants' complaints should be
declared inadmissible for non-exhaustion of domestic remedies. They
submitted that the investigation of the disappearance of Movsar
Tagirov had not yet been completed. They further argued that it had
been open to the applicants to challenge either in court or before a
higher prosecutor any actions 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 they had failed
to do so.
- The
applicants contested that objection and stated that the criminal
investigation had proved to be ineffective. They also argued that
remedies suggested by the Government were ineffective given the
situation in the Chechen Republic.
B. The Court's assessment
- The
Court reiterates that the rule of exhaustion of domestic remedies
under Article 35 § 1 of the Convention obliges applicants to use
first the remedies which are available and sufficient in the domestic
legal system to enable them to obtain redress for the breaches
alleged. The existence of the remedies must be sufficiently certain
both in theory and in practice, failing which they will lack the
requisite accessibility and effectiveness. Article 35 § 1
also requires that complaints intended to be brought subsequently
before the Court should have been made to the appropriate domestic
body, at least in substance and in compliance with the formal
requirements and time-limits laid down in domestic law and, further,
that any procedural means that might prevent a breach of the
Convention should have been used. However, there is no obligation to
have recourse to remedies which are inadequate or ineffective (see
Aksoy v. Turkey, 18 December 1996, §§ 51 52,
Reports of Judgments and Decisions 1996-VI; Akdivar and
Others v. Turkey, 16 September 1996, §§ 65-67, Reports
of Judgments and Decisions 1996 IV; and, most recently,
Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, §
64, 27 June 2006).
- It
is incumbent on the respondent Government claiming non-exhaustion to
indicate to the Court with sufficient clarity the remedies to which
the applicants have not had recourse and to satisfy the Court that
the remedies were effective and available in theory and in practice
at the relevant time, that is to say that they were accessible, were
capable of providing redress in respect of the applicant's complaints
and offered reasonable prospects of success (see Akdivar and
Others, cited above, § 68, and Cennet Ayhan and Mehmet
Salih Ayhan, cited above, § 65).
-
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. A civil
court is unable to pursue any independent investigation and is
incapable, without the benefit of the conclusions of a criminal
investigation, of making any meaningful findings regarding the
identity of the perpetrators of fatal assaults or disappearances,
still less of establishing their responsibility (see Khashiyev and
Akayeva v. Russia, nos. 57942/00 and 57945/00,
§§ 119-121, 24 February 2005). In the light of the
above, the Court confirms that the applicants were not obliged to
pursue civil remedies.
- As
regards criminal law remedies provided for by the Russian legal
system, the Court observes that the applicants complained to the law
enforcement authorities immediately after the kidnapping of Movsar
Tagirov and that an investigation has been pending since 15 February
2003. The applicants and the Government dispute the effectiveness of
the investigation of the kidnapping.
- The Court observes that the Government's objection
raises issues concerning the effectiveness of the investigation which
are closely linked to the merits of the applicants' complaints and
considers that this matter 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 away Movsar Tagirov had been State agents. In
support of their complaint they referred to the following facts. All
roads from Urus-Martan but one had been blocked by federal
checkpoints. The residents of Urus-Martan had seen the military
vehicles near the applicants' house on the night of 7 February 2003.
The first applicant had never told the investigators about the APC
and the Ural vehicle because they had not asked her to, but she had
been aware that such vehicles had been used to kidnap her son. The
perpetrators had been armed with the type of sniper rifles used by
the Russian military. At the material time a curfew had been
introduced in Urus-Martan. Ms R.T. had confirmed that the
perpetrators had checked the identity papers of her son, Movsar
Tagirov's namesake.
- The
Government submitted that unidentified armed men had kidnapped Movsar
Tagirov. 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 pointed out that the State authorities had had no reasons
to arrest Movsar Tagirov, a trainee special task force officer, and
that it was highly probable that the crime had been committed by
members of illegal armed groups wishing to take revenge on a future
serviceman of a law enforcement agency. Groups of Ukrainian,
Belorussian and ethnic Russian mercenaries had committed crimes in
the territory of the Chechen Republic; thus, the fact that the
perpetrators had Slavic features and spoke Russian did not prove
their attachment to the Russian military. The Government also
observed that a considerable number of weapons had been stolen by
illegal armed groups from Russian arsenals in the 1990s and that
anyone could purchase masks and camouflage uniforms. If the
perpetrators had been State agents, they would have had detailed
information on the applicants' relative and would not have confused
him with the fifteen-year-old son of Ms R.T.
