THIRD SECTION
CASE OF ESAMBAYEVA AND OTHERS v. RUSSIA
(Applications nos. 2660/12 and 4 others – see appended list)
JUDGMENT
STRASBOURG
4 June 2019
This judgment is final but it may be subject to editorial revision.
In the case of Esambayeva and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President,
Branko Lubarda,
Erik Wennerström, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 14 May 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in five applications 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”). The application numbers and the dates on which they were lodged with the Court as well as the applicants’ personal details are listed in the appended table.
2. The applicants were represented by Mr D. Itslayev and Mr T. Shamsudinov, lawyers practising in Grozny, and by lawyers from the NGO Materi Chechni, as indicated in the appended table. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. On 21 September 2015 notice of the applications was given to the Government.
4. The Government did not object to the examination of the applications by a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants are Russian nationals who at the material time lived in the neighbouring regions of the Chechen Republic and the Republic of Ingushetia. They are close relatives of individuals who disappeared in these regions in 2000-04 after allegedly being unlawfully detained by service personnel. In each of the applications the events took place in areas under full control of the Russian federal forces. The applicants had no news of their missing relatives thereafter.
6. In each of the cases the applicants complained in respect of the abduction to law-enforcement bodies and an official investigation was instituted. In every case the investigations, after being suspended and resumed on several occasions, have been pending for several years without attaining any tangible results. It is apparent from the documents submitted that no active investigative steps have been taken by the authorities other than forwarding formal information requests to their counterparts in various regions of Chechnya, Ingushetia and the North Caucasus. Further to such requests, the authorities generally reported that service personnel’s involvement in the abduction had not been established and that no special operations had been carried out at the relevant time. The applicants also lodged requests for information and assistance in the search of their missing relatives to various authorities but received only formal responses, if any. The perpetrators have never been established by the investigating bodies. It appears that all of the investigations are still pending.
7. Summaries of the facts in respect of each application are set out below. Each account of events is based on statements provided by the applicants and their relatives and/or other witnesses to the Court and the domestic investigating authorities. Despite the Court’s request to this end, the Government did not submit the documents from the investigation files in each application. They did not dispute the principal facts of the cases as presented by the applicants, but denied that the abductors had been State service personnel.
A. Esambayeva v. Russia (no. 2660/12)
8. The applicant is the mother of Mr Shamil Amirkhadzhiyev, who was born in 1986.
1. Background information
9. The applicant’s husband and two sons, who were ten and eleven years old at the material time, died during shelling of Grozny in 1994. When military operations were launched in Chechnya in 1999, the applicant with two other children moved to Nazran, Ingushetia where they lived as refugees.
2. Abduction of Mr Shamil Amirkhadzhiyev
10. On 28 May 2000 the applicant’s son, Mr Shamil Amirkhadzhiyev, who was thirteen years old at the time, left Nazran and went to Grozny by bus. He was taken off the bus by service personnel at a checkpoint near the canning factory in Grozny because he did not have identity documents. Then he was forced into an APC and taken away. While being taken to the APC, Mr Shamil Amirkhadzhiyev shouted out his name and the applicant’s name and asked the bus passengers to inform her of his arrest.
11. The circumstances of the abduction were confirmed by bus passengers’ statements submitted to the Court.
12. The whereabouts of Mr Shamil Amirkhadzhiyev have remained unknown ever since.
3. Official investigation into the abduction
13. According to the applicant, she reported the abduction immediately to the local military command in Grozny, the Office of the Prosecutor of Chechnya and various NGOs.
14. On 14 July 2000 the applicant complained in respect of the abduction again to the Leninskiy district police station and asked for assistance in the search for her son.
15. On 21 July 2000 the Leninskiy district police station opened search file (розыскное дело) no. 30/48 into the abduction. Between May and September 2000 police officers took steps to establish Mr Shamil Amirkhadzhiyev’s whereabouts but to no avail.
16. On 18 December 2000 the Leninskiy district police station refused to open a criminal case into the abduction of Mr Shamil Amirkhadzhiyev.
17. On 19 August 2001 the applicant complained in respect of the abduction to the Representative of the President of the Russian Federation in the Southern Federal District and asked him for assistance in the search for her son.
18. On 29 July 2005 the Leninskiy district prosecutor’s office opened criminal case no. 40147 under Article 126 of the Criminal Code (abduction).
19. On 14 September 2005 the applicant was granted victim status and questioned. She stated that she had visited all checkpoints in Grozny trying to find her son but to no avail. Near the canning factory she had met women who had been trading at the local market. They had told her that a teenager who had looked like her son had been forced into an APC and taken away.
20. The investigators sent several requests for information to the law‑enforcement authorities. According to the responses, it was established that Mr Amirkhadzhiyev had been arrested and taken away by service personnel of the federal forces. The responses contained statements that no information about Mr Amirkhadzhiyev was available.
21. On 29 September 2005 the investigation was suspended. It was resumed on 19 January 2006 and suspended again on 20 February 2006.
