FIRST SECTION
CASE OF
BAYSULTANOVA AND OTHERS v. RUSSIA
(Application no.
7461/08)
JUDGMENT
STRASBOURG
4 July 2013
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 Baysultanova and Others v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 11 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
7461/08) 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 three Russian nationals listed in paragraph 5
below (“the applicants”) on 21 January 2008.
The applicants were represented by lawyers from
the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Moscow, 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 10 February 2010 the President of the First
Section decided to apply Rule 41 of the Rules of Court, to grant priority to
the application and to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the application at the
same time (former Article 29 § 3).
The Government objected to the joint examination
of the admissibility and merits of the application and to the application of
Rule 41 of the Rules of Court. Having considered the Government’s objection,
the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants are:
(1) Ms Tumisha Baysultanova, born in 1935;
(2) Ms Zara (in some of the documents submitted her
name is also referred to as Taus) Dzhamaldinova, born in 1960 and
(3) Ms Zulay Bisultanova, born in 1953.
The first applicant is the mother of Mr Beslan
Baysultanov, born in 1964. The second and third applicants are Beslan
Baysultanov’s sisters. They reside in the city of Grozny, in the Chechen Republic.
A. Disappearance of Beslan Baysultanov
1. The applicants’ account
The account of the
events below is based on the information contained in the application form; the
second applicant’s written statements of 25 December 2007 and 14 July 2010;
written statements by S.D. and A.D. made on 22 November 2006; a written
statement by Sh.D. dated 29 November 2006; and a detailed plan of the relevant
area of Ken-Yurt indicating the location of the second applicant’s house,
the adjacent checkpoints, the local military commander’s office and the
Temporary Department of the Interior (hereinafter “the VOVD”).
According to the applicants, during the “first
Chechen war” between 1994 and 1996 Beslan Baysultanov had been involved with
members of illegal armed groups. He had not participated in those groups’
activities during the “second Chechen war” which started in 1999.
In May 2000 Beslan Baysultanov was residing at
the second applicant’s home at 40 Beregovaya Street in the village of Ken-Yurt, the Chechen Republic.
At the material time federal military forces
maintained a number of manned checkpoints in Ken-Yurt, including on the roads
leading in and out of it. The military commander’s office and the VOVD station were
located in the village. Ken-Yurt was under curfew, which was strictly enforced
and lasted from 8 p.m. to 6 a.m.
On 7 May 2000 Beslan Baysultanov, the second
applicant, her husband Sh.D. and their children S.D., I.D. and L.D. stayed at
home in Ken-Yurt.
At about 3.30 a.m. on 7 May 2000 the family was
woken up by knocking on the front door and an order to open it. When the second
applicant did so, around four people wearing masks and camouflage uniforms of
the Russian federal forces and carrying assault rifles burst into the house. They
shouted in Russian “Police! Don’t move!” and ordered those present to lie down.
The applicants inferred that the intruders were servicemen. Upon entering the
house, one of the servicemen, who was about 170 cm tall, removed his mask.
He had Slavic features and wore a green uniform. Others wore green and spotted
green uniforms. Apart from the group of servicemen who had burst in, there was
a further group of four to six servicemen securing the perimeter of the house. In
the applicants’ submission, some of the servicemen had also spoken Chechen.
The servicemen ordered the men to get dressed
and to produce their identity papers. The serviceman without a mask took Beslan
Baysultanov’s passport and after it was checked by other servicemen ordered him
to follow them outside. The servicemen did not check Sh.D.’s passport. They said
to the applicants that they would take Beslan Baysultanov to the local VOVD
station (in some of the applicants’ submissions - to the military commander’s
office) “for a check”, without providing any further details. They then ordered
them to stay indoors for thirty minutes and left, apparently on foot.
The applicants have
not seen Beslan Baysultanov since.
2. The Government’s account
The Government submitted that the domestic
investigation had obtained no evidence that Beslan Baysultanov had been
abducted by State agents.
B. The applicant’s search for Beslan Baysultanov and
the related investigation
1. The applicants’ account
(a) The applicants’ search for their relative
At about 7 a.m. on 7 May
2000, after the end of the curfew, the second applicant and Sh.D. alerted the
head of the Ken-Yurt administration to the abduction of Beslan Baysultanov. He
denied knowing anything about it and advised them to apply to the military
commander’s office in Grozny. The second applicant contacted that authority shortly
thereafter, but they denied having arrested anyone in Ken-Yurt on 7 May 2000.
On the same date, the
second applicant filed written complaints about the abduction of her brother with
the department of the Federal Security Service in the Groznenskiy District
(“the FSB”), the military prosecutor, the head of the local police and the
prosecutor for the Groznenskiy District. All those State authorities refused to
accept the second applicant’s complaints for examination or to take steps to
establish her brother’s whereabouts. In the applicants’ submission, a
prosecutor from the prosecutor’s office for the Groznenskiy District (hereinafter
“the district prosecutor’s office”) was the only official who promised to
follow up on their complaint but they subsequently learnt that he had never
done so. In view of the authorities’ refusal to assist them, the applicants had
to search for Beslan Baysultanov through their own contacts and efforts.
On 7 May 2000 the applicants learnt through
third parties and from Mr Is., the then head of the VOVD, that Beslan
Baysultanov had been detained at the VOVD. Is. allegedly promised the
applicants that he would “exchange Beslan Baysultanov for six assault rifles”
but never did so.
On the morning of 8 May 2000 the second
applicant and Sh.D. went to the VOVD station, where they handed over a parcel
for Beslan Baysultanov to the VOVD officers. The officers first checked the
missing man’s family name and then took the parcel for him.
On the following day the applicants attempted to
hand over another parcel for him but the VOVD officers handed it back.