- The
Government further emphasised that the applicants had not alleged
during the domestic investigation that the perpetrators had used APCs
or Ural vehicles and noted that so-called “witnesses” had
refused to make statements before the investigators. There had been
no evidence that any armed men had visited other houses in the
neighbourhood on the night of 7 February 2003. There had been no data
to confirm that the second applicant had sent requests for help via
his portable radio transmitter following his son's abduction. The
Government doubted the veracity of the statement of “Baysi”
referred to by the first applicant. Furthermore, the applicants had
never mentioned persons named “Baysi” and “Pet'ka”
in their communications with the national authorities.
- In
sum, the Government insisted that involvement of State agents in
Movsar Tagirov's kidnapping had not been proven beyond reasonable
doubt.
B. The Court's evaluation of the facts
- In
cases where there are conflicting accounts of events, the Court is
inevitably confronted when establishing the facts with the same
difficulties as those faced by any first-instance court. When, as in
the instant case, the respondent Government have exclusive access to
information able to corroborate or refute the applicants'
allegations, any lack of cooperation by the Government without a
satisfactory explanation may give rise to the drawing of inferences
as to the well-foundedness of the applicant's allegations (see Taniş
and Others v. Turkey, no. 65899/01, § 160, ECHR 2005 ...).
- The
Court points out that a number of principles have been developed in
its case-law as regards cases where it is faced with the task of
establishing facts on which the parties disagree. As to the facts
that are in dispute, the Court reiterates its jurisprudence requiring
the standard of proof “beyond reasonable doubt” in its
assessment of evidence (see Avşar v. Turkey,
no. 25657/94, § 282, ECHR 2001 VII (extracts)).
Such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions
of fact. In this context, the conduct of the parties when evidence is
being obtained has to be taken into account (see Taniş and
Others, cited above, § 160).
- The
Court is sensitive to the subsidiary nature of its role and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Nonetheless, where allegations are made under Articles 2
and 3 of the Convention, the Court must apply a particularly thorough
scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4
December 1995, § 32, Series A no. 336; and Avşar,
cited above, § 283) even if certain domestic proceedings and
investigations have already taken place.
- The
Court reiterates that it has noted the difficulty for applicants to
obtain the necessary evidence in support of allegations in cases
where the respondent Government are in possession of the relevant
documentation and fail to submit it. Where the applicant makes out a
prima facie case and the Court is prevented from reaching
factual conclusions owing to the lack of such 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).
- The
Court notes that despite its requests for a copy of the investigation
file into the abduction of Movsar Tagirov, the Government produced no
documents from the investigation file. They 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)).
- The
Court has found the Russian State authorities responsible for
extra-judicial executions or disappearances of civilians in the
Chechen Republic in a number of cases, even in the absence of final
conclusions from the domestic investigation (see Khashiyev and
Akayeva, cited above; Luluyev and Others v. Russia,
no. 69480/01, ECHR 2006-... (extracts); Estamirov and Others
v. Russia, no. 60272/00, 12 October 2006;
Imakayeva, cited above; and Baysayeva v. Russia, no.
74237/01, 5 April 2007). It has done so primarily on the basis of
witness statements and other documents attesting to the presence of
military or security personnel in the area concerned at the relevant
time. It has relied on references to military vehicles and equipment,
on witness accounts, on other information on security operations and
on the undisputed effective control of the areas in question by the
Russian military. On that basis, it has concluded that the areas in
question were “within the exclusive control of the authorities
of the State” in view of military or security operations being
conducted there and the presence of servicemen (see, mutatis
mutandis, Akkum v. Turkey, cited above, § 211;
and Zubayrayev v. Russia, no. 67797/01, § 82,
10 January 2008).
- However,
in the present case the Court has little evidence on which to draw
such conclusions. For instance, the first applicant referred to her
conversation with a person named “Baysi” but did not
provide any information on his identity or a statement bearing his
signature. All witness statements submitted by the applicants but one
are anonymous. The Court considers that it cannot regard such
statements as reliable evidence.
- Moreover,
the mere fact that the perpetrators were armed with sniper rifles
does not necessarily mean that they were State servicemen. The
applicants have never submitted that the camouflage uniforms worn by
the armed men bore any insignia of the type that should normally
appear on uniforms of State agents. It appears that sniper rifles and
camouflage uniforms with no insignia could have been obtained by
persons not belonging to the military via various, possibly illegal
channels.