22. On 4 June 2010 the applicant requested that the investigators provide her with copies of documents from the investigation file. On 8 June 2010 the applicant’s request was granted. It appears that the investigation is still pending.
23. According to the applicant, between 2000 and 2010 she contacted various authorities, including the investigators, seeking their assistance in the search for her son, but to no avail.
B. Vatsayevy v. Russia (no. 2674/12)
24. The applicants are close relatives of Mr Said-Magomed Vatsayev, who was born in 1979. The first applicant is his mother, the second applicant is his brother and the third applicant is his sister.
1. Abduction of Mr Said-Magomed Vatsayev
25. On 11 July 2002 service personnel under the command of General I.B. carried out a “sweep” operation in Chechen-Aul. As she was afraid for her son’s safety, the first applicant told Mr Said-Magomed Vatsayev to go to her sister, who lived in Belgatoy village.
26. On their way to Belgatoy Mr Said-Magomed Vatsayev and Mr M.Z. were passing by the Argun river, when the service personnel saw them and opened fire. It is unclear whether it was Mr Vatsayev or Mr M.Z. who was injured and fell to the ground on the bank. The other man jumped into the river and was carried away by the strong current. The service personnel picked up the injured man and took him away to an unknown destination.
27. The eyewitnesses did not see which of the two men had been injured and who had jumped into the water. According to the applicants, the injured man must have been Mr Said-Magomed Vatsayev, as his passport was later found on the bank.
28. The whereabouts of Mr Said-Magomed Vatsayev have remained unknown ever since.
2. Official investigation into the abduction
29. On 23 July 2002 the first applicant reported the abduction to the Head of the Government of the Chechen Republic.
30. On 9 September 2002 the first applicant complained of the abduction to the Grozny district police station.
31. In October 2002 police officers interviewed several relatives of Mr M.Z. and the first applicant. They confirmed the circumstances of the abduction as described above.
32. According to the applicants, on several occasions between 2002 and 2005 they complained of the police’s failure to take necessary investigative steps to the Grozny district prosecutor’s office.
33. In December 2005 the Grozny district police station carried out additional preliminary enquiries into the applicants’ abduction complaint.
34. On 21 December 2005 the Grozny district prosecutor’s office examined the results of its preliminary enquiries and pointed out that contrary to the relevant procedural regulations, no operational search activities had been carried out by the Grozny district police station since 2002.
35. Following the prosecutor’s office’s criticism, the head of the police station sent several requests for information to the law-enforcement authorities. The responses contained statements that no information about Mr Vatsayev was available.
36. On 24 January 2006 the Grozny district prosecutor’s office opened criminal case no. 54006 under Article 105 of the Criminal Code (murder).
37. On 30 January 2006 the first applicant was granted victim status. According to the applicant, on several occasions between 2006 and 2011 she contacted the authorities with requests for assistance in the search for her son.
38. On 24 March 2006 the investigation was suspended for failure to identify the perpetrators. It was resumed on 4 June 2011, then suspended on 16 June 2011 and resumed again on 21 July 2011.
39. It appears that the investigation is still pending.
3. Proceedings against the investigators
40. On 1 July 2011 the applicants challenged the investigators’ decision to suspend the investigation of 16 June 2011 and their failure to take basic steps before the Grozny District Court. On 22 July 2011 the court terminated the proceedings having found that the day before the investigation had been resumed. On 24 August 2011 the Chechnya Supreme Court upheld that decision on appeal.
C. Chapsurkayevy v. Russia (no. 65488/12)
41. The applicants are close relatives of Mr Khamzat Chapsurkayev, who was born in 1964. The first applicant is his wife and other applicants are his children.
1. Abduction of Mr Khamzat Chapsurkayev
42. Around 5 a.m. on 17 July 2002 several armed service personnel in camouflage uniforms and balaclavas broke into the applicants’ house in Shali. Another group of service personnel also broke into the house of Mr Khamzat Chapsurkayev’s brother, which was situated nearby. The service personnel, who spoke unaccented Russian, asked for the identity documents of Mr Khamzat Chapsurkayev. After checking them, the service personnel handcuffed Mr Chapsurkayev. Then they pulled his shirt over his head, forced him into the one of three APCs (armoured personnel carriers) and drove off in the direction of Shali town centre. One of the service personnel filmed the events on a video camera. The abduction took place in the presence of the applicants and their neighbours.
43. The whereabouts of Mr Khamzat Chapsurkayev have remained unknown ever since.
2. Official investigation into the abduction
44. On 24 October 2002 the first applicant lodged an official complaint in respect of her husband’s abduction with the authorities and requested assistance in the search for him.
45. On 29 November 2002 the Shali district prosecutor’s office opened criminal case no. 59267 under Article 126 of the Criminal Code (abduction).
46. On the same day the first applicant was granted victim status and questioned. She confirmed the circumstances of the events as described above.
47. On 29 January 2003 the investigation was suspended. The first applicant was informed thereof.
48. On 3 July 2003 the first applicant complained of the abduction to the military prosecutor of Shali and requested assistance in the search for him.
