THIRD SECTION
CASE OF KHAKIMOVA AND OTHERS v. RUSSIA
(Applications nos. 36875/11 and 4 others – see appended list)
JUDGMENT
STRASBOURG
8 October 2019
This judgment is final but it may be subject to editorial revision.
In the case of Khakimova 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 Stephen Phillips, Section Registrar,
Having deliberated in private on 17 September 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in five applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The Russian Government (“the Government”) were given notice of the applications.
3. The Government did not object to the examination of the applications by a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants are Russian nationals who, at the material time, lived in the Chechen Republic. Their personal details are set out in the appended table. They are close relatives of individuals who disappeared after allegedly being unlawfully detained by servicemen during special operations. The events concerned took place in areas under the full control of the Russian federal forces. The applicants have not seen their missing relatives since the alleged arrests. Their whereabouts remain unknown.
5. The applicants reported the abductions to the law‑enforcement authorities, and official investigations were opened. The proceedings were ongoing for several years without any tangible results being achieved. The applicants lodged requests for information and assistance in the search for their relatives with the investigating authorities and various law‑enforcement bodies. Their requests received either only formalistic responses or none at all. The perpetrators have not been identified by the investigating authorities. It appears that all of the investigations are still ongoing.
6. Summaries of the facts in respect of each application are set out below. Each account is based on statements provided by the applicants and their relatives and/or neighbours to both the Court and the domestic investigating authorities. The Government did not dispute the principal facts of the cases as presented by the applicants, but questioned the involvement of servicemen in the events.
A. Khakimova and Others v. Russia (no. 36875/11)
7. The first applicant is the wife of Mr Saitaksi Umarov, who was born in 1953. The second applicant is his son. The third applicant was his daughter, who died on 22 January 2016.
1. Background information
8. Mr Saitaksi Umarov lived in the village of Duba-Yurt. During the first Chechen war in 1994 to 1996 he was a member of the Duba-Yurt self‑defence unit. After the war he continued living in the village, which was regularly subjected to “sweeping-up” operations by the federal forces between 2001 and 2005 (see Kukurkhoyeva and Others v. Russia [Committee], nos. 50556/08 and 9 other applications, §§ 100-12, 22/01/2019; Sagayeva and Others v. Russia, nos. 22698/09 and 31189/11, § 32, 8 December 2015; and Bitiyeva and Others v. Russia, no. 36156/04, §§ 7-24, 23 April 2009) and was surrounded by numerous checkpoints (see Sagayeva and Others, cited above, § 33).
9. On 27 March 2004 eight members of the Duba-Yurt self-defence unit were taken into custody by State agents. About two weeks later they were each found to have suffered a violent death (the State’s responsibility for their apprehension and deaths was established by the Court in Bitiyeva and Others, cited above, §§ 80-102).
10. On 3 December 2004 State agents arrested another village resident, Mr Rasul Mukayev, who never returned home and was presumed dead following his detention in custody (see Sagayeva and Others, cited above, §§ 74-76 and 81-83).
2. Abduction of Mr Saitaksi Umarov and subsequent events
11. According to the applicants, on the night of 15 to 16 February 2005, armed men in two UAZ minivans or armoured personal carriers (APCs) arrived at a brick factory on the outskirts of Duba-Yurt village, where Mr Saitaksi Umarov worked as a night guard. They forcibly took him away to an unknown destination, passing undetected through military checkpoints despite there being a curfew in place.
12. The applicants submitted interview records of three village residents, Ms L.A., Ms Kh.E., and Ms A.A. prepared by the NGO Materi Chechni on 27 April 2011. On the night of 15 to 16 February 2005 they had seen two UAZ vehicles driving to the outskirts of the village in the direction of the brick factory and then back again.
13. On the morning of 16 February 2005 Mr Saitaksi Umarov’s relatives arrived at the brick factory and found his passport lying on the table. His clothing was scattered about. The applicants noticed tyre tracks in the vicinity, presumably belonging to UAZ vehicles. According to the applicants, they informed the authorities of the abduction that day.
3. Official investigation into the abduction
14. On 18 February 2005 the head of the Duba-Yurt village administration asked the Shali district prosecutor’s office to open a criminal case into Mr Saitaksi Umarov’s disappearance.
15. On 11 March 2005 police officers from the Shali district department of the interior (ROVD) examined the crime scene. No evidence was collected.
16. On 14 March 2005 the first applicant contacted the Chechen President asking for his assistance in the search for her husband. She claimed that he had been abducted by armed men in APCs. Her request was forwarded to the Chechen Prosecutor and registered as a crime report.
17. On 23 March 2005 the police officers established that during the first Chechen war in 1994 to 1996 Mr Saitaksi Umarov had been a member of the Duba-Yurt self-defence unit. Eight other members of the unit had been abducted on 27 March 2004 and found dead two weeks later (the circumstances surrounding their deaths and the ensuing investigation were examined by the Court in Bitiyeva and Others, cited above, §§ 80-102).
18. On 4 October 2005 the first applicant asked the Chechen Government to assist in the search for her husband. Her request was forwarded to the Shali district prosecutor’s office on 28 October 2010.
19. On 9 November 2005 the Shali district prosecutor’s office opened criminal case no. 46151 under Article 105 of the Russian Criminal Code (“the CC”) (murder).
20. On 14 November 2005 the investigators sent requests to various authorities to check if Mr Saitaksi Umarov had been arrested. The replies received stated that the authorities had no information either about the alleged arrest of the applicants’ relative or his subsequent detention.
21. On the same date the first applicant was granted victim status in the criminal proceedings and questioned.
22. On 9 February 2006 the investigation was suspended for failure to identify the perpetrators. Subsequently, it was resumed on 8 September 2006, 2 March 2010, 14 October and 29 November 2011 and then suspended on 11 October 2006, 1 April 2010 and 19 October 2011 respectively.
23. On 3 October 2006 the investigators examined the crime scene. No evidence was collected.
24. On 4 October 2006 the investigators questioned Mr I.Z, the applicant’s neighbour, who had heard that on 15 February 2005 Mr Saitaksi Umarov had not returned home from work.