- The
information at the Court's disposal does not warrant the conclusion
that the armed men had travelled to the applicants' house in military
vehicles. Neither the applicants themselves nor Ms R.T. have ever
alleged, either before the domestic investigation or before the
Court, that they saw any military vehicles in the vicinity of the
crime scene with their own eyes. Given that the perpetrators used no
vehicles and arrived on foot, the Court considers that they could
have moved around the town unbeknown to servicemen at military
checkpoints with greater ease than, for example, groups of armed men
riding in an armoured personnel carrier. Besides, the applicants
themselves submitted that one road leading from Urus-Martan had not
been blocked by federal checkpoints, which would facilitate the
penetration of insurgents into the town.
- Furthermore,
it is noteworthy that the applicants did not provide information on
the APC and Ural vehicle when questioned by the district prosecutor's
office. Nor did they mention to the investigators their encounter
with “Baysi”. The Court is not persuaded that the
investigators should have asked the applicants leading questions to
establish, for example, whether any APCs or other vehicles had been
used by the perpetrators given that it did not occur to the victims
of the crime to disclose to the investigation all the relevant
information at their disposal of their own motion.
- Accordingly,
the information in the Court's possession does not suffice to
establish that the perpetrators belonged to the security forces or
that a security operation had been carried out in respect of Movsar
Tagirov.
- At
the same time the Court takes into account the Government's
submission that Movsar Tagirov, an officer-to-be, could have been a
target of illegal armed groups fighting against federal forces in the
Chechen Republic. In such circumstances, the Court cannot attribute
responsibility for the unlawful acts in the present case to the
respondent State without additional evidence to that effect.
- To sum up, it has not been established to the required
standard of proof – “beyond reasonable doubt” –
that the security forces were implicated in the kidnapping of Movsar
Tagirov; nor does the Court consider that the burden of proof can be
entirely shifted to the Government.
V. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained under Article 2 of the Convention that their
relative had disappeared after being detained 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 Movsar Tagirov was dead or that any
servicemen of 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 envisaged in
national law were being taken to identify the perpetrators.
- The
applicants argued that Movsar Tagirov had been detained by State
servicemen and should be presumed dead in the absence of any reliable
news of him for more than five years. The applicants also argued that
the investigation had not met the requirements of effectiveness and
adequacy, as required by the Court's case-law on Article 2. The
applicants 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 criminal domestic remedies
should be joined to the merits of the complaint (see paragraph 60
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 Movsar Tagirov
- The
Court reiterates that Article 2, which safeguards the right to life
and sets out the circumstances in which deprivation of life may be
justified, ranks as one of the most fundamental provisions in the
Convention, from which no derogation is permitted. In the light of
the importance of the protection afforded by Article 2, the Court
must subject deprivation of life to the most careful scrutiny, taking
into consideration not only the actions of State agents but also all
the surrounding circumstances (see, among other authorities, McCann
and Others v. the United Kingdom, 27 September 1995, §§
146-47, Series A no. 324 and Avşar, cited
above, § 391).
- As noted above, the domestic investigation failed to
produce any tangible results as to the identities of the persons who
had kidnapped Movsar Tagirov. The applicants did not submit
persuasive evidence to support their allegations that State agents
were the perpetrators of the crime. The Court has already found above
that, in the absence of relevant information, it is unable to find
that security forces were implicated in the kidnapping of the
applicants' relative (see paragraph 78 above). Neither has it
established “beyond reasonable doubt” that Movsar Tagirov
was deprived of his life by State agents.
- In such circumstances the Court finds no State
responsibility, and thus no violation of the substantive limb of
Article 2 of the Convention.
(b) The alleged inadequacy of the
investigation of the kidnapping
-
The Court reiterates that the obligation to protect the
right to life under Article 2 of the Convention, read in conjunction
with the State's general duty under Article 1 of the Convention
to “secure to everyone within [its] jurisdiction the rights and
freedoms defined in [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 (see, mutatis mutandis, McCann and Others,
cited above, § 161; and Kaya v. Turkey, 19 February 1998,
§ 86, Reports of Judgments and Decisions 1998 I).
