FIRST SECTION
CASE OF
UMAROVA AND OTHERS v. RUSSIA
(Application no.
25654/08)
JUDGMENT
STRASBOURG
31 July 2012
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 Umarova 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,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges
and Søren Nielsen, Section Registrar,
Having deliberated in private on 10 July 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
25654/08) 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 the six Russian nationals listed below (“the
applicants”), on 14 April 2008.
The applicants were represented by Mr D.
Itslayev, a lawyer practising in Grozny. The Russian
Government (“the Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of Human Rights.
The applicants alleged, in particular, that their
relative had been abducted by State agents and that the authorities had failed
to effectively investigate the incident. They cited Articles 2, 3, 5 and 13 of
the Convention.
On 22 April 2010 the Court decided to apply Rule 41 of the Rules of Court and to grant
priority treatment to the application. On the same date it decided to
give notice of the application to the Government. Under the provisions of former
Article 29 § 3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants are:
(1) Ms Aset Umarova, who was born in
1959;
(2) Ms Laura Alkhastova, who was
born in 1981;
(3) Ms Luiza Umarova, who was born
in 1983;
(4) Mr Ibragim Umarov, who was born
in 1987;
(5) Mr Said-Ibragim (also spelled as
Sayd-Ibragim) Umarov, who was born in 1991; and
(6) Ms Larisa Umarova, who was born
in 1985.
The applicants live in Achkhoy-Martan, Chechnya. The first applicant is the wife of Khamzat Umarov, who was born in 1956; the second,
third, fourth, fifth and sixth applicants are his children.
A. Abduction of the applicants’ relative
and subsequent events
1. Information
submitted by the applicants
(a) Abduction of
Khamzat Umarov
At the material time Achkhoy-Martan was under the
full control of federal military forces. Checkpoints were located on the roads
leading to and from the settlement. The area was under curfew. Military units
of the 58th Russian army were stationed in the fields next to Achkhoy-Martan.
At the time, Khamzat Umarov was working as the head of the State Roads Administration
in Achkhoy-Martan.
On the night of 29 July 2001 (in the documents submitted
the date was also referred to as 30 July and 31 July 2001) the applicants and
Khamzat Umarov were at home, at 29 Sadovaya Street in Achkhoy-Martan. That
night the applicants’ friend, Mr S.I., who worked for the Danish Refugee
Council, also stayed at the house.
At about 4 a.m. on 30 July 2001 the first
applicant was woken up by a noise coming from outside. She heard what sounded like
someone trying to quietly open the gates to their yard. When the applicant
asked in Chechen: ‘Who’s there?’ she heard no response. Then her husband,
Khamzat Umarov, looked out from the window and told her that there were
Russians with flashlights.
The men outside demanded that the applicants open
the gates. The first applicant told them that they would wake up the children
and asked them to return in the morning. In response, the men forced the gates open
and a group of about twenty to twenty-five men in camouflage uniforms rushed into
the yard. Approximately fifteen men ran into the house. The rest remained
outside. Some of them went into the yard of the applicants’ neighbours, the
family of Ms R.Z., and ordered the neighbours to stay inside. Some men remained
in the street and kept ordering other neighbours to get back inside.
All of the intruders were equipped with
flashlights and armed with automatic weapons (винторез).
They forced the applicants into different rooms; two of them guarded the first applicant.
Some of the men were wearing masks; those without masks were of Slavic
appearance. The men spoke unaccented Russian. The applicants thought that they
were Russian military servicemen.
After breaking into the house the intruders
talked amongst themselves about their search for ‘two men’. The first applicant
thought that the officers were talking about her husband and Mr S.I. After the servicemen
found the room which the two men were in, they rushed into it and searched it
for five or six minutes. After that the servicemen took Khamzat Umarov and Mr
S.I. outside. The first applicant followed them. Two UAZ vehicles were parked
in the street. One of the vehicles had an antenna and a portable radio
transmitter on the roof. The officers put Khamzat Umarov in one of the cars,
but left Mr S.I. behind. Immediately afterward both cars drove away in the
direction of Lenina Street, where the Achkhoy-Martan District Department of the
Interior (“the ROVD”), the Achkhoy-Martan Temporary District Department of the Interior
(“the VOVD”) and the Achkhoy-Martan Department of the Federal Security Service
(“the FSB”) were situated at the time.