On 10 or 11 May 2000 the applicants found a
handwritten note at the entry gate of their house in Ken-Yurt, saying that
Beslan Baysultanov had been abducted by “Mr K.’s men”. According to the
applicants, at the material time K. held the post of commander of the “West” battalion,
which formed part of the Main Intelligence Directorate (“the GRU”) of the
Ministry of Defence of the Russian Federation in the Chechen Republic. After that, the second applicant and her husband went to the battalion’s barracks several
times to meet K. and to enquire about Beslan Baysultanov, but their efforts
yielded no results. At the same time, on several occasions at the battalion’s
barracks they saw the serviceman who had taken his mask off during Beslan
Baysultanov’s abduction on 7 May 2000. Both the second applicant and Sh.D.
recognised him. Mr A., the deputy head of the battalion whom the applicants had
also contacted in their search for their relative, told them that the
serviceman’s name was “Yura”.
On an unspecified
date in May 2007 the second applicant was held at gunpoint by a group of people,
who took the file which contained many of the applicants’ documents concerning
their search for Beslan Baysultanov from her, including the handwritten note the
applicants had found at their gate.
(b) The investigation
On 25 August 2000 the
first applicant wrote to the President of the Russian Federation, seeking
assistance in establishing Beslan Baysultanov’s whereabouts. She submitted,
among other things, that all State authorities, including the district
prosecutor’s office, the police and various military commander’s offices, had
refused to accept for examination the applicants’ previous complaints about the
abduction of their relative. Moreover, although the district prosecutor’s
office had at some point accepted the complaint about the abduction for
examination, it had not taken any steps to establish the whereabouts of Beslan
Baysultanov.
On an unspecified date the first applicant’s
complaint was transferred to the Ministry of the Interior of the Chechen Republic and on 20 October 2000 she was informed that she would be advised of the
outcome in due course.
On 22 October 2000 the district prosecutor’s
office initiated a criminal investigation (case no. 19076) into the
disappearance of Beslan Baysultanov. According to the applicants, two months
later the investigation was suspended.
On 3 June 2001 the district prosecutor’s office
reopened the investigation in case no. 19076.
On 25 June 2001 the
second applicant was interviewed by investigator B. from the district
prosecutor’s office about the circumstances of the abduction of Beslan
Baysultanov. She informed him, among other things, of the handwritten note concerning
her relative’s possible abduction by servicemen from the “West” battalion and
of the fact that she had seen one of the servicemen (“Yura”) who had
participated in the arrest. B. immediately told her that she should “forget
about Yura”. He then compiled an interview record and made the second applicant
sign it. According to her, B. did not put down the entirety of the information
she had provided during the interview. She signed the interview record without
carefully reading it because she trusted that B. would do the necessary to find
her brother.
On 7 July 2001 the second applicant complained to the President of the Russian Federation about the abduction of Beslan Baysultanov. She submitted, among other
things, that on 20 October 2000 the first applicant had been informed that her
complaint about the kidnapping had been forwarded to the Ministry of the
Interior of the Chechen Republic, which would advise her of any decision taken.
However, in response to the applicants’ queries, that authority had denied the
existence of that complaint.
On 12 September 2001 the applicant’s letter was
forwarded to the Security Council of the Russian Federation.
On 21 September 2001 the Main Military
Prosecutor’s Office forwarded the second applicant’s complaint about the
abduction of Beslan Baysultanov to the military prosecutor for the North
Caucasus Military Circuit for examination, which sent it to the prosecutor’s
office for the Chechen Republic (“the republican prosecutor’s office”) on 8 January
2002, noting that there was no indication of the involvement of servicemen in
the abduction of the applicants’ relative.
On 19 February 2002 the district prosecutor’s
office informed the second applicant that it had received her complaint
addressed to the President of the Russian Federation. The letter stated that on
3 June 2001 the district prosecutor’s office had launched an investigation into
the abduction of Beslan Baysultanov under Article 126 § 2 of the Criminal Code
(aggravated kidnapping). On 3 August 2001 the investigation had been suspended
because of failure to identify the perpetrators. However, operational and
search measures aimed at solving the crime and establishing Beslan Baysultanov’s
whereabouts were underway.
On 27 March 2002 the second applicant complained
to the Prosecutor General’s Office about the abduction of Beslan Baysultanov,
describing its circumstances in detail and stressing that it had occurred
during curfew hours. She averred that at the material time all roads in and out
of the village had been sealed off by checkpoints, that federal troops had been
stationed around Ken-Yurt and that there had been a local police station in the
centre of the village.
On 16 May 2002 the head of
the Moscow office of the NGO “Human Rights Watch” wrote to the Prosecutor
General of the Russian Federation on behalf of the applicants and requested the
resumption of the investigation into the abduction of Beslan Baysultanov (criminal
case no. 19076). There is no indication that the applicants received a
reply to that request.
On 17 November 2006 the
applicants’ representatives wrote to the district prosecutor’s office and the
republican prosecutor’s office, enquiring about the progress of the
investigation in case no. 19076 and complaining that the applicants had not
been provided with any information in that respect. They further asked that the
applicants be informed of any decisions to suspend the investigation and of the
reasons for the belated grant of victim status to the second applicant and
sought access to case file no. 19076.
On 28 November 2007 the
second applicant wrote to the district prosecutor’s office, seeking information
on the progress of the investigation in case no.19076. She submitted, in
particular, that although the district prosecutor’s office had informed her
that on 14 June 2007 the decision to suspend the investigation had been
overturned, she had received no further information since that date. It appears
that she received no reply to that query.
On 16 January 2008 the second
applicant filed a repeated request for information on the progress of the
investigation in case no. 19076 with the district prosecutor’s office.
