CASE OF GADAYEV AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF GADAYEV AND OTHERS v. RUSSIA

(Application no. 51119/15)

JUDGMENT
 

STRASBOURG

14 January 2020

This judgment is final but it may be subject to editorial revision.

In the case of Gadayev and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 3 December 2019,

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

PROCEDURE

1.  The case originated in an application (no. 51119/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Russian nationals: Mr Abdulbek Gadayev, who was born in 1959 (“the first applicant”); Ms Asmalik Ezhiyeva, who was born in 1961 (“the second applicant”); Mr Aslan Gadayev, who was born in 1987 (“the third applicant”); Ms Tanzila Gadayeva, who was born in 1998 (“the fourth applicant”); and Ms Rayana Gadayeva, who was born in 2003 (“the fifth applicant”), on 2 October 2015.

2.  The applicants were represented by lawyers from Materi Chechni, a non-governmental organisation (NGO) based in Grozny, Russia. The Russian Government (“the Government”) were initially represented 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 19 September 2016 the Government were given notice of the application. The Government did not object to the examination of the application by a Committee.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

4.  The first and second applicants are the parents of Mr Anzor Gadayev, who was born in 1983. The third, fourth and fifth applicants are his siblings. They live in the village of Mesker-Yurt, Chechnya.

5.  The summary of the facts described below is based on the statements provided by the applicants and witnesses to the events in question to the domestic investigating authorities and the Court.Abduction of Mr Anzor Gadayev and subsequent eventsBackground

6.  In 2006 Mr Anzor Gadayev and Mr I.G. received a short prison sentence for participation in an illegal armed group. In 2006 and 2007 they were released; they then returned to Mesker-Yurt.Events of 5 August 2008

7.  At around 6 or 7 p.m. on 5 August 2008 a group of armed men in camouflage uniforms arrested Mr I.G. and his cousin, Mr S.I. It is unclear whether the incident took place in a café in the town of Argun or on the Rostov-Baku highway (see paragraph 12 below). The men also seized Mr S.I.’s white VAZ 2107 car, with the registration number A 620 AY 95 RUS.  Presumably they thereafter changed the car’s registration plate and changed out of their uniforms and then drove to Mesker-Yurt.

8.  At about 10 p.m. the men arrived at the applicants’ house in Mesker Yurt in civilian clothes in three vehicles: a white VAZ 2107 car with a registration plate containing the digits 32707 RUS; a VAZ 2112 car; and an UAZ jeep without registration plates.

9.  One of the men knocked at the door at the applicants’ house, introducing himself as Mr Anzor Gadayev’s former fellow prison inmate and saying that he would like to speak with him. When the first applicant opened the door, two of the men entered the courtyard of the applicants’ house, grabbed Mr Anzor Gadayev and forced him into the VAZ 2107 car. The first applicant tried to intervene, but one of the perpetrators threatened him with firearms and fired several warning shots into the ground. Thereafter they drove away with Mr Anzor Gadayev in the direction of the Shali-Argun highway. His whereabouts have remained unknown ever since.Subsequent events

10.  On 9 August 2008 police officers from the Argun district department of the interior (ОВД по г. Аргун) (“the Argun police station”) arrived at the above-mentioned café in Argun, where Mr I.G. and Mr S.I. had presumably been arrested, and interviewed its staff. The relatives of the abducted persons were not allowed to be present during the interviews. The applicants alleged that the officers at the Argun police station might have put undue pressure on the witnesses in an attempt to conceal an arrest perpetrated by State agents. No statements by the café’s staff about such police pressure were enclosed by the applicants with their submission to the Court.

11.  On 10 August 2008 an unidentified person telephoned Mr S.I.’s father and told him that his son’s car was at the Argun police station. Mr S.I.’s father immediately went there and saw a white VAZ 2107 car, which allegedly belonged to his son, parked in the courtyard. The next day, 11 August 2008, he went to the police station with police officer O., who also saw the car. The police station’s on-duty officers refused to acknowledge that Mr Anzor Gadayev’s car was the one parked on their premises. They claimed that the vehicle in question had been found on 12 August 2008 on the highway between the settlement of Belgatoy and Mesker-Yurt (see paragraph 17 below). The first applicant later examined the car and confirmed that it had been used by the perpetrators of his son’s abduction (see paragraph 25 below).