Mr S.I., who had been left by the abductors in
the street, returned to the house and told the applicants that the abductors
had threatened to shoot him if he followed them.
(b) The subsequent
events
Immediately after the abductors were gone, the
first applicant managed to call the VOVD. An officer there told her to call the
ROVD and gave her their number. Then the first applicant called the ROVD and
informed the officers there of the abduction. The officers told her that there
was no need to worry, as Khamzat Umarov was not the only man who had been detained
that night. After that, the applicant was told to come to the ROVD in the
morning as the area was under curfew at night.
In the morning the first applicant told her
husband’s relatives about what had happened and they went together to the ROVD,
where they were told that Khamzat Umarov had not been arrested by their
officers and that he was not detained on their premises. On the same day, 30
July 2001, the applicants lodged written complaints about the abduction of
Khamzat Umarov to a number of local law-enforcement agencies, including the
ROVD, the FSB and the Achkhoy-Martan Inter-District Prosecutor’s Office (“the
district prosecutor’s office”).
On 31 July 2001 a number of residents of
Achkhoy-Martan gathered in front of the FSB’s office. They blocked the road and
demanded to speak with the officials. At some point the head of the office came
out from the building and spoke with the crowd. He told the applicants and
their fellow villagers that Khamzat Umarov must have been taken away by
officers of the 58th Russian army, whose units were stationed in the fields
next to the settlement. The officer promised the crowd that he would find out
Khamzat Umarov’s whereabouts.
After that, the head of the Achkhoy-Martan District
administration, Mr B., and the head of the ROVD, officer K., arrived at the FSB’s
premises and asked the residents to go home. Having spent two days next to the
FSB building, the crowd left on 1 August 2001.
About a month later a group of employees of the
Danish Refugee Council visited the applicants’ home together with a number of
journalists.
Within a certain period of time, starting from
the end of August 2001, military servicemen searched the applicants’ house on
several occasions.
On 22 November 2001 military servicemen took
away Khamzat Umarov’s brother, Mr Ramzan Umarov, who has not been seen since.
In support of their
application the applicants submitted the following documents: a
statement by the first applicant dated 16 September 2008; three statements by
the applicants’ neighbours, Ms L. Kh., Ms R. Zh. and Ms R. G., all dated 28
July 2008; and copies of the documents received from the authorities.
2. Information
submitted by the Government
. The
Government did not challenge the version of events presented by the applicants.
At the same time, they stated that no special operations had been
carried out in Achkhoy-Martan between 29 and 30 July 2001.
B. The official
investigation into the abduction
On 30 July 2001 the first applicant complained
about the abduction to the district prosecutor’s office. In her complaint she
stated that the abductors had been in camouflage uniforms and masks, that they
had spoken unaccented Russian and had threatened her and her children with
firearms.
On 10 August 2001 the district prosecutor’s
office informed the applicants that their inquiry had established that Khamzat
Umarov had not been arrested by local law-enforcement agencies and that he was
not detained in the local temporary detention centre.
On 28 August and 10 September 2001 the Chechnya prosecutor’s office forwarded the applicants’ complaint about the abduction to the
district prosecutor’s office for examination.
On 4 and 14 September 2001 the district
prosecutor’s office instructed the VOVD to take operational-search measures to
establish the whereabouts of Khamzat Umarov.
On 9 September 2001 investigators from the VOVD
questioned the applicants’ neighbour, Mr A., who stated that on the morning of
30 July 2001 he had found out that Khamzat Umarov had been abducted by military
servicemen earlier the same morning.
On 9 September 2001 the investigators questioned
the first applicant, who described the circumstances of her husband’s abduction
by military servicemen.
On 25 January 2002 (in the documents submitted the
date was also referred to as 2 and 28 January 2002) the district prosecutor’s
office instituted an investigation into the abduction of Khamzat Umarov under
Article 127 § 2 of the Criminal Code (unlawful deprivation of liberty).
