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FIRST
SECTION
CASE OF
MUTAYEVA v. RUSSIA
(Application
no. 43418/06)
JUDGMENT
STRASBOURG
22 April 2010
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 Mutayeva 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 25 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43418/06) 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 Ms Savdat Mutayeva, a Russian national,
(“the applicant”), on 18 October 2006.
- The
applicant was 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 Mr G.
Matyushkin, Representative of the Russian Federation at the European
Court of Human Rights.
- On
19 June 2008 the Court decided to apply Rule 41
of the Rules of Court and to grant priority treatment to the
application and 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 President of the Chamber
acceded to the Government's request not to make publicly accessible
the documents from the criminal investigation file deposited with the
Registry in connection with the application (Rule 33 of the Rules of
Court).
- The
Government objected to the joint examination of the admissibility and
merits of the application and to the application of Rule 41 of
the Rules of Court. Having considered the
Government's objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948. She lives in the village of Assinovskaya,
in the Chechen Republic. The applicant is the mother of Luiza
Mutayeva, born in 1984.
A. Disappearance of Luiza Mutayeva
1. The applicant's account
- The
applicant, with her husband and two daughters, Luiza and Madina,
lived at 60 Bershchanskaya Street in the village of Assinovskaya, in
the Achkhoy-Martanovskiy district (in the submitted documents the
district is also referred to as Sunzhenskiy district), in the Chechen
Republic. Their house was located near a local hospital. At the
material time the village was under the firm control of the federal
forces, which maintained manned checkpoints at the entry and exit
points to and from the village.
- In
the night of 19 January 2004 (in the submitted documents the date is
also referred to as 9 January 2004) the family was sleeping in their
house at the above address.
- At
about 2.30 a.m. on 19 January 2004 the applicant and her family
members were woken up by someone knocking at the entrance door. The
applicant approached the door and asked in Chechen: “Who is
it?” The answer was given in Russian: “Passport check”.
When the applicant wondered why the passport check was being
conducted so late at night, she was told: “You better open the
door; we have an order!” The applicant opened the door and
fifteen to twenty armed men in camouflage uniforms without insignia
entered the house. All but five or six of the intruders were wearing
masks. The applicant and her relatives noticed that the men without
masks were of Slavic appearance. The intruders spoke unaccented
Russian. The applicant inferred that they were Russian servicemen.
- The
servicemen asked the applicant whether there were any men in the
house. The only man in the household was the applicant's husband, a
disabled person with one leg. The servicemen checked the family's
passports and returned them to the applicant. Then the unmasked
servicemen said to their colleagues that they should leave the
applicant's house as no men were to be found there. However, one of
the masked servicemen told them that they should search the house.
The servicemen searched the house, turning everything upside down. It
appears that they did not find anything of interest to them other
than a few video cassettes which they took away.
- Having
searched the house, the servicemen ordered the applicant's daughters,
Luiza and Madina, to put on warm clothing as they were being taken to
the vehicles for questioning. The applicant's younger daughter,
fifteen-year old Madina, started crying. One of the masked servicemen
told her: “Do not be afraid; we will just question you and will
let you go. I promise that nothing will happen to you.” Before
leaving the house, Luiza Mutayeva insisted that she should be
the only one to go for questioning. The servicemen let Madina stay in
the house; they took Luiza outside to the vehicles.
- The applicant managed to run outside and saw that
Luiza Mutayeva was handcuffed and was standing next to a white GAZ
minivan. Beside the minivan the applicant saw a white VAZ-2107, two
grey UAZ vehicles, two military all-terrain UAZ vehicles (“таблетка”)
and a grey VAZ-2109 vehicle, which were all parked around the
applicant's house. The vehicles did not have number plates. According
to the applicant, further vehicles belonging to the intruders were
parked near her house but she was unable to recall their models or
their colour. The applicant shouted at the servicemen and asked them
to take her for questioning with her daughter. In response they
pushed her away. Luiza Mutayeva was put into the GAZ minivan and the
intruders drove away.
- A number of people witnessed the abduction of Luiza
Mutayeva. In particular, M.K., who was a patient in the hospital
across the street, was woken up by shouting coming from the
applicant's courtyard and rushed outside. She saw that the
applicant's house was surrounded by armed men in masks and camouflage
uniforms. The men did not allow her to approach and pushed her back
into the hospital. While they were doing so, she saw them take Luiza
Mutayeva away.
- At about 3 a.m. on 19 January 2004 the applicant's
neighbours, B.M. and S.B., were woken up by the noise of armoured
vehicles and the applicant's shouting and saw armoured and other
vehicles stationed at the street. B.M. and S.B. were afraid to
approach the persons in camouflage uniforms and masks because they
were armed. Another neighbour, Yu.D., who was woken up by a woman's
shouting at about 3 a.m. on 19 January 2004, got outside
and saw armoured and other vehicles parked on the street at the
applicant's house; women at the entry gate to the applicant's house
were shouting at several men wearing camouflage uniforms and masks.
Afraid of the camouflaged men because of their weapons, Yu.D.
returned home. When it was quiet he went to see the applicant and
learnt from her that Luiza Mutayeva had been kidnapped.
- The
applicant has had no news of Luiza Mutayeva since 19 January 2004.
- The
description of the events above is based on the applicant's
application form and written statements by M.K., B.M., S.B. and
Yu.D., made on 19 October 2005.