49. On 17 April 2004 the military prosecutor’s office of military unit no. 20166 replied to the applicant’s complaint, stating that on 17 July 2002 their service personnel had neither carried out any special operation nor detained anyone.
50. In 2005 the first applicant complained about the abduction to the State Council of the Chechen Republic. It is unclear whether her complaint was forwarded to the investigators and whether any reply was given to it.
51. On 30 November 2006 the first applicant again complained to the Shali district prosecutor in respect of the abduction. It is unclear whether she received any reply.
52. On 29 February 2010 the first applicant requested that the investigators resume the investigation and grant her access to the case file. No reply was given to this request.
53. However, following the above request, on an unidentified date in June 2010 the investigation was resumed.
54. On 13 July 2010 the investigators questioned the first applicant.
55. On 22 and 26 July 2010 the investigators questioned the applicants’ neighbour, Mr A.D., who confirmed the circumstances of the abduction as described above.
56. On 6 May 2012 the first applicant requested that the investigators inform her of the progress in the investigation. On the same day she challenged the investigators’ decision of 29 January 2003 to suspend the investigation and their failure to take basic investigative steps before the Shali Town Court. The outcome of the court proceedings is unknown.
57. It appears that the investigation is still pending.
D. Lorsnukayeva and Idrisova v. Russia (no. 24711/13)
58. The first applicant is the mother of Mr Alvi Lorsnukayev (in the documents submitted also referred to as Lorsanukayev, Lorsunukayev, Lorsankayev), who was born in 1961. The second applicant is his wife.
1. Abduction of Mr Alvi Lorsnukayev and subsequent events
59. At the relevant time Mr Alvi Lorsnukayev lived as a refugee in Nazran, Ingushetia. On 10 May 2002 he went with his relative, Ms Ya.S., to Grozny to visit his brother Mr A.L. At around 2 p.m. on 12 May 2002 Mr Alvi Lorsnukayev, his brother and two neighbours, Mr V.B. and Mr S.E., were playing cards in Mr A.L.’s flat when a group of eight or nine armed service personnel in camouflage uniforms and balaclavas broke in. Without any explanation, they pulled Mr Alvi Lorsnukayev’s shirt over his head, took him barefoot outside and forced him into a UAZ minivan (таблетка) with tinted windows. The vehicle had no registration numbers. The service personnel spoke Russian and Chechen.
60. Mr. V.B. attempted to inform the service personnel that he was a police officer from the Leninskiy district police station in Grozny. The service personnel disregarded this information, kicked him and then pushed him to the floor together with Mr. S.E. Then the service personnel took Mr A.L. outside and put him in a UAZ vehicle in which Mr Alvi Lorsnukayev was being held. Ms Ya.S. tried to stop the service personnel, but they hit her with their rifle butts and drove away. Five minutes later the service personnel pushed Mr A.L. out of the UAZ vehicle and proceeded to an unknown destination.
61. The whereabouts of Mr Alvi Lorsnukayev have remained unknown ever since.
62. About three weeks after the abduction a man visited Mr A.L. and passed him a written message from Mr Alvi Lorsnukayev. The message, written on an empty cigarette box, stated “I am here”. According to the man, that cigarette box had been thrown out of a vehicle parked near the building of the Federal Security Service in Grozny.
2. Official investigation into the abduction
63. On 20 June 2002 Mr A.L. complained to the Grozny prosecutor’s office of the abduction of his son and requested assistance in the search for him.
64. On 24 July 2002 the Grozny prosecutor’s office opened criminal case no. 48116 under Article 126 of the Criminal Code (abduction).
65. On 6 August 2002 Ms Ya.S. was granted victim status and questioned. She confirmed the circumstances of the abduction as described above.
66. On the same day the investigators questioned Mr A.L. and his wife. They confirmed the circumstances of the abduction as described above.
67. On 24 September 2002 the investigation was suspended. According to the applicants, between 2002 and 2008 they contacted the investigators and other authorities asking for information on the progress of the investigation.
68. On 15 July 2008 the first applicant requested that the investigators inform her of the progress of the investigation, resume the investigation and allow her access to the case file. She stated, in particular, that they had passed the message from Mr Alvi Lorsnukayev to the investigators.
69. On 23 July 2009 the investigation was resumed.
70. On 20 August 2009 the first applicant was granted victim status in the criminal proceedings.
71. On 22 August 2009 the investigation was suspended.
72. On 29 June 2011 the first applicant requested that the investigators grant her access to the case file. It is unclear whether any reply was given to this request.
73. On 20 April 2012 the second applicant asked the investigators to provide her with the copies of the investigation-file documents. It is unclear whether any reply was given to this request.
74. On 30 August 2012 the investigation was resumed. It appears that it is still pending.
3. Proceedings against the investigators
75. On 26 June 2012 the second applicants challenged the investigators’ decision of 22 August 2009 to suspend the investigation before the Leninskiy District Court of Grozny. On 8 August 2012 the complaint was transferred to the Staropromyslovskiy District Court of Grozny. On 31 August 2012 that court terminated the proceedings, having found that a day earlier the investigation had been resumed. On 24 October 2012 the Supreme Court of Chechnya upheld this decision on appeal.