From 27 April 2002 onwards, the investigation was based on Article
126 § 2 of the Criminal Code (aggravated abduction). The case file
was given the number 63008.
On 25 January and then on 8 February 2002 the
investigators again questioned the first applicant, who provided a detailed
description of the abduction and stated that the abductors had been armed with
machine guns, had spoken unaccented Russian and that some of them had worn masks.
On 28 January 2002 the investigators questioned another
of Khamzat Umarov’s brothers, Mr Ru. Umarov, who stated that he had not
witnessed the abduction and had learnt about it from his relatives.
On 26 February 2002 the first applicant was
granted victim status in the criminal case.
On 6 March 2002 the Zavodskoy and the
Oktyabrskiy ROVD in Grozny and the Grozny ROVD informed the investigators that
they did not have information concerning either Khamzat Umarov’s whereabouts or
his detention on their premises.
On 25 March 2002 the investigators suspended the
investigation of the criminal case for failure to identify the perpetrators.
The applicants were not informed thereof.
Between March 2002 and March 2005 the
investigation of the criminal case was suspended.
On 28 March 2005 the supervising prosecutor
ordered that the investigation be resumed as the investigators had failed to
take basic steps, including verification of the involvement of military
servicemen in the abduction, identification of the abductors’ vehicles and
questioning of witnesses to the events. The applicants were not informed of this
decision.
On 29 March 2005 the investigators examined the
crime scene. No evidence was collected.
Between the end of March and the end of April
2005 the investigators questioned twenty of the applicants’ neighbours and
relatives, all of whom gave similar statements to the effect that in the summer
of 2001 Khamzat Umarov had been abducted by armed masked men and that later, in
the autumn of 2001, his brother Ramzan had been also taken away by unidentified
perpetrators; neither of them had returned home.
On 28 April 2005 the investigators suspended the
investigation of the criminal case for failure to identify the perpetrators.
The applicants were informed thereof.
On 10 September 2007 the supervising prosecutor
criticised the investigation, stating that it was incomplete, and ordered that
it be resumed owing to the need to take investigative steps. On 19 September
2007 the investigation was resumed.
On 24 September 2007 the investigators again
granted the first applicant victim status in the criminal case and questioned
her. A copy of her statement was not furnished by the Government.
On 17 October 2007 the investigators again questioned
the brother of Khamzat Umarov, Mr Ru. Umarov, who reiterated his previously
given statement.
On 19 October 2007 the investigation was again suspended
for failure to identify the perpetrators. The applicants were informed thereof.
On 17 March 2008 the supervising prosecutor
criticised the investigation, stating that it was incomplete, and ordered its
resumption owing to the need to take investigative steps.
On 20 April 2008 the investigation of the
criminal case was again suspended for failure to identify the perpetrators. The
applicants were informed thereof.
On 1 June 2008 the supervising prosecutor
criticised the investigation, stating that it was incomplete, and ordered that
it be resumed owing to the need to take investigative steps.
On 20 June 2008 the investigators again questioned
the brother of Khamzat Umarov, Mr Ru. Umarov, who reiterated his previously
given statements.
On the same date the investigators asked the
Chechnya FSB to inform them whether they had any information about Khamzat
Umarov and whether he had been suspected of membership in illegal armed groups.
A reply in the negative was received.
On 25 June 2008 the investigators questioned the
head of the criminal search division of the Achkhoy-Martan ROVD, Mr S.-M. Sh.,
who stated that he had no information about the whereabouts of Khamzat Umarov
and that the latter had not been involved in a blood feud or suspected of
illegal activities.
On 1 July 2008 the investigation of the criminal
case was again suspended for failure to identify the perpetrators. The
applicants were informed thereof.
On 21 January 2009 the supervising prosecutor
criticised the investigation, stating that it was incomplete, and ordered that
it be resumed owing to the need to take investigative steps.
