CASE OF KHACHUKAYEVY v. RUSSIA

THIRD SECTION

CASE OF KHACHUKAYEVY v. RUSSIA

(Application no. 34576/08)

JUDGMENT

STRASBOURG

9 February 2016

FINAL

06/06/2016

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

In the case of Khachukayevy v. Russia,

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

Luis López Guerra, President,
Helena Jäderblom,
George Nicolaou,
Helen Keller,
Johannes Silvis,
Dmitry Dedov,
Pere Pastor Vilanova, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 19 January 2016,

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

PROCEDURE

1. The case originated in an application (nos. 34576/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Russian nationals, listed below (“the applicants”), on 2 July 2008.

2. The applicants were represented by lawyers from the Stichting Russian Justice Initiative (SRJI), a non-governmental organisation (NGO) based in the Netherlands with a representative office in Russia, in partnership with the Astreya NGO. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicants alleged that their relative had been abducted and killed by State servicemen in Chechnya in 2000 and that no effective investigation into the matter had taken place.

4. On 3 December 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants are:

(1) Ms Elita Khachukayeva, who was born in 1972 and lives in Goyty, Chechnya;

(2) Ms Khadizhat Khachukayeva, who was born in 1998 and lives in Alkhan-Yurt, Chechnya;

(3) Ms Kheda Khachukayeva, who was born in 2001 and lives in Urus‑Martan, Chechnya. The applicants are the wife and daughters of Mr Islam Deniyev, who was born in 1966.

A. Abduction of Mr Islam Deniyev and subsequent events

1. Detention of the applicants’ relative at a roadblock

6. At the material time the applicants and Mr Islam Deniyev lived in the village of Alkhan-Yurt in the Urus-Martan District, Chechnya. The village was situated along a major highway known as “Kavkaz”, part of the road between Rostov in Russia and Baku in Azerbaijan, which has several permanent military roadblocks posted along it. It was impossible to drive on the highway without being checked and information from the check being entered into a log. One permanent roadblock was situated about three kilometres to the east of Alkhan-Yurt, at the junction with the road towards Grozny, the main city in Chechnya. This road block was commonly referred to as “Chernorechensky” (also spelled as “Chernorechye”), after the name of a nearby suburb of Grozny.

7. On 24 November 2000 Mr Islam Deniyev drove to Gudermes with his friends Mr Sayd-Akhmed S., a resident of Martan-Chu, and Mr Khizir A., a resident of Alkhan-Yurt, in the latter’s Toyota Land Cruiser car. The vehicle’s licence plate number was A999BK95, which was easily recognisable because of the three nines.

8. At about 11 a.m. on 24 November 2000 a group of Alkhan-Yurt residents were passing through the Chernorechensky roadblock by bus and saw Mr Khizir A.’s Toyota Land Cruiser car there. Mr Islam Deniyev, Mr Sayd-Akhmed S. and Mr Khizir A. were standing next to the vehicle, surrounded by members of the military. Nearby were some armoured military vehicles (BMP) and UAZ cars. According to two unnamed witnesses, who had also been stopped at the roadblock at the same time, they and Mr Islam Deniyev, Mr Sayd-Akhmed S. and Mr Khizir A. were taken to the military unit’s headquarters in the village of Tangi-Chu.

9. The applicants have not seen Mr Islam Deniyev since 24 November 2000. They were not eyewitnesses to the abduction. Their submission to the Court was based on the first applicant’s complaints and requests to various State authorities, a witness statement by Mr R.V. dated July 2007 and copies of documents from the criminal investigation file.

2. Search for Mr Islam Deniyev and discovery of his remains

10. The applicants learnt about the detention of Mr Islam Deniyev, Mr Sayd-Akhmed S. and Mr Khizir A. later on the day of 24 November 2000 from the bus passengers, but were not worried at first, as they presumed that the three men had been stopped for a routine identity check. They were also reassured by Mr R.V., the head of the Alkhan-Yurt village administration at the time, who said that there was no need to worry as all three men were law-abiding citizens.