12.  On 19 August 2008 and 17 January 2009 Mr S.I and Mr I.G. respectively were released from detention; they then returned home. Having been questioned by the investigators, they submitted differing accounts of their abduction. According to Mr I.G., they were abducted from a café, whereas according to Mr S.I., they were arrested by men in camouflage uniforms on the Rostov-Baku highway (see paragraphs 29, 32 and 35 below).Official investigation into the abduction

13.  Immediately after the abduction the first applicant reported the incident to the Shali district department of the interior (the Shali police station). Shortly thereafter a police officer from that station examined the crime scene and seized a cartridge case left by the perpetrators. On the following day the first applicant re-examined the area and found another cartridge case, which he later submitted to the police.

14.  On 6 August 2008 the first applicant reported the abduction of his son by unknown persons to the Shali inter-district investigative committee in Chechnya.

15.  On the same date, 6 August 2008, the investigators examined the crime scene. No photographs were taken and no evidence was collected. The investigators also questioned the first applicant and Mr Anzor Gadayev’s wife. The witnesses’ statements were similar to the accounts of the event submitted by the applicants to the Court.

16.  On 12 August 2008 the Shali police station informed the investigators that Mr S.I.’s car had been found on the Rostov-Baku highway between the settlement of Belgatoy and Mesker-Yurt on the morning of the same day. Four bullets from a Kalashnikov assault rifle had been found in the car and seized by the police.

17.  On 18 August 2008 the Shali inter-district investigative committee opened criminal case no. 45018 under Article 126 § 2 of the Russian Criminal Code (aggravated abduction).

18.  Shortly thereafter the investigators requested the Chechen Ministry of the interior, together with district departments of the interior in Chechnya, to inform them whether Mr Anzor Gadayev had been arrested by them. All those authorities replied that they had not arrested him.

19.  On 21 August 2008 the investigators obtained a cartridge casing collected by the police in the vicinity of the applicants’ house and joined it to the case-file evidence. An expert examination of 10 September 2008 established that the cartridge had belonged to a bullet fired from a Makarov or a Stechkin pistol.

20.  On 2 September 2008 the investigators drew up a plan of basic steps to be taken on the basis of theories that the abduction of Mr Anzor Gadayev could have been perpetrated by members of an illegal armed group, private persons, or law-enforcement officers.

21.  On an unspecified date in September 2008 (the date is illegible) a police officer, at the investigators’ request, informally interviewed the applicants’ neighbours. They stated that they had not seen the abduction. They declined to give formal evidence, citing a fear of being persecuted.

22.  In the meantime, the investigators sent numerous requests for information to various law-enforcement authorities concerning the whereabouts of Mr Anzor Gadayev, but to no avail.

23.  On 12 September 2008 the investigators learned from the applicants’ neighbours that Mr I.G. had been abducted on the same day, 5 August 2008.

24.  On 18 September 2008 the first applicant was granted victim status in the case and questioned. His statement concerning the circumstances of the abduction was similar to the account of the event submitted by the applicants to the Court. He also noted that the manner in which the abductors had started up the engine of the VAZ 2107 car had indicated that they had not been its owners. The first applicant alleged that both abductions of 5 August 2008 had been perpetrated by the same men.

25.  On 22 September 2008 the investigators questioned Mr S.I’s father. He submitted that on 10 August 2008 he had been informed that his son’s car had been at the Argun police station. He had immediately gone there and had seen the car. The next day, 11 August 2008, he had gone to the Argun police station with police officer O., who had also seen the car. However, the Argun police had refused to acknowledge that the car was on their premises. They had said that the vehicle that Mr S.I.’s father and police officer O. had seen had been found on 12 August 2008 on the highway between the settlement of Beltagoy and Mesker-Yurt. In the light of the above, Mr S.I.’s father alleged that his son had been arrested and then detained on the premises of the Argun police station.

26.  The next day, 23 September 2008, the investigators seized Mr S.I.’s VAZ 2107 car. Three days later, on 26 September 2008, the first applicant examined it and confirmed that his son had been abducted in that car, as he had identified scratches and a dent on the vehicle.

27.  On 5 October 2008 the investigators questioned the applicants’ neighbour, Mr L.S., who had seen a white VAZ 2107 car and a VAZ 2112 car driving away from the applicants’ house in the direction of the Argun-Shali highway late in the evening of 5 August 2008.

28.  On 4 and 6 November 2008 the investigators questioned Mr Anzor Gadayev’s wife and the first applicant, respectively. They did not submit any new information.

