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FIRST
SECTION
CASE OF
MAKHARBIYEVA AND OTHERS v. RUSSIA
(Application
no. 26595/08)
JUDGMENT
STRASBOURG
21 June
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 Makharbiyeva and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Peer
Lorenzen,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Julia
Laffranque,
Linos-Alexandre
Sicilianos,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26595/08) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by five Russian nationals listed below (“the
applicants”), on 23 May 2008.
- The
applicants were represented by lawyers of the Stichting Russian
Justice Initiative (“the SRJI”), an NGO based in the
Netherlands with a representative office in Russia. 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
11 September 2009 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 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. Having
considered the Government's objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are:
1) Ms
Zura Makharbiyeva, born in 1951,
2) Mr
Khamid Makharbiyev, born in 1943,
3) Ms
Olga Grigoryeva, born in 1980,
4) Mr
Movsar Makharbiyev, born in 1999, and
5) Ms
Malika Makharbiyeva, born in 2001.
The first and second applicants live in Grozny; the other applicants
live in Gekhi in Urus-Martan district, Chechnya. The first and the
second applicants are the parents of Adam Makharbiyev, who was born
in 1973; the third applicant is his wife, and the fourth and the
fifth applicants are his children.
A. Disappearance of Adam Makharbiyev
1. Information submitted by the applicants
(a) Abduction of Adam Makharbiyev
- At
the material time the Urus-Martan district and the town of Grozny
were under the full control of the Russian federal forces. Military
checkpoints manned by Russian servicemen were located on all roads
leading to and from the area, which was under a strict curfew. A
checkpoint manned by policemen from the Special Task Unit of the
Yaroslavl region (“the OMON”) was located on the road
between the town of Urus-Martan and the village of Gekhi. The
applicants and Adam Makharbiyev lived in Gekhi, in Urus-Martan
district. In March 2001 Adam Makharbiyev was trying to get a job at
the Zavodskoy district department of the interior (the Zavodskoy
ROVD) in Grozny.
- In
the afternoon of 24 March 2001, on his way from Grozny to Gekhi, Adam
Makharbiyev stopped at his cousins' house in Chernorechye village on
the outskirts of Grozny. On the same evening he drove back to Gekhi
with his cousins, Mr I.M. and Mr L.M., in the latter's black VAZ-2106
car. At the time Mr L.M. was a police officer at the Oktyabrskiy ROVD
in Grozny. On their way Adam Makharbiyev, Mr I.M. and Mr L.M. passed
through a number of checkpoints; Mr L.M. showed his police identity
card and the car was allowed to pass through. The road to Gekhi went
through the checkpoint manned by the OMON from the Yaroslavl region;
the servicemen had previously seen Mr L.M. crossing the roadblock on
a regular basis and knew that he was a police officer.
- At
about 5 p.m. the car with the three men was stopped for yet another
identity check at the checkpoint manned by the OMON from Yaroslavl.
The servicemen looked at the police identity card provided by Mr L.M.
and asked for the passports of Adam Makharbiyev and Mr I.M. After the
two men had produced their documents the servicemen surrounded them,
blocked the passage through the checkpoint, handcuffed all three men
and dragged Adam Makharbiyev inside the checkpoint building, while Mr
I.M. and Mr L.M. remained outside. The servicemen also took away Mr
L.M.'s service gun. Immediately after this the servicemen called
someone on a portable radio and requested that representatives of the
military commander's office come to the checkpoint.
- The
detention of Adam Makharbiyev and his cousins was witnessed by two
residents of Gekhi who happened to cross the checkpoint at the same
time as the detained men. One of them went to the applicants' house
straight away and informed them about the incident. The first and
second applicants immediately got into their car and drove to the
checkpoint.
- About
fifteen minutes after the servicemen had called for representatives
of the military commander's office to attend, an armoured URAL lorry,
two black VAZ-2109 cars with military registration numbers of the
'11' region and a white VAZ-2121 ('Нива')
car arrived at the checkpoint. Adam Makharbiyev was forced into one
of the VAZ-2109 cars; Mr I.M. and Mr L.M. were placed in the URAL
lorry; black sacks were put over their heads. Mr L.M.'s black
VAZ-2106 car was driven away by one of the abductors, who was in
military uniform.
- When
the vehicles with the detained men were leaving the checkpoint, the
first and second applicants pulled up at the scene. They followed the
convoy of military cars, which went to the centre of Urus Martan.
The applicants' car was stopped at a checkpoint located on the
bridge, in the vicinity of the town administration and the military
commander's office. The first applicant got out of the car and ran
after the convoy, which drove into the yard of the Urus-Martan
district military commander's office (“the district military
commander's office”). The soldiers on duty stopped the first
applicant from entering the building. Several minutes later the
second applicant also arrived at the military commander's office. The
applicants asked the soldiers to let them speak with the district
military commander. The servicemen refused and demanded that the
applicants leave the premises, as curfew was just starting.
(b) Subsequent events
- After
the arrival at the district military commander's office, Mr I.M.
and Mr L.M. were taken to the third floor, where they were questioned
for about two or three hours about involvement in the activities of
illegal armed groups. Throughout the questioning they had sacks on
their heads and were subjected to beatings.