11. Several days later, at the end of November 2000, Mr R.Sh. saw Mr Khizir A.’s Toyota Land Cruiser car in a military convoy, passing through a roadblock over the Terek river in the village of Chervlenaya, about twenty kilometres to the north of Grozny. Mr R.Sh. was later questioned by the prosecutor’s office (see paragraph 25 below).

12. In March 2001 a friend of the missing men, Mr Kh.G., spotted the licence plate from Mr Khizir A.’s Toyota Land Cruiser car on a military vehicle and informed the investigation of this (see paragraph 19 below). The serviceman driving the vehicle was subsequently questioned and stated that he had recovered it at the roadblock (see paragraph 21 below).

13. On an unspecified date in August 2001 the applicants learned that the blown-up shell of a Toyota Land Cruiser had been found in the north of Chechnya, in the Naurskiy District. The car was identified as the one belonging to Mr Khizir A.

14. On 21 November 2002 the remains of three bodies and items of clothing were found in the forest near the village of Darbankhi (also spelled as Darban-Khi), near the Darbankhi-Vinogradnoye road in the north of the Grozny district. Relatives of the abducted men subsequently identified some of the clothing as belonging to the missing men (see paragraphs 28-29 below).

3. Other relevant developments

15. On 30 September 2003 the Urus-Martan Town Court declared Mr Islam Deniyev a missing person, at the request of his sister Ms A.D. On 17 November 2006 she was appointed as the legal guardian of the second and third applicants.

B. Main steps taken by the official investigation into the events

16. On 7 December 2000 (in the documents submitted the date is also stated as 16 January 2001) the first applicant and relatives of Mr Sayd‑Akhmed S. and Mr Khizir A. complained about the abduction of the men at the roadblock to several law-enforcement agencies. They described the circumstances of the incident and stressed that their relatives had most probably been detained by officers of the Federal Security Service (hereinafter “the FSB”) (Федеральная служба безопасности (ФСБ)) or the Main Intelligence Service (hereinafter “the GRU”) (Главное разведывательное управление (ГРУ)) and that their own search for the abducted men had not produced any results.

17. On 6 February 2001 the Grozny prosecutor’s office (hereinafter “the prosecutor’s office”) opened criminal case no. 13023. The decision stated, among other things, the following:

“... On 24 November 2000, at about 11 a.m., on the Rostov-Baku highway at the former roadblock of the Chernorechensky [traffic police] post unidentified persons detained and took away [Mr Islam Deniyev, Mr Khizir A. and Mr Sayd-Akhmed S.] to an unknown destination...”

18. On 13 February 2001 Chechnya’s Deputy Minister of the Interior wrote to the Chechnya prosecutor providing details of the abduction which were similar to the applicants’ account before the Court and asking to be informed whether the abducted men had been arrested and, if so, on what charges. The letter also stated that there were witnesses to the abduction.

19. On 21 March 2001 the investigators questioned Mr Kh.G., who stated that on 17 March 2001 he had seen a grey UAZ with the registration number A999BK95 and that a group of military servicemen had been next to it. He had recalled immediately that the plate had belonged to Mr Khizir. A.’s Toyota Land Cruiser and asked the driver of the vehicle where he had got it. The driver told him that he had received it from Mr R.E., the driver of the head of the Grozny district department of the interior (hereinafter “the Grozny ROVD”) (Грозненский районный отдел внутренних дел (РОВД)), who had obtained it from a military serviceman stationed in the settlement of Chervlenaya. The witness had taken the plate from the driver and on 20 March 2001 handed it over to the investigators.

20. On 22 March 2001, investigators questioned the driver of the head of the Grozny ROVD, Mr R.E., who stated that he had obtained the licence plate with the registration number of Mr Khizir. A.’s car in December 2000 from a military serviceman at the Chernorechensky roadblock.

