CASE OF ABDURAKHMANOVA AND ABDULGAMIDOVA v. RUSSIA

FIRST SECTION

CASE OF ABDURAKHMANOVA AND ABDULGAMIDOVA v. RUSSIA

(Application no. 41437/10)

JUDGMENT

STRASBOURG

22 September 2015

FINAL

01/02/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Abdurakhmanova and Abdulgamidova v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

András Sajó, President,
Khanlar Hajiyev,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 1 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 41437/10) 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 Russian nationals, Ms Azha Abdurakhmanova and Ms Sabina Abdulgamidova (“the applicants”), on 22 July 2010.

2. The applicants were represented by the EHRAC/Memorial Human Rights Centre, a non-governmental organisation based in Moscow and London. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicants alleged that their relative was abducted by State agents in Dagestan, Russia, and subsequently disappeared, and that the authorities failed to effectively investigate the matter.

4. On 15 October 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1950 and 1987 respectively and live in Makhachkala. The applicants are the mother and the wife of Mr Abdurakhman Abdurakhmanov (in the documents submitted also written as Abdurashidov), who was born in 1985.

A. Abduction of the applicants’ relative

1. The applicants’ account

(a) Background information

6. The second applicant and her husband Mr Abdurakhman Abdurakhmanov have lived in Moscow since 2008. In the middle of June 2010 the second applicant went to Makhachkala to visit her relatives. On 24 June 2010 her husband Mr Abdurakhman Abdurakhmanov arrived from Moscow, and on the same date they went to visit Mr Abdurakhman Abdurakhmanov’s sister Ms F.Sh. at 29 Sovetskaya Street in Kaspiysk, Dagestan.

7. The first applicant and her husband, a federal judge of the Leninskiy District Court in Makhachkala, lived at 11 Gadzhiyeva Street, Makhachkala.

(b) Events in Makhachkala

8. At about 8 p.m. on 25 June 2010 a group of five officers from the Sovetskiy district department of the interior in Makhachkala (the Sovetskiy ROVD) arrived at the first applicant’s house. One of them, who identified himself as Shamil, showed the first applicant arrest warrant no. 6/3-3726 issued in the name of her son Mr Abdurakhman Abdurakhmanov and signed by Captain A. Plugin, the investigator of the Investigative Committee of the Federal Security Service (the FSB). According to the warrant, Mr Abdurakhman Abdurakhmanov was suspected, amongst other things, of involvement in terrorist activities.

(c) Events in Kaspiysk

9. Meanwhile, on 25 June 2010 the second applicant and her husband Mr Abdurakhman Abdurakhmanov were visiting their relative Ms F.Sh. in Kaspiysk. At about 9 p.m. on that date, a group of five to seven men, some of whom were in black masks, arrived at the house of Ms F.Sh. in a black VAZ-2107 (‘Приора’) car with the registration number containing the numbers 256 or 259 and the letters PH. One of them told the second applicant that they were from the police. The men abducted Mr Abdurakhman Abdurakhmanov next to the house, in the street. First they fired shots at his feet, then they knocked him down, dragged him into the car and drove off. The abduction took place in broad daylight and in the presence of a number of witnesses, including neighbours and the applicants’ relatives.

10. Shortly after the abductors’ departure, several police officers in uniform and plain clothes arrived at the scene of the shooting in two police cars; without giving any explanation they collected the cartridge cases left after the incident.

2. Information submitted by the Government

11. The Government did not dispute the applicants’ account of the circumstances of the abduction, stating that it “does not contradict the information collected by the authorities during the course of the investigation”.

B. The investigation of the abduction

1. The applicants’ complaints to the authorities and requests for an investigation

12. At about 9 p.m. on 25 June 2010, immediately after the incident, the second applicant in Kaspiysk called the first applicant in Makhachkala and informed her about the abduction.

13. In the morning of 26 June 2010 the first applicant complained about the abduction to the Dagestan FSB and the Dagestan Prosecutor’s office. She stated that on the date of the abduction she had been visited by a group of five officers from the Sovetskiy ROVD who had showed her a warrant for her son’s arrest issued by the FSB Captain A. Plugin; that shortly after their visit the second applicant had called her from Kaspiysk and told her about the abduction of Mr Abdurakhman Abdurakhmanov by a group of armed men who had opened fire and that shortly after the incident a group of police officers had collected the cartridge cases left at the scene.

14. On 28 June 2010 the Dagestan FSB replied to the first applicant that they had forwarded her complaint to the Dagestan Prosecutor’s office. On 29 June 2010 the latter informed her that they had forwarded the complaint to the Kaspiysk prosecutor’s office.

15. On 28 June 2010 the first applicant complained about the abduction to the Dagestan Ministry of the Interior (the MVD), and provided a detailed description of the circumstances surrounding the abduction, including the police officers’ visit to her house and the collection of the cartridge cases after the abductors’ departure. On 5 August 2010 the Dagestan MVD informed her that they had forwarded her complaint to the Kaspiysk town department of the interior (the GOVD).