On 10 February 2009 the investigators questioned
Mr S.Kh., who stated that in 2001 he had been the head of the Achkhoy-Martan
village administration. The witness denied that in 2001 the head of the Achkhoy‑Martan
VOVD had confirmed to him that Khamzat Umarov had been detained on their
premises for questioning.
On 17 February 2009 the investigators again questioned
the brother of Khamzat Umarov, Mr Ru. Umarov, who reiterated his previously
given statements.
On 21 February 2009 the investigation of the
criminal case was again suspended for failure to identify the perpetrators. The
applicants were informed thereof.
On various dates
between 2002 and 2008 the investigators forwarded a number of information
requests to various law-enforcement agencies and hospitals, asking whether
Khamzat Umarov had sought medical help, whether his corpse had been discovered
in their districts, whether he had crossed state borders and whether the
agencies had information about his whereabouts or detention on their premises.
Replies in the negative were received.
The materials
submitted indicate that the investigation of Khamzat Umarov’s disappearance has
been suspended on at least six occasions and subsequently resumed due to the
investigators’ failure to take necessary steps. It has not been completed to
date. The applicants have not been informed of the progress of the criminal proceedings
other than of their suspension and reopening.
In reply to a request made by the Court, the
Government furnished the partial contents of criminal case no. 63008, running
to 534 pages. The copies of the documents provided had double numbering. According
to the applicants, the Government failed to submit a copy of a number of important
witness statements proving their allegations. The applicants also expressed
their doubts as to the authenticity of the witness statements allegedly made by
their neighbours and fellow villagers, submitting that those individuals had
not resided at the addresses indicated by the investigators (see paragraph 37 above).
The Government did not comment on this part of the applicants’ submissions.
C. Proceedings
against the investigators
On 1 April 2008 the applicants complained to the
Achkhoy-Martan District Court (“the district court”) of a lack of effective
investigation of the criminal case. They argued that Khamzat Umarov had been
abducted by federal military servicemen and that the six-year investigation of
his kidnapping had failed to produce any results. The applicants asked the
court to order an effective and thorough investigation, and to order the resumption
of the proceedings and the taking of necessary investigative measures.
On 10 April 2008 the district court refused to
examine the applicants’ complaint, stating that on 17 March 2008 the district
prosecutor’s office had resumed the investigation of the criminal case.
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. EXHAUSTION OF DOMESTIC REMEDIES
A. The parties’ submissions
The Government contended that the complaint
should be declared inadmissible as premature, as the investigation of the
disappearance of Khamzat Umarov had not yet been completed. They further argued, in relation to the complaint under
Article 13 of the Convention, that it had been open to the applicants to lodge
complaints with the courts about any acts or omissions on the part of the
investigating authorities. They could also have claimed civil damages.
The applicants contested
the Government’s submission, stating that the only supposedly effective remedy,
the criminal investigation, had proved to be ineffective.
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 as a result of illegal acts or unlawful conduct on the part of
State agents, the Court has already found in a number of similar cases that
this procedure alone cannot be regarded as an effective remedy in the context
of claims brought under Article 2 of the Convention (see Khashiyev and
Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24
February 2005). 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 remedies provided for by the
Russian legal system, the Court observes that the applicants complained to the
law‑enforcement authorities after the disappearance of Khamzat Umarov and
that an investigation has been pending since 25 January 2002. The applicants
and the Government dispute the effectiveness of the investigation of Khamzat
Umarov’s 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. THE COURT’S
ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS
A. The parties’ arguments
The Government contended that the
domestic investigation had obtained no evidence to the effect that Khamzat
Umarov was dead or that any representatives of law-enforcement agencies had
been involved in his disappearance. They stressed that the applicants’ relative
could have been abducted by members of illegal armed groups impersonating State
servicemen and that the applicants had been inconsistent in their descriptions
of the abductors’ appearance and their vehicles. The Government further claimed
that the investigation into his disappearance had met the Convention
requirement of effectiveness.