21. On 22 March 2001, investigators questioned a serviceman, Mr P.V., who stated that he had found the licence plate with the A999BK95 registration number when he was manning the Chernorechensky roadblock in December 2000 and had handed the plate over to the policemen who had taken over from him at the roadblock.

22. On 6 April 2001 the investigation in the criminal case was suspended on account of the failure to identify the perpetrators.

23. On 18 May 2001 the supervising prosecutor overruled the decision to suspend the investigation as premature and unlawful and ordered that further steps be taken.

24. On 28 May 2001 the proceedings were resumed, before being suspended again on 28 June 2001.

25. On 18 October 2001 the investigators questioned Mr R.Sh. who stated that on or around 25 November 2000 he had been crossing the roadblock over the Terek river in the village of Chervlenaya, when he had seen a military convoy which included Mr Khizir A.’s Toyota Land Cruiser. The car, which had been moving among at least ten military vehicles, was being driven by a tall red-headed man in a special black military uniform with a bullet-proof vest.

26. On 4 March 2002 the deputy prosecutor of Grozny overruled the decision to suspend the investigation as premature and unlawful and ordered that further steps be taken. In particular, he pointed out the following:

“The examination of the case file shows that the investigation has been carried out in an extremely superficial manner and without any plan. ... To this date, none of the victims’ relatives have been questioned or granted the procedural status as the relative of a victim, [the investigator] has contented himself with sending formal requests to various bodies and receiving equally formal replies. ...

It is necessary to question family members and close friends about the missing men’s lives, work and social activities ..., to receive a reply from the military prosecutor’s office of the [Northern Caucasus Military Circuit], to question in detail the witness who found the missing car in the forest ..., to question once again the witness [R.Sh.] who saw the vehicle in a military convoy going over the Terek bridge in the village of Chervlenaya ..., to take all the necessary steps to identify the military unit which passed over the bridge at that time. The witness has highlighted the large number of vehicles in the convoy, so it would appear to be quite possible to clarify this question. If positive replies are obtained a visit should be planned to the location of the military unit to find out more about the fate of the missing car.”

27. Following the discovery of the remains of three people (see paragraph 14 above) on 21 November 2002 (in the documents submitted the date is also referred to as 11 October 2002), the Grozny district prosecutor’s office opened criminal case no. 56184 on 28 November 2002.

28. On 28 November 2002 the investigators in criminal case no. 56184 questioned the brother of Mr Islam Deniyev, Mr A.D., who described the circumstances of the abduction at the roadblock and stated that some of the items of clothing found with the remains of the bodies resembled clothing worn by Mr Islam Deniyev on the date of his abduction. On the same date, Mr A.D. officially identified several items of the clothing as belonging to Mr Islam Deniyev.

29. On 29 November 2002 the investigators in criminal case no. 56184 questioned the wife of Mr Sayd-Akhmed S., Ms M.S., who described the circumstances of the abduction at the roadblock and then identified several items of the clothing as belonging to her missing husband, Mr Sayd Akhmed S.

30. On 28 April and then again on 6 June 2003, the supervising prosecutors criticised the investigation and ordered that the investigators take the steps which had been ordered previously. The documents submitted in the case show that none of the steps were taken, apart from granting victim status to some of the relatives of the men who had disappeared.

31. On 15 December 2002 the investigators ordered a complex forensic examination of the human remains (see paragraph 27 above). On 20 February 2004 the experts concluded that they belonged to people with different blood groups. They came to no conclusion about a possible cause of death.

32. On 29 November 2004 the investigators ordered a genetic test of the fragments. Blood samples were collected from the relatives of Mr Islam Deniyev, Mr Khizir A. and Mr Sayd-Akhmed S.

33. On 30 December 2004 the genetic test report showed that the remains belonged to Mr Islam Deniyev, Mr Khizir A. and Mr Sayd‑Akhmed S.