- After
the questioning Mr L.M. was taken outside and placed in an UAZ
minivan ('Таблетка').
He recognised the model of the car by its engine sound and layout.
His brother, Mr I.M., was also put into the vehicle which took them
to the building of the Urus-Martan temporary district department of
the interior (“the Urus-Martan VOVD”) located only a few
hundred metres from the military commander's office.
- In
the VOVD Mr L.M. was taken to an investigator's office and the sack
was removed from his head. Mr L.M. asked about his brother, Mr I.M.,
and his cousin, Adam Makharbiyev. The investigator told him that he
and his brother had been brought over from the military commander's
office and that he did not know the whereabouts of Adam Makharbiyev.
After that Mr L.M. and Mr I.M. were taken to a cell in which
there were two other detainees.
- On
the following morning, 25 March 2001, the head of the Oktyabrskiy
ROVD arrived in Urus-Martan and spoke with the head of the VOVD. As a
result, Mr L.M. was released on the same day; during his release the
VOVD officers mistakenly gave him Adam Makharbiyev's official
registration card. Mr I.M. was released a day later, on 26 March
2001. About eight days later Mr L.M. picked up his VAZ-2106 car,
which had been taken away by the abductors, from the district
military commander's office.
- On
27 March 2001 the first applicant managed to meet the district
military commander, General G., and asked him whether his servicemen
had taken away her son. He responded: “Yes, there is a detainee
named Makharbiyev. We will question him and then release him.”
A few days later the first applicant again spoke to the General and
asked about her son. The latter told her that Adam Makharbiyev had
absconded, taking a pistol from the district military commander's
office.
- On
an unspecified date in 2002 the first applicant lodged a claim with
the Urus-Martan Town Court, requesting that Adam Makharbiyev be
declared a missing person. On 22 March 2002 the court granted her
claim and declared Adam Makharbiyev a missing person from 24 March
2001.
- In
support of their application the applicants submitted the following
documents: a statement by the first applicant dated 22 April 2008; a
statement by the second applicant dated 21 April 2008; a statement by
Mr L.M. dated 16 April 2008, and copies of letters received from
the authorities.
2. Information submitted by the Government
- The
Government neither challenged the version of events presented by the
applicants nor provided their own version of the events.
B. The search for Adam Makharbiyev and the
investigation
1. Information submitted by the applicants
- On
25 March 2001 the applicants complained to the VOVD about the
abduction of Adam Makharbiyev. They did not retain a copy of this
complaint.
- On
28 March 2001 the first applicant again complained to the VOVD about
her son's abduction. She stated that her son and his two cousins had
been abducted by Russian military servicemen at the checkpoint
located on the road between Urus-Martan and Gekhi, and that some time
later Adam Makharbiyev's cousins had been released, but he had
remained in detention. She stressed that she could provide the
authorities with a detailed description of the abductors' vehicles
and the names of witnesses to the abduction, and stated that at some
point after the abduction her son had been taken to the Urus-Martan
district department of the Federal Security Service (“the
FSB”).
- On
30 March 2001 the second applicant wrote to the Urus-Martan district
prosecutor's office (the district prosecutor's office) about his
son's abduction, and on 4 April 2001 to the district military
commander, General G. He stated that at about 5 p.m. on 24 March 2001
his son had been abducted by Russian military servicemen at the
checkpoint located on the road between Urus-Martan and Gekhi. The
applicant further provided a detailed description of the vehicles
involved in the abduction and stated that there were witnesses to the
events who could provide statements to the authorities. He stated
that he had learnt that at some point after the abduction his son had
been detained in the Urus-Martan FSB, and stated that his attempts to
establish the whereabouts of his son by lodging complaints with the
VOVD, the ROVD, the FSB and the local administration had been futile.
- On
14 April 2001 the district prosecutor's office instituted an
investigation into the abduction of Adam Makharbiyev under Article
126 of the Criminal Code (kidnapping). The case file was given the
number 25042. The applicants were informed of this on 12 July 2001.
- On
8 June 2001 the second applicant again complained to the district
prosecutor about his son's abduction at the checkpoint. He stated,
amongst other things, that his two relatives, who had been abducted
with his son, had later been released from the VOVD and that one of
them had been given Adam Makharbiyev's registration card by mistake.
The applicant further stated that he had applied to various
authorities with numerous requests for an investigation to be
initiated into his son's abduction by the OMON officers who had been
manning the checkpoint on 24 March 2001 and for them to be questioned
about his son's whereabouts. Finally, the applicant complained of a
lack of information from the district prosecutor's office and asked
to be provided with an update.
- On
18 June 2001 the second applicant wrote to the Chechnya prosecutor
and the Russian Prosecutor General. He stated that his son and two of
his cousins had been detained by Russian federal servicemen at a
military checkpoint; that his cousins had been released later on from
the VOVD and that one of them had mistakenly been given his son's
documents during the release. He further stated that his numerous
complaints to various authorities had not produced any results and
that the investigation of his son's abduction had been ineffective.