E. Kaysarova and Isiyeva v. Russia (no. 24725/13)
76. The first applicant is the mother of Mr Arbi Isiyev, who was born in 1985. The second applicant is his sister.
1. Abduction of Mr Arbi Isiyev
77. Around 1 p.m. on 29 September 2004 Mr Arbi Isiyev left his home in Argun to visit his aunt, who lived in the same town. When Mr Arbi Isiyev was walking down Gudermesskaya Street, several service personnel in camouflage uniforms and balaclavas forced him into a white GAZ-3110 car and took him to an unknown destination. Mr Arbi Isiyev managed to throw 10,000 Russian roubles (RUB) on the ground and asked a passer-by, Mr R.D., in Chechen (so that the service personnel could not understand him) to give that money to his relatives. The abduction took place in the presence of Ms S.Sh. and Mr R.D.
78. Mr Arbi Isiyev has not been seen since.
2. Official investigation into the abduction
79. On 30 September 2004 the applicants’ relative, Mr I.K., complained of the abduction to authorities.
80. On 23 October 2004 the Argun town prosecutor’s office opened criminal case no. 48042 under Article 126 of the Criminal Code (abduction).
81. On the same day the first applicant was granted victim status in the criminal proceedings.
82. Between October and December 2004 the investigators questioned the first applicant and the witnesses Ms S.Sh. and Mr R.D. They confirmed the circumstances of the abduction as described above.
83. On 23 December 2004 the investigation was suspended for failure to identify the perpetrators. It was resumed on 18 February 2008 and suspended again on 18 March 2008.
84. In 2009 the first applicant asked the head of the Chechen Parliamentary Committee on the Search for the Disappeared (Комитет Парламента Чеченской Республики по поиску лиц, без вести пропавших в период проведения контртеррористической операции) for assistance in the search for her son. Her request was forwarded to the investigators, who on 18 May 2009 replied that that the investigation had been suspended and that operational search activities were being carried out to establish Mr Isiyev’s whereabouts.
85. On 22 April 2010 and then again on 22 July 2011 the first applicant requested that the investigators grant her access to the investigation file.
86. On 1 August 2011 the applicants’ request was granted.
87. On 26 October 2011 the investigation was resumed and then suspended again on 26 November 2011.
88. On 4 September 2012 the applicants requested that the investigators inform them of the progress in the investigation.
89. On 11 September 2012 the investigation was resumed. It appears that the investigation is still pending.
3. Proceedings against the investigators
90. On 17 October 2011 the first applicant challenged the investigators’ decision to suspend the investigation of 18 March 2008 and their failure to take basic investigative steps before the Shali Town Court. On 17 November 2011 the court terminated the proceedings, having found that on 26 October 2011 the investigation had been resumed. On 21 December 2011 the Supreme Court of Chechnya upheld that decision on appeal.
91. On 7 September 2012 the applicants challenged the investigators’ decision to suspend the investigation of 26 November 2011 before the Shali Town Court. On 17 September 2012 the court terminated the proceedings, having found that on 11 September 2012 the investigation had been resumed. On 31 October 2012 the Supreme Court of Chechnya upheld that decision on appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL MATERIALS
92. For a summary of the relevant domestic law and practice and for international and domestic reports on disappearances in Chechnya and Ingushetia between 1999 and 2006, see Aslakhanova and Others v. Russia (nos. 2944/06 and 4 others, §§ 43-59 and §§ 69-84, 18 December 2012).
THE LAW
I. JOINDER OF THE APPLICATIONS
93. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. THE GOVERNMENT’S PRELIMINARY OBJECTION
94. The Government submitted that, contrary to the requirements of Rule 47 of the Rules of Court, in Chapsurkayevy (no. 65488/12) the second, third, fourth, fifth and sixth applicants failed to present a complete application form. Instead, they submitted only the first and the last pages. In the Government’s view, owing to the lack of the other pages, it could not be said that those applicants wished to pursue the initial application lodged by the first applicant.
95. The Court notes that the statement of facts and the statement of alleged violations in the application form concerned the abduction of Mr Khamzat Chapsurkayev, who is the father of the second, third, fourth, fifth and sixth applicants. It has no doubt that by submitting the first and the last pages of the application form, which contained their names and signatures, these applicants expressed their wish to pursue the complaints introduced by their mother (contrast Losevskiy and Others v. Russia [Committee], no. 3243/06, § 9, 16 October 2014).
96. In any event, the Court reiterates that alleged non-compliance with Rule 47 of the Rules of Court does not constitute part of the admissibility criteria laid down in Article 35 of the Convention (see, for instance, Toptanış v. Turkey, no. 61170/09, § 27, 30 August 2016, and the cases cited therein). The Government’s arguments on this point should therefore be rejected.
III. COMPLIANCE WITH THE SIX-MONTH RULE
A. The parties’ submissions
1. The Government
97. The Government submitted that the applicants had lodged their applications with the Court several years after the abduction of their relatives and more than six months after the date when they ought to have become aware of the ineffectiveness of the pending investigations. They pointed out that the applicants had remained passive and had not been interested in finding their missing relatives. The applicants had therefore failed to comply with the six-month time-limit for lodging their respective complaints to the Court.