25. On 9 October 2006 the investigators questioned the first applicant, who described what her husband had been wearing on the day of his abduction.
26. On 14 May 2009 the first applicant requested access to the criminal case file. Four days later, on 18 May 2009, the request was granted.
27. On 19 March 2010 the investigators interviewed the manager of the brick factory. He submitted that he had learned of Mr Saitaksi Umarov’s disappearance on 16 February 2005 and that the disarray at his workplace suggested that he had been abducted.
28. On 24 March 2010 the second applicant was granted victim status.
29. On 29 March 2010 the investigators collected blood samples from Ms K.U., the daughter of Mr Umarov, for inclusion into the database containing DNA samples of relatives of missing persons.
30. On 15 October 2011 the investigators refused to declare the first applicant a civil claimant in the criminal proceedings.
31. On 23 November 2011 that decision was quashed by a supervising authority as ill-founded.
32. On 29 November 2011 the first applicant was declared a civil claimant in the criminal proceedings.
4. Proceedings against the investigators
33. On 17 February 2010, an unspecified date and 21 October 2010 the first applicant complained to the Shali Town Court about the investigators’ decisions to suspend the investigation, alleging that they had failed to take basic investigative steps. The court dismissed her complaints on 3 March 2010, 1 November 2010 and 17 February 2011 respectively.
B. Dedishev v. Russia (no. 46624/11)
34. The applicant is the brother of Mr Pasha Dedishev, who was born in 1948.
1. Abduction of Mr Pasha Dedishev
35. In January 2000 the Russian federal forces conducted an extensive military operation against members of illegal armed groups (незаконные вооруженные формирования) in Grozny. The town was subjected to shelling and sweeping-up operations. By the end of January 2000 the central parts of the city were under the control of the Russian forces (see Umayeva v. Russia, no. 1200/03, § 79, 4 December 2008, and Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 16 and 41, 24 February 2005).
36. On 17 January 2000 a group of armed service personnel of Slavic appearance, wearing camouflage uniforms and equipped with portable radios, arrived at the town in a Ural lorry and arrested several residents including Mr Pasha Dedishev, Mr Vasilkov, Mr Ch. and Mr G. The circumstances of their arrest are described in Vasilkova v. Russia (see Isayeva and Others v. Russia [Committee], no. 53075/08 and 9 others, § 55, 28 May 2019).
2. Official investigation into the abduction
37. As submitted by the applicant and not disputed by the Government, on an unspecified date in June 2000 he reported his brother’s abduction to the law-enforcement authorities, but the investigators did not accept his complaint. On the following day unidentified Russian military servicemen attempted to arrest him.
38. On 30 June 2000 Mr Ch.’s mother asked the Zavodskoy district temporary department of the interior in Grozny to open a criminal case into the abduction on 17 January 2000 of her son and other men by federal servicemen during a sweeping-up operation.
39. On 7 July 2000 the investigators refused to open a criminal case.
40. On 17 November 2000 that decision was overruled by the Grozny prosecutor’s office, which opened criminal case no. 12284 under Article 126 of the CC (abduction) into the incident.
41. On 17 January 2001 the investigators suspended the proceedings for failure to identify the perpetrators.
42. On 15 April 2001 the Grozny prosecutor’s office opened a separate criminal case no. 13064 under Article 126 of the CC into the abduction of Mr Sergey Vasilkov and Mr G.
43. On 11 July 2001 the Grozny prosecutor’s office opened a new criminal case no. 13103 into the abduction of Mr Sergey Vasilkov.
44. In the meantime, according to the applicant, between 2000 and 2003, his sister and mother lodged abduction complaints with various authorities, including the North Caucasus military commander’s headquarters, the International Committee of the Red Cross and the Chechen President. It appears that as a result of those complaints Mr Pasha Dedishev was included in the list of abducted persons in criminal case no. 12284.
45. On 6 November 2003 the investigation was resumed and cases nos. 13064 and 13103 were joined to case no. 12284.
46. The subsequent developments in the proceedings between 6 November 2003 and 5 February 2013 are described in Isayeva and Others v. Russia, cited above, §§ 67-76. In particular, the proceedings were suspended on 27 February 2005 and then resumed on 1 December 2009.
47. Subsequently, the investigators resumed the proceedings on 16 June 2016 and suspended them again on 6 July 2016.
3. Court proceedings
48. According to the applicant, on 9 October 2007 he lodged a claim with the Zavodskoy District Court in Grozny seeking compensation for pecuniary and non-pecuniary damage, including that caused by the alleged abduction of his brother by federal servicemen. Subsequently, his claim was transferred to the Leninskiy District Court of Grozny because the initial court declined jurisdiction.
49. On 6 April 2009 Leninskiy District Court of Grozny dismissed the complaint as unsubstantiated. That decision was upheld on appeal by the Chechnya Supreme Court on 17 November 2009.
С. Dzhankhotova and Dzhankhotov v. Russia (no. 65054/11)
50. The first applicant is the wife of Mr Uvays Shaipov, who was born in 1967, and the sister of Mr Alvi Dzhankhotov, who was born in 1983. The second applicant is the latter’s brother.
1. Abduction of Mr Uvays Shaipov and subsequent events
51. On 23 May 2001 Mr Uvays Shaipov was stopped by armed men at a checkpoint next to the Kirov-Yurt settlement in Chechnya. The servicemen threatened him with firearms, forced him into an APC with the registration number K-149 and drove off to an unknown destination.
52. The event took place in the presence of several witnesses, including Ms E.Kh, the mother of Mr Uvays Shaipov. Immediately afterwards she followed the APC and saw it entering the base of a military unit stationed in the village of Khatuni, Chechnya.
53. Later that day a military officer who introduced himself as Mr Igor Strelkov informed the applicants that Mr Uvays Shaipov had been taken to the headquarters of the federal forces in Khankala, Chechnya.
54. In June 2001 Mr Uvays Shaipov was shown on the television as an accomplice of illegal armed groups in Chechnya arrested by federal forces. It is unclear whether the applicants provided this information to the investigators.