According to a slip furnished by the applicants, the complaint was received by
the district prosecutor’s office on the same date. No reply followed.
2. Information submitted by the Government
Despite specific requests
by the Court, the Government refused to disclose most of the contents of
criminal case no. 19076, without providing any reasons for their refusal. They
only furnished copies of: a number of procedural decisions, including those to
open, suspend and resume the investigation; several records of witness
interviews; requests for information addressed to a number of State authorities;
and some of the replies to them. Some of the documents submitted by the
Government were illegible and others were only partially legible. The
Government also failed to reply to a specific question as to when the
applicants had complained about the abduction of their relative to the national
authorities. In so far as the documents submitted by the Government were
legible, the information they contain may be summarised as follows.
(a) Opening of the investigation
On 27 April 2001
the Ombudsman for the Chechen Republic, with the President of the Russian
Federation, forwarded the second applicant’s complaint about the abduction of
Beslan Baysultanov dated 10 April 2001 to the republican prosecutor’s
office for examination. The latter authority transferred the applicant’s
complaint to the district prosecutor’s office on 2 May 2001. On 24 May
2001 investigator B. from the district prosecutor’s office was instructed to
examine the complaint and to take a decision on it.
By a decision of 3 June 2001 the district
prosecutor’s office instituted criminal proceedings into the “unlawful arrest”
of Beslan Baysultanov under Article 127 § 2 of the Code of Criminal Procedure (unlawful
deprivation of liberty, not connected with abduction).
(b) Interviewing of witnesses
The second applicant and
Sh.D. were interviewed as witnesses on 25 June and 2 July 2001. They submitted,
among other things, that at about 3.30 a.m. on 7 May 2000 a group of masked,
camouflaged and armed men had burst into their house, shouting “Police! Lie down!”
One of the intruders had not been wearing a mask. The intruders had ordered the
men to produce their identity papers but had only taken Beslan Baysultanov’s
passport for checking, following which they had ordered him to follow them
outside. In the courtyard there had been a further group of armed and masked
men wearing camouflage uniforms. They had told the second applicant that they
would take Beslan Baysultanov to the local VOVD station for an identity check
and had left by foot. At about 8 a.m. on the same date the second applicant and
Sh.D. had gone to the VOVD station to look for Beslan Baysultanov but the VOVD
officers had denied having him on the premises. Two to three days later Sh.D.
had met Mr Is., the head of the Groznenskiy VOVD, who had asked for “six
assault rifles in exchange for Beslan Baysultanov”. On the day following the
abduction officers from the VOVD station’s detention facility had accepted a
food parcel for Beslan Baysultanov from Sh.D., and Sh.D. had realised that Beslan
Baysultanov was being held on the premises of that authority. However, when he
had brought another parcel for him on the following day, an officer from the VOVD
station’s detention facility had told him that Beslan Baysultanov had not been
there.
When re-interviewed on
17 and 26 May 2006, the second applicant and Sh.D. confirmed their earlier
statements to the investigators. In addition, Sh.D. submitted that when the
VOVD officer had returned the parcel to him, he had found a written note in it saying
“in Khankala” (в Ханкале).
Between 18 and
20 May 2006 the investigators interviewed two residents of Ken-Yurt, as well as
R.G. and A.D., the applicants’ relatives who had been present at the time of
Beslan Baysultanov’s abduction. The former stated that they had learnt about
the kidnapping of Beslan Baysultanov from his relatives and the latter gave an
account of the events on the night of the kidnapping similar to those
previously given by Sh.D. and the second applicant.
Six residents of
Ken-Yurt, interviewed as witnesses between 21 and 23 June 2007, submitted that
they had learnt about the abduction from Beslan Baysultanov’s relatives. When
questioned on 24 June 2007 as witnesses, the applicants’ relatives A.D. and
I.D., who had been at home at the time of the kidnapping, confirmed the account
of events given by the second applicant and Sh.D.
On 25 and 28 June
2007 the investigators interviewed two officers from the Groznenskiy Department
of the Interior (hereinafter “the ROVD”). They submitted, among other things,
that the ROVD was in possession of operative information indicating that in
1994-99 Beslan Baysultanov had been involved in illegal armed groups and had
offered active resistance to the federal forces. In that connection, the ROVD had
taken steps to verify whether he had been arrested by members of the security
forces of the Chechen Republic who had conducted a series of “special
operations aimed at identifying and apprehending members of illegal armed
groups”.
When re-interviewed on 24 January and 4 February 2008, the second applicant,
Sh.D. and I.D. confirmed their earlier statements concerning the circumstances
of the abduction of Beslan Baysultanov. In addition, the second applicant submitted
that in May 2007 she had been assaulted by several people who had told her to
stop searching for Beslan Baysultanov and threatened her that if she continued
to look for him, she would have to start searching for her own sons. Sh.D. also
stressed that at the time of the abduction of Beslan Baysultanov the village of
Ken-Yurt had been under curfew, which implied that no one could move around it
during curfew hours and that, accordingly, the missing man could not have been taken
anywhere without the knowledge of the head of the VOVD. He also reiterated the
information he had previously given concerning Mr K. and serviceman “Yura” and confirmed,
yet again, that he would be able to identify the latter.
(c) Further investigative steps
On 17 May 2006 investigators from the district prosecutor’s office examined the
crime scene.
On the same date they granted the second
applicant victim status in the proceedings in case no. 19076.
On 28 May 2006 the
investigators instructed the Ministry of the Interior of the Chechen Republic’s
Department for the Fight Against Organised Crime (hereinafter “the UBOP”) and a
number of local police offices in Chechnya to take steps to identify possible witnesses
to the abduction of Beslan Baysultanov, to carry out door-to-door enquiries (подворный обход)
in the area from which he had been abducted and to check whether his body could
be found among unidentified corpses.