16. On 6 July 2010 the Kaspiysk prosecutor’s office informed the first applicant that they had forwarded her complaint to their investigations department for a preliminary inquiry.

17. Between 13 and 19 July 2010 the Kaspiysk prosecutor’s office forwarded eleven requests to various law-enforcement agencies, asking them to establish the whereabouts of Mr Abdurakhman Abdurakhmanov and inform them about his possible detention and the reason for it. They also asked for a copy of the arrest warrant used by the police officers from the Sovetskiy ROVD and for information on whether Mr Abdurakhman Abdurakhmanov had been involved in extremist or illegal activities.

18. On 15 July 2010 the first applicant complained about the abduction to the Kaspiysk prosecutor’s office and asked whether a criminal case had been opened to investigate the incident, and if so what was the progress of the proceedings.

19. On the same date, 15 July 2010 the first applicant again lodged a complaint about her son’s abduction with the investigations department of the Kaspiysk prosecutor’s office. The complaint stated, amongst other things, that the abduction had been perpetrated by police officers in broad daylight and in the presence of numerous witnesses. The applicant asked the authorities to take urgent steps to investigate and to protect her son. In particular, she requested the investigators to take the following measures: granting her victim status in the criminal case; questioning a number of eyewitnesses to the abduction, including the second applicant, Ms F.Sh., Ms D.A., Ms S.G., and Ms R.A.; establishing whether any criminal charges had been pending against Mr Abdurakhman Abdurakhmanov and whether he had been on the authorities’ wanted list; identification of the five police officers who had visited the applicant in Makhachkala on 25 June 2010 and seizure of the warrant signed by Captain A. Plugin; identification of the latter and of the abductors’ car.

20. On 16 July 2010 the first applicant requested the Kaspiysk prosecutor’s office to take additional investigative steps to establish her son’s whereabouts. In particular, she asked them to request information from various detention centres in Dagestan in case Mr Abdurakhman Abdurakhmanov had been detained there, and to initiate a criminal investigation into the abduction.

21. On 16 July 2010 the applicants’ lawyer complained to the FSB investigator Captain A. Plugin about the abduction and the warrant used by the police officers from the Sovetskiy ROVD. The complaint gave a detailed description of the incident and stated that the officers had showed the first applicant a warrant allegedly signed by him. On 23 August 2010 Captain A. Plugin replied stating “... no orders to detain Mr Abdurakhman Abdurakhmanov have been given to the Sovetskiy ROVD ...” and that the applicants should complain about the abduction to the prosecutor’s office.

22. On 17 July 2010 the first applicant again complained to the head of the Dagestan FSB and the Dagestan Prosecutor (see paragraph 13 above). She asserted that Mr Abdurakhman Abdurakhmanov had been abducted by police or FSB officers from Dagestan, and requested the law-enforcement agencies to assist her in establishing his whereabouts.

23. On 19 July 2010 the first applicant complained to the Russian Prosecutor General. She provided a detailed description of the circumstances surrounding the abduction and stressed that the warrant under outgoing no. 6/3-3726 allegedly signed by Captain A. Plugin could have been forged by the police officers. She also stated that the abductors had told the second applicant that they were from the police and that all her efforts to establish her son’s whereabouts by complaining to local law‑enforcement agencies had not produced any tangible results. The applicant further stated that she had learned from an unidentified source that on 25 June 2010 a special operation had been conducted by the police or the FSB officers against her son, and requested the authorities to carry out an effective investigation of the incident.

24. On 21 July 2010 the first applicant again complained about the abduction to the Dagestan FSB. On 30 July 2010 they replied to her that her complaint had been forwarded to the Dagestan Prosecutor’s office.

25. On 5 August 2010 the first applicant complained to the head of the Russian FSB. She stated that her son had been abducted by members of law-enforcement agencies and that the responses received by her from the Dagestan FSB had not provided any meaningful information. The applicant asked whether any criminal proceedings were pending against her son, whether he was suspected of a crime, and whether Captain A. Plugin had issued the order for her son’s arrest. She also requested to be informed about her son’s whereabouts and the reasons for his detention. On an unspecified date in August 2010 the Russian FSB replied to the applicant stating that her son had not been charged with any offence and that they had not ordered the Sovetskiy ROVD to detain him.

26. On 11 August 2010 the first applicant complained to the Russian Prosecutor General, the head of the Russian FSB and the head of the Russian MVD about the unlawful detention of her son Mr Abdurakhman Abdurakhmanov by members of law-enforcement agencies. She also requested to be informed whether her son was a suspect in criminal case no. 17822, and if so what charges had been brought against him.

27. On 13 August 2010 the applicants’ lawyer requested information from the Dagestan Prosecutor’s office concerning the criminal charges against Mr Abdurakhman Abdurakhmanov and the place of his unlawful detention.