34. Despite the genetic test results of 30 November 2004, the initial investigation into the abduction of the three men in criminal case no. 13023 continued until 25 March 2008 and referred to them as “missing”.

35. On 18 December 2006 the first applicant was granted the status of a victim in criminal case no. 13023 and questioned. She stated that she had learnt of her husband’s abduction by servicemen at the roadblock from her relatives.

36. On 20 December 2006 the investigators again questioned Mr A.D., who reiterated his previous statement and added that he and his relatives had found the burnt Toyota Land Cruiser car in 2001 (see paragraphs 13 and 28 above).

37. On 20 and 26 December 2006 the investigators questioned Ms A.D., who stated that her brother, Mr Islam Deniyev, and his friends, Mr Sayd‑Akhmed S. and Mr Khizir A., had been abducted at the roadblock by officers of the GRU. The witness added that she was taking care of the second and third applicants.

38. On 15 January 2007 the first applicant asked the investigators to provide her with unrestricted access to the investigation file. On 7 February 2007 the investigators granted her request in part, stating that she was allowed to access only the documents which referred to proceedings she had been involved in.

39. On 13 July 2007 the investigators questioned Ms Z.E., who stated that on 24 November 2000 her nephew, Mr Khizir A., and his two friends, Mr Islam Deniyev and Mr Sayd-Akhmed S., had been abducted by federal servicemen at the roadblock. She also submitted that on that date Mr Khizir A. had left home with a large sum of money as he had intended to buy a car.

40. On 25 March 2008 the investigators combined the abduction case (no. 13023) and the murder case (no. 56184) into one file (no. 13023). The Grozny department of the investigation committee was put in charge of the investigation and the applicants were informed of these developments.

41. The case file shows that between 2001 and 2007 the investigators requested information on the possible whereabouts of the abducted men from the military units stationed in the region at the time, as well as from detention centres, hospitals, law-enforcement agencies and correctional facilities. For the most part, they received no answer and the replies that did come in were negative.

42. Between 2001 and 2008 the investigation in criminal case no. 13023 was suspended and resumed on at least nine occasions. Each suspension of the proceedings was overruled by the supervising body as premature and unlawful. The last suspension took place on 24 April 2008, but the investigation was resumed on 18 February 2012. It is still pending.

C. Proceedings against the investigators

43. In March 2007 the first applicant appealed to the Zavodskoy District Court in Grozny against the investigators’ refusal to provide her with unrestricted access to file no. 13023. She sought a ruling obliging the investigators to provide her with full access, to resume the investigation, which had been suspended, and to carry it out in an effective manner. She also asked for free legal counsel to assist her in the proceedings.

44. On 25 January 2008 the Zavodskoy District Court allowed the complaint in part. The applicant appealed. On 27 February 2008 the Chechnya Supreme Court granted the request for full access to the case file. The request for free legal assistance was dismissed for lack of grounds in domestic law.

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS

45. For a summary of the relevant domestic law and practice and for international and domestic reports on disappearances in Chechnya see Aslakhanova and Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 43-59 and 80-83, 18 December 2012).

THE LAW

46. The Court will deal with the procedural matters in the case before considering the applicants’ complaints concerning the abduction of their relative and the allegedly ineffective investigation.

I. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS

A. The parties’ submissions

47. The applicants maintained that it was beyond reasonable doubt that the men who had taken away and then killed Mr Islam Deniyev had been State agents. In support of that assertion they referred to the ample evidence contained in their submissions and the criminal investigation file. They submitted that they had made a prima facie case that their relative had been abducted and killed by State agents and that the essential facts underlying their complaint had not been challenged by the Government.

48. The Government did not contest the essential facts as presented by the applicants. At the same time, they claimed that the investigation had not obtained information proving that State agents had been involved in the detention or killing of the applicants’ relative.