2. The applicants
98. The applicants in all applications submitted that they had complied with the six-month rule. They had taken all possible steps within a reasonable time to initiate the search for their missing relatives and assist the authorities in the investigation. They alleged that there had been no excessive or unexplained delays in lodging their applications to the Court, which had been brought as soon as they considered the domestic investigation to be ineffective.
99. The applicants further submitted that they had complained to the authorities shortly after the incidents and had hoped that the criminal investigation initiated thereafter would produce results. Throughout the proceedings they had maintained regular contact with the authorities and actively cooperated with the investigation. The applicants further maintained that the armed conflict in the area had led them to believe that investigative delays had been inevitable and it had been only with the passage of time and the lack of information from the domestic authorities that they had begun to doubt the effectiveness of the investigation. They had lodged their applications with the Court after realising that the domestic investigations had been ineffective. Some applicants also referred to their legal illiteracy and the lack of financial means to retain a lawyer (Esambayeva (no. 2660/12), Chapsurkayevy (no. 65488/12), Kaysarova and Isiyeva (no. 24725/13)). The applicant in Esambayeva (no. 2660/12) additionally submitted that she had been in especially difficult circumstances after the abduction of Mr Shamil Amirkhadzhiyev owing to her daughter’s suicide in 2001 and her need to undergo medical treatment.
B. The Court’s assessment
1. General principles
100. A summary of the principles concerning compliance with the six‑month rule in cases involving violations of Article 2 of the Convention allegedly perpetrated by military service personnel may be found in Sultygov and Others v. Russia, nos. 42575/07 and 11 others, §§ 369-74, 9 October 2014, and Dudayeva v. Russia, no. 67437/09, § 71, 8 December 2015.
2. Application of the principles to the present case
101. Turning to the circumstances of the applications before it, the Court notes that in all the cases at hand the applicants lodged their complaints with the Court within a period ranging from eight years and a half to up to ten years and ten months after the incidents, and that the authorities became aware of the abductions without there being undue delays. In each of these cases the investigations were formally pending at the time the applications were lodged with the Court. The criminal investigations in all the cases were suspended and resumed on several occasions throughout the periods concerned. The documents submitted show that the applicants maintained reasonable contact with the authorities, cooperated with the investigation, and, where appropriate, took steps to inform themselves of the progress of the investigation and to speed them up, in the hope of a more effective outcome (see paragraphs 22, 23, 32, 37, 52, 56, 67, 68, 72, 73, 85 and 88 above).
102. The Court further notes that the Government did not submit the criminal-investigation-file documents in all applications which would have allowed the Court to assess the applicants’ stance in the domestic proceedings in the light of the Government’s objection. No explanation was provided for the failure to comply with the Court’s request and submit these documents. Having regard to the documents submitted by the applicants, their explanations and the overall time frame which had passed since the abductions and the initiation of the relevant criminal investigations, the Court is satisfied that the applicants lodged their applications within reasonable time (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 166, ECHR 2009).
103. Accordingly, the Court finds that the applicants complied with the six-month time-limit.
IV. COMPLIANCE WITH THE EXHAUSTION RULE
A. The parties’ submissions
104. In respect of all applications except for Chapsurkayevy (no. 65488/12) the Government argued that the applicants had failed to exhaust the domestic remedies. In their view, it had been open to the applicants to appeal against the investigators’ decisions before the domestic courts or to challenge the alleged inactivity of the investigating authorities, but they had failed to do so.
105. The applicants, referring to the Court’s case-law, submitted that lodging complaints against the investigators would not have remedied the shortcomings of the investigations. They further argued that the criminal investigation had proved to be ineffective.
B. The Court’s assessment
106. The Court has previously concluded that the ineffective investigation of disappearances that occurred in Chechnya and Ingushetia between 1999 and 2006 constituted a systemic problem and that criminal investigations were not an effective remedy in this connection (see Aslakhanova and Others, cited above, § 217). In such circumstances, and noting the absence over the years of any tangible progress in the criminal investigations into the abductions of the applicants’ relatives, the Court concludes that this objection must be dismissed since the remedy relied on by the Government is not effective in the circumstances (see, for similar reasoning, Khachukayevy v. Russia, no. 34576/08, § 60, 9 February 2016).
V. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS
A. The parties’ submissions
1. The Government
107. The Government did not contest the essential facts underlying each application, but submitted that there was no evidence proving beyond reasonable doubt that State agents had been involved in the alleged abductions of the applicants’ relatives.
108. In the Vatsayevy application (no. 2674/12) the Government submitted that the applicants’ relative could have died because he had jumped into the river after having been wounded by unknown men.