28. On 20 August 2010 the applicants again complained about the abduction to the Dagestan Prosecutor and the Dagestan MVD. They stated that local law-enforcement agencies had consistently denied any involvement in the abduction of Mr Abdurakhman Abdurakhmanov, but the head of the Sovetskiy ROVD had told them that their relative had been detained by ROVD officers and handed over to the Dagestan Centre for Terrorism Counteraction (the CTC) (“Центр по противодействию экстремизму и терроризму МВД РФ по РД”). However, according to the applicants, the latter agency had denied detaining Mr Abdurakhman Abdurakhmanov.

29. On an unspecified date in August 2010 the Dagestan Council of Judges complained on the applicants’ behalf to the head of the Russian FSB and the Russian Minister of the Interior. The complaint stated that the abduction of Mr Abdurakhman Abdurakhmanov had most probably been perpetrated by members of law-enforcement agencies, officers of the Sovetskiy ROVD in particular, and that the criminal investigation into the incident was ineffective.

30. On 24 August 2010 the Judicial Department of the Russian Supreme Court informed the Dagestan Council of Judges that they had forwarded the complaint about Mr Abdurakhman Abdurakhmanov’s abduction to the prosecutor’s office.

2. The official investigation of the abduction

31.  In reply to the Court’s request for a copy of the investigation file on the abduction of Mr Abdurakhman Abdurakhmanov the Government produced the relevant documents, which ran to seventy-eight pages. Their contents can be summarised as follows:

32. On 28 July 2010 the Kaspiysk prosecutor’s office initiated a criminal investigation into the abduction of Mr Abdurakhman Abdurakhmanov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 006210.

33. On 29 July 2010 the investigators examined the crime scene. No evidence was collected.

34. On the same date, 29 July 2010, the investigators granted the first applicant victim status in the criminal case and questioned her. She provided a detailed description of the circumstances surrounding the abduction, including the police officers’ visit to her house in Makhachkala, and stated that she had learned from unidentified sources that her son had been detained at a base of the Dagestan CTC.

35. On 30 July 2010 the investigators questioned the applicants’ relative Ms F.Sh., who stated that she had witnessed Mr Abdurakhman Abdurakhmanov’s abduction by a group of seven men in plain clothes, five of whom were masked. According to the witness, the abductors had opened fire and forced Mr Abdurakhman Abdurakhmanov into a black VAZ‑2107 (‘Приора’) car with the registration number either E256 or E259. The numerous neighbours who had also witnessed the abduction had later told her that the abductors had used two black VAZ-2107 cars.

36. On 30 July 2010 the investigators questioned Ms R.A. and the second applicant, whose statements about the events were similar to that of Mr F.Sh. The second applicant added that about 15-20 minutes after the abduction two police cars had arrived at the place of the skirmish. A group of police officers, both uniformed and plain clothes, had searched the ground with flash lights looking for the spent bullet cartridges.

37. On 2 August 2010 the head of the criminal search division of the Kaspiysk ROVD informed the investigators that they had been unable to identify any witnesses to the abduction.

38. From the documents submitted it follows that on 12 August 2010 the head of Police Station no. 1 in Makhachkala sent the investigators letter no. 2/4298, stating that on 25 July 2010 four of their police officers, M.D., D.M., M.Z. and M.A., following the order of the Russian FSB no.6/3‑3726 of 16 June 2010 given as part of the investigation of criminal case no. 171822, had arrived at the house of the judge of the Leninskiy district of Makhachkala Mr Sh.A. to establish the whereabouts of his son Mr Abdurakhman Abdurakhmanov. The police officers had questioned the first applicant who had told them that her son and his wife were in Moscow. The police officers had not participated in Mr Abdurakhman Abdurakhmanov’s arrest.

39. On 2 September 2010 the head of the Supervision and Control Department of the Dagestan Investigations Committee examined the criminal case file opened into the abduction. He criticised the investigators for their failure to take a number of steps, and ordered that remedial measures be taken. In particular, the document stated the following:

“... The case file examination demonstrated that the investigation is being conducted without purpose, that most important circumstances of the crime are not being established and clarified, and that the necessary steps to establish them are not being taken ...

[The applicant] Ms Abdurakhmanova stated that at about 8 p.m. on 25 July 2010 five men had arrived at her house. They had introduced themselves as servicemen from the Sovetskiy ROVD in Makhachkala. One of them named Shamil had shown her an arrest warrant for her son Mr A. Abdurakhmanov signed by the FSB investigator A. Plugin ...

Later on the same day she had learnt of her son’s abduction in Kaspiysk by unknown masked persons ... who fired weapons during the incident and absconded from the crime scene. Shortly afterwards policemen had arrived at the scene and, according to the neighbours, had collected the cartridge cases and left.