2. Official investigation into the abduction
55. On an unspecified date the applicants informed the authorities of the abduction of Mr Uvays Shaipov.
56. On 18 July 2001 the Vedeno district prosecutor’s office opened criminal case no. 73059 under Article 126 of the CC (abduction).
57. On an unspecified date in September 2002 (the precise day is illegible) Ms E.Kh., the mother of Mr Uvays Shaipov, was granted victim status in the case. She was questioned by the investigators and confirmed the circumstances of the abduction as described above.
58. On an unspecified date in September (the precise day is also illegible) the investigators questioned one of the witnesses, Ms Z.M., who confirmed the circumstances of Mr Uvays Shaipov’s detention by military servicemen at the checkpoint next to Kirov-Yurt.
59. On 18 September 2002 the investigation in the case was suspended for failure to identify the perpetrators.
60. On 17 December 2002 the criminal case file was destroyed by a fire at the prosecutor’s office.
61. On 27 October 2004 the acting Vedeno district prosecutor ordered that the criminal case material be restored and the investigation be resumed.
62. On 27 November 2004 the investigation in the case was suspended.
63. The Government did not provide the Court with the case material relating to the period that followed. From the materials submitted by the applicants it appears that the investigation progressed as follows.
64. On 26 April 2005 the investigation was resumed. Subsequently, it was suspended on 26 May 2005, resumed on an unspecified date between 2009 and 2011 and again suspended on 7 May 2011. It appears that the applicants were not informed of the suspension order of 26 May 2005.
65. On 15 April 2009 Ms E.Kh asked the head of the Chechen Parliamentary Committee on the Search for Missing Persons to assist her in the search for her son. The request was forwarded to the investigators, who informed her on 20 May 2009 that the proceedings in the case had been suspended and that operational-search activities were being taken in order to establish Mr Uvays Shaipov’s whereabouts.
66. On 28 April 2011 the first applicant applied for victim status. The investigators granted her request on 5 May 2011.
67. On 24 May 2011 the investigators allowed a request by the first applicant to consult the case file.
3. Abduction of Mr Alvi Dzhankhotov
68. At around 4.30 a.m. on 31 March 2002 armed men in military camouflage uniforms and balaclavas arrived at the applicants’ block of flats in the village of Chiri-Yurt in an URAL lorry and a grey UAZ-452 with the registration number 835 XA/RUS 95. A group of about five men broke into the family flat where Mr Alvi Dzhankhotov lived with his mother, Ms R.Dzh., and aunt, Ms L.A. The men forced him outside and then took him away to an unknown destination.
69. The same morning two other residents of Chiri-Yurt, Mr Ibragim Asabayev and Mr Alkhazur Asabayev, were abducted in similar circumstances (see Israilovy and Others v. Russia, no. 34909/12 and 4 others [CTE], § 73, 24 September 2019).
70. Three days after the abduction, on 3 April 2002, the servicemen brought Mr Alvi Dzhankhotov back to Chiri-Yurt in a UAZ minivan. They took him into his flat and searched it. Ms L.A. was at home and witnessed the search. Thereafter, they forced him back into the vehicle and drove off.
71. The abduction took place in the presence of numerous witnesses, including Mr Alvi Dzhankhotov’s relatives and neighbours.
4. Official investigation into the abduction
72. On 24 April 2002 a relative of Mr Alvi Dzhankhotov informed the authorities of the abduction and requested that criminal proceedings be opened.
73. On 31 July 2002 the Shali district prosecutor’s office opened criminal case no. 59174 under Article 126 of the CC (abduction).
74. From the documents submitted it appears that on 31 July 2002 (the date was also stated as 30 July 2002, the day before the case was opened) the first applicant was granted victim status.
75. On the same date the investigators questioned Ms L.A., the aunt of Mr Alvi Dzhankhotov, who confirmed the circumstances of the abduction as stated above.
76. On 31 July 2002 the investigators informed a relative of Mr Alvi Dzhankhotov that they would provide an update about the progress of the investigation.
77. On 27 August 2003 the investigators asked the military commander of the Shali district in Chechnya whether federal servicemen had arrested Mr Alvi Dzhankhotov or had a UAZ-452 vehicle with the registration number 835 XA/RUS 95. The commander replied that the subordinate military unit had not been involved in the arrest, and that the military headquarters had several UAZ-452 vehicles.
78. On 31 September 2002 the investigation in the case was suspended for failure to identify the perpetrators. The applicants were not informed of that decision.
79. On various sates between 2003 and 2007 the mother of Mr Alvi Dzhankhotov asked a number of authorities, including the Russian Prosecutor General, the Prosecutor General’s Office in the South Federal Circuit, the Chechen Prosecutor and the Chechen Government to assist her in the search for her son. Her requests were forwarded to the investigators, who replied on 17 May 2003, 14 July 2003, 8 February 2006 and 24 March 2007 that operational-search activities to establish her son’s whereabouts were in progress.
80. On 24 May 2011 the investigators granted a request by the first applicant to be provided with access to the criminal case file.
81. On 19 December 2011 they dismissed a request by her to be provided with a specific document from the case file.
82. On 25 June 2012 the first applicant enquired about the developments in the case. The next day she was informed that the proceedings had been suspended on 31 September 2002 for failure to identify the perpetrators.
83. On 10 September 2012 the investigators asked the Shali ROVD to intensify the search for Mr Alvi Dzhankhotov, in particular to identify the witness to the abduction and the perpetrators.
D. Chapanovy v. Russia (no. 76566/11)
84. The first and second applicants were the parents of Mr Lema Chapanov, born in 1974, and Mr Aslan Chapanov, born in 1979. They died after the application had been lodged with the Court. After the death of the second applicant, his son, Mr Ramzan Chapanov (a brother of Mr Lema Chapanov and Mr Aslan Chapanov) expressed the wish to pursue the application in his stead.
