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FIRST
SECTION
CASE OF
MATAYEVA AND DADAYEVA v. RUSSIA
(Application
no. 49076/06)
JUDGMENT
STRASBOURG
19 April
2011
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 Matayeva and Dadayeva v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Christos
Rozakis,
Peer
Lorenzen,
Elisabeth
Steiner,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
judges,
and
André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 29 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 49076/06) 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 two Russian nationals, Ms Satsita Matayeva and
Ms Batu Dadayeva (“the applicants”), on 8 December
2006.
- The
applicants were represented by lawyers of the NGO EHRAC/Memorial
Human Rights Centre. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, the Representative of the
Russian Federation at the European Court of Human Rights.
- On
9 March 2009 the Court decided to apply Rule 41
of the Rules of Court, to grant priority treatment to the application
and to give notice of the application to the Government. Under the
provisions of the former 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 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
first applicant is the wife and the second applicant is the mother of
Mr Khamzat Tushayev, born in 1959. They live in the village of
Duba Yurt, the Shalinskiy District, in the Chechen Republic.
A. The background to the case as described by the
applicants
- According
to the applicants, since 1996 Khamzat Tushayev had been suffering
from a mental disorder.
- In
autumn 1999, before the launching of the military operation in the
Chechen Republic, the applicants and Khamzat Tushayev had been
residing in the village of Duba-Yurt. At the time when Russian
federal troops approached the village and most of its residents left,
Mr Tushayev’s brother stayed in the village and joined rebel
fighters to resist the federal troops. Although Khamzat Tushayev also
stayed behind, he did not join the rebels.
- In
2000 Khamzat Tushayev left Duba-Yurt together with his brother’s
insurgent group and some other residents and joined his family which
had meanwhile moved to an adjacent village. By March 2000 federal
troops had regained control over Duba-Yurt and Khamzat Tushayev
returned there together with his brother and the first applicant.
- On
an unspecified date in 2001 armed men broke into the first
applicant’s house. They came in several armoured personnel
carriers (APCs) and were looking for Khamzat Tushayev and his
brother. After the incident the brothers went into hiding. On several
occasions armed men broke into the first applicant’s house,
searching for them. During yet another similar incident on 17
February 2002 Mr Tushayev’s brother was allegedly killed while
trying to escape.
- Khamzat
Tushayev stayed in hiding until June 2003, fearing reprisals for the
fact of his leaving Duba-Yurt together with insurgents. In June 2003
the first applicant learnt from the head of the local administration
that Khamzat Tushayev would be amnestied if he surrendered his arms.
According to the applicants, he had never had any arms but bought a
submachine gun and was provided with a walkie-talkie by an
acquaintance who had found it somewhere.
- On
12 June 2003 Khamzat Tushayev surrendered the gun and the
walkie-talkie to the Department of the Federal Security Service in
the Chechen Republic (“the Chechen Department of the FSB”).
According to a certificate issued by that State authority on 12 June
2003, Khamzat Tushayev declared that he no longer participated in
illegal armed groups and had surrendered his arms of his own free
will. It was further stated that an inquiry into his case was under
way, that he had given an undertaking to appear before the Chechen
Department of the FSB for questioning, that his right to freedom of
movement had not been restricted, and that, should any
law-enforcement authorities arrest him, they were to inform the
Chechen Department of the FSB immediately.
- At
the turn of the year 2003 the first applicant and Khamzat Tushayev
moved to Grozny.
- On
an unspecified date in March 2006 several persons who did not
identify themselves broke into the flat occupied by the first
applicant and Khamzat Tushayev and took him away. Eight days later
his relatives found out that he was being held at the Shali district
police station and that a criminal case (no. 56006) had been
opened against him on suspicion of participation in illegal armed
groups. On an unspecified date Khamzat Tushayev was released on an
undertaking not to leave his place of residence.
B. Disappearance of Khamzat Tushayev
1. The applicants’ account
- On 7 June 2006 the first applicant received a call on
her mobile phone from a hidden number. A man who introduced himself
as “Sergey Aleksandrovich”, an official of the
prosecutor’s office of the Leninskiy District in Grozny
(hereafter “the Leninskiy district prosecutor’s office”),
asked the first applicant to tell her husband that he was to report
to the Leninskiy district prosecutor’s office at 10 a.m. on 8
June 2006 in connection with criminal case no. 56006 (also
referred to as 56049). When she asked if he could come a week later
the man refused, saying that Khamzat Tushayev was already under a
very lenient preventive measure – an undertaking not to leave
his place of residence.
- The
first applicant was not surprised by the call because she had
previously given her phone number to investigator R.Ya. of the
prosecutor’s office of the Shalinskiy District (“the
Shalinskiy district prosecutor’s office”), who was in
charge of the investigation in case no. 56006. According to the
first applicant, on several occasions R.Ya. had already summoned
Khamzat Tushavev for interviews via her mobile phone. Moreover, an
official of the Department of the Interior of the Shalinskiy District
had also summoned Khamzat Tushayev for an interview by contacting the
first applicant on her mobile and asking her to convey that message
to her husband. On all those occasions, after having been
interviewed, Khamzat Tushayev had always returned back home.
- On 8 June 2006 Khamzat Tushayev and the first
applicant went to the complex of government buildings in Grozny, the
Leninskiy district prosecutor’s office being situated within
its secure grounds. According to the applicants, the perimeter of the
complex was guarded and it was only possible to enter the premises
through a number of check points. At one of the check points an
on-duty officer called the Leninskiy district prosecutor’s
office and enquired whether Khamzat Tushayev had an appointment and
should be issued with an entry permit. Several minutes later the
officer called Khamzat Tushayev inside the check point, recorded his
passport data and authorised him to pass through. He then showed
Khamzat Tushayev the building in which the Leninskiy district
prosecutor’s office was situated and at about 10 a.m. the
latter passed the check point. The first applicant stayed outside to
wait for her husband.
- On the same day, two hours later, worried about her
husband’s absence, the first applicant asked the on-duty
officer to call the Leninskiy district prosecutor’s office.
After a telephone conversation the officer told her that Khamzat
Tushayev had not entered the premises of the Leninskiy district
prosecutor’s office and had not been registered at that
authority’s own checkpoint. The first applicant waited at the
check point until the end of the working day. At about 5 p.m. the
on-duty officer told her to leave, which she did.
2. The Government’s account
- The
Government did not dispute the applicants’ description of the
events but stated that before the conclusion of the domestic
investigation (see below) the circumstances of the disappearance of
the applicants’ relative could not be established with
sufficient certainty.