On 30 May 2006 the investigators asked a number
of State authorities in the Chechen Republic to inform them whether Beslan Baysultanov
had been arrested by them or detained in their facilities. In their replies,
those authorities stated that they had no relevant information.
By letter of 16 June
2006 the Staropromyslovskiy ROVD informed the district prosecutor’s office that
they were unable to check whether Beslan Baysultanov could be found among the
unidentified bodies found in the district because the latter authority had
failed to specify his distinctive features or the clothes he had been wearing when
abducted. It is unclear whether that shortcoming was subsequently rectified.
By letter of 26 June 2006 the UBOP informed the
district prosecutor’s office that they were in possession of information to the
effect that in 1999 Beslan Baysultanov had been involved in an illegal armed
group led by Mr G.
On 18 June 2007,
following the district court’s order to resume the investigation (see paragraph
60 below), the district prosecutor’s office asked the head of the Groznenskiy
ROVD to provide it with the list of officers who had been working there at the
time of Beslan Baysultanov’s abduction. The letter stated, among other things,
that the criminal case file contained information that the VOVD officers had
accepted a parcel for the missing man.
On 22 June 2007 the Groznenskiy ROVD replied to
the investigators that it had no information concerning the officers who had
worked in its detention facility in 2000 and recommended that they contact the Operational
Task Force of the Russian federal forces in the Groznenskiy District on that
account. It is unclear whether this has been done.
(d) Information concerning the pace of the
investigation
The district
prosecutor’s office suspended the investigation in case no. 19076 on the
following dates: 3 August 2001; 10 September 2003; 16 June 2006; 14
July 2007, and 15 February 2008. All those decisions referred to the failure to
identify those responsible for the abduction of Beslan Baysultanov.
The investigators decided to resume the
investigation on the following dates: 10 July 2003, 16 May 2006; 14 June
2007; 17 January 2008.
The decisions to have
the investigation resumed noted, among other things, that the district
prosecutor’s office had suspended it without carrying out a number of crucial investigative
measures, such as verifying whether officers from the Groznenskiy ROVD/VOVD had
been involved in the unlawful arrest of Beslan Baysultanov; granting victim
status to his relatives; taking steps to establish the whereabouts of the
missing man and to identify the perpetrators of the crime.
In the Government’s
submission, the investigation in case no. 19076 is pending.
C. Court proceedings against the investigating
authorities
On 4 May 2007 the
second applicant complained to the Groznenskiy District Court (“the District
Court”) about the inaction of the district prosecutor’s office. She submitted,
in particular, that the investigation must have been suspended on numerous
occasions and that the applicants had not been informed of its progress and
results, or of any decisions to suspend or reopen it. She referred, among other
things, to the district prosecutor’s office’s failure to reply to her
representatives’ query dated 17 November 2006 and to the fact that that
authority had disregarded the instructions of the republican prosecutor’s
office in that respect. She further stressed that she had only been granted victim
status in May 2006. Lastly, the second applicant sought access to the case
file.
On 25 May 2007 the District Court examined the
second applicant’s complaint in her presence. Before the court she described in
detail the circumstances of the abduction of Beslan Baysultanov and reiterated
her submissions concerning the quality of the investigation.
By a decision of 25
May 2007 the District Court granted the applicant’s request in part concerning
the reopening of the investigation. It held that the investigators had failed
to rectify the shortcomings indicated by higher-ranking prosecutors. In
particular, they had failed to interview officers from the Groznenskiy ROVD’s
detention facility or Is., head of the VOVD, who had told the second applicant
that he would be able to liberate Beslan Beksultanov in exchange for assault
rifles. At the same time, the court dismissed the second applicant’s request
for access to the case file, finding that she would only be entitled to it
after the investigation was completed.
There is no indication that the applicants
appealed against that decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
For a summary of the relevant domestic law see Akhmadova
and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007), and Aslakhanova
and Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10,
§§ 43-59, 18 December 2012).
THE LAW
I. THE GOVERNMENT’S OBJECTION REGARDING THE
NON-EXHAUSTION OF DOMESTIC REMEDIES
A. Submissions by the parties
The Government argued that the application had to
be declared inadmissible for non-exhaustion of domestic remedies. They
submitted that the investigation into the abduction of Beslan Baysultanov had
not yet been completed. They further claimed that it had been open to the
applicants to challenge the acts or omissions of the investigating authorities
in court under Article 125 of the Code of Criminal Procedure (hereinafter “the
CCrP”). Only the second applicant had made use of that remedy and, moreover,
she had not challenged all of the alleged deficiencies in the investigation.
Furthermore, by virtue of her victim status, the second applicant was also able
to lodge petitions with the investigating authorities or complain to them about
their omissions, if any.
The applicants maintained that they had
exhausted all domestic remedies available to them. They insisted that the
criminal investigation had proved to be ineffective and invited the Court, with
reference to its practice, to dismiss the Government’s objection.
B. The Court’s assessment
The Court will examine the submissions 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).
It is observed that the Government raised a
number of arguments under this head relating to the criminal investigation into
the disappearance of Beslan Baysultanov. The applicants contested those
arguments. The Court notes that the investigation into the disappearance of the
applicants’ relative has been pending since 3 June 2001 and that the parties
dispute its effectiveness.
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 and considers
that the issue falls to be examined below.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicants complained that Beslan
Baysultanov had been abducted by Russian servicemen, that he had then
disappeared, and that the domestic authorities had failed to carry out an
effective investigation of the matter. They relied on Article 2 of the Convention,
which reads:
“1. Everyone’s right to life shall be protected by
law. No one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for which this
penalty is provided by law.