B. The Court’s assessment

49. A number of principles have been developed by the Court when it has been faced with the task of establishing the facts of events on which the parties disagree (see El-Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR 2012): the factual findings should be based on the standard of proof “beyond reasonable doubt”; and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII, and Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005‑VIII).

50. The Court has dealt with a whole series of cases concerning allegations of disappearances and killings in Chechnya. Applying the above‑mentioned principles, it has concluded that if applicants make a prima facie case of abduction and killing by servicemen, this is sufficient for them to show that their relatives fell within the control of the authorities, and it is then for the Government to discharge their burden of proof, either by disclosing any documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 99). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Tovsultanova v. Russia, no. 26974/06, §§ 77‑81, 17 June 2010; Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011; and Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012).

51. Turning to the circumstances of the present case, the Court notes that the documents from the investigation file provided by the Government (see, for example, paragraphs 17, 18, 26, 28-29, 35 and 37 above) demonstrate that Mr Islam Deniyev was detained on 24 November 2000 at the roadblock by a group of armed servicemen and that his remains were discovered about two years later, in November 2002 (see paragraphs 27 and 33 above).

52. The next point to be considered is whether there is a causal link between the detention of Mr Islam Deniyev by State servicemen at the roadblock and his death. The Court reiterates in this connection that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, such as in cases where persons are under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see, among many authorities, Avşar, cited above § 392).

53. In the present case there was no news of Mr Islam Deniyev between his detention on 24 November 2000 at the roadblock and the discovery of his remains in November 2002. The Court also notes that although a forensic expert examination was carried out on the remains, it failed to establish the cause of his death (see paragraph 31 above).

54. The Government did not dispute the circumstances of the discovery of the remains. The link between the detention and the death of Mr Islam Deniyev was, moreover, assumed in the domestic proceedings as the investigations into the abduction and the death were joined (see paragraph 40 above). The Government did not provide any substantiated version of the events to refute the version presented by the applicants.

55. The Court finds that the facts of the present case strongly suggest that the death of Mr Islam Deniyev was part of the same sequence of events as his abduction and support the conclusion that he was executed extrajudicially by State agents. In these circumstances, the Court finds that the State is responsible for the death of the applicants’ relative.

56. For the above reasons the Court considers that it has been established that Mr Islam Deniyev was killed following his unacknowledged detention by State servicemen.

II. PRELIMINARY OBJECTIONS

A. The parties’ submissions

1. The Government

57. The Government argued that the application should be dismissed for failure to exhaust domestic remedies as the investigation was still pending. They stressed, in particular, that the applicants could have appealed against the investigators’ decisions to domestic courts or claimed civil damages.

2. The applicants

58. The applicants argued that the investigation had been pending for a long time without producing any tangible results, meaning that that remedy had proved to be ineffective. Their complaints, as well as other potential remedies, had proved to be futile.

B. The Court’s assessment

59. As regards a civil action to obtain redress for damage sustained as a result of the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure in itself 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, and Estamirov and Others v. Russia, no. 60272/00, § 77, 12 October 2006). Accordingly, the Court confirms that the applicants were not obliged to pursue civil remedies. The preliminary objection in this regard is thus dismissed.

60. As regards criminal-law remedies, 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 respect (see Aslakhanova and Others, cited above, § 217). In such circumstances, and noting the absence over the years of any tangible progress in the criminal investigation into the abduction of Mr Islam Deniyev, the Court concludes that this objection must be dismissed since the remedy relied on by the Government was not effective in the circumstances.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

61. The applicants complained under Article 2 of the Convention that Mr Islam Deniyev had disappeared after being detained by State agents and that the domestic authorities had failed to carry out an 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

62. The Government contended that the complaint should be rejected as unsubstantiated, as the investigation into the disappearance had not obtained any evidence that Mr Islam Deniyev had been held under State control or that State agents had been involved in his abduction and killing. They further stated that all the necessary steps were being taken to comply with the obligation to conduct an effective investigation. The Government noted that the applicants, who had not witnessed the abduction, had officially complained about it two months after the events and that they had impeded the investigation by failing to specify the names of the witnesses who had allegedly seen their relative Mr Islam Deniyev after the abduction in Tangi‑Chu (see paragraph 8 above).