C. The applicants’ search for Khamzat Tushayev
and the official investigation
1. The applicants’ account
- On
9 June 2006 the first applicant called investigator R.Ya. of the
Shalinskiy district prosecutor’s office and told him about the
disappearance of her husband. Ya. allegedly told her that she and her
husband had visited a “dangerous place” and that she
should have called Ya. before going to the Leninskiy district
prosecutor’s office. He also said that several departments of
the FSB had inquired about Khamzat Tushayev and advised her to
complain about his disappearance to the authorities.
- On
the same day the first applicant complained about the disappearance
of her husband to the Prosecutor of the Chechen Republic and the
acting prosecutor of the Leninskiy District of Grozny.
- On
9 June 2006 the first applicant applied to the representation of the
Memorial Human Rights Centre in Grozny for assistance in the search
for her husband. Its members contacted Mrs S. Gannushkina, member of
the Human Rights Commission with the President of Russia. She
immediately called the acting prosecutor of the Leninskiy District of
Grozny, Mr T.M, who told her over the phone that Khamzat Tushayev had
not been summoned to the Leninskiy district prosecutor’s office
and that he had come there to submit an unspecified complaint. About
half an hour after Khamzat Tushayev had been let through the first
check point, an on-duty officer from another check point had called
T.M. and informed him that Khamzat Tushauev had not passed the second
check point. When Mrs Gannushkina’s asked whether it was
possible to disappear without leaving any trace from the grounds of
the government complex, T.M. stated that it was impossible.
- On
14 June 2006 the head of the Department for supervision of the
investigation of crimes by the prosecutor’s office forwarded
the first applicant’s complaint about the disappearance of
Khamzat Tushayev to the acting prosecutor of the Leninskiy District
of Grozny.
- On
26 June 2006 the prosecutor’s office of the Staropromyslovskiy
District of Grozny (“the district prosecutor’s office”)
initiated a criminal investigation into the abduction of Khamzat
Tushayev from the grounds of the government complex in Grozny under
Article 126 § 1 of the Criminal Code (abduction). The case was
given the number 53092. By a letter of 27 June 2006,
investigator D. informed the first applicant about the opening of the
investigation.
- On
30 June 2006 the first applicant was granted victim status in
connection with the proceedings in case no. 53902. She was
notified of that decision on the same day.
- On
11 July 2006 the deputy prosecutor of the Chechen Republic informed
the first applicant that the investigation into the disappearance of
Khamzat Tushayev had been entrusted to investigator D. of the
district prosecutor’s office and that unspecified investigative
and operational measures aimed at establishing the whereabouts of her
husband were being carried out.
- On
11 August 2006 Mrs Gannushkina wrote on behalf of the first applicant
to the Prosecutor of the Chechen Republic and investigator D.,
requesting them to take a number of basic investigative steps, such
as interviewing the personnel on duty at the check points on 8 June
2006, verifying the phone number of the person who had called the
first applicant on 7 June 2006, identifying the owner of the phone
and interviewing that person. It is unclear whether the request
prompted any reaction on the part of the authorities.
- On
25 October 2006 the acting head of the Department for supervision of
the investigation of crimes by the prosecutor’s office informed
the first applicant that her repeated complaint about the
disappearance of her husband had been forwarded to the district
prosecutor’s office.
- According to the first applicant, she often came to
the district prosecutor’s office to enquire about the progress
of the investigation but never received any meaningful information.
During a visit in August 2006 investigator D. had allegedly reassured
her that the investigation was “following hard on the heels”
of the abductors of her husband and that the suspects were members of
the FSB. However, in a conversation which took place on an
unspecified date later, D. allegedly told the first applicant that
the investigation was very dangerous and that D. himself ran a risk
of being killed. According to the first applicant, on an unspecified
date D. must have been replaced by another investigator.
2. The Government’s account
(a) The Government’s refusal to
provide a copy of the entire criminal file no. 53902
- The
Government refused to submit a copy of the entire criminal file
no. 53092 opened into the abduction of Khamzat Tushayev,
providing only copies of several decisions to open and suspend the
investigation, witness’ interview records, the investigators’
requests to various State authorities to provide information on
Khamzat Tushayev’s whereabouts and replies to them and some
other documents. Some of the documents furnished by the Government
are illegible; some are legible only in part. Insofar as the
documents submitted by the Government are legible, the information
contained in them can be summarised as follows.
(b) Opening of the investigation
- On
26 June 2006 the district prosecutor’s office instituted an
investigation into the abduction of Khamzat Tushayev under Article
126 § 1 of the Criminal Code (kidnapping). The decision stated,
among other things, that the district prosecutor’s office had
received the first applicant’s complaint about the abduction of
her husband on 9 June 2006.
(c) Interviewing of witnesses
(i) The first applicant
- On 30 June 2006 the first applicant was granted victim
status in the proceedings in case no. 53092 and interviewed. She
stated that on 7 June 2006 she had received a call from a hidden
number on her mobile phone. A man, who had introduced himself as
“Sergey Aleksandrovich”, an official of the Leninskiy
district prosecutor’s office, had told her that her husband was
to come to the district prosecutor’s office to be interviewed.
The man had spoken unaccented Russian. When the first applicant had
asked him if Khamzat Tushayev could come for interview the following
week, the man had insisted on him coming on 8 June 2006, saying that
the authorities had already been very lenient on him by applying an
undertaking not to leave his place of residence instead of detention
as a preventive measure in connection with the proceedings in case
no. 56049 concerning his membership of illegal armed groups.
- On
the following day the first applicant and her husband had gone to the
complex of governmental buildings. At checkpoint no. 1 they had
informed an on-duty officer that Khamzat Tushayev had been summoned
to the Leninskiy district prosecutor’s office. The officer had
called T.M., the prosecutor of the Leninskiy district, and some five
minutes later told them that Khamzat Tushayev would be let through.
The first applicant had stayed outside, whilst Khamzat Tushayev had
passed the checkpoint where servicemen explained him that the entry
to the Leninskiy district prosecutor’s office was near an APC.
Some two to three hours later the first applicant had asked the
officer on duty to call the prosecutor’s office to ask for her
husband. Having called them, the officer had told her that Khamzat
Tushayev had not entered the premises of the prosecutor’s
office. The first applicant had waited at the checkpoint until 5.30
p.m., but her husband had not returned.
- On
the next day the first applicant had called investigator Ya. of the
Shalinskiy district prosecutor’s office and he had assured her
that he had not arrested Khamzat Tushayev and had not instructed any
authority to do so. Lastly, the first applicant also stated that her
husband’s brother had been an active member of illegal armed
groups and had been killed in a special operation in 2002. She also
submitted that after her husband had been arrested by officers of
Operational and Search Bureau no. 2 (ORB-2) in March 2006, he
had told her that they had asked him about their daughter, A.T., who
had been killed in 2002 in Moscow along with other rebel fighters
during the rescue operation of Nord-Ost.