2. Information submitted by the Government
- The
Government submitted that on 19 January 2004 Luiza Mutayeva had been
abducted by unidentified persons.
B. The search for Luiza Mutayeva and the investigation
1. The applicant's account
(a) The applicant's search for Luiza
Mutayeva
- On
the morning of 19 January 2004 the applicant complained about her
daughter's abduction to a number of law-enforcement agencies in
Achkhoy-Martan. In particular, she complained to the Achkhoy-Martan
District Department of the Interior (the ROVD), to a local department
of the Federal Security Service (the FSB) and the security service of
the Chechen President. The authorities denied having any information
about the whereabouts of the applicant's daughter. However,
unspecified officers from the security service of the Chechen
President suggested to the applicant that her daughter had most
likely been abducted by officers of the FSB Special Forces from
Khankala, Chechnya.
- The
applicant also complained about the abduction of Luiza Mutayeva
to T., head of the local administration. The latter also suggested
that her daughter had been probably taken to Khankala.
- Every
day between 19 and 26 January 2004 the applicant went in person to a
number of State authorities in Achkhoy-Martan, trying to obtain
information concerning her daughter's whereabouts. It appears that
her attempts produced no results.
- The
applicant also contacted, both in person and in writing, various
official bodies, such as the Chechen administration, military
commanders' offices and prosecutors' offices at different levels,
describing in detail the circumstances of Luiza Mutayeva's abduction
and asking for help in establishing her whereabouts. The applicant
retained copies of a number of those letters and submitted them to
the Court. An official investigation was opened by the local
prosecutor's office. The relevant information is summarised below.
(b) The official investigation into the
abduction of Luiza Mutayeva
- On
27 April 2004 the prosecutor's office of the Achkhoy-Martanovskiy
district (“the district prosecutor's office”) instituted
an investigation into the abduction of Luiza Mutayeva under Article
126 § 2 of the Criminal Code (aggravated kidnapping). The case
file was given number 49516. It does not appear that the applicant
was informed about the decision.
- By
a decision of 28 April 2004 the district prosecutor's office granted
the applicant victim status in connection with criminal case
no. 49516. The decision stated, among other things, that at
about 2.30 a.m. on 19 January 2004 about fifteen unidentified armed
men in camouflage uniforms and masks had arrived at the applicant's
home at 60 Bershchanskaya Street in a GAZ minivan, a UAZ
vehicle, two military all-terrain UAZ vehicles (“таблетка”),
a VAZ-2109 and a VAZ-2107 and had taken Luiza Mutayeva to an unknown
destination. The applicant was accordingly provided with a copy of
the decision.
- On
27 August 2004 the district prosecutor's office informed the
applicant that on that date the investigation in criminal case
no. 49516 had been suspended for failure to identify the
perpetrators; the operational and search measures aimed at solving
the crime were under way.
- On
14 May 2005 the applicant's representatives from SRJI wrote to the
district prosecutor's office, complaining about the lack of
information concerning the investigation. They requested to be
informed about its progress; the specific actions taken to solve the
crime since the opening of the criminal case and during the eight
months after the decision to suspend the investigation; the reasons
for the suspension of the investigation, and the reasons for Luiza
Mutayeva's arrest. They further requested to be informed whether the
investigating authority had interviewed the witnesses of the
abduction and had requested information from various remand centres
on Luiza Mutayeva's eventual detention. Lastly, they submitted that
the applicant had not been provided with the decision to open the
investigation and requested that she be provided with a copy.
- On
21 June 2005 the prosecutor's office of the Chechen Republic (“the
republican prosecutor's office”) replied to the applicant's
representatives that the district prosecutor's office had instituted
an investigation into the abduction of Luiza Mutayeva and the
applicant had been granted victim status in the criminal proceedings;
the operational and search measures aimed at solving the crime were
under way. The letter also stated that pursuant to Article 161 of the
Code of Criminal Procedure any information about the investigation
was confidential and was not to be disclosed.
- On
20 July 2005 the applicant's representatives wrote to the republican
prosecutor's office and to the Prosecutor General's office. Referring
to the case-law of the European Court of Human Rights, they pointed
out that the authorities' letter of 21 June 2005 had failed to
provide the requested information or any plausible explanations for
the authorities' failure to provide the applicant with copies of
basic investigative decisions. The applicant's representatives
repeated their request for information about the progress of the
investigation and copies of those decisions.
- On
17 August 2005 the Prosecutor General's office informed the
applicant's representatives that their request of 20 July 2005 had
been forwarded to the republican prosecutor's office for examination.
- On
27 October 2005 the applicant wrote to the district prosecutor's
office. In her letter she described the circumstances of her
daughter's abduction by armed persons in camouflage uniforms and
masks, who had arrived in “ordinary” and armoured
vehicles and complained that she had had no information concerning
the investigation. She pointed out that her numerous requests to
various State authorities had failed to produce any results and
requested, among other things, to be provided with the following
information: the number of the criminal case opened in connection
with the abduction of Luiza Mutayeva; the prosecutor's office and the
name of the person in charge of the investigation; the investigative
measures taken by the authorities; whether witnesses to the abduction
had been questioned by the investigation; whether the investigation
had been suspended; whether the investigation had established how a
convoy of military and civil vehicles with the abducted Luiza
Mutayeva had managed to drive through the numerous Russian federal
forces checkpoints located in the Achkhoy-Martanovskiy district and,
in particular, on the road to and from the village of Assinovskaya;
whether the investigation had examined the theory of possible
implication of Russian servicemen or representatives of Russian
special forces in the abduction of Luiza Mutayeva and whether the
authorities had obtained information from various detention centres
in Chechnya concerning her eventual detention. Lastly, she requested
to be provided with the decision to suspend the investigation, which
the authorities had not sent to her.