To verify Ms Abdurakhmanova’s statements it is necessary to take the following steps:

- identifying the policemen who had visited her house as well as the investigator from the Sovetskiy ROVD named Shamil ...

- questioning all the policemen in Kaspiysk who were on duty on 25 June 2010 to find out whether they were called to a scene of shooting and abduction at 29 Sovetskaya Street ...

- questioning all the witnesses, including the neighbours in Sovetskaya Street, about the events, and finding out the registration numbers of the cars used by the policemen who had arrived at the scene after the abduction ...

... in the letter from the Dagestan FSB of 4 August 2010 it is stated that the FSB had sent a letter to the Investigations Committee (no. 5/3170 of 3 July 2008) concerning Mr A. Abdurakhmanov, in which it was stated that the Dagestan Investigations Committee had been investigating case no. 6021567 concerning ... a bandit group which had planned murders of policemen in Makhachkala as well as terrorist attacks. One of that group’s members was Mr A. Abdurakhmanov ... who had maintained close contact with active members of the bandit subversive movement and had aided and abetted them. In particular, Mr A. Abdurakhmanov had sheltered in his flat armed members of the bandit subversive movement who were hiding from the authorities ...

The investigation of criminal case no. 171822 opened by the Russia FSB obtained information concerning activities of an organised armed group in Dagestan and Moscow which was aiding and abetting the armed bandit subversive movement in Dagestan ... the investigation received information concerning Mr A. Abdurakhmanov’s involvement in the activities of that group ...

In connection with the above, it is necessary that the investigators:

- write to the FSB investigator A. Plugin concerning the operational search measures to be taken against Mr A. Abdurakhmanov ...”

40. On 20 September 2010 the FSB Investigations Department informed the investigators of the following:

“... the FSB investigations department is investigating criminal case no. 171822 concerning ... members of the illegal armed group “Imarat Kavkaz”.

Mr R.A. and Mr R.M. have been charged in the criminal case with membership of illegal armed groups ... Mr A. Abdurakhmanov is a witness to their criminal activity. In this connection, a request for operational search measures (outgoing no. 6/3-3726 of 17 June 2010) to establish his whereabouts and question him has been forwarded to the Dagestan FSB ...”

41. On 28 September 2010 the investigators requested the Internal Security Service of the Dagestan MVD to oblige police officers M.D., D.M., M.Z. and M.A. to provide statements for the investigation concerning the abduction. The letter stated, amongst other things, that the first applicant had insisted that her son’s abduction had been perpetrated by police officers from the Dagestan CTC.

42. On the same date, 28 September 2010, the investigation of the criminal case was suspended. The applicants were not informed thereof.

43. On an unspecified date in October 2010 the applicants complained to the Kaspiysk Prosecutor about the investigators’ failure to take basic steps to investigate the abduction. On 14 October 2010 the applicants were informed by the Kaspiysk Prosecutor that an investigation into the abduction was in progress.

44. On 15 November 2010 the applicants requested the investigators to take a number of actions, including questioning the heads of the Kaspiysk Town Department of the Interior (the GOVD) to find out whether any special operations had been carried out in the settlement on 25 June 2010 and the reason for the collection of the cartridge cases from the crime scene after the shooting; questioning the head of the Sovetskiy ROVD to establish the reason for the police officers’ visit to the first applicant’s house on 25 June 2010; and questioning the head of the Dagestan CTC to establish whether Mr Abdurakhman Abdurakhmanov had been taken to their premises and if so why this had been done.

45. On 22 November 2010 the head of the Kaspiysk Investigations Department criticised the investigators for an unlawful and premature suspension of the investigation, and ordered that the investigation be resumed and a number of steps be taken.

46. On 23 November 2010 the investigators questioned police officers M.D. and M.Z., both of whom stated that on 25 June 2010 they had visited the first applicant’s house to establish the whereabouts of Mr Abdurakhman Abdurakhmanov on suspicion of his membership of illegal armed groups. The first applicant had told them that her son was not at home. The witnesses had then left the house and had subsequently learnt of the abduction from a local newspaper.

47. On 24 November 2010 the applicants complained to the head of the Kaspiysk Investigations Department, the Dagestan Investigations Department, the Kaspiysk Prosecutor and the Dagestan Prosecutor about the investigators’ failure to take basic steps to investigate the abduction in spite of numerous pieces of evidence implicating law-enforcement officers in the crime. They requested that the investigators be ordered to expedite the investigation and identify the perpetrators.

48. On 30 December 2010 the deputy head of the Kaspiysk Investigations Department rejected the applicants’ complaint as groundless.

49. From the documents submitted it follows that the proceedings are still pending.

C. Court proceedings against law-enforcement agencies

50. On 19 July 2010 the first applicant complained to the Sovetskiy District Court of Makhachkala (the district court). She provided a detailed description of the circumstances surrounding her son’s abduction and alleged that he had been abducted by members of law-enforcement agencies. The applicant requested the district court to order the prosecutor’s office to take a number of essential investigative steps and to provide her with information concerning the whereabouts of Mr Abdurakhman Abdurakhmanov.