- When interviewed on 12 February and 25 June 2007, the
first applicant confirmed her previous statement concerning the
circumstances of the disappearance of her husband.
(ii) Servicemen of checkpoint no. 1
- On 5 July 2006 the investigators interviewed D.D. as a
witness. He stated that on 8 June 2006 he had been on duty at
checkpoint no. 1 at the government complex and that he did not
remember having seen Khamzat Tushayev there. According to D.D.,
checkpoint no. 1 was located at the entry to the grounds of the
governmental complex from the side of the Staropromyslovskoye
highway. If a person wished to get access to the Leninskiy district
prosecutor’s office, an on-duty officer from checkpoint no. 1
had to call officers at the checkpoint of the district prosecutor’s
office. The latter would then call the reception of the district
prosecutor’s office and inform them that they had a visitor,
following which an official of the prosecutor’s office would
call checkpoint no. 1 back and inform them whether they
authorised the visitor to enter the premises of the prosecutor’s
office. After that an on-duty officer at checkpoint no. 1 had to
enter the visitor’s name, as well as the date and time of his
entry, in a special logbook and let him through.
- Serviceman S.S., interviewed as a witness on 6 July
2006, made a statement similar to that of D.D.
(iii) Servicemen of the checkpoint at the
Leninskiy district prosecutor’s office
- On 13 July 2006 the investigators interviewed officer
V.S. as a witness. She stated that from 9 a.m. on 8 June 2006 she had
been on duty at the checkpoint of the Leninskiy district prosecutor’s
office. At about 10.10 a.m. servicemen from checkpoint no. 1
had called her and informed her that Khamzat Tushayev had come for an
appointment with T.M., the prosecutor of the Leninskiy district. She
had called T.M. and he had told her to let Khamzat Tushayev through,
following which she had called officers from checkpoint no. 1
and conveyed that information to them. Some two hours later V.S. had
received a call from checkpoint no. 1, its servicemen asking
whether Khamzat Tushayev had entered the premises of the prosecutor’s
office through her checkpoint. V.S. had checked the relevant logbook
but found no entries indicating that he had passed through her
checkpoint. She had then called T.M. and he had told her that Khamzat
Tushayev had not visited him either, of which V.S. had immediately
informed her interlocutors at checkpoint no. 1. V.S. also gave
to the investigators the names of the colleagues who had been on duty
with her on the day of Khamzat Tushayev’s disappearance.
(iv) Servicemen of checkpoint no. 102
- On 6, 9, 15, 16 and 18 July 2006 investigators
interviewed as witnesses servicemen S.G., A.P., N.K., I..L., A.N. and
M.N., who were on duty at checkpoint no. 102 on 8 June 2006.
They stated that their checkpoint was used for entry by officials of
the State authorities located in the government complex, such as the
Federal Security Service (FSB) or the prosecutor’s office, in
possession of special permits, and that other persons wishing to
enter the secure grounds were directed to checkpoint no. 1.
Persons leaving the government complex would be let through the
checkpoint no. 102 if they did not raise suspicions; their
documents would not be checked. They also submitted that they did not
recognise Khamzat Tushayev in the picture shown to them.
(v) Witnesses interviewed in connection
with criminal proceedings in case no. 56049 against Khamzat
Tushayev
- On
31 January 2007 the investigators interviewed L.Ts. as a witness. She
submitted that she held the post of the senior inspector with the
information department of the Ministry of the Interior of the Chechen
Republic and that on an unspecified date in April 2006 she had gone,
together with members of a film crew, to the Department for the Fight
against Organised Crime (“UBOP”) of the Chechen Republic.
While the crew had been filming, an UBOP officer had been questioning
a group of detained persons, one of whom had been Khamzat Tushayev.
The latter had told the officer, among other things, about his
daughter, who had participated in the Nord-Ost hostage taking in
Moscow. Shortly after the recording L.Ts. had submitted the related
recordings, as well as an article about the detained persons, to the
Ministry of the Press of the Chechen Republic. However, her article
had been published in a newspaper “Stolitsa plyus”
(Столица
плюс)
only on 2 December 2006 and she was not aware of the reasons for
that delay.
- On
2 February 2007 the investigators interviewed R.Ya. as a witness. He
stated that on 4 April 2006 he had instituted criminal case no. 56049
against a number of persons, including Khamzat Tuhayev, on suspicion
of participation in illegal armed groups. On the same date Khamzat
Tushayev and other suspects had been arrested and remanded in
custody. Some of the arrested persons had initially stated that
Khamzat Tushayev had been an emir of the village of Duba-Yurt but
they had subsequently retracted those statements. On 6 April 2006
Khamzat Tushayev had been released on an undertaking not to leave his
place of residence. The preventive measure applied to him had been
changed because there had not been conclusive evidence of his
implication in the imputed crime. On an unspecified date R.Ya. had
interviewed Khamzat Tushayev for a second time and on 4 June 2006 he
had closed the criminal case against him. R.Ya. specified that he had
learnt about the abduction of Khamzat Tushayev from the first
applicant and that he had not instructed any one in the Leninskiy
district prosecutor’s office to interview Khamzat Tushayev.
- Police
officer A.A., interviewed as a witness on 2 February 2007, submitted
that on 3 April 2006 he had participated in the arrest of a number of
presumed members of illegal armed groups, including Khamzat Tushayev.
A film crew from the Ministry of the Interior had been present and
filmed the arrestees. On 4 April 2006 the arrested persons had
been transferred to a remand centre. According to A.A., he had no
information on the outcome of the proceedings against Khamzat
Tushayev and had learnt about his abduction from his wife.
- Police
officer M.-A.D., interviewed as a witness on 6 February 2007, stated
that he did not know why information on Khamzat Tushayev’s
arrest in April 2006 had been published in December of the same year
but that similar situations occurred from time to time owing to a
lack of cooperation between the Ministry of the Interior and the
Ministry of the Press of the Chechen Republic.
(vi) Other witnesses
- On
16 June 2006 the investigators interviewed S.M. and I.V. as
witnesses. According to their interview records, they resided in the
same block of flats as Khamzat Tushayev and his family in Grozny and
knew about his arrest in March 2006 by the law-enforcement
authorities but had no information concerning his ensuing
disappearance.
- On
6 and 9 July 2006 investigators interviewed S.-Kh.E., V.Sh. and S.E.
as witnesses. They stated that they were distant relatives of Khamzat
Tushayev and resided in Duba-Yurt. According to them, Khamzat
Tushayev had had some psychological problems, but they characterised
him as a positive person overall.