29.  On unspecified dates in November 2008 Mr I.G. and Mr S.I. were questioned by police officers from the internal investigations unit of the police about the events of 5 August 2008. According to Mr I.G., the abduction had taken place in the café in Argun, whereas according to Mr S.I., it had occurred on the Rostov-Baku highway. The investigators were informed of the outcome of the questioning by means of a report dated 15 November 2008.

30.  On 18 November 2008 the investigation was suspended for failure to identify the perpetrators.

31.  On 25 November 2008 the above decision was quashed and the investigation resumed.

32.  In the meantime, on 22 September 2008 the investigators opened criminal case no. 57010 under Articles 126 § 2 (aggravated abduction) and 166 (aggravated car theft) of the Russian Criminal Code into the abduction of Mr I.G. and Mr S.I. That case was joined to case no. 45018 on 2 December 2009. Among other documents, the investigators joined to the case file the record of Mr S.I.’s interview of 22 August 2008, in which he submitted that the abduction had taken place on a highway.

33.  On 26 December 2008 the investigation was suspended. The investigation was then resumed on 11 January, 16 February and an unspecified date in 2009, and 25 March 2014 and 14 January 2015; it was then suspended on 11 February, 17 March and 30 April 2009 and 25 April 2014 respectively.

34.  On 29 January 2009 Mr I.G. was examined by forensic medical experts, who noted numerous scars on his left arm and back. The experts did not exclude the possibility that the scars were a result of Mr I.G. having been ill-treated.

35.  During the medical examination Mr I.G. stated to the experts that on 5 August 2008 he had been arrested in a café in the town of Argun, placed in detention and then ill-treated. He was released from detention on 17 January 2009.

36.  On 6 May 2011 the NGO Materi Chechni, on the applicants’ behalf, asked a number of State authorities and law-enforcement agencies to assist in the search for Mr Anzor Gadayev. In reply they received letters stating either that their request had been forwarded to yet another law-enforcement agency for further processing or that operational search activities were still in progress to establish Mr Anzor Gadayev’s whereabouts.

37.  On 19 July 2013 the first applicant requested that the investigators grant him access to the case file. The outcome of that request is unknown.

38.  It appears that the investigation is still ongoing.Proceedings against the investigators

39.  On 26 March 2014 the first applicant lodged a complaint with the Shali Town Court challenging the investigators’ decision to suspend the investigation on 30 April 2009 and their failure to take basic investigative steps. The outcome of those proceedings is unknown.

40.  On 16 December 2014 the applicant lodged a similar complaint with the same court. The court dismissed the complaint on 27 January 2015, having found that the investigators had earlier resumed the investigation. On 5 May 2015 the Chechnya Supreme Court upheld that decision on appeal.RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL

41.  For a summary of the relevant domestic law and international and domestic reports see Makayeva v. Russia, no. 37287/09, §§ 67-77, 18 September 2014, Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 80-84, 18 December 2012, and Akhmadova and Sadulayeva v. Russia, no. 40464/02, §§ 67-69, 10 May 2007.

THE LAWALLEGED VIOLATIONs OF ARTICLES 2 and 13 OF THE CONVENTION

42.  The applicants complained under Article 2 of the Convention that their relative, Mr Anzor Gadayev, 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. They also alleged a lack of effective domestic remedies in respect of the above-mentioned violations. Articles 2 and 13 of the Convention read, in so far as relevant, as follows:

Article 2

“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.”

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.”The parties’ submissionsThe Government

43.  In their observations, the Government argued that the applicants had lodged their application with the Court more than seven years after the abductions of their relative, and more than six months after the date on which they ought to have become aware of the ineffectiveness of the ensuing investigation. They also submitted that the applicants had remained passive and had failed to maintain contact with the investigating authorities when the investigation had been suspended between 2009 and 2014. Some of the applicants had not applied for victim status and had never been in contact with the investigators. According to the Government, the application should be declared inadmissible as lodged “out of time”.

44.  The Government made no comments on the merits of the case. The applicants

45.  The applicants maintained their complaints. They submitted that they had complied with the six‑month rule. There had been no excessive or unexplained delays in lodging their applications with the Court, which had been lodged as soon as they had considered the domestic investigations to be ineffective. According to them, the armed conflict that had been taking place in Chechnya at the material time had led them to believe that investigative delays were inevitable. They also referred to their lack of legal knowledge and their fear of persecution from law-enforcement agencies. Lastly, the applicants stated that they had maintained reasonable contact with the investigators throughout the proceedings. In particular, they had remained active between 2009 and 2014. During that time they had sought assistance from Materi Chechni and had sought the assistance of various authorities in the search for Mr Anzor Gadayev.The Court’s assessmentAdmissibility

(a)   Compliance with the six-month rule

46.  Turning to the circumstances of the cases, the Court notes that the applicants lodged their application with the Court within less than seven years and two months of the incident and the initiation of the related investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 166, ECHR 2009).