- On 28 October 2005 the district prosecutor's office
replied to the applicant. The letter stated that on 27 April 2004 the
district prosecutor's office had opened criminal case no. 49516
into the abduction of Luiza Mutayeva and that the investigation
had undertaken the following measures: examination of the crime
scene; the applicant had been granted victim status; an unspecified
number of the applicant's relatives, acquaintances and neighbours had
been interviewed; unspecified investigative measures had been
undertaken in collaboration with a number of other law-enforcement
agencies; instructions had been given to the ROVD to conduct
operational and search measures; the district prosecutor had issued
instructions aimed at solving the crime. According to the letter, the
investigation had been examining the thesis of possible involvement
of servicemen or members of special forces in the crime. In addition,
the investigation was examining the theory that Luiza Mutayeva had
been kidnapped for ransom. Finally, the letter stated that the above
measures had failed to produce any results and on 27 August 2004 the
investigation in criminal case no. 49516 had been suspended for
failure to establish the identity of the perpetrators.
- On
13 June 2006 the applicant's representatives wrote to the republican
prosecutor's office. Referring to the case-law of the European Court
of Human Rights, they complained about the lack of information
concerning the investigation into the abduction of the applicant's
daughter and pointed out that the applicant had not received copies
of the decisions to open the criminal case and to grant her the
victim status in the criminal proceedings. The letter requested the
authorities to provide the applicant with the following information:
the status of the criminal investigation; the reasons for Luiza
Mutayeva's abduction; whether witnesses to the abduction had been
questioned by the authorities; measures undertaken by the
investigation between 21 June 2005 and 13 June 2006 and whether the
authorities had carried out an examination of detention centres in
the region to establish the whereabouts of the applicant's daughter.
Finally, the letter requested that the applicant be provided with
copies of basic investigative decisions, including the one granting
the applicant victim status in the criminal case.
- On
17 June 2006 the republican prosecutor's office forwarded the request
of the applicant's representatives to the district prosecutor's
office for examination.
- On
3 July 2006 the republican prosecutor's office informed the
applicant's representatives that they had examined their request.
According to the letter, the investigation had been undertaking
measures aimed at solving the crime. Referring to unspecified
provisions of Russian legislation the letter stated that copies of
basic investigative decisions could not be provided to the
applicant's representatives; under Article 42 § 13 only the
applicant was entitled to receive in person copies of the decisions
concerning opening of the criminal proceedings, grant of the victim
status and suspension of the investigation.
2. Information submitted by the Government
- On
20 April 2004 the district prosecutor's office received from the NGO
Memorial information concerning the abduction of Luiza Mutayeva.
- On
27 April 2004 the district prosecutor's office launched an
investigation into the abduction of Luiza Mutayeva under Article 126
§ 2 of the Criminal Code (aggravated kidnapping).
- On
28 April 2004 the district prosecutor's office requested prosecutor's
offices of various levels, departments of the interior in the Chechen
Republic and the Criminal Police of the Temporary Operational Group
of Authorities and Departments of the Ministry of the Interior of the
Russian Federation in the Caucasus Region (“Служба
Криминальной
милиции
МВД
Временной
оперативной
группировки
органов
и подразделений
МВД в
Северо-Кавказском
регионе”,
“the CP”) to provide information on whether Luiza
Mutayeva had been arrested. From the replies of those State
authorities it appeared that the applicant's daughter was not being
held in the ROVDs of the Chechen Republic; she had not applied to
medical institutions for assistance; there were no compromising
materials (“компрометирующий
материал”)
on her.
- According
to a reply from the deputy head of CP, that authority had not carried
out any special operations in Assinovskaya on 19 January 2004; Luiza
Mutayeva had not been taken to any penal institutions in the North
Caucasus Region.
- On
28 April 2004 the applicant was granted victim status in criminal
case no. 49516 and her procedural rights and obligations were
explained to her.
- Being
interviewed as a victim on 28 April 2004, the applicant submitted,
among other things, that on 19 January 2004 unidentified persons had
told her to open the door for an identity check. Subsequently,
several armed men in camouflage uniforms and masks burst into the
house. They had asked the applicant in Russian where the men were.
The applicant had pointed at her husband, explaining that he was the
only man in the household. The intruders had checked the family
members' identity papers and told the applicant's daughters to get
dressed. Meanwhile the intruders had turned everything in the house
upside down. They had told Luiza Mutayeva to follow them to
their vehicle for questioning. When the applicant protested the armed
men replied that they would question Luiza Mutayeva and then let
her go. The applicant had wanted to follow her daughter outside but
had been held in the house. Having nonetheless managed to get
outside, she had seen Luiza Mutayeva, handcuffed, near a white GAZ
minivan without number plates. The applicant had also seen about six
or seven vehicles, including an UAZ vehicle, two UAZ military
all-terrain vehicles (“таблетка”),
a VAZ-2109 and a VAZ-2107 vehicle. Despite the applicant's attempts
to stop them, the abductors had left with her daughter. The applicant
also submitted that in December 2003, according to local custom,
Luiza Mutayeva had been abducted for marriage by a man from
Urus-Martan. She had only stayed with that man for two weeks. When
the elders had come to the applicant to pay the bride-price and the
family had learnt about Luiza's whereabouts, they had taken her back
home.