- Witness
D.T., interviewed on 18 July 2006, stated that she worked as a nurse
in a psychiatric hospital in the village of Samashki. From
11 to 25 April 2006 Khamzat Tushayev had undergone
inpatient treatment in the hospital. She specified that his condition
had not been serious and that he had been largely in control of his
actions.
- On 27 January 2007 the investigators interviewed T.M.,
the prosecutor of the Leninskiy district, as a witness. He submitted
that on 8 June 2006, when servicemen from the reception of the
prosecutor’s office had informed him that servicemen from
checkpoint no. 1 were looking for Khamzat Tushayev and it had
been revealed that he had not entered the premises of the
prosecutor’s office, he had instructed the servicemen in charge
of the prosecutor’s office to examine the logbooks of
checkpoint no. 1. Having done so, they had reported that the
logbook, indeed, contained the data concerning Khamzat Tushayev,
including his passport number and confirmed the fact that he had been
let through with a view to appearing for an appointment at the
prosecutor’s office. However, he had never entered the premises
of that authority. The servicemen at the prosecutor’s office
had been interviewed and the incident had been reported to the
district and the republican prosecutor’s offices. There were no
pending criminal cases against Khamzat Tushayev in the Leninskiy
district prosecutor’s office, none of its investigators had
summoned him for an interview there and there was no investigator
named “Sergey Alexandrovich”.
(d) Further investigative steps
- On 9 June 2006 investigator D. of the district
prosecutor’s office inspected the crime scene. According to
D.’s report of the same date, entry to the grounds of the
government complex was possible through a checkpoint (apparently,
checkpoint no. 1), equipped with a barrier to control the entry
of vehicles. The checkpoint had a special room for the registration
of visitors. At about 200 metres distance from the checkpoint, on the
grounds of the government complex, was located the building of the
military commander’s office of the Leninskiy district of Grozny
and near it was located the building of the Leninstiy district
prosecutor’s office, the premises of which could only be
entered through its own checkpoint. The building of the Chechen
Department of the FSB was located near the building of the
prosecutor’s office.
- On 21 June 2006 the Staropromyslovskiy department of
the interior (“the ROVD”) informed the district
prosecutor’s office that they had established the hidden number
from which on 7 June 2006 the first applicant had received a call
with an instruction for her husband to come to the Leninskiy district
prosecutor’s office for an interview on 8 June 2006. The call
had been made at 4.40 p.m. on 7 June 2006 and the number of the
caller was 8 928 29 06 28. However, the mobile
network provider had refused to furnish information on the owner of
the number.
- On
27 June 2006 investigators of the district prosecutor’s office
instructed the Staropromyslovskiy Department of the Interior (the
ROVD) to identify possible witnesses to the abduction of Khamzat
Tushayev and the personnel who had been on duty at the checkpoint on
8 June 2006 and to summon them to the district prosecutor’s
office for interviews.
- Between
27 June and 15 July 2006 investigators of the district prosecutor’s
office requested a number of State authorities, including
prosecutor’s offices and departments of the interior of various
districts of the Chechen Republic, to provide information on Khamzat
Tushayev’s whereabouts, his eventual arrest or detention or on
whether they had instituted criminal proceedings against him. It
appears that those requests yielded no results.
- On
14 July 2006 the investigators formally seized the visitors’
logbook from checkpoint no. 1. The decision stated that the
preliminary investigation had established that at 10 a.m. on 8 June
2006 Khamzat Tushayev had passed through checkpoint no. 1 and
that the checkpoint logbook contained a record to that effect.
- According to a record of inspection of documents
(протокол
осмотра
документов)
of 15 July 2006, page 67 of the visitors’ logbook of checkpoint
no. 1, in the section concerning persons who had passed through
the checkpoint, contained an entry relating to Khamzat Tushayev in
which it was noted that he had passed through the checkpoint at 10.03
a.m. on 8 June 2006. The entry also contained his passport number and
indicated that he was going to the prosecutor’s office. The
logbook was appended to criminal file no. 53092 on 15 July 2006.
- On an unspecified date in July 2006 the Ministry of
the Interior informed the district prosecutor’s office that the
following authorities’ buildings were located in the secure
grounds of the government complex in Grozny: the military commander’s
office of the Chechen Republic, the military commander’s office
of Grozny, the military commander’s office of the Leninskiy
district of Grozny, the Chechen Department of the FSB and the 349th
special purpose battalion of the 46th special purpose
brigade.
- By
a letter of 21 August 2006 the Chechen Department of the FSB replied
to the request of the district prosecutor’s office and informed
them that its officers had not arrested Khamzat Tushayev on the
grounds of the governmental complex. The letter further stated that
the Chechen Department of the FSB had arrested Khamzat Tushayev on 5
February 2003 during a special operation and that its officers had
seized a submachine gun and several full cartridges for it from his
house. On an unspecified date in August 2003 Khamzat Tushayev had
been amnestied in relation to unspecified charges. On 3 April 2006
officers of the UBOP had arrested Khamzat Tushayev on suspicion of
participation in illegal armed groups along with other persons. At 10
a.m. on 8 June 2006 Khamzat Tushayev had entered the grounds of the
government complex in Grozny and had never left those grounds; his
whereabouts remained unknown.
- On
5 September 2006 the investigation in case no. 53092 was
entrusted to investigator Kh. of the district prosecutor’s
office owing to the departure of investigator D. to the prosecutor’s
office of the Chechen Republic.
- On
6 February 2007 the investigators seized a video recording of the
arrest of Khamzat Tushayev and other persons in April 2006 from the
archives of the Ministry of the Interior of the Chechen Republic.
- Between
2 and 12 February 2007 the investigators requested a number of State
authorities to inform them whether they had arrested Khamzat Tushayev
or had information on his whereabouts. It appears that no relevant
information was obtained.
- On
17 May 2007 the deputy head of the Chechen Department of the FSB
informed the military commander of military unit no. 20102 that
the unspecified mobile number mentioned in the latter’s request
for information was not being used by the personnel of the
department.