85. The third and fourth applicants are the brothers of Mr Lema Chapanov and Mr Aslan Chapanov.
1. Abduction of the Chapanov brothers
86. At around 5 a.m. on 12 September 2000 (in the documents submitted the date was also referred to as 15 September 2000) the Chapanov family were at home in the village of Alkhazurovo, Chechnya, when a group of about twenty armed men in camouflage uniforms and balaclavas arrived in two APCs and a white VAZ‑2106 vehicle. After searching the house and checked the family’s identity documents, the men informed the applicants that they were going to detain the Chapanov brothers (in particular, Mr Lema Chapanov, Mr Aslan Chapanov, as well as the third and fourth applicants) and take them to the town of Urus‑Martan for further identity checks.
87. The men ordered the applicants to show them the ownership documents for the family car, a Niva with the registration number 8405 MT parked in the courtyard of their house. After taking the documents, the men ordered the brothers to follow the APCs in the family car.
88. On the main road between the village of Goyskoye and Urus-Martan the convoy stopped. The servicemen ordered the brothers to get out of their car and pull their t-shirts over their heads. They then put them into one of the APCs and drove them to an unknown destination about three hours away.
89. On their arrival the brothers were ordered to get out of the APC and take their t-shirts off their heads. The brothers saw a large area with a big number of military vehicles and armed men speaking unaccented Russian.
90. The servicemen then blindfolded the brothers, tied their hands behind their backs and put them in cells. When one of the brothers asked where they were, a cellmate replied that they were in Khankala, where the headquarters of the Russian federal forces was located.
91. The next day the men put the fourth applicant into an APC with a registration number containing the digits 823 and took him back to Alkhazurovo. After searching the applicants’ family house, the servicemen dropped the fourth applicant off at the outskirts of the village.
92. The third applicant was released a week later and returned home. According to his statements, throughout his detention in Khankala he was detained in the same cell as one of his brothers, Mr Aslan Chapanov.
93. Mr Lema Chapanov and Mr Aslan Chapanov have not been seen since.
94. The abduction took place in the presence of several witnesses, including the applicants, their relatives and neighbours. The applicants submitted written statements of Mr S.A. and Mr B.B., supporting their version of events.
2. Official investigation into the abduction of Mr Lema Chapanov and Mr Aslan Chapanov
95. On 8 December 2000 the first applicant informed the authorities of the abduction of her sons and theft of their Niva car by the abductors. She requested assistance in the search for her missing relatives as well as protection for having made the abduction complaint.
96. On 15 February 2001 the Urus-Martan district prosecutor’s office opened criminal case no. 25025 under Article 126 of the CC (abduction).
97. A comparison of the documents submitted by the parties showed that the Government did not provide the Court with the criminal file in its entirety, despite its request to that effect. As far as can be seen from the documents in the Court’s possession, the proceedings may be summarised as follows.
98. On 15 April 2001 the investigation in the case was suspended for failure to identify the perpetrators. It was subsequently resumed on 11 August 2001, 18 March 2002 and 19 May 2006 following criticism from the senior prosecutors, and then suspended on 11 September 2001, 25 April 2003 and 19 June 2006 respectively.
99. In the meantime, on 2 and 8 September August 2001, Mr Lema Chapanov’s partner and the fourth applicant were granted victim status in the criminal proceedings and questioned. The statement of Mr Lema Chapanov’s partner was similar to the applicants’ submissions to the Court. The copy of the fourth applicant’s statement submitted to the Court was illegible.
100. In April 2003 the investigators sent a number of requests to various law-enforcement authorities to check if the Chapanov brothers had been detained during a special operation. The replies received stated that those authorities had no information about them.
101. On 2 October 2003 the first applicant asked several officials in the Urus-Martan district, including the district military commander, the military prosecutor, the prosecutor and the head of the ROVD to assist her in establishing the whereabouts of her children. It is not clear whether she received a reply.
102. On 17 May 2006 the first applicant asked the Urus-Martan prosecutor to grant her victim status in the criminal proceedings, update her about the progress of the investigation and provide her with a copy of the decision to open a criminal case dated 15 February 2001.
103. On 22 May 2006 the first applicant was granted victim status and questioned. She confirmed the circumstances of her sons’ abduction and mentioned that she had no information concerning their whereabouts or the Niva car.
104. On 5 June 2006 the investigators asked the head of the Urus‑Martan department of the interior to identify the registration plate and for details of the Niva car belonging to the Chapanov brothers. The outcome of the request is unknown.
105. On 9 June 2006 the investigator questioned the fourth applicant, who described the circumstances of the brothers’ abduction in great detail.
106. On 15 June 2006, at the request of the first applicant, the Urus‑Martan Town Court declared Mr Lema Chapanov and Mr Aslan Chapanov dead.
107. On an unspecified date in August 2006 the first applicant asked the NGO Memorial to assist in the search for her sons. On 31 August 2006 the NGO forwarded her request to the investigators, who replied on 16 October 2006 that the proceedings had been suspended, but operative-search activities in the case were ongoing.
108. On 7 July 2010 and 4 April 2011 the first applicant asked the investigators to resume the proceedings in the criminal case and grant her full access to the case file. On 12 July 2010 and 6 April 2011 respectively her requests were rejected.
109. On 28 July 2011 the first applicant enquired about the course of the proceedings. It is not clear whether she received a reply.
3. Proceedings against the investigators
110. On 6 June 2011 the first applicant complained to the Urus-Martan Town Court that she had been denied access to the criminal case file. The outcome of the proceedings is unknown.
E. Gerimovy v. Russia (no. 8435/12)
111. The applicants are close relatives of Mr Akhyad Gerimov, who was born in 1961. The first applicant is his wife, while the second and third applicants are his children.
1. Abduction of Mr Akhyad Gerimov
112. At about 3 p.m. on 2 June 2000 Mr Akhyad Gerimov was driving to work at the Lenina factory in Grozny in a VAZ 2106 car with the registration number AZ-05-VA-347. On the way he picked up an acquaintance, Ms R.I.