The applicants argued that Khamzat
Umarov had been abducted by State agents and that he had subsequently
disappeared. They further submitted that he should be presumed dead in the
absence of any reliable news of him for more than ten years. In particular,
they pointed out that Khamzat Umarov had been detained by a large group of
armed men in camouflage uniforms who had arrived at his home late at night,
which indicated that they had been able to circulate freely during a curfew and
to pass through military checkpoints. The applicants stressed that the
authorities had taken no urgent steps whatsoever to identify the persons who
had carried out the abduction and submitted that the investigators had failed
to advance any other theories concerning the abductors’ identities that would
contradict their submission that they had been agents of State authorities.
B. The Court’s evaluation of the facts
The Court points out that a number of principles
have been developed in its case-law as regards applications in which it is
faced with the task of establishing facts on which the parties disagree. As to facts
in dispute, the Court reiterates its jurisprudence requiring a standard of
proof “beyond reasonable doubt” in its assessment of evidence (see Avşar
v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). Such
proof may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact. In this
context, the conduct of the parties when evidence is being obtained has to be
taken into account (see Taniş and Others v. Turkey, no. 65899/01, §
160, ECHR 2005‑VIII).
The Court is sensitive to the subsidiary nature
of its role and recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered unavoidable by the
circumstances of a particular case (see, for example, McKerr
v. the United Kingdom (dec.), no. 28883/95, 4 April 2000).
Nonetheless, where allegations are made under Articles 2 and 3 of the
Convention, the Court must apply a particularly thorough scrutiny (see, mutatis
mutandis, Ribitsch
v. Austria, 4 December 1995, § 32, Series A no. 336,
and Avşar,
cited above, § 283), even if certain domestic proceedings and investigations
have already taken place.
Bearing in mind the principles referred to
above, the Court will proceed to examine aspects of the present case that will
be crucial in deciding whether any responsibility for deprivation of the life
of the applicants’ relative can be attributed to the authorities.
The applicants alleged that Khamzat Umarov had
been abducted on 30 July 2001 by State servicemen and subsequently killed. The
Government neither disputed the version of events presented by the applicants
nor provided any explanation of the matter other than stating that there was no
reliable information concerning the arrest of Khamzat
Umarov by representatives of the authorities.
The Court notes that little evidence has been
submitted by the applicants in support of their application. Nevertheless, the
Court notes that in addition to the documents enclosed with their submission,
the applicants’ allegation is supported by witness statements collected by the
investigation into the abduction, which also accepted the version of events
presented by the applicants and took steps to verify the allegation that Khamzat
Umarov had been arrested by servicemen (see paragraphs 23, 26-27, 29, 32, 35,
37 and 48 above). However, it does not appear that those steps were able to
yield a tangible result.
The Court observes that where an applicant makes
out a prima facie case, it is for the Government 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 the above into account, the Court is
satisfied that the applicants have made out a prima facie case that their
relative was abducted by State agents. The Government’s statement that the
investigators had not found any evidence proving the involvement of State
servicemen in Khamzat Umarov’s disappearance is insufficient to discharge them
from the above-mentioned burden of proof. Having examined the documents
submitted by the parties, and drawing inferences from the Government’s failure
to provide another plausible explanation for the events in question, the Court
finds that Khamzat Umarov was arrested on 30 July 2001 by State servicemen.
There has been no reliable news of Khamzat
Umarov since the date of his arrest. The Government have not submitted any
explanation as to what happened to him afterwards.
The Court finds that when a person is detained
by unidentified servicemen without any subsequent acknowledgment of the
detention and is then missing for a number of years, that situation can be
regarded as life‑threatening. The absence of Khamzat Umarov or of any
news of him for more than ten years supports this assumption.
Accordingly, the Court finds that the evidence
available permits it to establish to the requisite standard of proof that Khamzat
Umarov must be presumed dead following his unacknowledged detention by State agents.
III. ALLEGED
VIOLATION OF ARTICLE 2 OF THE CONVENTION
The applicants complained under Article 2 of the
Convention that their relative Khamzat Umarov had been deprived of his life by 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. The parties’ submissions
The Government contended that the
domestic investigation had obtained no evidence to the effect that Khamzat
Umarov was dead or that any State agents had been involved in his abduction.