2. The applicants
109. The applicants submitted that it had been established “beyond reasonable doubt” that the men who had taken their relatives had been State agents. In support of that assertion, they referred to the evidence contained in their submissions and to documents from the criminal-investigation files submitted by the Government. They also stated that they had each made a prima facie case that their relatives had been abducted by military service personnel, and that the essential facts underlying their complaints had not been challenged by the Government. Given the lack of any news about their relatives for a long time and the life-threatening nature of unacknowledged detention in Chechnya at the relevant time, they asked the Court to consider their relatives dead.
B. The Court’s assessment
1. General principles
110. A summary of the principles concerning assessment of evidence and establishment of facts in disappearance cases and the life-threatening nature of such incidents can be found in Sultygov and Others (cited above, §§ 393-96).
2. Application of the above principles to the present case
111. Turning to the circumstances of the applications before it, and drawing inferences from the Government’s failure to submit the documents from the investigation files which were in their exclusive possession, or to provide another plausible explanation of the events in question, the Court finds that the applicants have presented prima facie cases that their relatives were abducted by State agents in the circumstances described above (see, for similar reasoning, Israilova and Others v. Russia, no. 4571/04, § 117, 23 April 2009).
112. The Court notes, in particular, that in Esambayeva (application no. 2660/12) Mr Shamil Amirkhadzhiyev was taken off the bus by service personnel at a checkpoint during an identity check; then he was taken away in an APC (see paragraphs 10, 11 and 19 above).
113. In the Vatsayevy application (no. 2674/12) the applicants’ relative disappeared during a “sweep” operation in Argun (see paragraph 25 above). While it is unclear whether Mr Said-Magomed Vatsayev was abducted by service personnel after having been wounded or he drowned in the river, the Court accepts the applicants’ allegations that his disappearance and subsequent death are attributable to the State (see paragraphs 26 and 27 above).
114. Turning to the Chapsurkayevy application (no. 65488/12), the Court observes that Mr Khamzat Chapsurkayev was taken away by service personnel after an identity check. It also notes the involvement of military vehicles, namely APCs, in the abduction (see paragraphs 42 and 55 above).
115. As to the Lorsnukayeva and Idrisova application (no. 24711/13), the Court observes that the alleged abductors were wearing camouflage uniforms and balaclavas and spoke Russian (see paragraphs 59, 65 and 66 above). It also notes that the applicants’ relative received a message from Mr Alvi Lorsnukayev which had been thrown out of a vehicle parked near the building of the Federal Security Service in Grozny (see paragraph 62 above) and that it is not contested by the Goverment.
116. The Court further observes that in Kaysarova and Isiyeva application (no. 24725/13) Mr Arbi Isiyev was arrested on the street and taken away by several service personnel who spoke Russian (see paragraphs 77 and 82 above).
117. Having regard to the numerous previous cases concerning disappearances in Chechnya and Ingushetia which have come before it, the Court has found that in the particular context of the conflict, when a person was detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as life‑threatening (see, among many other authorities, Aslakhanova and Others, cited above, § 101).
118. Lastly, the Court observes that the Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof (see, among many authorities, Avşar v. Turkey, no. 25657/94, § 392, ECHR 2001‑VII (extracts)).
119. In summary, the facts of all the applications contain sufficient evidence to enable the Court to make findings that the applicants’ relatives were taken into custody by State agents during security operations and remained under the State’s exclusive control. Given the lack of any reliable news about them since their detention and its life-threatening nature, the Court finds that Mr Shamil Amirkhadzhiyev, Mr Said-Magomed Vatsayev, Mr Khamzat Chapsurkayev, Mr Alvi Lorsnukayev and Mr Arbi Isiyev may be presumed dead following their unacknowledged detention.
VI. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
120. The applicants complained under Article 2 of the Convention that their relatives had disappeared after being detained by State agents and that the domestic authorities had failed to carry out effective investigation into the matter. Article 2 reads as follows:
“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
121. The Government submitted that no evidence had been obtained in the domestic investigations to suggest that the applicants’ relatives had been held under State control or that they had been killed. They further stated that the mere fact that the investigations had not produced any specific results, or had produced only limited ones, did not mean that they had been ineffective.
122. The applicants maintained their complaints, alleging that their relatives had been abducted and deprived of their lives in violation of Article 2 of the Convention. They further argued that the investigations into the incidents had fallen short of the standards set out in the Convention.
B. The Court’s assessment
1. Admissibility
123. 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
(a) Alleged violation of the right to life of the applicants’ relatives
124. The Court has already found that the applicants’ relatives may be presumed dead following their unacknowledged detention by State agents (see paragraph 119 above). In the absence of any form of justification put forward by the Government, the Court finds that the deaths of the applicants’ relatives can be attributed to the State. It concludes that there has been a violation of the substantive aspect of Article 2 of the Convention in respect of Mr Shamil Amirkhadzhiyev, Mr Said-Magomed Vatsayev, Mr Khamzat Chapsurkayev, Mr Alvi Lorsnukayev and Mr Arbi Isiyev.
(b) Alleged inadequacy of the investigations into the abductions
125. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances which occurred, in particular, in Chechnya and Ingushetia between 1999 and 2006, and that such a situation constitutes a systemic problem under the Convention (see paragraph 106 above). In the cases at hand, as in many previous similar cases examined by the Court, the investigations have been pending for many years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicants’ missing relatives.