The essential purpose of such investigation is to secure the
effective implementation of the domestic laws which protect the right
to life and, in those cases involving State agents or bodies, to
ensure their accountability for deaths occurring under their
responsibility. This investigation should be independent, accessible
to the victim's family, carried out with reasonable promptness and
expedition, effective in the sense that it is capable of leading to a
determination of whether the force used in such cases was or was not
justified in the circumstances or otherwise unlawful, and afford a
sufficient element of public scrutiny of the investigation or its
results (see Hugh Jordan v. the United Kingdom, no. 24746/94,
§§ 105-09, ECHR 2001 III (extracts); and
Douglas-Williams v. the United Kingdom (dec.), no. 56413/00,
8 January 2002).
- The Court notes that there is no proof that Movsar
Tagirov has been killed. However, it reiterates that the
above-mentioned obligations also apply to cases where a person has
disappeared in circumstances which may be regarded as
life-threatening (see Toğcu, cited above, § 112).
The applicants informed the investigating authorities that Movsar
Tagirov had been kidnapped by a large group of unknown armed men.
Given a considerable number of reported enforced disappearances of
persons in the Chechen Republic and persistent confrontation between
illegal armed groups and federal troops in the region in the early
2000s, the Court considers that the disappearance of Movsar Tagirov
could be regarded as life-threatening. Furthermore, after a certain
lapse of time during which no information on the fate of the missing
man had been received, both the applicants and investigators could
have presumed that he had been deprived of his life at the hands of
the kidnappers. Accordingly, the Court concludes that the State
authorities were under a positive obligation to investigate the crime
in question.
-
Given that there was an investigation into the kidnapping of Movsar
Tagirov, the Court must now assess whether it met the requirements of
Article 2 of the Convention.
- The
Court notes at the outset that none of the documents from the
investigation file 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 supplied by the Government.
- The
Court notes that the authorities were immediately made aware of the
crime by the applicants. The investigation in case no. 34020 was
instituted on 15 February 2003, that is, eight days after Movsar
Tagirov's abduction. Such a delay 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.
- The
Court notes that, regrettably, it is unable to build a time line of
the investigation due to the Government's failure to submit not only
the case documents, but also a detailed account of relevant events.
Nevertheless, it refers to the Government's assertion that the
investigation in case no. 34020 was several times suspended and then
resumed and that it had been found lacking by higher prosecutors (see
paragraph 45 above). The Court draws inferences from the Government's
failure to submit information on the course of the investigation and
concludes that a number of essential investigative measures were
either delayed or not taken at all.
- The
Court also notes that, even though the first applicant was granted
victim status in case no. 34020, the district prosecutor's office
only informed her of its decisions of 15 February and 15 April 2003,
while it is clear from the Government's submissions that the
investigation was suspended and then resumed a number of times. In
such circumstances the Court considers that the investigators clearly
and blatantly failed to ensure that the investigation received the
required level of public scrutiny, or to safeguard the legitimate
interests of the next of kin of the victim in the proceedings (see
Oğur v. Turkey [GC], no. 21594/93, § 92,
ECHR 1999 III).
- Finally,
the Court notes that the investigation in case no. 34020 was
suspended and resumed an unspecified number of times. In such
circumstances it is plausible to assume that there were lengthy
periods of inactivity of the district prosecutor's office when no
proceedings were pending.
- The
Court will now examine the limb of the Government's objection that
was joined to the merits of the complaint (see paragraph 60 above).
Inasmuch as it concerns the fact that the domestic investigation is
still pending, the Court notes that the authorities' failure to take
necessary and urgent investigative measures undermined the
effectiveness of the investigation in its early stages. Moreover, the
Government mentioned the possibility for the applicants to apply for
judicial review of the decisions of the investigating authorities in
the context of 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 actions or omissions of the investigating
authorities before a court. Furthermore, taking into account the
finding that the effectiveness of the investigation had already been
undermined, it is highly doubtful that the remedy relied on would
have had any prospects of success. Accordingly, the Court finds that
the criminal-law remedies relied on by the Government were
ineffective in the circumstances and rejects their objection
concerning 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 Movsar Tagirov's
kidnapping in life-threatening circumstances, 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
- Referring
to its settled case-law, the Court reiterates that, where a person
has been abducted by State security forces and subsequently
disappeared, his or her relatives can claim to be victims of
treatment contrary to Article 3 of the Convention on account of
their mental distress caused by the “disappearance” of
their family member and the authorities' reactions and attitudes to
the situation when it is brought to their attention (see, among many
other authorities, Kurt v. Turkey, 25 May 1998, §§
130-34, Reports of Judgments and Decisions 1998 III; and
Timurtaş v. Turkey, no. 23531/94, §§
96-98, ECHR 2000 VI).