51. On 29 July 2010 the court requested the Dagestan MVD to inform it whether the police officers had arrested the applicants’ relative.

52. On 12 August 2010 the Dagestan MVD replied to the court, stating the following:

“... on 25 June 2010 ... a group of officers from the ROVD, including Major M.D., Senior Lieutenants D.M. and M.Z. and Lieutenant M.A., following the investigator’s order no. 6/3-3726 of 17 June 2010 issued as part of the criminal case no. 171822 opened under Articles 186 § 1 (money counterfeiting) and 205 § 1 (terrorist activity) of the Criminal Code, visited [the first applicant’s house in Makhachkala] in order to establish the whereabouts of Mr Abdurakhman Abdurakhmanov, who was suspected of committing the above crimes ...”

The letter further stated that no further information about the visit was available.

53. On 24 August 2010 the district court rejected the applicant’s complaint of 19 July 2010. The decision stated, amongst other things, the following:

“... from the letter of the head of the Dagestan FSB Mr A.G., outgoing no. 13465 dated 2 July 2010, it follows that order no. 6/3 dated 17 June 2010 was issued by the Investigations Department of the Dagestan FSB as part of criminal case no. 171822, to establish the whereabouts of Mr Abdurakhman Abdurakhmanov ... Following this order the officers of the Sovetskiy ROVD visited the home of [the first applicant] Ms A. Abdurakhmanova and took a statement from her concerning her son’s whereabouts. Their actions do not contravene Article 6 of the Federal Law “On Operational and Search Activity”....”

II. RELEVANT DOMESTIC LAW AND PRACTICE

54. For a summary of the relevant domestic law (see Turluyeva v. Russia, no. 63638/09, §§ 56-64, 20 June 2013).

THE LAW

I. EXHAUSTION OF DOMESTIC REMEDIES

A. The parties’ submissions

55. The Government submitted that the investigation into the disappearance of Mr Abdurakhman Abdurakhmanov 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 appeal against alleged acts or omissions by the investigating authorities to domestic courts or to claim civil damages there.

56. The applicants contested the Government’s submission. They stated that the only effective remedy, the criminal investigation, had proved to be ineffective.

B. The Court’s assessment

57. 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).

58. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.

59. 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.

60. As regards criminal-law remedies provided under the Russian legal system, the Court observes that the applicants complained to the law‑enforcement authorities after the abduction of Mr Abdurakhman Abdurakhmanov, and that an investigation has been pending since 28 July 2010. The applicants and the Government disagree about the effectiveness of that investigation.

61. 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

62. The applicants maintained that it was beyond reasonable doubt that the men who had abducted Mr Abdurakhman Abdurakhmanov were State agents. In support of their complaint, they referred to the following facts. Mr Abdurakhman Abdurakhmanov was suspected by the authorities of membership of illegal armed groups (see paragraphs 39, 40, 46 and 52 above); two hours prior to the abduction five officers from the Sovetskiy ROVD visited the first applicant’s house in Makhachkala and showed the FSB warrant (see paragraphs 8, 13, 23, 39 and 52 above). Then, in Kaspiysk, less than an hour later, one of the abductors identified himself as a police officer and shortly after the abduction the police arrived at the scene and removed the spent cartridges to cover the perpetrators’ tracks. The perpetrators were violent and opened fire without hesitation, in the presence of a number of witnesses. The applicants further stated that since Mr Abdurakhman Abdurakhmanov had been missing for about a year at the time of the submission of their observations to the Court, he could be presumed dead. That presumption was further supported by the circumstances in which he had been abducted, which should be recognised as life-threatening.

63. The Government submitted that the applicants’ relative had been abducted by unidentified men and that neither the perpetrators’ behaviour nor their vehicles provided for any firm evidence that they were State agents. The Government further contended that there was no evidence that Mr Abdurakhman Abdurakhmanov was dead.

B. The Court’s evaluation of the facts

64. The Court observes that in its extensive case-law it has developed a number of general principles relating to the establishment of matters in dispute, in particular when faced with allegations of violations of fundamental rights (for a most recent summary of these, see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012).

65. More specifically, the Court has adjudicated a series of cases concerning allegations of disappearances in the Russian North Caucasus. Applying the above-mentioned principles, it has concluded that it would be sufficient for the applicants to make a prima facie case of abduction of the missing persons by State agents, thus falling within the control of the authorities, and it would then be 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 occurred (see, for example, concerning abductions in Dagestan, Alpatu Israilova v. Russia, no. 15438/05, 14 March 2013, and Umarovy v. Russia, no. 2546/08, 12 June 2012). If the Government failed to rebut this presumption, that would entail a violation of Article 2 in its substantive part. Conversely, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012).