The Government further claimed that the investigation into his disappearance had
met the Convention requirement of effectiveness, as all possible measures
available under national law were being taken to have the crime solved.
The applicants argued that Khamzat
Umarov had been abducted by State representatives and that he had subsequently
disappeared, and that he should be presumed dead because he had been missing
for more than ten years. The applicants also argued that the investigation of
the abduction had been ineffective. In particular, they alleged that the
authorities had failed to take any urgent steps to follow up on the information
submitted by the applicants immediately after the abduction, the criminal proceedings
had only been initiated after a delay of more than five months and the crime
scene had only been examined about four years after the incident. They also stressed
that the investigators had not taken any steps to identify the abductors’
vehicles or to identify and question any officials responsible for the observance
of the curfew in order to identify which power structures had been given
permission to drive freely in the area on the night of the abduction.
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 issue concerning the exhaustion
of domestic remedies should be joined to the merits of the complaint (see
paragraph 66 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
Umarov
The Court has already found that the applicants’
relative must be presumed dead following unacknowledged detention by State agents.
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 the substantive aspect of Article 2 in respect of Khamzat Umarov.
(b) The alleged inadequacy of the investigation of Khamzat
Umarov’s disappearance
(i) General
principles
The obligation to protect the right to life under Article 2 of the Convention
requires that there should be some form of effective official investigation
(see McCann and Others v. the United Kingdom, 27 September
1995, § 161, Series A no. 324). It is necessary for the persons
responsible for and carrying out the investigation to be independent from those
implicated in the events (see, for example, Güleç v. Turkey, 27 July 1998, §§ 81-82, Reports of Judgments and Decisions 1998‑IV,
and Ögur v. Turkey [GC], no. 21954/93, §§ 91-92, ECHR
1999-III).
The authorities must act of their own motion once the matter has come to
their attention: they cannot leave it to the initiative of the next of kin
either to lodge a formal complaint or to take responsibility for the conduct of
any investigatory procedures (see, for example, mutatis mutandis, İlhan
v. Turkey [GC] no. 22277/93, § 63, ECHR 2000‑VII).
In this context, there must also be an implicit
requirement of promptness and reasonable expedition (see Yaşa v. Turkey, 2 September 1998, §§ 102-104, Reports 1998-VI, and Çakici
v. Turkey, 8 July 1999, §§ 80, 87, 106, Reports 1999-IV).
It must be accepted that there may be obstacles or difficulties which prevent
progress in an investigation of a particular situation. However, a prompt
response by the authorities may generally be regarded as essential in
maintaining public confidence in the rule of law and in preventing any
appearance of collusion in, or tolerance of, unlawful acts.
The investigation must also be effective in the
sense that it is capable of leading to the identification and punishment of
those responsible (see Ögur, cited above, § 88). This is not an
obligation of result, but of means. The authorities must have taken the
reasonable steps available to them to secure the evidence concerning the
incident (see, for example, Salman v. Turkey [GC], no.
21986/93, § 106, ECHR 2000‑VII, and Tanrikulu v. Turkey
[GC], no. 23763/94, § 109, ECHR 1999-IV). Any deficiency in the
investigation which undermines its ability to establish the identity of the
person(s) responsible will risk falling below this standard.
In addition, there must be a sufficient element
of public scrutiny of the investigation or its results to ensure accountability
in practice as well as in theory. The degree of public scrutiny required may
well vary from case to case. In all cases, however, the next of kin of the
victim must be involved in the procedure to the extent necessary to safeguard
his or her legitimate interests (see McKerr, cited above, § 115).
(ii) Application of
the above principles to the present case
In the present case, the abduction of Khamzat
Umarov was investigated. The Court must assess whether that investigation met
the requirements of Article 2 of the Convention.
The Court notes
that the applicants reported the abduction to the authorities immediately after
the incident (see paragraph 22 above). The official investigation was only initiated
on 25 January 2002 – almost six months after the receipt of the applicants’
complaint. From the very beginning, the applicants alleged that their relative
had been arrested by military servicemen (see paragraphs 22-23 and 27 above). Despite
the fact that they received this information immediately, the investigators
neither examined the crime scene at the place of arrest, nor checked the
registration log of detainees held by the military unit who had allegedly taken
the applicants’ relative (see paragraphs 15-16 above), nor did they follow up
on the information relating to the perpetrators’ identities which was given to them
by the applicants’ neighbour (see paragraph 26 above) or could have been
provided by the local residents (see paragraphs 15 and 16).