In particular, he pointed out that the investigators had failed to
question the OMON officers who had been manning the checkpoint and
taken away his son and that in spite of numerous witness statements
the investigators had failed to establish the circumstances of his
subsequent detention in the military prosecutor's office and the
VOVD. According to the applicant, with this information and evidence
at hand the investigators could have solved the crime and established
his son's whereabouts shortly after the abduction and that such
procrastination in the investigation demonstrated their lack of
desire to identify and prosecute the perpetrators. The applicant
requested that the authorities establish his son's whereabouts,
inform him of any charges pending against his son and identify the
culprits.
- On
three occasions between July and August 2001 the district
prosecutor's office informed the applicants about the opening of
criminal case no. 25042.
- On
11 September 2001 the second applicant requested that the
investigators grant him victim status in the criminal case. No
response was made to this request.
- On
20 September 2001 the second applicant again complained to the
district prosecutor and challenged the investigator in the criminal
case. The applicant stated that the investigator had failed to summon
and question both the OMON officers who had been manning the
checkpoint and the witnesses to the abduction; that the investigator
had failed to include in the investigation file the witness
statements given by him and the first applicant to the authorities;
that during a conversation with the first applicant the investigator
had told her: “it is not my fault that your son got killed”.
The applicant requested that due to this statement demonstrating the
investigator's awareness of Adam Makharbiyev's possible fate, the
investigator should be held responsible for covering up his son's
murder.
- On
16 February 2002 the district prosecutor's office informed the
applicants that they had suspended the investigation in the criminal
case for failure to identify the perpetrators.
- On
18 May 2002 the second applicant again complained to the district
military commander about his son's abduction by military servicemen
and requested assistance in the search for his whereabouts.
- On
21 May 2002 the first applicant complained to a number of local
authorities, including the head of the ROVD and the district military
commander, about her son's abduction by military servicemen and
requested assistance in the search for him. She pointed out that
immediately after the abduction her son had been taken to the
district military commander's office and that the military commander
had promised to release him after a check and that a day later the
officer had told her that her son had absconded with a gun.
- On
14 June 2002 the first applicant again complained about the abduction
to the Prosecutor General. She stated that her son had been abducted
by servicemen at the military checkpoint when he had been driving
with his two cousins in a black VAZ-2106 car from Grozny to Gekhi;
that after the abduction her son and his relatives had been taken to
the district military commander's office and that she and the second
applicant had witnessed the abduction. She further provided a
description of the abductors' vehicles and pointed out that Mr L.M.
and Mr I.M. had been released a few days after the abduction, and
that about a week later Mr L.M. had returned his car, which had
been taken away by the abductors; that during the release from
detention Mr L.M. had mistakenly been given Adam Makharbiyev's
registration card; that the district military commander had promised
to her that her son would be released, and that on the fourth day
after the abduction the officer had told her that Adam had absconded
from the military commander's office with a gun. The applicant
further complained that the investigation had had all the necessary
information to identify the perpetrators, but that in spite of that
they had failed to take even basic steps. In her opinion, the
investigators were trying to cover up her son's abduction by military
servicemen. Finally, she requested that the Prosecutor General assist
her in her search for Adam Makharbiyev.
- On
1 July 2002 the first applicant complained to a number of State
authorities, including the head of the Chechnya FSB, the Russian
Defence Minister and the district prosecutor. She provided a detailed
description of her son's abduction by federal servicemen and his
subsequent detention in the military commander's office and the VOVD,
and complained that the investigation had failed to examine the
evidence proving the authorities' involvement in her son's abduction.
In addition, she stated that on 5 June 2002 her son had been
seen in a bus next to Chervlyenaya station in the Shelkovskoy
district of Chechnya. According to a woman who had spoken with Adam
Makharbiyev, he had told her that FSB officers were taking him in the
bus to the Chernokozovo detention centre in Chechnya. According to
the witness, Adam looked famished and was very pale. The applicant
requested that the authorities establish her son's whereabouts and
release him from detention.
- On
five occasions between July 2001 and August 2002 the Chechnya
prosecutor's office forwarded the applicants' complaints to the
district prosecutor's office.
- On
two occasions between August 2001 and August 2002 the Prosecutor
General's office informed the applicants that they had forwarded
their complaints to the Chechnya prosecutor's office.
- On
30 July 2002 the first applicant again complained about her son's
abduction by federal servicemen to the district prosecutor's office
and requested to be granted victim status in the criminal case. On
9 August 2002 she was granted victim status in the case.
- On
24 September 2002 the military prosecutor's office of the North
Caucasus Military Circuit informed the first applicant that they had
forwarded her complaint about the abduction to the military
prosecutor's office of military unit no. 20102 in Khankala,
Chechnya.
- On
30 September 2002 the first applicant requested an update from the
investigators on the investigation in the criminal case.
- On
16 November 2002 the Chechnya prosecutor's office informed the first
applicant that according to their information received from the
Chernokozovo detention centre Adam Makharbiyev had never been
detained on their premises.