66. In view of the parties’ submission concerning the circumstances of the abduction (see paragraphs 8-11 above), the Court concludes that the materials in its possession demonstrate the validity of the applicants’ allegation, for the following reasons. Firstly, the abductors, who arrived in a civilian vehicle, acted as an organised group and did not hesitate to open fire and perpetrate the abduction in the street, in daylight and in the presence of witnesses. One of them told the second applicant that they were from the police. Secondly, a group of local police officers arrived at the crime scene shortly after the incident and collected the cartridge cases left by the abductors. Thirdly, the police officers’ visit to the first applicant’s house in Makhachkala looking for Mr Abdurakhman Abdurakhmanov on suspicion of his involvement in terrorist activities, just an hour prior to his abduction in Kaspiysk, provides grounds to believe that these two events were interconnected. Further, the investigators took no meaningful steps to check whether the abduction could have been perpetrated for other reasons, such as a blood feud, ransom, drugs or hostility. No serious steps were taken to verify those hypotheses and no information was obtained that the abductors could have been other than State agents (see, by contrast, Zubayrayev v. Russia, no. 67797/01, § 81, 10 January 2008). Lastly, the procrastination of the authorities in the investigation into the matter, along with the applicants’ consistent allegations that law-enforcement officers were involved in the incident (see, for example, paragraph 47 above), provide the Court with the grounds to conclude that the applicants have made a prima facie case that their relative Mr Abdurakhman Abdurakhmanov was abducted by State agents. The Government’s statement that the investigators found no evidence that members of law‑enforcement authorities were involved in Mr Abdurakhman Abdurakhmanov’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 Mr Abdurakhman Abdurakhmanov was apprehended on 25 June 2010 by State agents (see, for a similar situation, Askhabova v. Russia, no. 54765/09, § 135, 18 April 2013).

67. There has been no reliable news of Mr Abdurakhman Abdurakhmanov since his arrest. The Government have not submitted any explanation as to what happened to him afterwards.

68. The Court finds that, in a situation where a person is detained by unidentified police officers without any subsequent acknowledgment of the detention and is then missing for several years, that situation can be regarded as life-threatening. The absence of Mr Abdurakhman Abdurakhmanov or of any news of him for over five years supports this assumption.

69. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Mr Abdurakhman Abdurakhmanov must be presumed dead following his unacknowledged detention by State agents.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

70. The applicants complained under Article 2 of the Convention that their relative Mr Abdurakhman Abdurakhmanov had been abducted and subsequently 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

71. The Government contended that the domestic investigation had obtained no evidence to the effect that Mr Abdurakhman Abdurakhmanov was dead, or that any State agents had been involved in his abduction. They further claimed that the investigation of the incident had met the Convention requirement of effectiveness.

72. The applicants argued that Mr Abdurakhman Abdurakhmanov had been abducted by State agents and subsequently killed and that the investigation of the matter had been ineffective. In particular, they alleged that the investigators had either failed to take a number of crucial investigative steps or they had taken those steps belatedly and with major deficiencies.

B. The Court’s assessment

1. Admissibility

73. 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 61 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 Mr Abdurakhman Abdurakhmanov

74. The Court has already found that Mr Abdurakhman Abdurakhmanov 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 him.

(b) Effectiveness of the investigation of Mr Abdurakhman Abdurakhmanov’s disappearance

(i) General principles

75. 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).

76. 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, Isayeva v. Russia, no. 57950/00, § 210, 24 February 2005).

77. In this context, there must also be an implicit requirement of promptness and reasonable expedition. 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 (see McKerr v. the United Kingdom, no. 28883/95, § 114, ECHR 2001‑III, with further references).

78. 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 v. Turkey [GC], no. 21954/93, § 88, ECHR 1999-III). This is not an obligation of result, but of means. The authorities must take 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.

79. For an investigation into allegations of unlawful killing by State agents to be effective, it is necessary for those responsible for and carrying out the investigation to be independent of those implicated in the events (see, for example, Güleç v. Turkey, 27 July 1998, §§ 81-82, Reports 1998‑IV, and Ögur, cited above, §§ 91-92). This means not only a lack of hierarchical or institutional connection but also independence in practice (see, for example, Shanaghan v. the United Kingdom, no. 37715/97, § 104, 4 May 2001).

80. In addition, there must be a sufficient element of public scrutiny of the investigation or its results so that accountability can be ensured 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 victim’s next of kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see McKerr v. the United Kingdom, no. 28883/95, § 115, ECHR 2001‑III).