(e) Information relating to the decisions
to suspend and resume the investigation
- On 15 January 2007 the deputy prosecutor of the
Staropromyslovskiy District of Grozny set aside the decision of
26 November 2006 to suspend the investigation in case no. 53092
as unfounded and premature. The investigators were instructed to
carry out the following investigative measures: compile an up-to-date
plan of investigative steps; interview the first applicant on the
circumstances of the disappearance of her husband more thoroughly;
identify the individuals who had been at checkpoint no. 1 on 8
June 2006 when Khamzat Tushayev had passed through it and interview
them as witnesses; establish the manner in which visitors were
admitted to the secure grounds of the government complex; interview
the prosecutor of the Leninskiy district of Grozny as to the reasons
for Khamzat Tushayev’s visit to the prosecutor’s office
and the circumstances of his disappearance; establish whether the
Leninskiy district prosecutor’s office had investigated any
criminal cases against Khamzat Tushayev or had been in possession of
any materials which might have prompted it to summon him to it;
instruct the military prosecutor to identify the owner of mobile
number 8 928 290 06 28, because the materials of case file
no. 53092 contained information to the effect that that number
had been in use by the personnel of the Chechen Department of the
FSB; interview staff of the newspaper “Stolitsa plyus” in
connection with their article published on 2 December 2006 and
mentioning Khamzat Tushayev and his arrest; identify and interview
the UBOP officers who had arrested presumed members of illegal armed
groups, including Khamzat Tushayev, in April 2006; and comply in
full with the written instructions given by the district prosecutor’s
office on 26 June 2006.
- On
18 February 2007 the investigation in case no. 53092 was
suspended owing to the failure to identify the perpetrators.
- On 21 March 2007 the deputy prosecutor of the
Staropromyslovskiy district prosecutor’s office quashed the
decision of 18 February 2007 as unfounded and premature and
instructed the investigators to take, among other things, the
following investigative steps: compile an updated plan of
investigative measures; identify the owner of mobile phone, from
which the first applicant had received the call instructing her
husband to appear at the Leninskiy district prosecutor’s office
for an interview on 8 June 2006 and interview that person; and obtain
replies to the requests for information from all the relevant State
authorities.
- On
26 April 2007 the investigation in case no. 53902 was suspended
because of the failure to identify the perpetrators.
- On
20 June 2007 the deputy prosecutor of the Staropromyslovskiy district
set aside the decision of 26 April 2007 as premature and unfounded.
- On
20 July 2007 the investigation in case no. 53092 was adjourned
because of the failure to identify those responsible.
- It
appears that on an unspecified date case no. 53092 was
transferred for investigation to the investigation department of the
Investigating committee with the prosecutor’s office of the
Russian Federation in the Chechen Republic (“the investigation
department”).
- On 26 May 2009 the deputy head of the investigation
department instructed his subordinates in charge of the investigation
to take, the following investigative steps: resume the investigation;
compile an up to date plan of investigative measures;
locate and interview a certain S.M. and I.V., who had stated on an
unspecified date that Khamzat Tushayev had not been abducted;
identify and interview the persons who had been at checkpoint no. 1
on 8 June 2006 when Khamzat Tushayev had passed through it; obtain
the case file containing a printout of the conversation between the
first applicant and the owner of mobile number 8 928 290 06 28,
identify and interview all persons to whom that phone number had been
registered or who had used or owned it at the material time;
establish how visitors entered the grounds of the secure government
complex; send a formal request to verify whether an official named
“Sergey Alexandrovich” had indeed worked in the Leninskiy
district prosecutor’s office and if so, interview him; identify
possible eyewitnesses to the abduction of Khamzat Tushayev on the
grounds of the government complex.
- On 3 June 2009 the investigation in case no. 53092
was resumed.
- According
to the Government, the investigation into the abduction of Khamzat
Tushayev is pending.
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 Khamzat Tushayev had
not yet been completed. They further argued that the first applicant
had been granted victim status and thus must have been able to
participate effectively in the investigation procedure. Although the
second applicant had not been granted that status, it had been open
to her, as well as to the first applicant, to complain about the
investigation omissions to courts. In that connection the Government
relied on court decisions in cases of a certain A., S. and E.,
without providing copies of those decisions. Furthermore, in their
submission, the applicants could have applied to the civil courts for
compensation under Articles 151 and 1069 of the Civil Code. In that
connection the Government referred to the cases of Mr Khashiyev and a
third person whose name they omitted to mention, without providing
copies of the decisions issued in those cases.
- The
applicants contested that objection. They stated that the criminal
investigation had proved to be ineffective and that the effectiveness
of the investigation had been undermined in its early stages by the
authorities’ failure to take the relevant steps in due time.
With reference to the Court’s practice, they argued that they
were not obliged to apply to the 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 the victims of illegal and criminal acts
attributable to the State or its agents, namely, civil and criminal
remedies.
- As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, the
Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention (see
Khashiyev and Akayeva v. Russia, nos. 57942/00 and
57945/00, §§ 119-121, 24 February 2005, and Estamirov
and Others, cited above, § 77). In the light of the
above, the Court confirms that the applicants were not obliged to
pursue civil remedies. The Government’s objection in this
regard is thus dismissed.
- As
regards criminal law remedies, the Court observes that the applicants
complained to the law enforcement authorities immediately after the
kidnapping of Khamzat Tushayev and that an investigation has been
pending since 26 June 2006. The applicants and the Government dispute
the effectiveness of the investigation of the abduction.
- The Court considers that the Government’s
objection raises issues concerning the effectiveness of the
investigation in question 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
applicants complained under Article 2 of the Convention that their
relative had been deprived of his life by the State agents 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. Submissions by the parties
1. The Government
- The Government argued that the domestic investigation
had obtained no evidence that the applicants’ relative had been
abducted by State agents or that he should be presumed dead. The
applicants had not eyewitnessed his abduction and his body had not
been discovered. None of the witnesses interviewed by the domestic
investigation had been able to describe Khamzat Tushayev’s
abductors or convey any relevant information concerning the
circumstances of the abduction. The investigation had not established
that he had been arrested or remanded in custody by State agents. The
criminal proceedings in case no. 56049 against Khamzat Tushayev
had been discontinued on 4 June 2006, that is, before his
disappearance. It followed that Khamzat Tushayev had been kidnapped
by unidentified persons.
- In
the Government’s submission, the domestic investigation
satisfied the Convention requirements. It had carried out an
important number of investigative measures to solve the crime. In
particular, the investigators had inspected the crime scene,
interviewed numerous witnesses and inquired with various State
authorities about the missing person’s whereabouts. The
domestic authorities were not to blame for the fact that none of
those investigative steps yielded results.
2. The applicants
- The
applicants maintained that there existed evidence “beyond
reasonable doubt” that their relative had been abducted by
State agents and that he should be presumed dead following his
unacknowledged detention. The documents submitted by the Government
confirmed that Khamzat Tushayev had been abducted from the secure
grounds of the government complex in Grozny, which was a heavily
guarded and clearly delimited “zone” where only State
authorities’ offices were located. Access to the grounds was
possible exclusively through checkpoints with the authorities’
special permission. The Government had not adduced any alternative
explanation as to what had happened to the applicants’
relative. They also invited the Court to draw inferences from the
Government’s failure to provide all the documents requested
from them.