47.  The Court furthermore notes that the first applicant informed the authorities of the incident immediately after his son’s abduction (see paragraph 13 above). Subsequently he was granted victim status in the criminal proceedings. The Court notes the Government’s argument that other applicants did not apply for victim status. It rejects that argument because such a requirement would have been excessive in respect of the applicants, given that they are close family members. They were able to share information received by the first applicant in the pending criminal proceedings without the necessity to contact the investigators on their own behalf.

48.  The investigating authorities opened a criminal investigation, which was repeatedly suspended and then resumed. It was still ongoing when the application was lodged with the Court (see paragraph 38 above).

49.  The Court also notes a lull in the criminal proceedings between 30 April 2009 and 25 March 2014, during which time the investigation remained suspended (see paragraph 32 above). During that period, which lasted four years and eleven months, the applicants did not remain passive and sought assistance from various authorities in their search for Mr Anzor Gadayev through the NGO Materi Chechni (see paragraph 36 above).

50.  The Court takes into account the fact that the present application was lodged within less than seven years and two months of the incident (contrast Dzhabrailova and Others v. Russia [CTE], nos. 3752/13 and 9 others, 7 May 2019, where the Court declared inadmissible applications submitted more than twelve years after the abductions of the relatives of the applicants), and that the authorities became aware of the abduction without any undue delay. It also notes the applicants’ efforts to have the dormant proceedings resumed (see paragraphs 39 and 40 above) and their overall stance in the proceedings. Therefore, it concludes that the applicants acted diligently and maintained contact with the investigators.

51.  Given the fact that the investigation was complex, the Court finds that it was reasonable for the applicants to wait for developments that could have resolved crucial factual or legal issues (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 142, ECHR 2012). Therefore, the lull in the proceedings noted by the Government cannot be interpreted as constituting a failure on the part of the applicants to comply with the six-month requirement (see Abdulkhadzhiyeva and Abdulkhadzhiyev v. Russia, no. 40001/08, §§ 9, 15 and 67, 4 October 2016, where the delay in lodging a formal complaint amounted to eight months; also contrast Doshuyeva and Yusupov v. Russia (dec.), 58055/10, §§ 41-47, 31 May 2016, where the applicants did not contact the investigating authorities for about eight years and three months, during which time the investigation was seemingly dormant).

52.  In the light of the above the Court concludes that the applicants complied with the six-month rule.

(b)   Other grounds of admissibility

53.  The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.Merits

(a)   Alleged violations under Article 2 of the Convention

(i)  Alleged violation of the right to life

54.  The Court has adjudicated a series of cases concerning allegations of disappearances in the Russian North Caucasus. It has concluded that it would be sufficient for applicants to make a prima facie case that missing persons were by State agents, thus falling within the control of the authorities; 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, 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 such a presumption, that would entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants failed to make a prima facie case, the burden of proof would not be reversed (see, for example, Tovsultanova v. Russia, no. 26974/06, 17 June 2010; Tsechoyev v. Russia, no. 39358/05, 15 March 2011; and  Shafiyeva v. Russia, no. 49379/09, 3 May 2012).

55.  Turning to the circumstances of the present case, the Court notes that no assessment of evidence was carried out by the domestic courts. Therefore, it is for the Court to assess the facts of the case, as presented by the parties.

56.  It should be noted at the outset that the applicants’ allegation that their relative had been abducted by state agents had been chiefly based on the assumption that the Argun police station had hidden the perpetrators’ VAZ 2107 car on its premises, as alleged by Mr S.I.’s father (see paragraph 25 above) and that the police had put undue pressure on the witnesses during the interview of 9 August 2008 (see paragraph 10 above). In the Court’s opinion, however, those allegations do not suffice to make a prima facie case that the abduction was perpetrated by State agents.