Furthermore, from the documents submitted it is
evident that on several occasions – in March 2005, in September 2007, March and
June 2008 and then in January 2009 – the supervising prosecutors criticised the
investigators for failure to take important investigative actions (see
paragraphs 35, 39, 43, 45 and 50 above) and ordered that remedial measures be
taken, which instructions were not complied with. In the absence of any
explanations for the above shortcomings, the Court concludes that the
authorities failed to demonstrate diligence and promptness in dealing with such
a serious matter (see Öneryıldız
v. Turkey [GC],
no. 48939/99, § 94, ECHR 2004-XII).
As regards the overall conduct of the
proceedings, the Court notes that after having been opened on 25 January 2002
the investigation was suspended on several occasions. Each time, the
investigation was stayed without the necessary actions being taken, and each
time it was resumed, either following criticism by supervising prosecutors or
because it was necessary to take investigative actions. These premature
suspensions, in a situation in which vital steps had not been taken by the
investigators, undermined the investigators’ ability to identify and punish the
perpetrators (see Ögur, cited above, § 88).
Turning to the requirement of public scrutiny,
the Court notes that even though the first applicant was for some reason twice
granted victim status in the criminal case (see paragraphs 31 and 40 above), it
does not appear that she and the other applicants were duly informed by the
authorities about the progress of the proceedings, other than of their
suspension and resumption.
The Government argued that the first applicant
had been granted victim status in the criminal case, and therefore that the
applicants could have sought judicial review of the decisions of the investigators
as part of the exhaustion of domestic remedies. The Court observes that the
applicants, not being properly informed of the progress of the investigation,
could not have effectively challenged acts or omissions of the investigating
authorities before a court. Therefore, it is highly doubtful that the remedy
relied on would have had any prospects of success. Accordingly, the Court finds
that this remedy was ineffective in the circumstances, and dismisses the issue of
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 Khamzat Umarov, in
breach of Article 2 in its procedural aspect.
IV. 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 this allegation,
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 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 v. Russia, no. 7615/02, § 164, ECHR 2006‑XIII
(extracts)).
In the present case the Court notes that the
applicants are the wife and children of the disappeared person. For more than ten
years they have not had any news of their missing relative. During this period
the applicants have made enquiries of 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 arrest. 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.
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE
CONVENTION
The applicants submitted that Khamzat Umarov
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 Umarov
had been arrested or detained by law-enforcement authorities.
The applicants reiterated their
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,
no. 25704/94, § 164, 27 February 2001, and Luluyev and Others v.
Russia, no. 69480/01, § 122, ECHR 2006‑XIII (extracts)).
The Court has found that Khamzat Umarov was arrested
by State servicemen on 30 July 2001 and has not been seen since. His arrest was not acknowledged, was not logged in any custody records
and no official trace of his subsequent whereabouts or fate exists. 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, to 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
Umarov 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.
VI. 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. The applicants had had the opportunity to challenge the
acts or omissions of the investigating authorities in court and could also have
claimed 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 a disappearance has been
ineffective and the effectiveness of any other remedy that might have existed,
including civil remedies suggested by the Government, has consequently been
undermined, the State has failed in its obligation under Article 13 of the
Convention (see Khashiyev and Akayeva, cited above, § 183).
Consequently, there has been a violation of
Article 13 in conjunction with Article 2 of the Convention.
As regards the 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).