2. Deprivation of life shall not be regarded as
inflicted in contravention of this article when it results from the use of
force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent
the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of
quelling a riot or insurrection.”
A. Submissions by the parties
The Government submitted that the facts related
to the abduction of Beslan Baysultanov, as presented by the applicants,
corresponded to the materials of the criminal file opened into his
disappearance. With reference to the judgments in the cases of Zubayrayev v.
Russia and Shaipova and Others v. Russia (nos. 67797/01 and 10796/04,
10 January 2008 and 6 November 2008, respectively), the Government argued
that the applicants had failed to furnish evidence “beyond reasonable doubt”
that their relative had been abducted by servicemen. The fact that the
abductors had worn military uniforms and masks and had spoken Russian did not
prove that they had been State agents. Moreover, they had not used military
vehicles, such as armoured personnel carriers (“APCs”), and the applicants were
unable to describe the kidnappers. The investigating authorities had obtained
no evidence indicating that any special operations aimed at arresting Beslan
Baysultanov had been carried out in Ken-Yurt or that the village had been under
curfew. The body of the missing man had not been discovered.
As to the investigation, the Government submitted
that the national authorities had promptly opened a criminal case into the
applicants’ allegations and had taken an important number of investigative
steps. The fact that the proceedings had been repeatedly suspended, that the
authorities had not been able to identify the perpetrators and that the applicants
were dissatisfied with the amount of information provided to them did not indicate
that the investigation was ineffective.
The applicants claimed that there existed
evidence “beyond reasonable doubt” that Beslan Baysultanov had been abducted by
State agents on 7 May 2000 and that he was to be presumed dead. They stressed
that the Government had not contested their submissions concerning the
circumstances of the abduction. In particular, they had accepted that at the
material time the village of Ken-Yurt had been sealed off by checkpoints manned
by federal forces. One of the abductors whom the applicants had been able to
identify had belonged to the “West” battalion of the Russian federal forces. Shortly
after the kidnapping Mr Is., head of the Groznenskiy VOVD, had offered the
applicants the chance to exchange Beslan Baysultanov for six assault rifles and
the VOVD officers had accepted a parcel for their relative. Therefore, it was
clear that after his abduction Beslan Baysultanov had been held in the
Groznenskiy VOVD station. Referring to the judgments in the cases of Suleymanova
v. Russia (judgment no. 9196/06, 12 May 2010) and Khamzatov and
Others v. Russia (no. 31682/07, 28 February 2012), the applicants submitted that in those
proceedings the Government had acknowledged that at the material time a curfew
had been in force in the Chechen Republic. With reference to the national
authorities’ statements that Beslan Baysultanov had been involved with illegal
armed groups, the applicants also stressed that the authorities had had good
reason to arrest him. Lastly, they invited the Court to draw inferences from
the Government’s refusal to produce an entire copy of the investigation file.
The applicants also maintained that the
investigation into their relative’s disappearance had not satisfied the
Convention requirements. Although they had informed the authorities about the serviceman
named “Yura” and the offer by Mr Is., those individuals, as well as other VOVD
officers, had not been questioned. In spite of that, the investigators had
repeatedly suspended the proceedings because of their failure to identify the
perpetrators. The applicants had received no information on the progress of the
investigation.
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.
The Court has already found that the Government’s objection of non-exhaustion
of domestic remedies should be joined to the merits of the complaint (see
paragraph 67 above). The complaint under Article 2 of the Convention must
therefore be declared admissible.
2. Merits
(a) Alleged violation of the right to life of Beslan
Baysultanov
(i) General principles
The Court reiterates that, given 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 at issue lie wholly or to a large extent
within the exclusive knowledge of the authorities, as in the case of persons
under their control in detention, strong presumptions of fact will arise in
respect of injuries and death occurring during that detention. Indeed, the
burden of proof may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Salman v. Turkey [GC], no.
21986/93, § 100, ECHR 2000 VII, and Çakıcı v. Turkey [GC], no.
23657/94, § 85, ECHR 1999-IV).
(ii) The establishment of the facts
The Court observes
that it has developed a number of general principles relating to the
establishment of facts in dispute, in particular when faced with allegations of
disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina
v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). It is also
noted that the conduct of the parties when evidence is being obtained has to be
taken into account (see Tanış and Others v. Turkey, no. 65899/01, § 65899/01, ECHR 2005-VIII, and Aslakhanova, cited above, § 95).
The applicants argued that at about 3.30 a.m. on
7 May 2000 Beslan Baysultanov had been abducted by State agents and had then
disappeared. They invited the Court to draw inferences as to the
well-foundedness of their allegations from the Government’s failure to provide
the documents requested from them. They submitted that several people had
witnessed their relative’s abduction and enclosed a number of witness
statements in support of that submission.
The Government did not contest the applicants’
factual allegations and conceded that Beslan Baysultanov had been abducted on 7
May 2000 by unidentified armed camouflaged men. However, they denied that the
abductors had been State agents, referring to the absence of findings from the
ongoing investigation. They also argued that case file no. 19076 contained no
evidence that, at the material time, Ken-Yurt had been under curfew and
stressed that there was no indication that the perpetrators had used vehicles
such as APCs.
The Court notes at the outset that, despite its
requests for a copy of the investigation file, the Government refused to
produce most of the documents from it, without providing an explanation. Against
this background and taking into account the principles enunciated in
paragraph 75 above, the Court will draw inferences from the Government’s
conduct in assessing the applicants’ allegations.
As regards the Government’s argument concerning the
existence of a curfew, the Court is unable to accept it as convincing in view
of their refusal to furnish an entire copy of the very case file to which they
referred in support of that submission. Moreover, it cannot overlook the fact that
the applicants and other witnesses to the abduction consistently, and from the
very beginning of the investigation, maintained that Beslan Baysultanov had
been abducted during curfew hours (see paragraphs 40 and 41 above).