113. In the Zavodskoy district in Grozny, at a checkpoint manned by Russian servicemen, several armed men in camouflage uniforms with bandanas covering their heads (typically worn by State servicemen) stopped the car, pointed their guns at Mr Akhyad Gerimov and Ms R.I. and ordered them to get out. They then forced Mr Akhyad Gerimov into an APC waiting nearby and took him and his car away.
114. Ms R.I. was taken behind the checkpoint and held there until 10 p.m. She was then blindfolded, tied up by her hands and taken away in another APC. On her arrival she was put in a tent. She saw tanks and helicopters nearby. A few minutes later she heard Mr Akhyad Gerimov in a neighbouring tent screaming and asking for help. Ms R.I. was then taken to the tent, interrogated and beaten up.
115. At 9 a.m. the next day Ms R.I. was taken blindfolded and with her hands tied in an APC to the centre of Grozny and released. The men took all her jewellery and told her not to speak to anyone about the incident.
2. Official investigation into the abduction
116. On 23 June 2000 the Grozny prosecutor’s office opened criminal case no. 12073 under Article 126 of the CC (abduction). The Government did not submit all the documents from the criminal case file, despite the Court’s request to that effect. Accordingly, it is unclear on what dates the investigation was suspended or resumed and whether or not the applicants were informed of the relevant decisions. From the parties’ submissions it appears that the proceedings progressed as follows.
117. In August 2000 the investigators took statements from the first applicant and Ms R.I. The first applicant’s statement was similar to the applicants’ submissions to the Court. Among other details she gave the model and registration number of her husband’s car.
118. On an unspecified date in August 2000 (the date on the document is illegible), in reply to a request for information, the Ministry of the Interior informed the investigators that the checkpoint had been manned by a police special forces unit from Irkutsk.
119. In 2001 the first applicant forwarded several requests to the Grozny prosecutor’s office and the Russian Prosecutor General’s Office asking for assistance in establishing Mr Akhyad Gerimov’s whereabouts.
120. On 21 August 2001 the Russian Prosecutor General’s Office informed the applicant that her request had been forwarded to the Chechen Prosecutor’s Office.
121. On 13 February 2002 the investigators questioned the first applicant about the abduction. She confirmed her previous statement.
122. On an unspecified date in March 2003 the first applicant was granted victim status in the criminal proceedings. On 27 March 2003 and 20 May 2004 she was questioned again. She repeated her previous statements.
123. On 7 August 2006, in reply to a request for information on the progress of the investigation into the abduction of Mr Akhyad Gerimov, the applicants were informed by the Zavodskoy district prosecutor’s office that it was not currently investigating the incident.
124. On 6 October 2008 the investigator of the Chechnya Investigative Committee questioned Ms R.I. about the abduction.
125. On 23 April 2010 the Leninskiy district department of the Investigative Committee informed the applicants that the Zavodskoy district prosecutor’s office had not forwarded the criminal case concerning their relative’s abduction to them for investigation.
126. On 4 May 2010 the Chechnya Investigative Committee separated several documents concerning Mr Akhyad Gerimov’s abduction from criminal case file no. 12073 and launched a new pre-investigation inquiry into the offence proscribed by Article 162 of the CC (robbery).
127. On 7 June 2010 the Chechnya Investigative Committee opened a new criminal investigation, this time under the case number 21027, into Mr Akhyad Gerimov’s abduction (Article 126 of the CC (abduction)) and the theft of his car by the abductors (Article 162 of the CC (robbery)).
128. On 29 June 2010 the first applicant was granted victim status in criminal case no. 21027.
129. On 7 August 2010 the criminal case was suspended for failure to identify the perpetrators. Subsequently, it was resumed on 21 November 2011 and 6 April 2015 and then suspended on 20 December 2011 and 16 April 2015 respectively.
130. On 15 September 2011 the first applicant asked the investigators to allow her to access the investigation file. Her request was granted after she complained to the courts (see paragraph 132 below).
131. On 6 April 2015 the second applicant was granted victim status in the criminal proceedings and questioned as a witness. His statement was consistent with the applicants’ previous submissions.
3. Proceedings against the investigators
132. On 15 November 2011 the first applicant complained to the Staropromyslovskiy District Court in Grozny about the investigators’ failure to reply to her request concerning access to the criminal case file and the decision to suspend the investigation.
133. On 25 November 2011 the court stated that the applicant was to be allowed access to the case file. As for the complaint against the decision to suspend the investigation, it was dismissed as four days earlier, on 21 November 2011, the investigators had resumed the proceedings.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL
134. For a summary of the relevant domestic law and international and domestic reports on disappearances in Chechnya and Ingushetia, see Aslakhanova and Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 43-59 and §§ 69-84, 18 December 2012).
THE LAW
I. JOINDER OF THE APPLICATIONS
135. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.
II. LOCUS STANDI
136. The Court notes that the first two applicants in Chapanovy (no. 76566/11) died after the application had been lodged with the Court, and that the second applicant’s son, Mr Ramzan Chapanov, expressed the wish to pursue the application in his stead (see paragraph 84 above). The Government objected, stating that Mr Ramzan Chapanov had neither witnessed the abduction nor participated in the criminal proceedings. According to the Government, he could not therefore claim to be a victim of the alleged violations.
137. The Court normally permits the next-of-kin to pursue an application, provided they have a legitimate interest, where the original applicant has died after lodging the application with the Court (see Murray v. the Netherlands [GC], no.10511/10, § 79, 26 April 2016, and Maylenskiy v. Russia, no. 12646/15, § 27, 4 October 2016; for cases concerning abductions in Chechnya see Sultygov and Others v. Russia, nos. 42575/07 and 11 others, §§ 381-86). Having regard to the subject matter of the application and all the information in its possession, the Court considers that the second applicant’s son, and the brother of the abducted men, Mr Ramzan Chapanov, has a legitimate interest in pursuing the application and that he thus has the requisite locus standi under Article 34 of the Convention.