- As
regards the investigation, the applicants claimed that it was neither
prompt nor effective. The authorities had opened the criminal case
into the kidnapping of Khamzat Tushayev with a considerable delay.
The owner of the number from which the first applicant had received a
call summoning her husband had not been identified. T.M. had been
interviewed with a considerable delay and the investigators had not
attempted to interview him about the circumstances of Khamzat
Tushayev’s summoning to the prosecutor’s office. Despite
contradictions in his statement and the statement of V.S., no
confrontation between them had been arranged. The investigators had
failed to verify independently if a man named “Sergey
Alexandrovich” had indeed worked in the Leninskiy district
prosecutor’s office.
B. The Court’s assessment
1. Admissibility
- The
Court considers, in the light of the parties’ submissions, that
the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. Further, the Court has already found that the Government’s
objection concerning the alleged non-exhaustion of domestic remedies
should be joined to the merits of the complaint (see paragraph 76
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 Khamzat Tushayev
(i) General principles
- 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, see Bazorkina v. Russia, no.
69481/01, §§ 103 109, 27 July 2006).
- It
specifically 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. It has held on many occasions that, where an
individual is taken into police custody in good health and is found
to be injured on release, it is incumbent on the State to provide a
plausible explanation of how those injuries were caused. 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).
Where the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, as in the case of persons
within their control in detention, strong presumptions of fact will
arise in respect of injuries and death of such persons. 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).
- The
above-mentioned principles also apply to cases in which, although it
has not been proved that a person has been taken into custody by the
authorities, it is possible to establish that he or she entered a
place under their control and has not been seen since. In such
circumstances, the onus is on the Government to provide a plausible
explanation as to what happened on the premises and to show that the
person concerned was not detained by the authorities, but left the
premises without subsequently being deprived of his or her liberty
(see Taniş and Others v. Turkey, no. 65899/01, § 160,
ECHR 2005–VIII).
- 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).
(ii) Application of these principles to
the present case
- Turning
to the circumstances of the present case, the Court observes that the
Government denied that State agents had been involved in the
abduction of Khamzat Tushayev, referring to the absence of
conclusions from the ongoing investigation. At the same time, they
did not dispute any of the specific facts underlying the applicants’
version of their relative’s disappearance.
- In the first place it is undisputed between the
parties and appears to be confirmed by the materials at the Court’s
disposal that the secure grounds of the government complex
represented a delimited and guarded territory in which only offices
of a number of law-enforcement authorities were located and that
access to those grounds was possible solely through a number of
checkpoints. Moreover, if a private person wished to enter the
grounds, the servicemen at checkpoint no. 1, specifically
responsible for private visitors, not only had to enter all
information concerning the visitor, including his or her personal
data and the time and purpose of the visit, but also to obtain from
the authority the visitor was heading to confirmation that that
person indeed had an appointment with it. It also transpires that the
building of the Leninskiy district prosecutor’s office was
located at about 200 metres distance from checkpoint no. 1,
through which access for private individuals to that State authority
was possible (see paragraphs 35-37, 47 and 52 above).
- It
is furthermore common ground between the parties that at about 10
a.m. on 8 June 2006 Khamzat Tushayev entered the secure grounds of
the government complex through checkpoint no. 1 in order to
appear for an interview at the Leninskiy district prosecutor’s
office. In that respect it is significant for the Court that the
applicants’ submissions concerning the circumstances of their
relative’s entering the grounds remained consistent both
throughout the domestic proceedings and the proceedings before it
(see paragraphs 14-17 and 31-34 above) and that that fact is further
confirmed by those materials from criminal case no. 53092 that
were made available to the Court by the Government (see paragraph 31
above). It also does not lose sight of the fact that, according to an
official document issued by the deputy prosecutor of the
Staropromyslovskiy district, the materials of case file no. 53092
contained evidence that the number from which the first applicant
received a call for her husband to be summoned to the Leninskiy
district prosecutor’s office on 8 June 2008 had been used by
the personnel of the Chechen Department of the FSB (see paragraph 59
above). However, it transpires that the investigation took no genuine
steps to verify that information or, at the very least, to establish
the owner of the mobile phone from which the call had been received
(see below).
- The
Government did not argue that after having entered the secure
grounds, the applicants’ relative had at any point left the
premises unimpeded. Neither did they furnish any evidence to that
effect. On the contrary, they acknowledged that Khamzat Tushayev had
been abducted while on the secure grounds of the government complex,
albeit stating that his kidnappers had been unidentified persons (see
paragraph 78 above). However, bearing in mind the considerations set
out in paragraph 88 above, the Court cannot accept their unsupported
submission as convincing.
- The
Court also takes into account the fact that, despite its requests for
a copy of the investigation file into the abduction of Khamzat
Tushayev, the Government produced only a part of the documents
requested from them and that they failed to give any reasons for
their refusal to do so. In view of this and bearing in mind the
principles referred to above, the Court considers that it can draw
inferences from the Government’s conduct in respect of the
well-foundedness of the applicants’ allegations.
- In
sum, the Court has regard to the elements enumerated above and the
Government’s unjustified refusal to furnish all the documents
requested from them. It also takes into account their failure to
provide a convincing explanation of what happened to Khamzat Tushayev
after he had entered the secure grounds of the government complex and
to show that he was not detained by the authorities, but left the
premises without subsequently being deprived of his liberty. Against
this background the Court finds it established that on 8 June
2006 the applicants’ relative was detained on the secure
grounds of the government complex by unidentified State agents during
an unacknowledged operation.
- It
remains to be ascertained whether Khamzat Tushayev should be presumed
dead following his unacknowledged detention.
- In
this respect it is reiterated that in a number of cases concerning
disappearance of people in the Chechen Republic the Court has
repeatedly held that when a person is detained by unidentified State
agents without any subsequent acknowledgement of the detention, this
can be regarded as life threatening (see, among many other
authorities, Bazorkina v. Russia, cited above; Imakayeva v.
Russia, no. 7615/02, ECHR 2006 XIII (extracts); Luluyev
and Others v. Russia, no. 69480/01, ECHR 2006 XIII
(extracts); Alikhadzhiyeva v. Russia, no. 68007/01, 5 July
2007; and Mutayeva v. Russia, no. 43418/06, 22 April
2010).
- The
Court has, moreover, confirmed those considerations in situations
where, as in the present case, applicants disappeared from places and
premises under the authorities’ full control (see Yusupova
and Zaurbekov v. Russia, no. 22057/02, § 55, 9 October
2008; Magomadov v. Russia, no. 68004/01, § 98, 12
July 2007; and Asadulayeva and Others v. Russia, no.