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Pecuniary damage
The fourth, fifth and sixth applicants claimed
damages in respect of loss of earnings by their father Khamzat Umarov after his
arrest and subsequent disappearance. They submitted that as his children each
of them would have been entitled until the age of majority to a part of his
earnings amounting to the minimum subsistence rate. The applicants claimed that
they had based their calculations on the minimum subsistence rates in Chechnya published in November 2010. The fourth applicant claimed a total of 221,716
Russian roubles (RUB) under this heading (approximately 6,204 euros (EUR)). The
fifth applicant claimed a total of RUB 498,861 (approximately EUR 11,710) and
the sixth applicant claimed a total of RUB 95,741 (approximately EUR 2,247).
The applicants did not submit any documents
either substantiating Khamzat Umarov’s earnings or explaining their
calculations.
The Government regarded these claims as
unsubstantiated and speculative.
The Court reiterates that there must be a clear
causal connection between the damage claimed by the applicants and the
violation of the Convention, and that this may, in an appropriate case, include
compensation in respect of loss of earnings. The Court further finds that the
loss of earnings also applies to children and that it is reasonable to assume
that Khamzat Umarov 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’ father and the loss by the applicants of the
financial support which he could have provided. Having regard to the applicants’
submissions, the Court awards EUR 2,000 to the fourth, fifth and sixth applicants
each in respect of pecuniary damage, plus any tax that may be chargeable on
that amount.
B. Non-pecuniary
damage
The applicants submitted that the amount of
compensation should be determined by the Court on an equitable basis.
The Government submitted that finding a
violation of the Convention would in itself comprise adequate compensation in
the applicants’ case.
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 be 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 finding of violations. It awards the applicants
60,000 euros (EUR) jointly, plus any tax that may be chargeable thereon.
C. Costs and expenses
The applicants were represented by Mr D.
Itslayev, a lawyer practising in Grozny. The applicants submitted a contract
with their representative and an itemised schedule of costs and expenses that
included legal research and drafting, as well as administrative and translation
expenses. The overall claim in respect of costs and expenses related to the
applicants’ legal representation amounted to EUR 7,492. The applicants
submitted the following breakdown of costs:
(a) EUR 6,768 for 42.3 hours of interviews and
drafting of legal documents submitted to the Court and the domestic
authorities, at the rate of EUR 160 per hour;
(b) EUR 140 of administrative expenses; and
(c) EUR 584 in translation fees based on a rate of
EUR 80 per 1000 words.
The Government regarded the claim as
unsubstantiated, pointing out that the relevant documents were not supported by
documentary evidence.
The Court first has to establish whether the
costs and expenses indicated by the applicants were actually incurred and,
second, whether they were necessary (see McCann and
Others, cited above, § 220).
Having regard to the details of the information
submitted by the applicants, the Court is satisfied that these rates are
reasonable. As to whether they were necessary and
actually incurred, the Court notes that even though this case required a
certain amount of research and preparation, due to the similarity of the
observations on the admissibility and merits of this application to those in a
number of other applications submitted in similar cases, legal research by the
applicants’ representative was not necessary to the extent claimed.
Having regard to the details of the claims
submitted by the applicants, the Court awards them the amount of EUR 3,000
together with any tax that may be chargeable to the applicants, the net award
to be paid into their representative’s bank account, as identified by the
applicants.
D. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Decides to join to the merits the issue of
exhaustion of criminal domestic remedies and rejects it;
2. Declares the application admissible;
3. Holds that there has been a substantive
violation of Article 2 of the Convention in respect of Khamzat Umarov;
4. 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 Umarov
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;
6. Holds that there has been a violation of
Article 5 of the Convention in respect of Khamzat Umarov;
7. Holds that there
has been a violation of Article 13 of the Convention in conjunction with
Article 2 of the Convention;
8. Holds that no
separate issues arise under Article 13 of the Convention in conjunction with Articles
3 and 5;
9. Holds
(a) that the respondent State is to pay, within
three months of the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Russian roubles at the rate applicable on the date of settlement:
(i) EUR 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of pecuniary
damage to each of the fourth, fifth and sixth applicants;
(ii) EUR 60,000
(sixty thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage to the applicants jointly;
(iii) EUR 3,000 (three thousand euros), plus
any tax that may be chargeable to the applicants, in respect of costs and
expenses, to be paid into their representative’s bank account;
(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;
Done in English, and notified in writing on 31 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