63. The applicants maintained their complaints.

B. The Court’s assessment

1. Admissibility

64. 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 Mr Islam Deniyev

65. The Court reiterates that Article 2 of the Convention, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2 of the Convention, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, Series A no. 324, and Avşar, cited above, § 391).

66. The Court has already found that Mr Islam Deniyev was killed following his detention by State servicemen and that his death can be attributed to the State. In the absence of any justification put forward by the Government, the Court finds that there has been a violation of Article 2 of the Convention in its substantive aspect.

(b) Alleged inadequacy of the investigation into the abduction and death of Mr Islam Deniyev

67. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances which occurred, in Chechnya and Ingushetia in particular, between 1999 and 2006, and that this situation constitutes a systemic problem under the Convention (see Aslakhanova and Others, cited above, § 217). In the case at hand, as in many previous similar cases reviewed by the Court, the investigation has been pending for a number of years without leading to any significant progress in uncovering the identities of the perpetrators. While the obligation to investigate effectively concerns the means to be employed and not the results to be achieved, the Court notes that the criminal proceedings in the present case have been plagued by a combination of defects similar to those enumerated in Aslakhanova and Others (cited above, §§ 123‑25). The investigation contained several periods of inactivity, which further diminished the prospects of solving the crime (see paragraphs 23, 26 and 42 above). No meaningful steps have been taken to identify and question the servicemen who could have witnessed, registered or participated in the detention of the applicants’ relative at the roadblock, in spite of the applicants’ consistent statements to that end (see, for example, paragraphs 16, 35 and 37 above). These measures should have been taken immediately or as soon as possible after the investigation had been initiated. From the documents submitted it follows that in spite of direct orders these crucial steps were not taken by the investigators (see paragraphs 26 and 30 above). Such delays, for which there has been no explanation, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious matter (see Öneryıldız v. Turkey [GC], no. 48939/99, § 94, ECHR 2004‑XII).

68. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances of the disappearance and death of Mr Islam Deniyev. Accordingly, there has been a violation of Article 2 of the Convention in its procedural aspect.

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

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

70. The Government contested the applicants’ claims. They also submitted that the Court should take into account the fact that Ms A.D. was the legal guardian of the second and third applicants.

71. The applicants reiterated their complaints.

B. The Court’s assessment

1. Admissibility

72. 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

73. 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 does not lie mainly in the fact of the “disappearance” of the family member, but rather concerns the authorities’ reaction and attitude 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)). When there is a long time between a missing person’s disappearance and his or her death, there is a distinct period during which an applicant suffers the uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances (see Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006‑XIII (extracts)).

74. The Court reiterates its findings regarding the State’s responsibility for the abduction and death of the applicants’ relative and the failure to carry out any meaningful investigations into the matter. It finds that the first and second applicants, who are the wife and daughter of Mr Islam Deniyev, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish which they suffered for almost two years between the abduction of their relative and the discovery of his remains (see, for a similar situation, Kukayev v. Russia, no. 29361/02, § 107, 15 November 2007, and Luluyev and Others, cited above, §§ 115 and 118) and of the manner in which their complaints have been dealt with. At the same time the Court notes that the third applicant was born in January 2001, that is, after her father’s abduction in November 2000. Having regard to this, the Court does not find that she has suffered such distress and anguish as to amount to a violation of Article 3 of the Convention (see, for a similar situation, Dokayev and Others v. Russia, no. 16629/05, § 105, 9 April 2009, and Babusheva and Others v. Russia, no. 33944/05, § 110, 24 September 2009).