15569/06, § 94, 17 September 2009). The absence of any news
from Khamzat Tushayev for over four and a half years corroborates
this assumption. Moreover, his name has not been found in any
official detention facility’s records and the Government did
not submit any reasonable explanation as to what had occurred to him
after his unacknowledged detention.
- Hence,
the Court finds it established that Khamzat Tushayev should be
presumed dead following his unacknowledged detention by State agents
on 8 June 2006.
- The
Court notes that, in addition to the absence of any plausible
explanation on the part of the Government as to the circumstances of
Khamzat Tushayev’s death, they also have not relied on any
exceptions to the right to life listed in Article 2 § 2. It
follows that the respondent State’s responsibility for his
death is engaged.
- Accordingly,
there has been a violation of Article 2 under its substantive limb in
respect of Khamzat Tushayev.
(b) The alleged inadequacy of the
investigation into the abduction
(i) General principles
- 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 v. the
United Kingdom, 27 September 1995, § 161, Series A no. 324,
and Kaya v. Turkey, 19 February 1998, § 86, Reports of
Judgments and Decisions 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).
(ii) Application of these principles to
the present case
- The
Court notes at the outset that the Government refused to produce the
entire copy of case file no. 53902 and furnished only copies of
the documents summarised above. It therefore has to assess the
effectiveness of the investigation on the basis of the sparse
information submitted by the Government and the few documents
available to the applicants that they provided to the Court.
- In
the instant case the applicants notified the authorities about the
abduction of their relative promptly after it had occurred, that is,
on 9 June 2006. The investigation into his abduction was, however,
opened only on 26 June 2006, that is, more than two and a half
weeks later. Such a postponement per se is liable to affect
the investigation of an abduction in life-threatening circumstances,
where crucial action has to be taken in the first days after the
event.
- It
is further noted that a number of investigative steps were taken with
a considerable delay, for which the Government provided no
explanation. Among other things, it is unclear why the investigators
had to wait for seven months to interview investigator R.Ya., who
might have provided relevant information on the criminal proceedings
against Khamzat Tushayev on suspicion of his participation in illegal
armed groups, despite the fact that while being interviewed on
30 June 2006 the first applicant informed them of that fact and
gave them R.Ya.’s name. In the same vein, although from officer
V.S.’s interview record of 13 July 2006 it followed that the
prosecutor of the Leninskiy district had been aware of Khamzat
Tushayev’s visit, the investigators did not interview T.M.
until some months later.
- Furthermore,
it appears that a number of crucial investigative measures have not
been taken at all. In particular, the Court is struck by the fact
that, whilst as early as 21 June 2006 the investigators had
identified the number of the mobile phone from which Khamzat Tushayev
had been summoned to the Leninskiy district prosecutor’s office
(see paragraph 48 above), there is no indication that the owner of
the number was identified. The Court finds this fact particularly
disturbing, given that the higher ranking prosecutors stated in
official documents that the case-file materials contained information
to the effect that the impugned number was being used by the
personnel of the Chechen Department of the FSB (see paragraph 59
above) and that they had repeatedly instructed the investigators to
pursue the matter (see paragraphs 61 and 66 above). In the
Court’s view, such an omission can only be characterised as
indicative of a lack of a genuine determination on the part of the
investigating authorities to solve the crime and identify those
responsible.
- The
Court also expresses its concern by the fact that, although officer
V.S. clearly stated in her interview that she could give the names of
the colleagues who had been on duty with her on 8 June 2006, the
investigators took no steps to identify those persons and interview
them. Furthermore, bearing in mind possible discrepancies between the
submissions of V.S. and T.M., the former stating that T.M. had
instructed her to let Khamzat Tushayev through and the latter
claiming that the applicants’ relative had not been summoned to
the prosecutor’s office (see paragraphs 37 and 46 above), it
remains unclear why the investigators took no steps to arrange for
their confrontation to clarify, in particular, the extent to which
T.M. had been aware of Khamzat Tushayev’s visit to the
Leninskiy district prosecutor’s office and the purpose of that
visit. In fact, besides interviewing T.M., the investigators appear
to have made no attempt to carry out an independent verification of
the purpose of the applicants’ relative’s visit to the
Leninskiy district prosecutor’s office and the officials who
might have summoned him there.
- 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 a serious matter (see Öneryıldız
v. Turkey [GC], no. 48939/99, § 94, ECHR 2004 XII).
- The
Court further notes that whilst the first applicant was eventually
granted victim status in the proceedings in case no. 53092,
there is no indication that the authorities ever considered granting
that status to the second applicant. It also has serious doubts as to
whether the applicants were provided with meaningful information
concerning any developments in the investigation (see paragraph 28
above). It thus transpires that 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 (see Oğur v. Turkey [GC], no. 21594/93, §
92, ECHR 1999 III).
- Lastly,
the Court notes that the investigation was repeatedly suspended and
that there were lengthy periods of inactivity on the part of the
district prosecutor’s office when no proceedings were pending
(see paragraphs 59-67 above). The higher-ranking prosecutors
criticised the deficiencies in the proceedings and repeatedly ordered
the investigators to rectify the shortcomings and carry out a number
of crucial investigative steps but it appears that their instructions
were not complied with.
- 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 having produced no tangible results.
- Furthermore,
the applicants, who had no access to the case file and were not
properly informed of the progress of the investigation, could not
have effectively challenged any acts or omissions on the part of the
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 be usefully conducted. Therefore, it is
highly doubtful that the remedy relied on would have had any prospect
of success.
- In
sum, 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 Khamzat Tushayev, in
breach of Article 2 in its procedural aspect.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants relied on Article 3 of the Convention, submitting that as
a result of their relative’s disappearance and the State’s
failure to investigate it properly, they had endured mental suffering
in breach of Article 3 of the Convention. Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
- The
Government disagreed with these allegations and argued that the
investigation had not established that the applicants had
been subjected to inhuman or degrading treatment prohibited by
Article 3 of the Convention.
- The
applicants maintained their submissions.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint under Article 3 of the Convention is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
2. Merits
- The Court has found on many occasions that in a
situation of enforced disappearance close relatives of the victim may
themselves be victims of treatment in violation of Article 3. The
essence of such a violation does not mainly lie in the fact of the
“disappearance” of the family member but rather concerns
the authorities’ reactions and attitudes to the situation when
it is brought to their attention (see Orhan v. Turkey,
no. 25656/94, § 358, 18 June 2002, and Imakayeva,
cited above, § 164).