57.  The Court’s opinion is strengthened by the fact that the perpetrators were in civilian clothes and in civilian vehicles (see paragraph 8 above) (see Ibragim Tsechoyev v. Russia, no. 18011/12, § 58, 21 June 2016, where the abductors were in civilian clothes; contrast Abubakarova and Others v. Russia [CTE], no. 867/12 and 9 others, §§ 9, 10, 28, 77, 116, 132 and 151, 4 July 2019; Khamkhoyeva and Others v. Russia [CTE], no. 6636/09 and 9 others, § 124, 28 May 2019; and Isayeva and Others v. Russia [CTE], no. 53075/08 and 9 others, §§ 81, 127, 183, 198 and 212, 28 May 2019, where the abductors were in camouflage uniforms and used military vehicles). They did not introduce themselves as law-enforcement officers, but stated that they had been Mr Anzor Gadayev’s former fellow prison inmates (see paragraph 9 above) (see by contrast Kukurkhoyeva and Others v. Russia [CTE], no. 50556/08 and 9 others, § 101, 22 January 2019 and Tazuyeva and Others v. Russia [CTE], no. 36962 and 9 others, § 106, 22 January 2019, where the abductors introduced themselves as State agents). The incident occurred at night, which shows that the perpetrators did not act openly (see paragraph 8 above) (contrast Edilova v. Russia, no. 14662/07, §§ 9 and 96, 28 February 2012, where the incident occurred in broad daylight). It should also be noted that neither Mr S.I., nor Mr I.G. claimed that State agents had been involved into the events of 5 August 2008.

58.  Lastly, the Court cannot overlook the fact that in the abduction report lodged with the investigating authorities the first applicant made no allegation that his son had been arrested by law-enforcement officers (see paragraph 14 above).

59.  In the light of the above, the Court cannot conclude that the burden of proof should be shifted to the Government. It considers that in the present case it has not been established to the required standard of proof – “beyond reasonable doubt” – that State agents were implicated in Mr Anzor Gadayev’s abduction.

60.  In such circumstances, the Court finds no violation of the substantive limb of Article 2 of the Convention.

(ii)  Alleged inadequacy of the investigation

61.  The Court observes that the first applicant immediately reported the abduction of his son to the authorities (see paragraphs 13 above) and that almost two weeks later a criminal case into the incident was opened (see paragraph 17 above). Although the investigators did not remain idle, the Court cannot conclude that they conducted the proceedings with a level of thoroughness that met the requirements of Article 2 of the Convention.

62.  The Court notes that some of the investigative measures were performed in a perfunctory manner. For example, the police officer who examined the crime scene on 6 August 2008 did not notice a cartridge case left by the perpetrators. It was later found by the first applicant and handed to the investigators (see paragraph 13 above). For no apparent reason the investigators who examined the crime scene took no photographs of the site, even though that was considered to be normal practice. Furthermore, from the case-file material it appears that the investigators failed to check whether the VAZ 2107 car contained fingerprints, footprints or other physical traces left by the perpetrators. That was a serious shortcoming, which deprived the investigation of potentially important evidence.

63.  The Court furthermore notes the investigators’ failures to take such basic steps as (in particular) (i) checking whether the Argun police station had been equipped with CCTV cameras capable of recording the events of 5 August 2008 or (ii) obtaining data from the mobile telephones of the abducted men or information from the traffic police about vehicles that had passed through the road checkpoints on 5 August 2008. No attempt was made to take a DNA sample from a relative of Anzor Gadayev in order to check whether the database of DNA from unidentified remains contained any matches. No meaningful attempt to address the contradictions in witness evidence regarding the place of Mr S.I. and Mr I.G.’s abduction was made.

64.  As regards the overall conduct of the proceedings, the Court observes that the investigations into the abduction of (i) Mr Anzor Gadayev and (ii) Mr I.G. and Mr S.I. were conducted in parallel for more than one year until they were joined 2 December 2009 (see paragraph 32 above). That resulted in the unnecessary duplication of investigative steps and created a risk that important circumstances established within the context of one of the proceedings would be disregarded within the context of the other.

65.  Lastly, the Court cannot overlook the fact that the investigation was suspended and resumed on many occasions (see paragraphs 30, 31 and 33 above). Such premature suspensions, in a situation in which vital steps indicated by the superior authority had not been taken, undermined the investigators’ ability to identify and prosecute the perpetrators (see Ögur v. Turkey [GC], no. 21954/93, § 88, ECHR 1999‑III, and Khava Aziyeva and Others, cited above, § 86).

66.  In the light of the seriousness of the above shortcomings (which deprived the investigation of the required thoroughness) and taking into account the absence of any tangible results, the Court holds that the authorities failed to carry out effective criminal investigations into the circumstances surrounding the abduction of Mr Anzor Gadayev, in breach of Article 2 of the Convention in its procedural aspect.