- The
applicant's husband and daughter Madina, questioned on 28 April
2004, gave similar descriptions of the circumstances of
Luiza Mutayeva's abduction.
- B.A.,
the applicant's neighbour, interviewed as a witness on 28 June 2004,
submitted that he had learnt from the applicant that at about 3 a.m.
on 19 January 2004 about fifteen armed men in masks and camouflage
uniforms had abducted Luiza Mutayeva from her parents' house in
Assinovskaya. The intruders had arrived in a convoy of vehicles,
including a Gazel minivan, several UAZ and VAZ-2107 and VAZ-2109
vehicles.
- The
applicant's neighbour, L.V., interviewed as a witness on an
unspecified date, stated that during the night of 18-19 January 2004
she had heard several vehicles in the street. On 20 January 2004 she
had learnt from the applicant about the abduction of Luiza Mutayeva
by armed men in camouflage uniforms.
- Ms
L.G., interviewed as a witness on an unspecified date, submitted that
she had learnt from fellow residents in Assinovskaya that
on 19 January 2004 Luiza Mutayeva had been abducted by
armed men in camouflage uniforms, who had arrived in a GAZ minivan
and several UAZ and VAZ vehicles without number plates. Similar
submissions had been made by the applicant's neighbours and
acquaintances Kh.A., S.M., Kh.G., T.D., Kh.M., A.B., A.M., A.A.,
I.M., M.M., A.At., D.M., Kh.Yu., P.T., M.Me., L.A., A.Am., R.A.,
M.Kh., M.S, M.D., Z.B., M.T., B.B., Kh.D., F.D., R.Kh., A.Al., Kh.G.,
T.K., B.A., S.A., A.S., L.Ts., S.Am., M.T., Sh.A., R.Ts., M.A.,
B.Ts., who were interviewed as witnesses on unspecified dates.
- According
to replies from the Operational and Search Bureau of the North
Caucasus operational department of the Main Directorate of the
Ministry of the Interior of the Russian Federation in the South
Federal Circuit (“Оперативно-Розыскное
Бюро
Северо-Кавказского
управления
Главного
управления
МВД РФ
по Южному
федеральному
округу”)
and the FSB department in the Chechen Republic, those authorities had
not arrested Luiza Mutayeva and had no compromising materials on her.
- On
1 May 2004 the military prosecutor of military unit no. 20102
was instructed to verify the following information: whether federal
troops had carried out a special operation in Assinovskaya on 19
January 2004; whether they had arrested Luiza Mutayeva, and whether
the military units stationed in the Achkhoy-Martan district and the
Khankala settlement were equipped with GAZ minivans, UAZ, VAZ-2109
and VAZ-2107 vehicles. According to the military prosecutor's reply
dated 22 June 2004, federal forces had not carried out any special
operations in the village of Assinovskaya on 19 January 2004 and
had not arrested Luiza Mutayeva. The military forces in question were
equipped with GAZ minivans, UAZ and VAZ-2107 and VAZ-2109 vehicles.
However, in the absence of information about their number plates it
was impossible to establish which military unit owned the vehicles
mentioned in the district prosecutor's office' request for
information.
- On
1 May 2004 heads of unspecified remand prisons in Stavropol, Nalchik,
Chernokozovo, Nazran and Pyatigorsk were requested to provide
information as to whether Luiza Mutayeva had been detained in those
facilities. No relevant information was provided by those persons.
- On
3 May 2004 the district prosecutor's office requested the military
commander's office of the Achkhoy-Martan district, the Ministry of
the Interior of the Chechen Republic, the Ministry of the Interior
internal troops office in the North Caucasus Circuit, FSB departments
in the Chechen Republic, Ingushetiya, North Ossetia-Alania and
Dagestan, and the ROVD and police offices of the Dagestan and
Kabardino-Balkariya Republics, to find out whether those State
authorities had carried out special operations in Assinovskaya on 19
January 2004 and had arrested Luiza Mutayeva. No relevant information
had been received from those State bodies.
- The
investigation in criminal case no. 49516 had been suspended on
numerous occasions for failure to identify the culprits and reopened
to check the information obtained as a result of operational and
search measures.
- The
investigation in case no. 49516 is pending.
- Despite
a specific request by the Court the Government did not disclose most
of the contents of criminal file no. 49516, providing only
copies of the following documents:
letter of 20 April
2004 by the Achkhoy-Martan deputy prosecutor, addressed to the head
of the ROVD and requesting the latter to verify the information on
the abduction of Luiza Mutayeva, submitted by the Memorial NGO on an
unspecified date;
a report by a police
officer of the ROVD, dated 25 April 2004 to the effect that there
were indications that a crime had been committed against Luiza
Mutayeva;
records of
interviews with the applicant, her husband and her daughter Madina,
dated 28 April 2004 and a record of an interview with B.A., dated 28
June 2004;
a reply from the
military prosecutor's office of military unit no. 20102 dated
22 June 2004;
replies from various
State authorities to the effect they had not carried out special
operations in Assinovskaya on 19 January 2004, had not arrested
Luiza Mutayeva, had not held her in detention and had no
compromising materials on her or information on her whereabouts.