- On
5 March 2003 the first applicant again complained to the district
military commander. She stated that her son and his two cousins had
been abducted by servicemen from a military checkpoint on the way
from Grozny to Gekhi; that after the abduction the men had been taken
to the district military commander's office, and that she and the
second applicant had witnessed the events. She further provided a
description of the abductors' vehicles and pointed out that Mr L.M.
and Mr I.M. had been released a few days after the abduction and that
about a week later Mr L.M. had returned his car which had been
taken away by the abductors; that when being released from detention
Mr L.M. had mistakenly been given Adam Makharbiyev's registration
card; that the district military commander had promised her that her
son would be released, and that on the fourth day after the abduction
the officer had told her that Adam had absconded with a gun from the
military commander's office. The applicant further complained that
the investigation into the abduction had been ineffective, and
requested assistance in her search for her son.
- On
16 July 2003 the first applicant complained to the Military
Prosecutor of the United Group Alignment (the UGA). She provided a
detailed description of her son's abduction by federal servicemen,
his subsequent detention in the military commander's office and the
VOVD and complained that the investigation had failed to examine the
evidence proving the authorities' involvement in her son's abduction.
She stated that on 5 June 2002 her son had been seen in a bus next to
Chervlyenaya station in the Shelkovskoy district of Chechnya.
According to the woman who had spoken with Adam Makharbiyev, he had
told her that the FSB officers were taking him in the bus to the
Chernokozovo detention centre in Chechnya. The applicant requested
that the authorities establish her son's whereabouts and release him
from detention.
- Between
July 2003 and February 2006 the applicants were not provided with any
information concerning the investigation of the abduction.
- On
21 February 2006 the first applicant wrote to the district prosecutor
and complained that the investigation of her son's abduction was
ineffective. She requested an update on its progress and asked for
the proceedings to the resumed. No reply was given by the
authorities.
2. Information submitted by the Government
- On
31 March 2001 the district prosecutor, on a complaint by the second
applicant, requested that the head of the Urus-Martan FSB and the
district military commander inform him whether they had detained Adam
Makharbiyev and if so, where he had been taken afterwards.
- On
14 April 2001 the investigators opened criminal case no. 25042
in connection with “... the detention of Adam Makharbiyev at
the checkpoint located between Gekhi and Urus-Martan on 24 March 2001
and his subsequent removal in the direction of Urus-Martan ...”
- On
17 April 2001 the ROVD officially registered the second applicant's
complaint about the abduction.
- On
an unspecified date in April 2001 the investigators questioned the
first applicant, who provided a detailed description of her son's
abduction by servicemen at the military checkpoint and his subsequent
removal to the military commander's office.
- On
an unspecified date in April 2001 the investigators questioned the
second applicant, whose statement about the circumstances of the
abduction was similar to that made by the first applicant. In
addition, he stated that a few days after the abduction he and his
brother (the father of Mr L.M. and Mr I.M.) had spoken with the
head of the administration, Mr Sh.Ya., who had told them that on 24
March 2001 their sons had been taken away from the checkpoint by
servicemen of the Yaroslavl OMON and that later on Mr L.M. and
Mr I.M. had been transferred to the VOVD, whereas Adam Makhashev had
allegedly absconded from the military commander's office.
- On
7 June 2001 the investigators questioned the third applicant, who
stated that in the evening of 24 March 2001 she had learnt about her
husband's abduction at the checkpoint, from a man who had arrived at
her house.
- On
an unspecified date in 2001 the investigation in the criminal case
was suspended for failure to identify the perpetrators.
- On
24 June 2002 the investigators resumed the investigation in the
criminal case. The text of the decision included the following:
“... on 24 March 2001 during the crossing of the
checkpoint located on the road between Gekhi and Urus-Martan Mr Adam
Makharbiyev, Mr L.M. and Mr I.M. were detained for an identity
check; after that the men were taken to the Urus Martan military
commander's office and from there they were transferred to the
Urus-Martan VOVD, from where Mr L.M. and Mr I.M. were subsequently
released, but the whereabouts of Adam Makhashev have not been known
since ...”
52. On
27 June 2002 the investigators again questioned the second applicant,
who stated that his son and his two cousins, Mr L.M. and Mr I.M.,
had been detained at the checkpoint by the OMON servicemen and that
subsequently the detainees had been taken to the military commander's
office and that later on during the release Mr L.M. had noticed that
he had mistakenly been given Adam Makharbiyev's registration card.
The applicant provided the investigators with a
detailed description of the vehicles used to transport the detained
men from the checkpoint to the military commander's office, and
pointed out that on the day after the abduction the military
commander had confirmed to him that the servicemen had detained his
relatives at the checkpoint.
- On
the same date the investigators questioned the second applicant's
brother, Mr R.M., who stated that his sons had been detained at the
checkpoint together with Adam Makharbiyev.
- On
the same date the investigators questioned the applicants' neighbour
Mr A.B., who stated that he had heard that Adam Makharbiyev had been
taken away from the checkpoint, and provided a positive character
reference for him.
- On
24 July 2002 the investigators suspended the investigation in the
criminal case for failure to identify the perpetrators.