(ii) Application of the above principles to the present case

81. In the present case, the abduction of Mr Abdurakhman Abdurakhmanov was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

82. The Court notes that the applicants reported the abduction to the authorities on 26 June 2010 (see paragraph 13 above). The official investigation was initiated on 28 July 2010, more than a month after the receipt of the applicants’ complaint (see paragraph 32 above). From the very beginning of the investigation, the applicant alleged that law-enforcement officers had been involved in the incident (see paragraphs 13, 15, 19 and 21 above). Despite the fact that the investigators received that information shortly after the abduction, no immediate steps were taken to either question the police officers from the Sovetskiy ROVD or to identify the officers who had collected the cartridge cases left by the abductors or to identify the abductors’ vehicle, even though there was information concerning its registration number (see paragraphs 35-41 above). These steps were either taken several months later or not at all (see paragraphs 44 and 46-47 above). In spite of the applicants’ request for at least five eyewitnesses to the abduction to be questioned (see paragraph 19 above), the investigators limited themselves to obtaining statements only from three of them and only fifteen days after the receipt of that information (see paragraphs 35 and 36 above). Also, in spite of the applicants’ allegation that after the abduction their relative could have been detained on the premises of the Dagestan CTC (see paragraph 28 above), the investigators did not look into this.

83. Furthermore, from the documents submitted it appears that on several occasions the supervisors criticised the investigators for failing to take important investigative steps (see paragraphs 39 and 45 above) and ordered that remedial measures be taken. Those instructions were not complied with.

84. As regards the overall conduct of the proceedings, the Court notes that the investigation was opened on 28 July 2010 and suspended as early as 28 September 2010, only two months later, without the necessary steps being taken during the most important initial stage of the proceedings. This suspension was criticised by the supervising body (see paragraph 45 above). This premature suspension in a situation in which vital steps had not been taken, along with the procrastination in initiating the criminal investigation, undermined the investigators’ ability to identify and punish the perpetrators (see Ögur, cited above, § 88).

85. As for public scrutiny, the Court notes that shortly after the initiation of the proceedings, on 29 July 2010 the first applicant was granted victim status and questioned (see paragraph 34 above). However, she was not informed about the suspension of the investigation (see paragraph 42 above) and in the absence of information on the progress of the proceedings, she complained to the domestic court (see paragraphs 50-53 above). Keeping the above factors in mind, it remains to be decided whether she was able to effectively pursue her legitimate interests in the proceedings.

86. The Government argued that the first applicant could have sought judicial review of the decisions of the investigating authorities as part of the exhaustion of domestic remedies. The Court accepts that, in principle, that remedy may offer a substantial safeguard against the arbitrary exercise of power by an investigating authority, given a court’s power to set aside the impugned decision and indicate the defects to be addressed.

87. The Court, however, has strong doubts as to whether that remedy would have been effective in the circumstances of the present case, for the following reasons. In the investigation of such a serious crime as abduction, it would be reasonable to presume that the authorities took all possible measures of their own motion to establish the whereabouts of the abducted man and to identify the culprits. Assuming that the applicant’s access to the case file would have provided her with the chance to assess the progress of the investigation, in the light of the compulsory orders of the supervising prosecutors of 2 September and 22 November 2010 (see paragraphs 39 and 45 above), it could have been presumed that the shortcomings would be remedied and the necessary steps taken. However, the investigators suspended the proceedings without complying with the orders or taking the required steps.

88. In such a situation, even if the applicant had appealed against the investigators’ actions at a later date, taking into account that the proceedings were ongoing for several more months, it is highly questionable whether her appeal could have redressed the defects in the investigation by bringing them to the attention of a domestic court. In this connection, the Court reiterates that the authorities cannot leave it to the initiative of the next of kin to request particular lines of inquiry or investigative procedures (see, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000‑VII): they must show their commitment by taking all steps of their own motion and demonstrating that they have taken the reasonable steps available to them to secure the evidence. Any deficiency in the investigation which undermines its ability to establish the identity of the person responsible will risk falling below this standard (see, for example, Salman, cited above, § 106, and Tanrikulu, cited above, § 109).

89. However, the materials in the Court’s possession reveal that crucial investigative steps, which should have been taken as soon as the relevant information was obtained, were never taken, in spite of the supervisors’ direct orders to this end (see paragraphs 39 and 45 above). This failure to act in a timely manner led to unnecessary delays and a loss of time, because steps which could have yielded results were not taken. Therefore, it is highly doubtful that any appeals by the applicant against the investigators’ decisions would have had any prospects of spurring the progress of the investigation or effectively influencing its conduct. Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances of the present case, and dismisses their objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation.

90. 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 Mr Abdurakhman Abdurakhmanov, in breach of Article 2 in its procedural aspect.

IV. ALLEGED VIOLATIONS OF ARTICLES 3, 5 AND 13 OF THE CONVENTION

91. The applicants complained of a violation of Articles 3 and 5 of the Convention on account of the mental suffering caused to them by the disappearance of their close relative and the unlawfulness of his detention. They also argued that, contrary to Article 13 of the Convention, there had been no available domestic remedies in respect of the alleged violations, in particular those under Article 2 of the Convention. The relevant parts of those Articles read:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5

“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.”