III. COMPLIANCE WITH THE SIX-MONTH RULE
A. The parties’ submissions
1. The Government
138. In their observations, the Government argued 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 ensuing investigations, or more than six months after the most recent decision of the investigators. The Government also pointed out that the applicants had remained passive and had not maintained contact with the investigating authorities for a significant amount of time. According to the Government, all the applications should be declared inadmissible as brought “out of time”.
2. The applicants
139. The applicants submitted that they had complied with the six‑month rule. They had taken all possible steps within a reasonable time‑limit to initiate the searches for their missing relatives and assist the authorities in the proceedings. In Dedishev (no. 46624/11) the applicant acknowledged a delay in lodging a formal abduction complaint with the authorities but stated that it had been due to the hostilities in the region, the authorities’ refusal to register his abduction complaint and their subsequent attempt to arrest him (see paragraph 37 above). He further explained than between 2007 and 2009 he had had serious health problems and had undergone inpatient treatment, which had affected his ability to maintain regular contact with the investigators.
140. The applicants further submitted that there had been no excessive or unexplained delays in lodging their applications with the Court, which had been brought as soon as they had considered the domestic investigations to be ineffective. According to them, the armed conflict taking place in Chechnya at the material time had led them to believe that investigative delays were inevitable. It had only been with the passage of time and a lack of information from the investigating authorities that they had begun to doubt the effectiveness of the investigations and had started looking for free legal assistance to assess the effectiveness of the proceedings and then, subsequently, to lodge their applications with the Court without undue delay.
B. The Court’s assessment
1. General principles
141. A summary of the principles concerning compliance with the six‑month rule in disappearance cases may be found in Sultygov and Others, cited above, §§ 369‑74, 9 October 2014.
2. Application of the principles to the present cases
142. Turning to the circumstances of the present cases, the Court notes that in Khakimova and Others (no. 36875/11) the applicants lodged their application with the Court within less than seven years 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).
143. In the remainder of the applications at hand that period varied between ten years and five months and eleven years and seven months (it amounted to around eleven years and six months in Dedishev (no. 46624/11); ten years and five months and ten years and nine months in Dzhankhotova and Dzhankhotov (no. 65054/11); eleven years and two months in Chapanovy (no. 76566/11); and eleven years and seven months in Gerimovy (no. 8435/12)).
144. The Court further notes that in Khakimova and Others (no. 36875/11), Dzhankhotova and Dzhankhotov (no. 65054/11), Chapanovy (no. 76566/11) and Gerimovy (no. 8435/12) the authorities became aware of the abductions within several weeks of the respective incidents, which can be considered as lodging the official complaints without undue delay given the situation at the material time.
145. In Dedishev (no. 46624/11) the Government did not contest the applicant’s submission that he had informed the authorities of his brother’s abduction in June 2000, but the authorities had refused to accept his claim and the next day had attempted to arrest him. Taking that into account, the situation of armed conflict in the region and the alleged involvement of the authorities in the perpetrated offence, the Court accepts the applicant’s explanation that exceptional circumstances justified the delay. It does not appear that it deprived the investigation of any prospects of success.
146. The Court further observes that in each of the applications the authorities opened a criminal investigation into the applicants’ complaints of abduction which was repeatedly suspended and then resumed following criticism from the senior investigators. In each case, the investigation was still ongoing when the application was lodged with the Court (see paragraph 5 above).
147. The Court also notes certain lulls in the criminal proceedings (see in Khakimova and Others (no. 36875/11) paragraph 22 above; in Dedishev (no. 46624/11) paragraph 46 above; in Dzhankhotova and Dzhankhotov (no. 65054/11) paragraphs 64 and 786464; in Chapanovy (no. 76566/11) paragraph 98; and in Gerimovy (no. 8435/12) paragraphs 122 and 124 above), while the investigations were suspended. The most significant of them, which appears to have exceeded five years (the exact dates of suspension and resumption were not always clear), took place in Dzhankhotova and Dzhankhotov (no. 65054/11) and Chapanovy (no. 76566/11).
148. However, from the documents submitted it appears that in each of those cases the applicants and other relatives of those abducted did not remain passive. In the first case, they contacted the Chechen Parliamentary Committee on the Search for Missing Persons, the Russian Prosecutor General, the Prosecutor General’s Office in the South Federal Circuit, the Chechen Prosecutor and the Chechen Government, asking them for assistance in the search for their relatives. Their requests were subsequently forwarded to the investigators, who then reassured them that operational-search measures were ongoing (see paragraphs 79-82 above). In the second case, on a number of occasions the applicants applied to the investigators both directly and with the assistance of the NGO Memorial. Just like in the first case, the investigators replied stating that the search for their relative was in progress. The applicants also complained to the courts that they had been denied full access to the case file (see paragraphs 107-110 above).
149. Overall, the documents submitted show that the applicants in every case clearly demonstrated their interest in the search for their missing relatives and took steps to maintain contact with the authorities.
150. In assessing the circumstances of the cases, the Court takes into account that all of the applications were lodged within twelve years of the incidents (contrast Dzhabrailova and Others v. Russia, nos. 3752/13 and 9 others, 7 May 2019, where the Court declared inadmissible applications submitted more than twelve years after the abduction of the applicants’ relatives), and that the authorities became aware of the abductions without undue delays. It also notes the applicants’ efforts to have the dormant proceedings resumed and their overall active stance in the proceedings. It therefore concludes that the applicants acted diligently and maintained contact with the investigators.
151. Given that the investigations were complex and concerned very serious allegations, the Court concludes 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). The delays in opening the criminal cases, or the lulls in the proceedings, therefore cannot be interpreted as the applicants’ failure 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, and 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, while the investigation was seemingly dormant).
152. In the light of the above, and bearing in mind the arguments submitted by the parties, the Court concludes that the investigations in the cases at hand, albeit sporadic, were being conducted during the periods in question, and that it is satisfied with the explanations submitted by the applicants (see Varnava and Others, cited above, § 166). Accordingly, they complied with the six-month rule.
IV. COMPLIANCE WITH THE EXHAUSTION RULE
A. The parties’ submissions
1. Government
153. The Government argued that the applicants had failed to exhaust domestic remedies in respect of their complaints related to the abduction of their relatives as they had failed to complain to the courts about the actions or omissions of the investigating authorities.