- On
9 August 2002 the investigators granted the first applicant victim
status in the criminal case but did not question her.
- On
30 May 2003 the investigators again questioned the second applicant's
brother, Mr R.M., who confirmed his previous statement.
- On
2 June 2003 the investigators questioned the first applicant, who
stated that in June 2001 she had learnt that Mr Akh.I. had been
detained with her son Adam Makharbiyev in the Chernokozovo detention
centre. She had spoken with him and found out that her son had been
detained in cell no. 24 and that the guards had given him the
nickname “Stariy” (Old). Mr Akh.I. had
identified Adam in the picture shown to him by the applicant. Several
months later the applicant had learnt that Mr Akh.I. had been killed.
The applicant also provided the investigators with a detailed
description of the circumstances under which a woman named Zara had
met her son Adam in the bus on his way to the Chernokozovo detention
centre.
- On
3 June 2003 the investigators questioned the head of the
administration, Mr Sh.Ya., who stated that he did not remember the
circumstances of his conversation with the second applicant (see
paragraph 48 above).
- On
13 June 2003 the investigators questioned the applicants' relative Mr
L.M., who stated that on 24 March 2001 he, his brother Mr I.M. and
his cousin Adam Makharbiyev had been detained by servicemen at the
checkpoint for an identity check. He and his brother Mr I.M. had been
put into an armoured URAL vehicle; he had seen Adam Makharbiyev
blindfolded and handcuffed. Adam had remained at the checkpoint and
Mr L.M. and Mr I.M. had been driven to Urus-Martan. On the way
there the brothers had also been blindfolded. About an hour later the
brothers had arrived at the ROVD, where they had been questioned
separately about their cousin Adam Makharbiyev. After that they had
been put into cells and on the following day questioned about Adam
again. A few days later Mr I.M. had been released, and a day
later the witness had been released as well. According to the
witness, he had collected his car, which had been taken away from him
at the checkpoint, from the district military commander's office.
- On
16 June 2003 the investigators questioned the applicants' relative Mr
I.M., whose statement about the abduction was similar to the one
given by his brother Mr L.M.
- On
28 June 2003 the investigators suspended the investigation in the
criminal case for failure to identify the perpetrators.
- The
investigation failed to establish the whereabouts of Adam
Makharbiyev. The investigating authorities sent requests for
information to the competent State agencies and took other steps to
have the crime resolved. The law-enforcement authorities of Chechnya
had never arrested or detained Adam Makharbiyev on criminal or
administrative charges, and therefore did not carry out a criminal
investigation in his respect.
- According
to the Government, at the Court's request they furnished the Court
with copies of the entire contents of the investigation file in
criminal case no. 25042 amounting to 46 pages.
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 Adam Makharbiyev had
not yet been completed. They further argued that it had been open to
the applicants to lodge court complaints about any acts or omissions
on the part of the investigating authorities, but that the applicants
had not availed themselves of that remedy. They also argued that it
had been open to the applicants to pursue civil complaints, but that
they had failed to do so.
67. The
applicants contested that objection. They stated that the criminal
investigation had proved to be ineffective, and argued that they were
not obliged to lodge civil claims 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 shortly after Adam
Makharbiyev was taken away from the checkpoint and that an
investigation has been pending since 14 April 2001. The applicants
and the Government dispute the effectiveness of the investigation of
the disappearance.
- 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
applicants complained under Article 2 of the Convention that their
relative had been detained and then deprived of his life by Russian
servicemen and that the domestic authorities had failed to carry out
an effective investigation of the matter. Article 2 reads:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. The parties' submissions
- The
Government contended that the domestic investigation had obtained no
evidence to the effect that Adam Makharbiyev was dead or that any
State servicemen had been involved in his disappearance or alleged
killing. The Government claimed that the investigation into the
abduction of Adam Makharbiyev met the Convention requirement of
effectiveness, as all measures available under national law were
being taken to identify the perpetrators.
- The
applicants argued that Adam Makharbiyev had been detained by State
servicemen and should be presumed dead, in the absence of any
reliable news of him for more than nine years. The applicants also
argued that the investigation had not met the effectiveness and
adequacy requirements laid down by the Court's case-law, by being
opened belatedly and failing to take even basic investigative steps.
The fact that the investigation had been pending for such a long
period of time without producing any known results was further proof
of its ineffectiveness. They also submitted that in spite of the
Government's submission to the contrary, the Government had provided
only some of the documents from the investigation file.
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 on 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 72 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 Adam Makharbiyev
(i) General principles
77. 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 individuals
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 the facts when there are disputed
versions of events, 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
applicants alleged that at about 5 p.m. on 24 March 2001 their
relative, Adam Makharbiyev, had been detained by military servicemen
at the checkpoint located on the road between Gekhi and Urus-Martan,
taken to the military commander's office, and had then disappeared.
They relied on their own accounts of the events and the witness
statements obtained by the domestic investigation.
- The
Government did not object to the applicants' statement concerning the
circumstances of the abduction and did not put forward their own
version of the events. At the same time the Government made a general
reference to the effect that Adam
Makharbiyev's abductors had been unidentified armed
men, who could easily have purchased the vehicles and military
uniforms, and that there was no evidence proving that the applicants'
relative was dead.