- Turning
to the circumstances of the present case, the Court notes that the
applicants are close relatives of Movsar Tagirov. Accordingly, it has
no doubt that the applicants have indeed suffered from grave
emotional distress following the kidnapping of their son, husband and
brother.
- The
Court recalls that it has already found violations of Article 3 of
the Convention in respect of relatives of missing persons in a series
of cases concerning the phenomenon of “disappearances” in
the Chechen Republic (see, for example, Luluyev and Others,
cited above, §§ 117-18; Khamila Isayeva v.
Russia, no. 6846/02, § 143-45, 15 November
2007; and Kukayev v. Russia, no. 29361/02, §§
107-10, 15 November 2007). It is noteworthy, however, that in
those cases the State was found to be responsible for the
disappearance of the applicants' relatives. In the present case, by
contrast, it has not been established to the required standard of
proof – “beyond reasonable doubt” – that the
Russian authorities were implicated in Movsar Tagirov's kidnapping
(see paragraph 78 above). In such circumstances the Court considers
that this case is clearly distinguishable from those mentioned above
and therefore concludes that the State cannot be held responsible for
the applicants' mental distress caused by the commission of the crime
itself.
- Furthermore,
the Court is not persuaded that the investigating authorities'
conduct in this case, albeit negligent to the extent that it has
breached Article 2 in its procedural aspect, could in itself have
caused the applicants mental distress in excess of the minimum level
of severity which is necessary in order to consider treatment as
falling within the scope of Article 3 (see, among other
authorities, Cruz Varas and Others v. Sweden, 20 March 1991,
§ 83, Series A no. 201).
- It
follows that this part of the application is manifestly ill-founded
and should be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
VII. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants further stated that Movsar Tagirov had been detained in
violation of the guarantees of 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 submitted that no evidence had been obtained by the
investigators to confirm that Movsar Tagirov had been deprived of his
liberty by State agents in breach of the guarantees set out in
Article 5 of the Convention.
- The
applicants reiterated the complaint.
B. The Court's assessment
- 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 and Others, cited above, § 122).
- Nevertheless,
the Court has not found it established “beyond reasonable
doubt” that Movsar Tagirov was apprehended by Russian
servicemen (see paragraph 78 above). Similarly, it cannot presume
that upon his kidnapping the missing man was placed in unacknowledged
detention under the control of State agents.
- The Court therefore considers that this part of the
application should be dismissed as being incompatible ratione
personae and must be declared inadmissible in accordance
with Article 35 §§ 3 and 4 of the Convention.
VIII. 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 actions or
omissions of the investigating authorities in court or before higher
prosecutors and to bring civil claims for damages. In sum, the
Government submitted that there had been no violation of Article 13.
- The
applicants reiterated the complaint.
B. The Court's assessment
- The Court observes that the complaint made by the
applicants under this Article has already been examined in the
context of Article 2 of the Convention. Having regard to the finding
of a violation of Article 2 in its procedural aspect (see paragraph 95
above), the Court considers that, whilst the complaint under Article
13 taken in conjunction with Article 2 is admissible, there is no
need to make a separate examination of this complaint on its merits
(see, mutatis mutandis, Makaratzis v. Greece [GC],
no. 50385/99, §§ 84-86, ECHR 2004 XI, and Anık
and Others v. Turkey, no. 63758/00, § 86, 5 June
2007).
IX. ALLEGED VIOLATIONS OF ARTICLE 14 OF THE CONVENTION
- In
their initial application form the applicants stated that they had
been discriminated against on the grounds of their ethnic origin in
breach of Article 14 of the Convention, which
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
the observations on admissibility and merits of 20 December 2007 the
applicants stated that they no longer wished their complaint under
Article14 of the Convention to be examined.
- The
Court, having regard to Article 37 of the Convention, finds that the
applicants do not intend to pursue this part of the application,
within the meaning of Article 37 § 1 (a). The Court also finds
no reasons of a general character, affecting respect for human
rights, as defined in the Convention, which require the further
examination of the present complaints by virtue of Article 37 §
1 of the Convention in fine (see 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.
X. 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. Pecuniary damage
- The
fourth applicant claimed damages in respect of her husband's lost
wages. She submitted that Movsar Tagirov had almost finished his
training as a special task force officer and could have counted on
receiving a monthly salary upon completion of the training. The
fourth applicant claimed a total of 2,478,100.11 Russian roubles
under this heading (approximately 70,000 euros (EUR)).