2. The applicants
154. The applicants stated that lodging complaints against the investigators would not have remedied the shortcomings in the proceedings, and that the criminal investigations had proved to be ineffective.
B. The Court’s assessment
155. The Court has already concluded that the ineffective investigation of disappearances that occurred in Chechnya between 2000 and 2006 constitutes a systemic problem, and that criminal investigations are not an effective remedy in this regard (see Aslakhanova and Others, cited above, § 217).
156. In such circumstances, and noting the absence of tangible progress in any of the criminal investigations into the abduction of the applicants’ relatives, the Court concludes that this objection must be dismissed, since the remedy suggested by the Government would not have been effective in the circumstances (for similar reasoning, see Ortsuyeva and Others v. Russia, nos. 3340/08 and 24689/10, § 79, 22 November 2016).
V. ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS
A. The parties’ submissions
1. The Government
157. The Government did not contest the essential facts underlying each application, but submitted that the applicants’ allegations were based on assumptions, as there was no evidence proving beyond reasonable doubt that State agents had been involved in the alleged abductions, or that the applicants’ relatives were dead.
2. The applicants
158. 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 evidence contained in their submissions and documents from the criminal investigation files disclosed by the Government. They also submitted that they had each made out a prima facie case that their relatives had been abducted by State agents, but the essential facts underlying their complaints had not been challenged by the Government. Given the lack of any reliable 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
159. A summary of the principles concerning the assessment of evidence and the establishment of facts in disappearance cases, and the life‑threatening nature of such incidents, may be found in Sultygov and Others, cited above, §§ 393‑96.
2. Application of the above principles to the present cases
160. Turning to the circumstances of the cases presently before it, and in view of all the material, including the copies of documents from the relevant criminal case files submitted by the parties, the Court finds that the applicants have presented prima facie cases that their relatives were abducted by State agents in the circumstances set out above. The Court notes that each of the abductions took place in areas under State control.
161. In Khakimova and Others (no. 36875/11) the applicant’s village was frequently “swept” by the federal forces. Before the abduction of Mr Saitaksi Umarov, eight members of his self-defence unit had been arrested by State agents and then found dead (see Bitiyeva and Others, cited above, §§ 7-24). The perpetrators of Mr Saitaksi Umarov’s abduction used military vehicles and passed through checkpoints undetected despite there being a curfew in place (see paragraphs 8-13 above).
162. In Dedishev (no. 46624/11) the applicant’s relative was abducted by a group of armed military personnel of Slavic appearance, wearing camouflage uniforms and equipped with portable radios. It appears that on the same date the same group of men were involved in the arrest of another local resident, Mr Sergey Vasilkov (see paragraphs 35 and 36 above).
163. In Dzhankhotova and Dzhankhotov (no. 65054/11) Mr Uvays Shaipov was abducted at a military checkpoint by armed men with an APC. Shortly afterwards a man introducing himself as a military officer informed Mr Uvays Shaipov’s relatives that the latter had been taken to the military headquarters in Khankala (see paragraphs 51-53 above). Mr Alvi Dzhankhotov was abducted by men in military camouflage uniforms and balaclavas that morning with two other residents of the same village, Mr Ibragim Asabayev and Mr Alkhazur Asabayev. In Israilovy and Others (cited above) the Court established that the latter had been arrested and taken into custody by State agents (see Israilovy and Others, cited above, § 141). Moreover, three days later the abductors took him into his flat to search it, and after doing so, took him away again (see paragraphs 68-71 above).
164. In Chapanovy (no. 76566/11) the perpetrators, wearing camouflage uniforms and balaclavas, arrived at the applicants’ house in two APCs and a VAZ vehicle. Their actions corresponded to those used by the federal forces during special operations, which have been examined by the Court in many similar cases (see paragraphs 86-94 above; see also Kukurkhoyeva and Others, cited above, §§ 27, 31, 64, 69 and 182; and Tazuyeva and Others v. Russia [Committee], nos. 36962/09 and 9 others, §§ 71, 72, 85, 86, 105, 106 and 171, 22 January 2019).
165. In Gerimovy (no. 8435/12) the applicant’s relative was abducted by armed men in an APC at a military checkpoint, similar to Mr Uvays Shaipov. Ms R.I., who was detained with the applicant’s relative, saw helicopters and tanks at the place of their subsequent detention (see paragraphs 112-115 above).
166. The Court further notes that in the cases at hand, the investigating authorities accepted as fact the primary versions of events presented by the applicants, and took steps to verify whether State agents had indeed been involved in the abductions by sending information requests to the relevant authorities.
167. In their submissions to the Court, the Government did not provide a satisfactory and convincing explanation for the events in question or an alternative version of events. They have therefore failed to discharge their burden of proof.
168. Bearing in mind the general principles enumerated above, the circumstances of the cases and the Court’s findings in Bitiyeva and Others, Isayeva and Others and Israilovy and Others (all cited above), the Court finds that the applicants’ relatives were taken into custody by State agents during special operations. Given the lack of any reliable news about Mr Saitaksi Umarov, Mr Pasha Dedishev, Mr Uvays Shaipov, Mr Alvi Dzhankhotov, Mr Lema Chapanov, Mr Aslan Chapanov and Mr Akhyad Gerimov since their detention, and the life‑threatening nature of such detention, they may be presumed dead following their unacknowledged detention.
VI. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
169. 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 investigations 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...”
A. The parties’ submissions
170. In Khakimova and Others (no. 36875/11), Dedishev (no. 46624/11) and Dzhankhotova and Dzhankhotov (no. 65054/11) the Government submitted that the applicants’ complaints should be dismissed as unsubstantiated. In Chapanovy (no. 76566/11) they stated that Article 2 of the Convention was inapplicable to the applicants’ complaint of abductions, and that it should be examined under Article 5 of the Convention, because there was no evidence of the death of the applicants’ relatives. In this connection, they referred to the case of Kurt v. Turkey (25 May 1998, §§ 101‑09, Reports of Judgments and Decisions 1998‑III). In Chapanovy (no. 76566/11) the Government also submitted that the mere fact that the investigation had not produced any specific results, or had given only limited ones, did not mean that it had been ineffective. They claimed that all necessary steps had been taken to comply with the positive obligation under Article 2 of the Convention.