- The
Court notes that in their applications to the authorities the
applicants consistently, from the very first complaint, maintained
that Adam Makharbiyev had been detained by military servicemen at the
checkpoint and fruitlessly requested that the investigating
authorities look carefully into their allegations.
- The
Court observes that where an 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
applicants have made a prima facie case that their relative was
abducted by State servicemen. The Government's general statement that
the investigation had not found any evidence to support the
involvement of servicemen in the disappearance is insufficient to
discharge them from the above-mentioned burden of proof. The Court
finds that Adam Makharbiyev was taken away on 24 March 2001 by State
servicemen during an unacknowledged security operation.
- There
has been no reliable news of Adam Makharbiyev since the date of his
detention at the checkpoint. His name has not been found in any
official detention facility records. The Government have not
submitted any explanation as to what happened to him after his
arrest.
- Having
regard to the previous cases concerning disappearances in Chechnya
which have come before it (see, among many others, Bazorkina, cited
above; Imakayeva v. Russia, no. 7615/02, ECHR 2006 XIII
(extracts); 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 Chechen Republic, when a person is
detained by unidentified servicemen without any subsequent
acknowledgment of the detention, this situation can be regarded as
life threatening. The absence of Adam Makharbiyev or of any
reliable news of him for more than nine years supports this
assumption.
- Accordingly,
the Court finds that the evidence available permits it to establish
that Adam Makharbiyev must be presumed dead following his
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,
27 September 1995, §§ 146 147, Series A no.
324, and Avÿar v. Turkey, no. 25657/94, § 391,
ECHR 2001-VII (extracts)).
- The
Court has already established that the applicants' relative must be
presumed dead following his unacknowledged detention by State
servicemen. In the absence of any justification put forward by the
Government, the Court finds that his death can be attributed to the
State and that there has been a violation of Article 2 in respect of
Adam Makharbiyev.
(b) The alleged inadequacy of the
investigation of the kidnapping
- The
Court has on many occasions stated that the obligation to protect the
right to life under Article 2 of the Convention also requires by
implication that there should be some form of effective official
investigation when individuals have been killed as a result of the
use of force. It has developed a number of guiding principles to be
followed for an investigation to comply with the Convention's
requirements (for a summary of these principles see Bazorkina,
cited above, §§ 117-119).
- In
the present case, the kidnapping of Adam Makharbiyev was
investigated. The Court must assess whether that investigation met
the requirements of Article 2 of the Convention.
- The
Court has to assess the effectiveness of the investigation on the
basis of the documents submitted by the parties and the information
about its progress presented by the Government.
- The
Court notes that the applicants officially informed the authorities
about the abduction of Adam Makharbiyev at the latest on 31 March
2001. The investigation in case no. 25042 was instituted on 14 April
2001, that is twenty-one days after Adam Makharbiyev was taken away
from the checkpoint and fourteen days after the authorities had
officially been informed about it. Such a postponement per se
was liable to affect the investigation of the abduction in
life-threatening circumstances, where crucial action has to be taken
in the first days after the event. It appears that after that a
number of essential steps were either delayed or not taken at all.
For instance, the investigators questioned the key witnesses to the
abduction, Mr L.M. and Mr I.M., more than two years after the
commencement of the investigation (see paragraphs 60 and 61 above).
The investigation had not taken any steps to identify the servicemen
who had been manning the checkpoint on the date of Adam Makharbiyev's
abduction, nor did it question any of the servicemen at the military
commander's office or the VOVD who might have had information about
the fate of the disappeared man. In addition, no measures were taken
to question the district military commander about the whereabouts of
Adam Makharbiyev and his alleged absconding from the district
military commander's office (see paragraphs 31, 40 and 52 above) or
to obtain information from the Chernokozovo detention centre about
Adam Makharbiyev's alleged detention there (see paragraph 33, 41 and
58 above). It is obvious that these basic investigative measures, if
they were to produce any meaningful results, should have been taken
immediately after the crime was reported to the authorities, or as
soon as the investigation commenced and the relevant information was
received. Such delays, for which there has been no explanation in the
instant case, not only demonstrate the authorities' failure to act of
their own motion but also constitute a breach of the obligation to
exercise exemplary diligence and promptness in dealing with such a
serious crime (see Öneryıldız v. Turkey [GC],
no. 48939/99, § 94, ECHR 2004 XII).
- The
Court also notes that even though the first applicant was granted
victim status in the investigation concerning the abduction of her
son, she was not informed of any significant developments in the
proceedings. Accordingly, the investigators failed to ensure that the
investigation received the required level of public scrutiny, or to
safeguard the interests of the next of kin in the proceedings.