Furthermore, a number of cases examined by this Court and relating to the same
period of time support the applicants’ submission concerning the existence of a
curfew (see, among other authorities, Khashiyev and Akayeva v. Russia,
nos. 57942/00 and 57945/00, § 18, 24 February 2005, and Aziyevy v. Russia,
no. 77626/01, § 72, 20 March 2008).
In so far as the Government stressed that the
abductors had not used military vehicles, the Court is mindful that this fact
could have facilitated their moving around the area or possible passage through
checkpoints (see Shaipova and Others v. Russia, cited above, § 85).
However, it considers that the present case should be distinguished from the
cases of Zubayrayev and Shaipova, on which the Government relied and
where the Court found insufficient evidence of the involvement of State agents
in the abduction of the missing persons, for the following reasons.
In the first place, the Court observes that it
was undisputed between the parties that at the material time Ken-Yurt was under
the control of the Russian authorities, the roads in and out of it being sealed
off by manned checkpoints and a military commander’s office and a police
station being located in the village.
It is further noted that the applicants, some of
whom witnessed the kidnapping, provided a consistent, detailed and coherent description
of those events before both the domestic authorities and this Court (see
paragraphs 7-14, 16-22, 27, 40-41 and 45 above, and see, by contrast, Zubayrayev,
cited above, § 83). They also furnished a number of witness statements in
support of their allegations (see paragraph 7 above), which were confirmed by the
statements of further witnesses collected in the course of the investigation
conducted by the national authorities (see paragraphs 42 and 43 above). From those statements it follows, among other things, that the
abductors carried out an identity check of the men present in the house and
told Beslan Baysultanov’s relatives that they would take him to the local VOVD
station for a further check.
It is moreover significant that the applicants’ specific
submissions concerning Beslan Baysultanov’s subsequent physical presence at the
local VOVD station, his relatives’ handing over of a parcel for him to VOVD
officers, Mr Is.’s offer to release him and one of his kidnappers
belonging to a specific military unit of the federal forces were not contested
as such by the Government. With this in mind, the Court considers that the information
concerning Beslan Baysultanov’s active involvement with illegal armed groups
and the Chechen security forces’ operations targeting former rebel fighters, as
conveyed by the VOVD officers (see paragraph 44 above), supports the validity
of the applicants’ allegation concerning the implication of State agents in the
kidnapping. Indeed, the applicants consistently, and from the beginning of the
investigation, maintained that version of events before the national
authorities (see, by contrast, Zubayrayev, cited above, § 84, and Tovsultanova
v. Russia, no. 26974/06, § 80, 17 June
2010) and it transpires that it was the main version of events, subscribed
to by the investigators (see paragraph 44 above).
The Court has examined a series of cases
concerning allegations of disappearances in the Chechen Republic. In those
cases it concluded that where the applicants had made out a prima facie case of
abduction by State agents, it was for the Government to discharge their burden
of proof either by disclosing the documents in their exclusive possession or by
providing a satisfactory and convincing explanation of how the events in
question had occurred (see, among many other authorities, Aziyevy v. Russia,
cited above, § 74; Utsayeva and Others v. Russia, no. 29133/03,
§ 160, 29 May 2008; and Khutsayev and Others v. Russia,
no. 16622/05, § 104, 27 May 2010).
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 agents. The Government’s argument that the
investigation had found no evidence that servicemen had been involved in the
abduction is insufficient to discharge them from the above-mentioned burden of
proof. Drawing inferences from the Government’s failure to submit the remaining
documents requested, which are in their exclusive possession, or to provide
another plausible explanation for the events in question, the Court finds that Beslan
Baysultanov was arrested on 7 May 2000 by State agents during an unacknowledged
security operation.
There has been no reliable news of Beslan
Baysultanov since the date of the abduction. His name has not been found in any
official detention records. Lastly, 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 VIII
(extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova
and Sadulayeva, cited above; Alikhadzhiyeva v. Russia, no. 68007/01,
5 July 2007; and Umayevy v. Russia, no. 47354/07, 12 June 2012), the Court finds that in
the context of the conflict in the Chechen Republic, when a person is detained
by unidentified State agents without any subsequent acknowledgment of the
detention, this can be regarded as life-threatening. The absence of Beslan
Baysultanov or of any news of him for more than twelve years supports that
assumption.
Accordingly, the Court finds that the available
evidence permits it to establish that Beslan Baysultanov must be presumed dead
following his unacknowledged detention by State agents.
(iii) The State’s compliance with Article 2
Article 2, which safeguards the right to life
and sets out the circumstances in which deprivation of life may be justified,
ranks as one of the most fundamental provisions in the Convention, from which
no derogation is permitted. In the light of the importance of the protection
afforded by Article 2, the Court must subject deprivation of life to the most
careful scrutiny, taking into consideration not only the actions of State
agents but also all the surrounding circumstances (see, among other
authorities, McCann and Others v. the United Kingdom, 27 September 1995,
§§ 146-47, Series A no. 324, and Avşar v. Turkey, no. 25657/94,
§ 391, ECHR 2001 VII (extracts)).
The Court has found it established that the
applicants’ relative must be presumed dead following his unacknowledged
detention by State agents. The liability for his presumed death is attributable
to the respondent Government and the authorities do not rely on any
justification in respect of the use of lethal force by their agents.
Accordingly, the Court finds that there has been
a violation of Article 2 in its substantive aspect in respect of Beslan
Baysultanov.