(b)   Alleged violations under Article 13 of the Convention

67.  The Court observes that the applicants’ complaints under Article 13 in connection with Article 2 of the Convention concern the same issue as those examined above under Article 2. Having regard to its conclusion in the preceding paragraph, the Court considers it unnecessary to examine that issue separately under Article 13 (see Gaysanova v. Russia, no. 62235/09, § 142, 12 May 2016; Fanziyeva v. Russia, no. 41675/08, § 85, 18 June 2015; Perevedentsevy v. Russia, no. 39583/05, § 126, 24 April 2014; and Shumkova v. Russia, no. 9296/06, § 123, 14 February 2012).ALLEGED VIOLATIONs OF ARTICLES 3 and 5 of THE CONVENTION

68.  The applicants complained of a violation of Article 3 of the Convention, on account of the mental suffering caused to them by the abduction of Mr Anzor Gadayev and of a violation of Article 5 of the Convention, on account of the unlawfulness of his detention. Those Articles read, in so far as relevant:

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 ...”The parties’ submissions

69.  The Government did not comment.

70.  The applicants maintained their complaints.The Court’s assessment

Admissibility

71.  The Court observes that it has not been established to the required standard of proof “beyond reasonable doubt” that the State authorities were implicated in Mr Anzor Gadayev’s abduction (see paragraph 59 above). In the absence of a finding of the State’s responsibility, the Court is not persuaded that the investigating authorities’ conduct, albeit negligent to the extent that it breached Article 2 in its procedural aspect, could have in itself caused the applicant mental distress in excess of the minimum level of severity that is necessary in order to consider treatment as falling within the scope of Article 3 (see, for a similar situation, Shafiyeva, cited above, § 103, 3 May 2012; Khumaydov and Khumaydov v. Russia, no. 13862/05, §§ 130‑31, 28 May 2009; and Zakriyeva and Others v. Russia, no. 20583/04, §§ 97-98, 8 January 2009). It follows that this part of the application should be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.

72.  The Court also observes that there is no sufficient evidence to conclude that Mr Anzor Gadayev was ever placed in unacknowledged detention under the control of State agents. The Court therefore considers that this part of the application should be dismissed as being incompatible ratione personae and must be declared inadmissible, in accordance with Article 35 §§ 3 and 4 of the Convention (for similar conclusions see Shafiyeva v. Russia, cited above, § 110 and Tovsultanova, cited above, § 111).APPLICATION OF ARTICLE 41 OF THE CONVENTION

73.  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.”DamagePecuniary damage

74.  The applicants claimed 36,498 euros (EUR) jointly in compensation for pecuniary damage caused by the loss of financial support from Mr Anzor Gadayev, who had been the breadwinner of their family.

75.  The Government left this matter to the Court’s discretion.

76.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.Non-pecuniary damage

77.  The applicants claimed EUR 80,000 jointly in compensation for non-pecuniary damage.

78.  The Government stated that the claim was excessive.

79.  The Court reiterates that whenever it finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage that cannot be compensated for solely by the finding of a violation, and make a financial award. Having regard to the principle set out above, the parties’ submissions and the violation found, the Court awards the applicants EUR 26,000 jointly, plus any tax that may be chargeable to them on that amount.Costs and expenses

80.  The applicants claimed EUR 7,863 in respect of costs and expenses incurred before the domestic authorities and the Court. They requested that the award be paid directly into their representative’s bank account.

81.  The Government stated that the amount claimed was excessive, regard being had to the repetitive nature of the case and vast experience of the applicants’ representative in such cases. They doubted whether the applicants’ representative had spent forty four hours, as claimed, on the preparation of five-pages of comments on the Government’s observations.

82.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicants EUR 850, plus any tax that may be chargeable to them on that amount. The award is to be paid into the representative’s bank accounts, as indicated by the applicants.Default interest

83.  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,Declares the complaints under Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible;Holds that there has been no violation of Article 2 of the Convention in its substantive limb in respect of Mr Anzor Gadayev;Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Mr Anzor Gadayev disappeared;Holds that that no separate issue arises under Article 13 in conjunction with Article 2 of the Convention;Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)        EUR 26,000 (twenty six thousand euros) to the applicants jointly, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(ii)      EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses to be paid into the applicants’ representative’s bank account, 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;Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen PhillipsAlena Poláčková
RegistrarPresident

 

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