- The
Government submitted 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
on personal data concerning witnesses and 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 REGARDING NON EXHAUSTION
OF DOMESTIC REMEDIES
A. The parties' submissions
- The
Government contended that the complaint should be declared
inadmissible for non-exhaustion of domestic remedies. They submitted
that the investigation into the disappearance of Luiza Mutayeva had
not yet been completed. They further argued that it had been open to
the applicant to challenge in court any acts or omissions of the
investigating or other law-enforcement authorities, but that the
applicant had not availed herself of that remedy. In that connection
the Government referred to decisions of courts in the Chechen
Republic on complaints by A., S. and E., where several district
courts granted in part or in full those persons' complaints
concerning the alleged omissions in the investigation. The Government
did not furnish copies of those decisions. They also pointed out that
the applicants had not lodged a claim for compensation of
non-pecuniary damage under Articles 1069-70 of the Civil Code.
- The
applicant contested that objection. She stated that the criminal
investigation had proved to be ineffective and that her complaints to
that effect had been futile. With reference to the Court's practice,
she argued that she was not obliged to apply to civil courts 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 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, §§ 119-121, 24 February 2005, and Estamirov
and Others, cited above, § 77). In the light of the
above, the Court confirms that the applicant was not obliged to
pursue civil remedies. The Government's objection in this regard is
thus dismissed.
- As
regards criminal law remedies provided for by the Russian legal
system, the Court observes that the applicant complained to the
law-enforcement authorities about the kidnapping of Luiza Mutayeva
and that an investigation has been pending since 27 April 2004. The
applicant 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.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained under Article 2 of the Convention that her
daughter had been deprived of her 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
applicant argued that Luiza Mutayeva had been detained by State
servicemen and should be presumed dead in the absence of any reliable
news of her for several years. She maintained her previous
submissions and pointed, among other things, to the Government's
acknowledgement that the village of Assinovskaya was under the
control of State authorities, which at the relevant time maintained
manned checkpoints at all entry and exit points to it. Furthermore,
the military prosecutor confirmed that the vehicles used for her
daughter's abduction were part of the usual equipment of the federal
forces stationed in the vicinity but the investigating authorities
failed to identify them and their owners. The applicant specified
that she and her family members had mistakenly given 2003 as the year
of Luiza's abduction for marriage when they were being interviewed by
the investigating authorities in April 2004. In reality,
Luiza Mutayeva had been abducted for marriage in December 2002
and had been returned home. She suggested that Luiza Mutayeva's
abduction might have been connected to the alleged involvement of her
other daughter, Malizha Mutayeva, in the terrorist attack in
Dubrovka, Moscow, in October 2002. Lastly, the applicant 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.
- The
applicant further argued that the investigation into Luiza Mutayeva's
abduction had not met the effectiveness and adequacy requirements
laid down by the Court's case-law. In particular, the authorities had
waited several months before opening the investigation. Despite
credible pieces of evidence of the involvement of servicemen in the
abduction and instead of interviewing the servicemen who might have
been implicated in it, the investigating authorities limited their
activities to sending out written requests to various State bodies.
The investigation had been suspended several times but after four
years had failed to produce any meaningful results, the applicant
being not properly informed of the basic investigative steps and
having no access to the investigation documents.
- The
Government contended that the domestic investigation had obtained no
evidence that Luiza Mutayeva was dead or that any servicemen had been
involved in her kidnapping or alleged killing. The fact that the
abductors were armed and wearing camouflage uniforms did not prove
that they were State servicemen. Moreover, the applicant did not
refer to insignia on their uniforms or submit that they had used
specific military language. While several witnesses referred to the
presence of armoured vehicles, the applicant herself did not mention
those vehicles. Furthermore, in contrast to the application form,
before the domestic authorities the applicant stated that the
abductors spoke both Russian and Chechen. Whilst not disputing that
the area in question was under the control of the authorities, the
Government suggested that insurgents might have passed through the
checkpoints located in the area, referring to the events in Beslan.
Lastly, it could not be excluded that Luiza Mutayeva might have been
abducted for marriage again by the persons who had previously
abducted her with that aim. In that connection the Government also
referred to the inconsistencies in the applicant's submissions
concerning the year of Luiza Mutayeva's abduction for marriage.
- The
Government further argued that the investigation into the
disappearance of Luiza Mutayeva was being carried out by an
independent authority, which had launched it as soon as it had
received the applicant's complaint, forwarded to them by the Memorial
NGO on 20 April 2004. The investigating authorities checked various
versions of the abduction, interviewed more than twenty witnesses,
including the immediate family of the missing person, and made
numerous requests for information. The applicant was duly notified of
the developments in the investigation. Although the investigation was
suspended on several occasions, it did not mean that it was
ineffective.
B. The Court's assessment
1. Admissibility
- The
Court reiterates, 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 criminal remedies
should be joined to the merits of the complaint (see paragraph 58
above). The complaint under Article 2 must therefore be declared
admissible.