(b) Alleged inadequacy of the investigation
The Court reiterates that the obligation to
protect the right to life under Article 2 of the Convention, read in
conjunction with the State’s general duty under Article 1 of the Convention to
“secure to everyone within [its] jurisdiction the rights and freedoms defined
in [the] Convention”, also requires by implication that there should be some
form of effective official investigation when individuals have been killed as a
result of the use of force (see, mutatis mutandis, McCann and Others,
cited above, § 161, and Kaya v. Turkey, 19 February 1998, § 86, Reports
of Judgments and Decisions 1998-I). The essential purpose of such an
investigation is to secure the effective implementation of the domestic laws
which protect the right to life and, in those cases involving State agents or
bodies, to ensure their accountability for deaths occurring under their responsibility.
This investigation should be thorough, independent, accessible to the victim’s
family, carried out with reasonable promptness and expedition, effective in the
sense that it is capable of leading to a determination of whether the force
used in such cases was or was not justified in the circumstances or otherwise
unlawful, and afford a sufficient element of public scrutiny of the
investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94,
§§ 105-09, ECHR 2001-III (extracts); Douglas-Williams v. the
United Kingdom (dec.), no. 56413/00, 8 January 2002; Esmukhambetov and
Others v. Russia, no. 23445/03, §§ 115-18, 29 March 2011; and Umarova
and Others v. Russia, no. 25654/08, §§ 84-88, 31 July 2012).
The Court notes at the outset that the
Government refused to produce most of the documents from case file no. 19076 and
furnished only copies of several documents summarised above. It therefore has
to assess the effectiveness of the investigation on the basis of the very
sparse information submitted by the Government and the few documents available
to the applicants which they provided to the Court.
Turning to the facts of the present case, the
Court observes that Beslan Baysultanov was abducted on 7 May 2000 and that the
investigation into his abduction was opened on 3 June 2001, namely one year and
twenty-seven days later. In the applicants’ submission, on 7 May 2000
they complained about the kidnapping of their relative to various authorities,
including the military prosecutor, the head of the local police and the
district prosecutor’s office, but those State bodies refused to accept their
complaints for examination (see paragraph 17 above). The copies of the
applicants’ complaints of 25 August 2000 and 7 July 2001, furnished to the
Court, indeed refer to their unsuccessful earlier attempts to alert the
authorities to the abduction of their relative (see paragraphs 23 and 28 above).
The Court notes that the Government did not
contest those submissions and failed to reply to its specific question as to
when the applicants had complained to the national authorities about the
abduction (see paragraph 37 above). They also provided no explanation for the
exceptional delay of more than a year in the opening of the investigation into
Beslan Baysultanov’s disappearance. Accordingly, the Court is led to conclude
that the responsibility for this delay lies with the respondent Government (see
Vakayeva and Others v. Russia, no. 2220/05, § 141-42, 10 June 2010). In this connection, it
emphasises that such a considerable delay is in itself liable to affect the
investigation of an abduction in life-threatening circumstances, where crucial
action has to be taken in the first days after the event.
As regards the scope of the investigative
measures, the Court cannot but point out that a majority of them were carried
out with considerable delay. In particular, some of the members of the
applicants’ family who were eyewitnesses to the abduction, as well as the
applicants’ neighbours, were only interviewed in May 2006 and June 2007, that
is to say between four and six years after the opening of the investigation and
more than six years after Beslan Baysultanov had been kidnapped (see paragraphs
42 and 43 above). The same holds true for the inspection of the crime
scene (see paragraph 46 above). The Government offered no explanation for the
time it took the national authorities to carry out those basic investigative
measures. The Court also does not lose sight of the fact that the first
attempts to identify the VOVD officers involved were made in June 2007 and only
after the District Court’s explicit request for that investigative step to be
taken (see paragraph 52 above). Moreover, the selection of documents furnished
by the Government does not permit the Court to establish whether those efforts
were subsequently pursued.
It is further observed that there is no
indication that a number of crucial investigative steps were ever taken. For
instance, nothing suggests that the district prosecutor’s office made any
attempt to identify and interview the serviceman named “Yura”, Mr K. or Mr Is.,
despite the fact that the applicants had brought the information concerning
those individuals to the authorities’ attention without undue delay (see
paragraphs 27 and 40 above). In the same vein, it does not seem that the
investigators made any genuine attempt to verify the information concerning
Beslan Baysultanov’s detention at the VOVD station or to follow-up on the
second applicant’s submissions concerning the men who had taken the documents
concerning the abduction from her. In the Court’s view, those omissions
seriously undermined the capacity of the investigation to establish the
relevant facts.
In the Court’s opinion, the investigators’
failure to indicate the missing man’s distinctive features in their requests
for his identification among the dead bodies (see paragraphs 48 and 50 above) suggests, at the very least, that those investigative measures were carried out in
a superficial manner and raises further doubts as to the thoroughness of the
investigation.
As regards the accessibility of the
investigation to the next-of-kin of the victim, the Court notes that the second
applicant was the only member of Beslan Baysultanov’s family to be granted
victim status and that the decision in that regard was ultimately taken four
years and eleven months after the proceedings had been instituted (see
paragraph 47 above). Moreover, given the applicants’ repeated, and apparently
unanswered queries (see paragraphs 28 and 33-36 above), the Court doubts that
they were properly informed of the important developments in the investigation.
Lastly, it is evident from the information
submitted by the Government that the investigation was repeatedly suspended and
resumed (see paragraphs 54-57 above). The Court emphasises in this respect that
while the adjourning or reopening of proceedings is not in itself a sign that an
investigation is ineffective, it appears in the present case that the decisions
to adjourn were made without the necessary investigative steps being taken (see
paragraphs 56 and 60 above), 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 conducted.