- Finally,
the Court notes that the investigation was suspended and resumed on
several occasions and that there were lengthy periods of inaction on
the part of the district prosecutor's office when no proceedings were
pending
- The
Government argued that the applicants could have sought judicial
review of the decisions of the investigating authorities in the
context of the exhaustion of domestic remedies. The Court observes
that the applicants, having no access to the case file and not being
properly informed of the progress of the investigation, could not
have effectively challenged acts or omissions of investigating
authorities before a court. Furthermore, the Court emphasises in this
respect that while the suspension or reopening of proceedings is not
in itself a sign that the proceedings are ineffective, in the present
case the decisions to suspend the investigation were made without the
necessary steps being taken, which led to numerous periods of
inactivity and thus unnecessary protraction. Moreover, owing to the
time that had elapsed since the events complained of, certain
investigative measures that ought to have been carried out much
earlier could no longer usefully be taken. Therefore, it is highly
doubtful that the remedy relied on would have had any prospects of
success. Accordingly, the Court finds that the remedy cited by the
Government was ineffective in the circumstances and dismisses their
preliminary objection as regards the applicants' failure to exhaust
domestic remedies within the context of the criminal investigation.
- In
the light of the foregoing, the Court holds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the disappearance of Adam Makharbiyev, 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
(a) 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 observes that the question as to whether a
member of the family of a “disappeared person” is a
victim of treatment contrary to Article 3 will depend on the
existence of special factors which give the suffering of the
applicants a dimension and character distinct from the emotional
distress which may be regarded as inevitably caused to relatives of a
victim of a serious human rights violation. Relevant elements will
include the proximity of the family tie, the particular circumstances
of the relationship, the extent to which the family member witnessed
the events in question, the involvement of the family member in the
attempts to obtain information about the disappeared person and the
way in which the authorities responded to those enquiries. The Court
would further emphasise that 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. It
is especially in respect of the latter that a relative may claim
directly to be a victim of the authorities' conduct (see Orhan,
cited above, § 358).
- In
the present case the Court notes that the first and second applicants
are the parents of the missing person, the third applicant is his
wife, and the fourth and fifth applicants are his children. It is
noteworthy that it was the first, second and third applicants who
lodged petitions and enquiries with the domestic authorities in
connection with their relative's disappearance and dealt with the
investigators. It is quite natural that the fourth applicant, who was
two years old at the time of his father's disappearance and the fifth
applicant, who was born shortly after the events, did not participate
in any manner in the search for Adam Makharbiyev (see, by contrast,
Luluyev and Others, cited above, § 112). In the
light of these circumstances, the Court, while accepting that the
fact of being raised without their father would be a source of
continuing distress for these applicants, cannot assume that the
mental anguish they experienced on account of Adam Makharbiyev's
disappearance and the authorities' attitude towards that incident was
distinct from the inevitable emotional distress such a situation
would entail, and that it was serious enough to fall within the ambit
of Article 3 of the Convention (see, mutatis mutandis, Nenkayev
and Others v. Russia, no. 13737/03, § 168, 28 May 2009,
and Musikhanova and Others v. Russia, no. 27243/03, § 81,
4 December 2008).
- As
regards the first, second and third applicants, for more than nine
years they have not had any news of the missing man. During this
period they have made enquiries to various official bodies, both in
writing and in person, about their missing relative. Despite their
attempts, they have never received any plausible explanation or
information about what became of him 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.
- In
view of the above, the Court finds that the first, second and third
applicants suffered, and continue to suffer, distress and anguish as
a result of the disappearance of their relative Adam Makharbiyev and
their inability to find out what happened to him. The manner in which
their complaints have been dealt with by the authorities must be
considered to constitute inhuman treatment contrary to Article 3.
- The
Court therefore concludes that there has been a violation of Article
3 of the Convention in respect of the first, second and third
applicants, and no violation of this provision in respect of the
fourth and fifth applicants.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants further stated that Adam Makharbiyev 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 Adam Makharbiyev 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 (a) 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 Adam Makharbiyev was
abducted by State servicemen on 24 March 2001 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 Adam Makharbiyev 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 had had an opportunity to challenge the actions or
omissions of the investigating authorities in court and could also
claim damages in civil proceedings. In sum, the Government submitted
that there had been no violation of Article 13.
- The
applicants reiterated the complaint.
B. The Court's assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) 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. Pecuniary damage
- The
applicants claimed damages in respect of loss of earnings by their
relative after his arrests and subsequent disappearance. The first
applicant, as the mother of Adam Makharbiyev, claimed a total of
182,504 Russian roubles (RUB) (4,390 euros (EUR)); the second
applicant, as his father, claimed a total of RUB 168,405 (EUR 4,050);
the third applicant, as his wife, claimed a total of RUB 398,108 (EUR
5,570); the fourth applicant, as his son, claimed a total of RUB
85,244 (EUR 2,050) and the fifth applicant, as his daughter, claimed
a total of RUB 100,952 (EUR 2,430). The aggregated amount of the
applicants' claim under this heading was EUR 18,490.
- The
applicants submitted that Adam Makharbiyev had been unemployed at the
time of his arrest, and that in such cases the calculation should be
made on the basis of the subsistence level established by national
law. They calculated his earnings for the period, taking into account
an average inflation rate of 13.44%. Their calculations were also
based on the actuarial tables for use in personal injury and fatal
accident cases published by the United Kingdom Government Actuary's
Department in 2007 (“Ogden tables”).