2. Merits
(a) The alleged violation of the right to
life of Luiza Mutayeva
(i) General principles
- The
Court reiterates that, in the light of the importance of the
protection afforded by Article 2, it must subject deprivations
of life to the most careful scrutiny, taking into consideration not
only the actions of State agents but also all the surrounding
circumstances. Detained persons are in a vulnerable position and the
obligation on the authorities to account for the treatment of a
detained individual is particularly stringent where that individual
dies or disappears thereafter (see, among other authorities, Orhan
v. Turkey, no. 25656/94, § 326, 18 June 2002, and the
authorities cited therein). Where the events in issue lie wholly or
in large part within the exclusive knowledge of the authorities, as
in the case of persons under their control in detention, strong
presumptions of fact will arise in respect of injuries and death
occurring during that detention. Indeed, the burden of proof may be
regarded as resting on the authorities to provide a satisfactory and
convincing explanation (see Salman v. Turkey [GC], no.
21986/93, § 100, ECHR 2000-VII, and Çakıcı
v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV).
(ii) Establishment of the facts
- The
Court observes that 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, §§ 103-109, 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, 18 January 1978, § 161, Series A
no. 25).
- The
applicant alleged that at about 2.30 a.m. on 19 January 2004 her
daughter, Luiza Mutayeva, had been abducted by Russian servicemen and
had then disappeared. She invited the Court to draw inferences as to
the well-foundedness of her allegations from the Government's failure
to provide the documents requested from them. She submitted that she
had witnessed her daughter's abduction and enclosed statements by
four witnesses to support her submissions.
- The
Government conceded that Luiza Mutayeva had been abducted by
unidentified armed men on the night of 19 January 2004. However, they
denied that the abductors were servicemen, referring to the absence
of conclusions from the ongoing investigation.
- The
Court notes that despite its requests for a copy of the investigation
file into the abduction of Luiza Mutayeva, the Government refused to
produce most of the documents from the case file, referring 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-XIII (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 applicant's
allegations.
- The
Government submitted that before the domestic authorities the
applicant had stated that the abductors had spoken Russian and
Chechen. However, no evidence was produced to support that assertion.
In the materials available to the Court the applicant consistently
stated that her daughter's abductors had spoken Russian. As to the
lack of mention of armoured vehicles in the applicant's statements,
it is observed that, besides enumerating specific vehicles, the
applicant also stated that further vehicles had been present at the
abduction scene; however she had not been able to memorise their
models or their colours (see paragraph 11 above). In any event, the
Government did not challenge the accuracy of the statements by
witnesses who submitted that they had seen armoured vehicles at the
applicant's gate on the night of 19 January 2004 (see paragraph
13 above). Regard being had to the statement by M.K., uncontested by
the Government, to the effect that she had seen Luiza Mutayeva being
taken away from her parents' house by armed men in camouflage
uniforms in the night of 19 January 2004 (see paragraph 12
above), the Court does not accord important weight to the
inconsistencies in the applicant's submissions concerning the year of
her daughter's abduction for marriage.
- In
sum, it considers that the applicant presented an overall coherent
and convincing picture of the circumstances surrounding the abduction
of Luiza Mutayeva on 19 January 2004.
- In
the Court's view, the fact that a large group of armed men in
uniforms, moving in a convoy of several vehicles, including armoured
vehicles, was able to pass freely through checkpoints, proceeded to
check identity documents in a manner similar to that of State agents
and spoke unaccented Russian strongly supports the applicant's
allegation that those persons were State servicemen.
- The
Court notes that in her applications to the authorities the applicant
consistently maintained that Luiza Mutayeva had been detained by
unknown servicemen and requested the investigating authorities to
look into that possibility. It further notes that after more than
five years the investigation has produced no tangible results.
- The
Court observes that where the applicant makes 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 applicant, 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 (extracts)).
- Taking
into account the above elements, the Court is satisfied that the
applicant has made a prima facie case that her relative was abducted
by State servicemen. The Government's statement that the
investigation had not found any evidence to support the involvement
of servicemen in the kidnapping and their vague reference to the
possibility that Luiza Mutayeva had been kidnapped for marriage once
again, particularly in view of the lack of any indication that this
thesis had been examined by the domestic investigation (see paragraph
29 above), is insufficient to discharge them from the above-mentioned
burden of proof. Drawing inferences from the Government's failure to
submit the remaining documents which were in their exclusive
possession, or to provide another plausible explanation for the
events in question, the Court finds that Luiza Mutayeva was arrested
on 19 January 2004 by State servicemen during an unacknowledged
security operation.
- There
has been no reliable news of Luiza Mutayeva since the date of the
kidnapping. Her name has not been found in any official detention
facility records. Finally, the Government have not submitted any
explanation as to what happened to her after her arrest.
- Having
regard to the previous cases concerning disappearances in Chechnya
which have come before it (see, among others, Bazorkina, cited
above; Imakayeva, cited above; Luluyev and Others v.
Russia, no. 69480/01, ECHR 2006-XIII. (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
Luiza Mutayeva or of any news of her for more than five years
supports this assumption.
- Accordingly,
the Court finds that the evidence available permits it to establish
that Luiza Mutayeva must be presumed dead following her
unacknowledged detention by State servicemen.
(iii) The State's compliance with Article
2
- Article
2, which safeguards the right to life and sets out the circumstances
when 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,
Series A no. 324, §§ 146-147, and Avşar v. Turkey,
no. 25657/94, § 391, ECHR 2001-VII (extracts)).