Having regard to the Government’s objection
that was joined to the merits of the complaint, inasmuch as it concerns the
fact that the domestic investigation is still pending, the Court notes that the
investigation, having been repeatedly suspended and resumed and plagued by
inexplicable delays, has been ongoing for many years and has produced no
tangible results. Accordingly, the Court finds that the remedy relied on by the
Government was ineffective in the circumstances and rejects their objection in
this part.
In so far as the Government submitted that it
had been open to the applicants to challenge the investigating authorities’
acts or omissions before the courts or before the investigators, the Court points
out that the second applicant made use of the former remedy (see paragraph 58 above). However, as has already been pointed out, the effectiveness of the
investigation had already been undermined in its early stages by the
authorities’ failure to take necessary and urgent investigative measures. The
investigation was repeatedly suspended and resumed, but it appears that no
significant investigative measures were taken to identify those responsible for
the abduction. In such circumstances, contrary to the Government’s assertion,
the Court considers that the applicants could not be required to challenge
every single decision of the district prosecutor’s office in court. Moreover,
as has been established above, the applicants received only fragmentary and
incomplete information about the course of the investigation and the
investigative measures taken. Against that background, 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 Beslan Baysultanov, 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 psychological
distress in breach of Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Submissions by the parties
The Government argued that there had been no
breach of the applicants’ rights under Article 3 because all their complaints
had been examined in accordance with the applicable legislation.
The applicants maintained the complaint.
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, cited
above, § 358, and Imakayeva, cited above, § 164).
In the present case, the Court notes that the
first applicant is the mother of the disappeared person and that the second and
third applicants are his sisters. The second applicant witnessed the abduction
of Beslan Baysultanov. The applicants have not had any news of their relative
for more than twelve years. During this period they have made enquiries of
various official bodies, both in writing and in person, about their missing
relative. Despite their attempts, the applicants have never received any
plausible explanation or information about what became of Beslan Baysultanov
following his detention. Most of the responses they received denied State responsibility
for his 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.
The Court therefore concludes that there has
been a violation of Article 3 of the Convention in respect of the applicants.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE
CONVENTION
The applicants further stated that Beslan
Baysultanov 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. Submissions by the parties
The Government asserted that no evidence had
been obtained by the investigators to confirm that Beslan Baysultanov had been
deprived of his liberty by State agents. He had not been listed among the names
of people kept in detention centres and none of the regional law-enforcement
agencies had information about his detention.
The applicants maintained 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 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; Luluyev, cited above, § 122;
and El Masri v. “the former Yugoslav Republic of Macedonia” [GC],
no. 39630/09, § 233, 13 December 2012).
The Court has found that Beslan Baysultanov was
abducted by State agents on 7 May 2000 and has not been seen since. His
detention 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, because 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 Beslan
Baysultanov 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 of
Articles 2 and 3, 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. Submissions by the parties
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 those
remedies.
The applicants maintained 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 in the instant case, 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 Articles 2 and 3 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicants made no claims in respect of
pecuniary damage. They sought 500,000 euros (EUR) jointly in respect of
non-pecuniary damage.
The Government submitted that, should the Court
find a breach of the applicants’ Convention rights, a finding of a violation
would constitute sufficient just satisfaction. Otherwise, they invited the
Court to follow its case-law concerning similar applications.
The Court notes that it has found a violation
of Articles 2, 5 and 13 of the Convention on account of the unacknowledged
detention and disappearance of the applicants’ son and brother. The applicants
themselves have been found to have been victims of a violation of Article 3 of
the Convention on account of their mental distress endured as a result of the
disappearance of their relative and the authorities’ attitude to that fact. The
Court thus accepts that they have suffered non-pecuniary damage which cannot be
compensated for solely by the findings of violations. It considers it appropriate
to award the applicants jointly EUR 60,000 under this heading, plus any tax
that may be chargeable to them.
B. Costs and expenses
The applicants were represented by lawyers from
the SRJI. They submitted an agreement between them and the SRJI for their
representation before the Court; an itemised schedule of costs and expenses
that included the drafting of legal documents submitted to the Court at a rate
of 50 euros (EUR) per hour for SRJI lawyers and EUR 150 per hour for
SRJI senior staff; and invoices in respect of translation and postal expenses.
The aggregate claim in respect of costs and expenses related to the applicants’
legal representation amounted to EUR 7,437.02, to be paid into their
representatives’ bank account in the Netherlands.
The Government stated that the applicants had
failed to itemise their costs and expenses and to support them properly, except
for “two notes of a general nature”. They invited the Court to dismiss the
applicants’ claims.
The Court has to establish whether the costs
and expenses indicated by the applicants were actually and necessarily incurred
and whether they were reasonable as to quantum (see McCann and Others,
cited above, § 220).
Having regard to the details of the information
and the documents furnished by the applicants, the Court is satisfied that
those rates are reasonable and reflect the expenses actually incurred by their
representatives. As to whether they were necessary, the Court notes that this
application was rather complex and required a certain amount of research and
preparation. It notes at the same time that the case involved little
documentary evidence, in view of the Government’s refusal to submit most of the
materials from the case file. Accordingly, it considers it appropriate to award
the applicants EUR 4,000 in respect of costs and expenses, plus any tax that
may be chargeable to them, the award to be paid into their representatives’
bank account in the Netherlands, as identified by the applicants.
C. 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
Government’s objection as to non-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 Beslan Baysultanov;
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 Beslan Baysultanov 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 distress;
6. Holds that there has been a violation of Article
5 of the Convention in respect of Beslan Baysultanov;
7. Holds that there has been a violation of Article
13 of the Convention in conjunction with Articles 2 and 3 of the Convention;
8. Holds
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles, at the rate applicable at the date of settlement, save
in the case of the payment in respect of costs and expenses:
(i) EUR 60,000 (sixty thousand euros) to the
applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR 4,000 (four thousand 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;
9. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 4 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