- The
Government regarded these claims as based on supposition and
unfounded. They also pointed to the existence of domestic statutory
machinery for the provision of a pension for the loss of the family
breadwinner.
- The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicants and the violation of the
Convention, and that this may in appropriate cases include
compensation in respect of loss of earnings. The Court further finds
that loss of earnings also applies to dependent children and, in some
instances, to elderly parents, and that it is reasonable to assume
that Adam Makharbiyev would eventually have had some earnings from
which the applicants would have benefited (see, among other
authorities, Imakayeva, cited above, § 213). Having
regard to its above conclusions, it finds that there is a direct
causal link between the violation of Article 2 in respect of the
applicants' relative and the loss by the applicants of the financial
support which he could have provided. Having regard to the
applicants' submissions and the fact that Adam Makharbiyev was not
employed at the time of his abduction, the Court awards EUR 7,000
to the first and second applicants jointly and EUR 10,000 to the
third, fourth and fifth applicants jointly in respect of pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Non-pecuniary damage
- The
applicants claimed jointly EUR 1,500,000 in respect of
non pecuniary damage for the suffering they had endured as a
result of the loss of their family member, the indifference shown by
the authorities towards them and the authorities' failure to provide
any information about the fate of their close relative.
- The
Government found the amounts claimed exaggerated.
- The
Court has found a violation of Articles 2, 5 and 13 of the Convention
on account of the unacknowledged detention and disappearance of the
applicants' relative. The first, second and third applicants 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 applicants jointly EUR 60,000,
plus any tax that may be chargeable thereon.
C. The applicant's request for an investigation
- The applicants also requested, referring to Article
41 of the Convention, that an independent investigation, which would
comply with the requirements of the Convention, be conducted into
their relative's disappearance. They relied in this connection on the
case of Assanidze v. Georgia ([GC], no. 71503/01,
§§ 202-203, ECHR 2004-II).
- The
Court notes that in Kukayev v. Russia, no. 29361/02,
§§ 131 34, 15 November 2007, in comparable
circumstances, the Court decided that it was most appropriate to
leave it to the respondent Government to choose the means to be used
in the domestic legal order in order to discharge their legal
obligation under Article 46 of the Convention. The Court does not see
any exceptional circumstances which would lead it to reach a
different conclusion in the present case.
D. Costs and expenses
- The
applicants were represented by the SRJI. They submitted an itemised
schedule of costs and expenses that included research and interviews
in Ingushetia and Moscow, at a rate of EUR 50 per hour for the work
in the area of exhausting domestic remedies and of EUR 150 per hour
for the drafting of submissions to the Court. The aggregate claim in
respect of costs and expenses related to the applicants' legal
representation amounted to EUR 5,607.
- The
Government did not dispute the reasonableness of and justification
for the amounts claimed under this heading.
- The
Court has to establish first whether the costs and expenses indicated
by the applicants' representatives were actually incurred and,
second, whether they were necessary (see McCann and Others v. the
United Kingdom, 27 September 1995, § 220, Series A no. 324).
- Having
regard to the details of the information and legal representation
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 were necessary, the Court notes
that this case was rather complex and required a certain amount of
research and preparation. It notes at the same time, that due to the
application of the former Article 29 § 3 in the present case,
the applicants' representatives submitted their observations on
admissibility and merits in one set of documents. The Court thus
doubts that legal drafting was necessarily time-consuming to the
extent claimed by the representatives.
- Having regard to the details of the claims submitted
by the applicants, the Court awards them the amount of EUR 4,500
together with any value-added tax that may be chargeable to the
applicants, the net award to be paid into the representatives' bank
account in the Netherlands, as identified by the applicants.
E. 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 complaints under Articles 2, 3, 5
and 13 of the Convention admissible;
- Holds that there has been a substantive
violation of Article 2 of the Convention in respect of Adam
Makharbiyev;
- 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 Adam
Makharbiyev disappeared;
5. Holds
that there has been a violation of Article 3 of the Convention
in respect of the first, second and third applicants on account of
their mental suffering;
- Holds
that there has been no violation of Article 3 of the Convention
in respect of the fourth and fifth applicants;
- Holds
that there has been a violation of Article 5 of the Convention
in respect of Adam Makharbiyev;
- Holds that there has been a violation of
Article 13 of the Convention in conjunction with Article 2 of
the Convention;
- 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 on the date of settlement, save in the case of the
payment in respect of costs and expenses:
(i) EUR 7,000
(seven thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage to the first and second applicants
jointly;
(ii) EUR 10,000
(ten thousand euros), plus any tax that may be chargeable, in respect
of pecuniary damage to the third, fourth and fifth applicants
jointly;
(iii) EUR 60,000
(sixty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the applicants jointly;
(iv) EUR 4,500
(four thousand five hundred euros), plus any tax that may be
chargeable to the applicants, in respect of costs and expenses, to be
paid into the representatives' bank account in the Netherlands;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants'
claim for just satisfaction.
Done in English, and notified in writing on 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