126. The Court observes that each set of criminal proceedings has been plagued by a combination of the defects similar to those enumerated in the Aslakhanova and Others judgment (cited above, §§ 123‑25). They have been subjected to several decisions to suspend the investigation, followed by periods of inactivity, which have further diminished the prospects of solving the crimes. No meaningful steps have been taken to identify and question the service personnel who could have witnessed, registered or participated in the operations.
127. In the light of the foregoing, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearances and deaths of Mr Shamil Amirkhadzhiyev, Mr Said‑Magomed Vatsayev, Mr Khamzat Chapsurkayev, Mr Alvi Lorsnukayev and Mr Arbi Isiyev. There has accordingly been a violation of Article 2 of the Convention under its procedural limb.
VII. ALLEGED VIOLATION OF ARTICLES 3, 5 AND 13 OF THE CONVENTION
128. The applicants in all the applications complained of a violation of Article 3 of the Convention on account of the mental suffering caused to them by the disappearance of their relatives and of a violation of Article 5 of the Convention on account of the unlawfulness of their detention. They also argued that, contrary to Article 13 of the Convention, there had been no domestic remedies available in respect of their complaints under Article 2 of the Convention. The relevant parts of these Articles read as follows:
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
129. The Government contested the applicants’ claims, arguing in particular that domestic legislation provided the applicants with effective remedies in respect of their complaints. As for the applicants’ complaints under Articles 3 and 5 of the Convention, the Government did not comment.
130. The applicants reiterated their complaints.
B. The Court’s assessment
1. Admissibility
131. 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
132. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention in respect of the close relatives of the victim. The essence of such a violation lies not so much in the fact of the “disappearance” of the family member, but rather in 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)).
133. The Court reiterates its findings regarding the State’s responsibility for the abductions of Mr Shamil Amirkhadzhiyev, Mr Said-Magomed Vatsayev, Mr Khamzat Chapsurkayev, Mr Alvi Lorsnukayev and Mr Arbi Isiyev, as well as the authorities’ failure to carry out meaningful investigations into the incidents. It finds that the applicants, who are close relatives of the abducted men, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish they have suffered, and continue to suffer, as a result of their inability to ascertain the fate of their missing family members and of the manner in which their complaints have been dealt with. The Court therefore finds a violation of Article 3 of the Convention on this count in respect of all applicants.
134. The Court further confirms that since it has been established that Mr Shamil Amirkhadzhiyev, Mr Said-Magomed Vatsayev, Mr Khamzat Chapsurkayev, Mr Alvi Lorsnukayev and Mr Arbi Isiyev were detained by State agents, apparently without any legal grounds or acknowledgment of such detention (see paragraph 119 above), this constituted a particularly serious violation of the right to liberty and security of person enshrined in Article 5 of the Convention (see, for example, Imakayeva, cited above, § 178; Aslakhanova and Others, cited above, § 134; and Ireziyevy v. Russia, no. 21135/09, § 80, 2 April 2015). The Court accordingly finds a violation of this provision in respect of the applicants’ relatives on account of their unlawful detention in all applications.
135. Lastly, the Court reiterates its findings regarding the general ineffectiveness of the 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. The Court accordingly finds that the applicants did not have at their disposal an effective domestic remedy for their grievances under Article 2 of the Convention, in breach of Article 13 of the Convention (see, for example, Khachukayevy, cited above, § 77).
VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
136. 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
1. Pecuniary damage
137. The applicants in all applications claimed compensation for loss of financial support from the breadwinners. They based their calculations on the minimum wage in Russia and its expected growth in future.
138. The Government left the matter to the Court’s discretion.
2. Non-pecuniary damage
139. The amounts claimed by the applicants under that head are indicated in the appended table.
140. The Government left the matter to the Court’s discretion.
B. Costs and expenses
141. The amounts claimed by the applicants are indicated in the appended table. They asked for the awards to be transferred into the bank accounts of their representatives.
142. The Government left the matter to the Court’s discretion
C. The Court’s assessment
143. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention, and that this may, where appropriate, include compensation in respect of loss of earnings. The Court further finds that loss of earnings applies to close relatives of disappeared persons, including spouses, elderly parents and minor children (see, among other authorities, Imakayeva, cited above, § 213).
144. Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations, and make a financial award.
145. As to the costs and expenses, the Court has to establish first whether the costs and expenses were actually incurred and, second, whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).
146. Having regard to its conclusions, the principles enumerated above and the parties’ submissions, the Court awards the applicants the amounts set out in the appended table, plus any tax that may be chargeable to them on those amounts. The awards in respect of costs and expenses are to be paid into the representatives’ bank accounts, as indicated by the applicants.