- The
Court has already found it established that the applicant's daughter
must be presumed dead following unacknowledged detention by State
servicemen. Noting that the authorities do not rely on any ground of
justification in respect of any use of lethal force by their agents,
it follows that liability for her presumed death is attributable to
the respondent Government.
- Accordingly,
the Court finds that there has been a violation of Article 2 in
respect of Luiza Mutayeva.
(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 1998-I). The essential purpose of
such an 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 and carried
out with reasonable promptness and expedition. It should also be
effective in the sense that it is capable of leading to a
determination of whether or not the force used in such cases was
lawful and justified in the circumstances, and should afford a
sufficient element of public scrutiny of the investigation or its
results (see Hugh Jordan v. the United Kingdom, no. 24746/94,
§§ 105-109, 4 May 2001, and Douglas-Williams
v. the United Kingdom (dec.), no. 56413/00,
8 January 2002).
- The
Court notes at the outset that very few documents from the
investigation were disclosed by the Government. It therefore has to
assess the effectiveness of the investigation on the basis of very
scarce information submitted by the Government and a few documents
available to the applicants that they provided to the Court.
- Turning
to the facts of the present case, the Court observes that, according
to the applicant, on the morning of 19 January 2004 she notified a
number of law-enforcement agencies in Achkhoy-Martan, including the
ROVD, the local FSB department and the security service of the
Chechen President, about the abduction of her daughter.
According to the Government, the district prosecutor's office
received the applicant's complaint about the abduction only on 20
April 2004. However, they failed to submit either a dated and stamped
copy of the applicant's complaint or any other documents confirming
that it had indeed been obtained by the prosecutor's office on the
above-mentioned date. Bearing in mind its findings concerning the
Government's unjustified refusal to provide the documents from the
case file and the fact that it had been incumbent on the
law-enforcement bodies to report the information on the abduction to
the district prosecutor's office (see Khalidova and Others v.
Russia, no. 22877/04, § 93, 2 October 2008), the
Court cannot but conclude that the three-month delay in opening the
investigation was attributable to the domestic authorities. Such a
postponement per se was liable 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 further has to assess the scope of the investigative measures
taken. The Government submitted that the investigating authorities
checked various versions of the abduction, interviewed more than
twenty witnesses and made numerous requests for information. From the
few documents submitted by them it transpires that the district
prosecutor's office attempted to identify the vehicles used by the
abductors; enquired of various law-enforcement agencies as to whether
they had carried out special operations in Assinovskaya on the night
of the applicant's daughter's abduction, had arrested her or held her
in detention, and interviewed the applicant, her husband and daughter
Madina and a certain B.A. As regards the remaining witnesses
allegedly questioned by the authorities, the Government failed to
produce any related documents and hence it is impossible not only to
establish how promptly those measures were taken but whether they
were taken at all.
- Furthermore,
it appears that a number of crucial steps were never taken. In
particular, it is striking that the district prosecutor's office made
no attempts to interview servicemen from the roadblocks at the entry
and exit points to the village or to examine the logbooks kept there
with a view to obtaining information on the vehicles used by the
abductors and also of their owners. There is no indication that the
investigating authority interviewed patients or the personnel from
the hospital located near the applicant's house, who might have had
information on the circumstances of Luiza Mutayeva's abduction (see
paragraph 12 above). In the same vein, there is nothing to suggest
that the applicant's neighbours, and in particular those persons
whose written statements she had enclosed with the application form,
were ever questioned.
- It
is obvious that, if they were to produce any meaningful results,
these investigative measures should have been taken immediately after
the crime was reported to the authorities, and as soon as the
investigation commenced. The delays and omissions, 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 serious matter (see Öneryıldız
v. Turkey [GC], no. 48939/99, § 94, ECHR 2004 XII).
- The
Court also notes that even though the applicant was granted victim
status in the investigation concerning the abduction of her daughter,
it does not appear that she was informed of any significant
developments in the investigation. 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,
it appears that the investigation was adjourned and resumed several
times. It also appears that there were lengthy periods of inactivity
on the part of the prosecuting authorities, when no investigative
measures were being taken.
- Having
regard to the limb of the Government's preliminary objection that was
joined to the merits of the complaint, inasmuch as it concerns the
fact that the domestic investigation is still pending, the Court
notes that the investigation, having being repeatedly suspended and
resumed and plagued by inexplicable delays, has been pending for many
years with no tangible results. Furthermore, the applicant,
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. Moreover, owing to the time which
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 prospect
of success. Accordingly, the Court finds that
the remedies relied on by the Government were ineffective in the
circumstances and dismisses their preliminary objection.
- 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 Luiza Mutayeva, in
breach of Article 2 in its procedural aspect.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant relied on Article 3 of the Convention, submitting that as a
result of her daughter's disappearance and the State's failure to
investigate it properly, she 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 applicant had
been subjected to inhuman or degrading treatment prohibited by
Article 3 of the Convention. Likewise, since it had not been
established by the domestic investigation that Luiza Mutayeva had
been abducted by State agents, the applicant's mental suffering could
not be imputable to the State.
- The
applicant maintained her submissions.
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 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, cited above,
§ 358, and Imakayeva, cited above, § 164).