- The
Government regarded these claims as unfounded.
- 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. Having regard to its
above conclusion that there has been no violation of Article 2 in its
substantive aspect, the Court finds that there is no direct causal
link between the alleged violation of Movsar Tagirov's right to life
and the loss by the fourth applicant of the financial support which
he could have provided. Accordingly, it makes no award under this
heading.
B. Non-pecuniary damage
- The
first, second and fourth applicants claimed EUR 40,000 each,
while the third, fifth, sixth and seventh applicants claimed EUR
5,000 each in respect of non-pecuniary damage for the suffering they
had endured as a result of the loss of their family member and the
indifference shown by the authorities towards them.
- The
Government found the amounts claimed exaggerated.
- The
Court has found a violation of Article 2 in its procedural aspect. It
thus accepts that the applicants have suffered non-pecuniary damage
which cannot be compensated for solely by the finding of a violation.
It finds it appropriate to award under this head to the first and
second applicants EUR 3,000 jointly, the fourth applicant EUR 3,000
and the third, fifth, sixth and seventh applicants EUR 850 each, plus
any tax that may be chargeable on these amounts.
C. Costs and expenses
- The
applicants were represented by the SRJI. They submitted an itemised
schedule of costs and expenses that included research at a rate of
EUR 50 per hour and 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. They also
claimed courier mail expenses and translation fees confirmed by
relevant invoices, as well as administrative costs that were not
supported by any documents. The aggregate claim in respect of costs
and expenses related to the applicants' legal representation amounted
to EUR 6,717.77.
- The
Government disputed the reasonableness and the justification of the
amounts claimed under this head. They also submitted that the
applicants' claims for just satisfaction had been signed by six
lawyers, while three of them had not been mentioned in the powers of
attorney issued by the applicants. They also doubted that it had been
necessary to send the correspondence to the Registry via courier
mail.
- The
Court points out that the applicants had given authority to act to
the SRJI and its four lawyers. The applicants' observations and
claims for just satisfaction were signed by six persons in total. The
names of three of them appeared in the powers of attorney, while
three other lawyers collaborated with the SRJI. In such circumstances
the Court sees no reason to doubt that the six lawyers mentioned in
the applicants' claims for costs and expenses took part in
preparation of the applicants' observations. Moreover, there are no
grounds to conclude that the applicants were not entitled to send
their submissions to the Court via courier mail.
- The
Court must now establish whether the costs and expenses indicated by
the applicants' relative were actually incurred and whether they were
necessary (see McCann and Others, cited above, § 220).
- Having
regard to the details of the information submitted, the Court is
satisfied that these rates are reasonable and reflect the expenses
actually incurred by the applicants' representatives.
- Further,
it has to be established whether the costs and expenses incurred for
legal representation 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 admissibility and
merits in one set of documents. Furthermore, the case involved little
documentary evidence, in view of the Government's refusal to submit
the investigation file. 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 finds it appropriate to award the
applicants' representatives EUR 4,500, less EUR 850
received by way of legal aid from the Council of Europe, plus any tax
that may be chargeable to the applicants, the 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
- 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' complaints under
Article 14 of the Convention;
- Dismisses the Government's objection regarding
abuse of the right of petition;
- Dismisses the Government's objection regarding
locus standi;
- Decides to join to the merits the
Government's objection regarding non-exhaustion of criminal domestic
remedies and rejects it;
- Declares the complaints under Articles 2 and 13
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 2 of the Convention in its substantive limb in respect
of Movsar Tagirov;
- 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 Movsar
Tagirov disappeared;
- Holds that no separate issue arises under
Article 13 of the Convention in
respect of the alleged violation of Article 2;
- 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:
(i) in
respect of non-pecuniary damage, EUR 3,000 (three thousand
euros) to the first and second applicants jointly, EUR 3,000
(three thousand euros) to the fourth applicant and EUR 850 (eight
hundred and fifty euros) each to the third, fifth, sixth and seventh
applicants, to be converted into Russian roubles at the rate
applicable at the date of settlement, plus any
tax that may be chargeable on these amounts;
(ii) EUR
3,650 (three thousand six hundred and fifty euros), in respect of
costs and expenses, to be paid into the representatives' bank account
in the Netherlands, plus any tax that may be chargeable to 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;
- Dismisses the remainder of the applicants'
claims for just satisfaction.
Done in English, and notified in writing on 4 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