D. Default interest
147. 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 the applications;
2. Dismisses the Government’s preliminary objection;
3. Declares the applications admissible;
4. Holds that there has been a substantive violation of Article 2 of the Convention in respect of Mr Shamil Amirkhadzhiyev, Mr Said‑Magomed Vatsayev, Mr Khamzat Chapsurkayev, Mr Alvi Lorsnukayev and Mr Arbi Isiyev;
5. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate the abductions of Mr Shamil Amirkhadzhiyev, Mr Said-Magomed Vatsayev, Mr Khamzat Chapsurkayev, Mr Alvi Lorsnukayev and Mr Arbi Isiyev;
6. Holds that there has been a violation of Article 3 of the Convention in respect of the mental suffering caused to the applicants;
7. Holds that there has been a violation of Article 5 of the Convention in respect of Mr Shamil Amirkhadzhiyev, Mr Said-Magomed Vatsayev, Mr Khamzat Chapsurkayev, Mr Alvi Lorsnukayev and Mr Arbi Isiyev on account of their unlawful detention;
8. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention in respect of the applicants;
9. Holds
(a) that the respondent State is to pay the applicants, within three months the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement. The awards in respect of costs and expenses are to be paid directly into the representatives’ bank accounts as indicated 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;
10. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 4 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Georgios A. Serghides
Deputy RegistrarPresident
ESAMBAYEVA AND OTHERS v. RUSSIA1
Appendix
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Kinship with the abducted person
Abducted person
Date of disappearance
Represented by
Pecuniary damage
Non-pecuniary damage
Costs and expenses
1.
2660/12
08/12/2011
Ms Ayant ESAMBAYEVA
14/07/1956
Grozny
Mother
Mr Shamil Amirkhadzhiyev
Disappeared on
28/05/2000
Mr Dokka ITSLAYEV
Claimed by the applicant
EUR 60,000
EUR 1,000,000
EUR 2,610
Awarded by the Court
EUR 10,000 (ten thousand euros)
EUR 80,000 (eighty thousand euros)
EUR 2,000 (two thousand euros)
2.
2674/12
09/12/2011
1) Ms Rukiyat VATSAYEVA
19/10/1949
Chechen-Аul
Mother
2) Mr Said-Khamzat VATSAYEV
11/09/1973
Chechen-Aul
Brother
3) Ms Ezira VATSAYEVA
15/04/1987
Chechen-Aul
Sister
Mr Said-Magomed Vatsayev
Disappeared on
11/07/2002
MATERI CHECHNI
Claimed by the applicants
EUR 24,145 to the applicants jointly
EUR 80,000 to the applicants jointly
EUR 6,860
Awarded by the Court
EUR 12,000 (twelve thousand euros) to the applicants jointly
EUR 80,000 (eighty thousand euros) to the applicants jointly
EUR 1,000 (one thousand euros)
3.
65488/12
14/09/2012
1) Ms Mirsa CHAPSURKAYEVA
26/10/1963
Shali
Wife
2) Mr Ayub CHAPSURKAYEV
04/06/1982
Shali
Son
3) Ms Regina CHAPSURKAYEVA
29/08/1989
Shali
Daughter
4) Mr Imran CHAPSURKAYEV
15/10/1990
Shali
Son
5) Mr Muslim CHAPSURKAYEV
17/08/1997
Shali
Son
6) Mr Yusup CHAPSURKAYEV
27/10/1998
Shali
Son
Mr Khamzat Chapsurkayev
Disappeared on 17 July 2002
Mr Tagir SHAMSUDINOV
Claimed by the applicants
EUR 60,000 to the applicants jointly
EUR 100,000 to the applicants jointly
EUR 1,995
Awarded by the Court
EUR 30,000 to the applicants jointly
EUR 80,000 (eighty thousand euros) to the applicants jointly
EUR 850 (eight hundred and fifty euros)
4.
24711/13
21/03/2013
1) Ms Asma LORSNUKAYEVA
(also spelled as Lorsanukayeva and Lorsunkayeva)
1939
Gekhi
Mother
2) Ms Lipa IDRISOVA
24/07/1968
Grozny
Wife
Mr Alvi Lorsnukayev
Disappeared on 12/05/2002
MATERI CHECHNI
Claimed by the applicants
EUR 19,675 to the first applicant
EUR 28,106 to the second applicant
EUR 70,000 to the applicants jointly
EUR 7,743
Awarded by the Court
EUR 10,000 (ten thousand euros) to the first applicant
EUR 5,000 (five thousand euros) to the second applicant
EUR 70,000 (seventy thousand euros) to the applicants jointly
EUR 1,000 (one thousand euros)
5.
24725/13
11/03/2013
1) Ms Aymani KAYSAROVA
16/01/1960
Grozny
Mother
2) Ms Khedi ISIYEVA
09/06/1989
Argun
Sister
Mr Arbi Isiyev
Disappeared on 29/09/2004
MATERI CHECHNI
Claimed by the applicants
EUR 16,425 to the first applicant
EUR 9,386 to the second applicant
EUR 70,000 to the applicants jointly
EUR 12,082
Awarded by the Court
EUR 10,000 (ten thousand euros) to the first applicant
EUR 1,000 (one thousand euros) to the second applicant
EUR 70,000 (seventy thousand euros) to the applicants jointly
EUR 1,000 (one thousand euros)
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