- In
the present case the Court notes that the applicant is the mother of
the disappeared person who witnessed her abduction. For more than
five years she has not had any news of her daughter. During this
period of time the applicant has made enquiries of various official
bodies, both in writing and in person, about Luiza Mutayeva. Despite
her attempts, the applicant has never received any plausible
explanation of information about what became of her daughter
following her abduction. The responses she received mostly denied
State responsibility for his relatives' arrest or simply informed her
that the 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 applicant suffered
distress and anguish as a result of the disappearance of Luiza
Mutayeva and her inability to find out what had happened to her. The
manner in which her complaints were dealt with by the authorities
must be considered to constitute inhuman and degrading treatment
contrary to Article 3.
- The
Court therefore concludes that there has been a violation of Article
3 of the Convention in respect of the applicant.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant further stated that Luiza Mutayeva 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
investigation to confirm that Luiza Mutayeva had been deprived of
liberty by State agents in breach of Article 5.
- The
applicant 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 and Others, cited above, § 122).
- The Court has found that Luiza Mutayeva was
apprehended by State servicemen on 19 January 2004 and has not
been seen since. Her detention was not acknowledged, was not logged
in any custody records and there exists no official trace of her
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
applicant's complaints that her 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 Luiza Mutayeva 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.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that she 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 applicant had had effective remedies at
her disposal as required by Article 13 of the Convention and that the
authorities had not prevented her from using them. The applicant had
had an opportunity to challenge the acts or omissions of the
investigating authorities in court. They added that participants in
criminal proceedings could also claim damages in civil proceedings
and referred to cases where victims in criminal proceedings had been
awarded damages from state bodies and, in one instance, the
prosecutor's office. In sum, the Government submitted that there had
been no violation of Article 13.
- The
applicant 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
regards the applicant's 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).
VI. 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. Damage
- The
applicant did not submit any claims for pecuniary damage. As regards
non-pecuniary damage, she claimed 50,000 euros (EUR) for the
suffering she had endured as a result of the disappearance of her
daughter, the indifference shown by the authorities towards her and
the latter's' failure to provide any information about her fate.
- The
Government regarded these claims as excessive and unfounded.
- 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
applicant's daughter. The applicant herself has been found to have
been victim of a violation of Article 3 of the Convention. The Court
thus accepts that she has suffered non-pecuniary damage which cannot
be compensated for solely by the findings of violations. It awards to
the applicant EUR 50,000, plus any tax that may be chargeable
thereon.
B. Costs and expenses
- The
applicant was represented by the SRJI. She 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, as well as administrative
expenses, translation and courier delivery fees. The aggregate claim
in respect of costs and expenses related to the applicant's legal
representation amounted to EUR 5,697.65, to be paid to the
applicant's representatives' account in the Netherlands.
- The
Government pointed out that the applicant should be entitled to the
reimbursement of her costs and expenses only in so far as it has been
shown that they were actually incurred and are reasonable as to
quantum (see Skorobogatova v. Russia, no. 33914/02, §
61, 1 December 2005). They doubted that the amounts claimed
by the applicant under this head were reasonable.
- The
Court has to establish first whether the costs and expenses indicated
by the applicant were actually incurred and, second, whether they
were necessary (see McCann and Others, cited above, §
220).
- Having
regard to the details of the information and legal representation
contracts submitted by the applicants, the Court is satisfied that
these rates are reasonable and reflect the expenses actually
incurred.
- As
to 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,
however, that the case involved little documentary evidence, in view
of the Government's refusal to submit most of the case file.
Furthermore, due to the application of Article 29 § 3 in the
present case, the applicant's representatives submitted their
observations on admissibility and merits in one set of documents. The
Court thus doubts that the case involved the amount of research
claimed by the applicants' representatives
- Lastly,
the Court notes that it is its standard practice to rule that awards
in relation to costs and expenses are to be paid directly into the
applicant's representatives' accounts (see, for example, Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98,
§ 175, ECHR 2005-VII, and Imakayeva, cited above).
- Having
regard to the details of the claims submitted by the applicant, the
Court awards her EUR 4,000, together with any value-added tax
that may be chargeable to the applicant; the net award is to be paid
into the representatives' bank account in the Netherlands, as
identified by the applicant.
C. 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 join to the merits the Government's
objection as to non-exhaustion of criminal domestic remedies and
rejects it;
- Declares the application admissible;
- Holds that there has been a substantive
violation of Article 2 of the Convention in respect of Luiza
Mutayeva;
- 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 Luiza
Mutayeva disappeared;
5. Holds that there has been a violation of
Article 3 of the Convention in respect of the applicant;
- Holds that there has been a violation of
Article 5 of the Convention in respect of Luiza Mutayeva;
7. Holds
that there has been a violation of Article 13 of the Convention
in respect of the alleged violations of Article 2;
8. Holds
that no separate issues arise under Article 13 of the Convention in
respect of the alleged violations of Articles 3 and 5;
- Holds
(a) that the respondent State is to pay, within three
months of 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 rate
applicable at the date of settlement, save in the case of the payment
in respect of costs and expenses:
(i) EUR 50,000 (fifty thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage to the
applicant;
(ii) EUR 4,000 (four thousand euros), plus any tax
that may be chargeable to the applicant, 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 applicant's
claim for just satisfaction.
Done in English, and notified in writing on 22 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