- In
the present case the Court notes that the first applicant is the wife
and the second applicant is the mother of the missing person. For
more than four and a half years they have not had any news of their
relative. During this period the first applicant has made enquiries
of various official bodies, both in writing and in person, about her
husband. The Court is prepared to accept that the second applicant
was also to a certain extent involved in the search for her son.
Despite their attempts, the applicants have never received any
plausible explanation or information about what became of Khamzat
Tushayev following his detention. The responses they received mostly
denied State responsibility for their relative’s arrest or
simply informed them that the investigation was ongoing. The Court’s
findings under the procedural aspect of Article 2 are also of direct
relevance here.
- The
Court therefore concludes that there has been a violation of Article
3 of the Convention in respect of the applicants.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants further stated that Khamzat Tushayev had been detained in
violation of the guarantees contained in Article 5 of the Convention,
which reads, in so far as relevant:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. The parties’ submissions
- The
Government asserted that no evidence had been obtained by the
investigators to confirm that Khamzat Tushayev had been deprived of
his liberty. He was not listed among the persons kept in detention
centres and none of the regional law-enforcement agencies had
information about his detention.
- The
applicants reiterated the complaint.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that the complaint is not inadmissible on any other grounds and
must therefore be declared admissible.
2. Merits
- The
Court has previously noted the fundamental importance of the
guarantees contained in Article 5 to secure the right of individuals
in a democracy to be free from arbitrary detention. It has also
stated that unacknowledged detention is a complete negation of these
guarantees and discloses a very grave violation of Article 5 (see
Çiçek v. Turkey, no. 25704/94, § 164,
27 February 2001, and Luluyev, cited above, § 122).
- The Court has found that Khamzat Tushayev was
apprehended by State agents on 8 June 2006 and has not been seen
since. His detention was not acknowledged, was not logged in any
custody records and there exists no official trace of his subsequent
whereabouts or fate. In accordance with the Court’s practice,
this fact in itself must be considered a most serious failing, since
it enables those responsible for an act of deprivation of liberty to
conceal their involvement in a crime, to cover their tracks and to
escape accountability for the fate of a detainee. Furthermore, the
absence of detention records noting such matters as the date, time
and location of detention and the name of the detainee as well as the
reasons for the detention and the name of the person effecting it,
must be seen as incompatible with the very purpose of Article 5 of
the Convention (see Orhan, cited above, § 371).
- The
Court further considers that the authorities should have been more
alert to the need for a thorough and prompt investigation of the
applicants’ complaints that their relative had been detained
and taken away in life-threatening circumstances. However, the
Court’s findings above in relation to Article 2 and, in
particular, the conduct of the investigation leave no doubt that the
authorities failed to take prompt and effective measures to safeguard
him against the risk of disappearance.
- In
view of the foregoing, the Court finds that Khamzat Tushayev 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
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 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 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 applicants’ reference to Articles 3 and 5 of the
Convention, the Court considers that, in the circumstances, no
separate issue arises in respect of Article 13, read in conjunction
with Articles 3 and 5 of the Convention (see Kukayev v. Russia,
no. 29361/02, § 119, 15 November 2007, and
Aziyevy v. Russia, no. 77626/01, § 118, 20 March
2008).
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
applicants did not submit any claims for pecuniary damage. They
claimed non-pecuniary damage for the suffering they had endured as a
result of the loss of their family member, the indifference shown by
the authorities towards him and the failure to provide any
information about the fate of their close relative, leaving the
determination of its amount to the Court.
- The
Government submitted that, should the Court find a violation of the
applicants’ Convention rights, a finding of a violation would
constitute sufficient just satisfaction.
- The
Court has found a violation of Articles 2, 5 and 13 of the Convention
on account of the unacknowledged detention and disappearance of the
applicants’ relative. The applicants themselves have been found
to have been victims of a violation of Article 3 of the Convention.
The Court thus accepts that they have suffered non-pecuniary damage
which cannot be compensated for solely by the findings of violations.
It awards the first applicant 35,000 euros (EUR) and EUR 25,000 to
the second applicant, plus any tax that may be chargeable to them.
B. Costs and expenses
- The
applicants were represented by lawyers from the NGO EHRAC/Memorial
Human Rights Centre. The aggregate claim in respect of costs and
expenses related to the applicants’ legal representation
amounted to 1,310 pounds sterling (GBP), to be paid into the
representatives’ account in the United Kingdom. The amount
claimed was broken down as follows:
(a) GBP
700 for 7 hours of legal drafting of documents submitted to the Court
at a rate of GBP 100 per hour;
(b) GBP
450 for translation costs, and
(c) GBP
160 for administrative and postal costs.
- The
Government pointed out that the applicants should be entitled to the
reimbursement of their costs and expenses only in so far as it had
been shown that they had actually been incurred and were reasonable
as to quantum (see Skorobogatova v. Russia, no. 33914/02, §
61, 1 December 2005).
- The
Court has to establish first whether the costs and expenses indicated
by the applicants were actually incurred and, second, whether they
were necessary (see McCann and Others v. the United Kingdom,
27 September 1995, § 220, Series A no. 324).
- Having
regard to the details of the information and legal representation
contracts submitted by the applicants, the Court is satisfied that
these rates are reasonable and reflect the expenses actually incurred
by the applicants’ representatives.
- As
to whether the costs and expenses incurred for legal representation
were necessary, the Court accepts that this case was rather complex
and required a certain amount of research and preparation. It
observes at the same time that applicants furnished translation fee
notes only in respect of GBP 207, as opposed to the GBP 450 claimed.
- Having
regard to the details of the claims submitted by the applicants, the
Court awards them EUR 1,215 together with any value added tax
that may be chargeable to them, the net award to be paid into the
representatives’ bank account in the United Kingdom, as
identified by the applicants.
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 Khamzat
Tushayev;
- 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 Khamzat
Tushayev disappeared;
5. Holds that there has been a violation of
Article 3 of the Convention in respect of the applicants on
account of their mental suffering;
- Holds that there has been a violation of
Article 5 of the Convention in respect of Khamzat Tushayev;
7. Holds
that there has been a violation of Article 13 of the Convention
in respect of the alleged violation of Article 2 of the
Convention;
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 from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Russian roubles at the date of settlement, save in the case of the
payment in respect of costs and expenses:
(i) EUR 35,000
(thirty-five thousand euros) to the first applicant and EUR 25,000
(twenty-five thousand euros) to the second applicant, plus any tax
that may be chargeable, in respect of non pecuniary damage;
(ii) EUR 1,215
(one thousand two hundred and fifteen euros), plus any tax that may
be chargeable to the applicants, in respect of costs and expenses, to
be paid into the representatives’ bank account in the United
Kingdom;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 19 April 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy
Registrar President