Article 13

“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

92. The Government contested the applicants’ claims.

93. The applicants reiterated their complaints.

B. The Court’s assessment

1. Admissibility

94. The Court notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2. Merits

95. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 in respect of the close relatives of the victim. The essence of such a violation does not lie mainly 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). Where news of the missing person’s death is preceded by a sufficiently long period in which he or she may be deemed disappeared, there exists a distinct period during which an applicant sustains uncertainty, anguish and distress characteristic to the specific phenomenon of disappearances (see Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006‑XIII (extracts).

96. Equally, the Court has found on many occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 and discloses a particularly grave violation of its provisions (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, Luluyev and Others, cited above, § 122, and Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 132, 18 December 2012).

97. The Court reiterates its findings regarding the State’s responsibility for the abduction and the failure to carry out a meaningful investigation into the fate of Mr Abdurakhman Abdurakhmanov. It finds that the applicants, who are the mother and wife of the disappeared man, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish which they suffered, and continue to suffer, as a result of their inability to ascertain the fate of their disappeared relative and of the manner in which their complaints have been dealt with.

98. The Court furthermore confirms that since it has been established that Mr Abdurakhman Abdurakhmanov was detained by State agents, apparently without any legal grounds or acknowledgement of such detention, this constitutes a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention.

99. The Court reiterates its findings of the general ineffectiveness of criminal investigations in cases such as those under examination. In the absence of results from a criminal investigation, any other possible remedy becomes inaccessible in practice.

100. The Court thus finds that the applicants did not have an effective domestic remedy at their disposal for their grievances under Article 2 in breach of Article 13 of the Convention (see, for example, Aslakhanova and Others, cited above, §157).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

101. 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. The applicants’ demand for further investigation

102. The applicants requested, referring to Article 41 of the Convention, that an independent investigation which would comply with the requirements of the Convention be conducted into their relative’s abduction. They relied in this connection on the case of Assanidze v. Georgia ([GC], no. 71503/01, §§ 202-03, ECHR 2004-II).

103. The Government argued that the investigation into the abduction of the applicants’ relative had been carried out in full compliance with domestic law.

104. The Court would like to point out that it has already provided some guidance on the measures to be taken by the Russian authorities to address the issue of the failure to investigate disappearances in the North Caucasus (see Aslakhanova and Others, cited above, § 221).

105. In view of the above, the Court finds it appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order (see also Yandiyev and Others v. Russia, nos. 34541/06, 43811/06 and 1578/07, §§ 146-47, 10 October 2013).

B. Damage

106. The applicants did not claim compensation for pecuniary damage. As for non-pecuniary damage, they left the determination of the amount of the compensation to the Court.

107. The Government submitted that finding a violation of the Convention would be adequate just satisfaction in the applicants’ case.

108. The Court has found a violation of Articles 2, 3, 5 and 13 of the Convention in the applicants’ case and thus accepts that they have suffered non-pecuniary damage. It awards the applicants 60,000 euros (EUR) jointly plus any tax that may be chargeable thereon.

C. Costs and expenses

109. The applicants were represented by EHRAC/Memorial. Their aggregate claim in respect of costs and expenses related to the legal representation amounted to 3,090 pounds sterling (GBP) (approximately EUR 4,170) with the following breakdown of costs:

(a) GBP 900 for 6 hours of legal work by United Kingdom-based lawyer Ms Jessica Gavron at a rate of GBP 150 per hour;

(b) GBP 1,770 for translation costs and

(c) GBP 420 for administrative costs and expenses.

The applicants submitted copies of invoices with breakdowns of the costs incurred.

110. The Government disputed the reasonableness and the necessity of the expenses. They stated that the expenses were not properly itemised and substantiated “except for two notes of a general nature”, and invited the Court to reject this part of the claim.

111. The Court has to establish first whether the costs and expenses were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220).

112. Having regard to the details of the information submitted by the applicants, the Court is satisfied that it reflects the necessary expenses actually incurred by the applicants’ representatives.

113. Having regard to the details of the claims submitted, the Court awards the applicants the amount of EUR 3,000 together with any value‑added tax that may be chargeable to them, the net award to be paid into the representatives’ bank account in the UK, as identified by the applicants.

D. Default interest

114. 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. Joins to the merits the Government’s preliminary objection concerning the 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 Mr Abdurakhman Abdurakhmanov;

4. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate the disappearance of Mr Abdurakhman Abdurakhmanov;

5. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants;

6. Holds that there has been a violation of Article 5 of the Convention in respect of Mr Abdurakhman Abdurakhmanov;

7. Holds there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;

8. Holds

(a) that the respondent State is to pay the applicants jointly, 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 the currency of the respondent State at the rate applicable on the date of settlement, save for the payment in respect of costs and expenses:

(i) EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, the net award to be paid into the representatives’ bank account in the UK, as identified by the applicants;

(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 22 September 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              André WampachAndrás Sajó
Deputy RegistrarPresident

 

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