75. The Court further confirms that since it has been established that Mr Islam Deniyev was detained by State agents, apparently without any legal grounds or any acknowledgment of the detention, this constitutes a particularly grave 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, § 90, 2 April 2015).

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

77. The Court thus finds that the applicants did not have an effective domestic remedy at their disposal for their grievances under Articles 2 and 3 of the Convention, in breach of Article 13 of the Convention (see, for example, Aslakhanova and Others, cited above, § 157).

3. Conclusion

78. The Court concludes that there has been a violation of Article 3 of the Convention in respect of the first and second applicants and that there has been no violation of that provision in respect of the third applicant. The Court further concludes that there has been a violation of Article 5 of the Convention in respect of Mr Islam Deniyev. The Court also finds that there has been a violation of Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

79. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Pecuniary damage

80. The first applicant, as the wife of Mr Islam Deniyev, claimed 671,614 Russian roubles (RUB) (about 12,000 euros (EUR)) in respect of pecuniary damage for the loss of financial support by the breadwinner. The second and third applicants, as his daughters, claimed RUB 311,512 (about EUR 5,500) and RUB 393,978 (about EUR 7,000) respectively. The applicants based their calculations on the subsistence level provided for by domestic law and the Ogden Actuary Tables.

81. The Government submitted that the applicants’ claim was unsubstantiated and that there was a domestic mechanism for compensation in respect of pecuniary damage resulting from the loss of a breadwinner.

82. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article 2 of the Convention in respect of Mr Islam Deniyev and the loss by the applicants of the financial support which he could have provided as their husband and father. Having regard to the applicants’ submission, the Court awards EUR 8,000 to the first applicant, EUR 5,000 to the second applicant and EUR 6,000 to the third applicant in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

B. Non-pecuniary damage

83. The applicants claimed EUR 70,000 jointly in respect of non‑pecuniary damage.

84. The Government stated that the amount of compensation should be determined on an equitable basis.

85. The Court has found a violation of Articles 2, 3, 5 and 13 of the Convention on account of the abduction and death of the applicants’ relative. The Court thus accepts that they have suffered non-pecuniary damage. It awards the applicants EUR 60,000 jointly, plus any tax that may be chargeable thereon.

C. Costs and expenses

86. The applicants were represented by the SRJI/Astreya. The aggregate claim in respect of costs and expenses related to their legal representation amounted to EUR 7,365. The claim included the drafting of legal documents submitted to the Court and administrative and postal expenses. The applicants submitted copies of the legal representation contract and invoices with a breakdown of the costs incurred.

87. The Government stated that the claim was unreasonable as the case did not involve the amount of research and preparation claimed.

88. The Court has to establish first whether the costs and expenses indicated by the applicants’ representatives were actually incurred and, second, whether they were necessary and reasonable as to quantum (see McCann and Others, cited above, § 220, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV).

89. In view of its conclusions, the principles enumerated above and the parties’ submissions, the Court awards the applicants EUR 3,000, plus any tax that may be chargeable to them. The award in respect of costs and expenses is to be paid into the representative’s bank account, as identified by the applicants.

D. Default interest

90. 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. Declares the application admissible;

2. Holds that there has been a substantive violation of Article 2 of the Convention in respect of Mr Islam Deniyev;

3. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate the abduction and death of Mr Islam Deniyev;

4. Holds that there has been a violation of Article 3 of the Convention in respect of the mental suffering caused to the first and second applicants and no violation of Article 3 of the Convention in respect of the third applicant;

5. Holds that there has been a violation of Article 5 of the Convention in respect of Mr Islam Deniyev on account of his unlawful detention;

6. Holds that there has been a violation of Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention;

7. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable on the date of settlement, save for the payment of costs and expenses:

(i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the first applicant;

(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the second applicant;

(iii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the third applicant;

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

(v) 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 their representative’s bank account, 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;

8. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 9 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena TsirliLuis López Guerra
              Deputy RegistrarPresident

Full & Egal Universal Law Academy