171. The applicants maintained their complaints, alleging that their relatives had been abducted and intentionally deprived of their lives in circumstances involving a violation of Article 2 of the Convention. They further argued that the investigations into the incidents had fallen short of the standards set by the Convention.
B. The Court’s assessment
1. Admissibility
172. In the light of the parties’ submissions, the Court considers that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The complaints under Article 2 of the Convention must therefore be declared admissible.
2. Merits
(a) Alleged violation of the right to life of the applicants’ relatives
173. The Court observes that it is undisputed by the parties that the whereabouts of the applicants’ relatives remained unaccounted for from the time of their abduction to the lodging of the applications with the Court. The question arises whether, contrary to the Government’s submission, Article 2 of the Convention is applicable to the applicants’ situations.
174. The Court has already examined the Government’s objection in similar cases concerning alleged abductions by State agents and dismissed it (see, for example, Sultygov and Others, cited above, §§ 441-42; and Dzhabrailov and Others v. Russia, nos. 8620/09 and 8 others, §§ 317-18, 27 February 2014), Accordingly, the Court finds that Article 2 of the Convention applies and that the Government’s objection in this respect should be rejected.
175. Based on the above, and noting that it has already been found that in all of the applications under examination the applicants’ relatives may be presumed dead following their unacknowledged detention by State agents (see paragraph 168 above), in the absence of any justification put forward by the Government, the Court finds that the deaths of the applicants’ relatives can be attributed to the State and that there has been a violation of the substantive aspect of Article 2 of the Convention in respect of Mr Saitaksi Umarov, Mr Pasha Dedishev, Mr Uvays Shaipov, Mr Alvi Dzhankhotov, Mr Lema Chapanov, Mr Aslan Chapanov and Mr Akhyad Gerimov.
(b) Alleged inadequacy of the investigations into the abductions
176. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances, particularly those which occurred in Chechnya between 1999 and 2006, and that such a situation constitutes a systemic problem under the Convention (see paragraph 155 above). In the case at hand, as in many previous similar cases reviewed by the Court, the investigations have been ongoing for many years without bringing about any significant developments as regards the identities of the perpetrators or the fate of the applicants’ missing relatives.
177. The Court observes that each set of criminal proceedings has been plagued by a combination of defects similar to those enumerated in the Aslakhanova and Others judgment (cited above, §§ 123‑25). Each was subjected to several decisions to suspend the investigation, followed by periods of inactivity, which further diminished the prospects of solving the crimes. No timely and thorough measures have been taken to identify and question the servicemen who could have participated in the abductions.
178. 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 Saitaksi Umarov, Mr Pasha Dedishev, Mr Uvays Shaipov, Mr Alvi Dzhankhotov, Mr Lema Chapanov, Mr Aslan Chapanov and Mr Akhyad Gerimov. Accordingly, there has been a violation of the procedural aspect of Article 2 of the Convention.
VII. ALLEGED VIOLATIONS OF ARTICLES 3, 5 AND 13 OF THE CONVENTION
179. The applicants in Khakimova and Others (no. 36875/11), Chapanovy (no. 76566/11), Gerimovy (no. 8435/12) and Dzhankhotova and Dzhankhotov (no. 65054/11) complained of a violation of Article 3 of the Convention on account of the mental suffering caused by the disappearance of their relatives. In the latter case the Government were given notice of the complaint related to the abduction of Mr Alvi Dzhankhotov submitted in the application form on 3 October 2011, but were not given notice of the complaint related to the abduction of Mr Uvays Shaipov submitted at a later stage with the applicants’ comments on the Government’s observations on 5 April 2016.
180. The applicants in all of the cases except Dedishev (no. 46624/11) further complained of a violation of Article 5 of the Convention on account of the unlawfulness of their relatives’ detention and argued that, contrary to Article 13 of the Convention, they had had no effective domestic remedies against the alleged violation of Article 2 of the Convention. The applicants in Khakimova and Others (no. 36875/11) and Chapanovy (no. 76566/11) also alleged a lack of effective remedies in respect of their complaints under Article 5 of the Convention.
181. The relevant parts of the provisions relied on by the applicants read:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 5
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties’ submissions
182. The Government contested the applicants’ claims. They stated, in particular, that the applicants’ mental suffering had not reached the minimum level of severity to fall within the scope of Article 3 of the Convention. The Government also averred that the domestic legislation, including Articles 124 and 125 of the Russian Code of Criminal Procedure, had provided the applicants with effective remedies for their complaints.
183. The applicants maintained their complaints.
B. The Court’s assessment
1. Admissibility
184. 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
185. On many occasions the Court has found that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention in respect of the close relatives of a victim, irrespective of their age (see Aslakhanova and Others, § 133, and Dzhabrailov and Others, §§ 326-27, both cited above).
186. Given the above findings regarding the State’s responsibility for the abductions of the applicants’ relatives and the failure to carry out meaningful investigations into the incidents (see paragraphs 178 above), the Court finds that the applicants in Khakimova and Others (no. 36875/11), Chapanovy (no. 76566/11), Gerimovy (no. 8435/12) and Dzhankhotova and Dzhankhotov (no. 65054/11), as far as the latter’s complaint related to the abduction of Mr Alvi Dzhankhotov, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish they suffered, and continue to suffer, as a result of both their inability to ascertain the fate of their missing family members and the manner in which their complaints have been dealt with.
187. Regard being had to the belated submission of the claim in respect of the mental suffering caused by the abduction of Mr Uvays Shaipov to his relatives in Dzhankhotova and Dzhankhotov (no. 65054/11), the Court will not examine it within the present proceedings (see, for similar reasoning, Elita Magomadova v. Russia, no. 77546/14, §§ 37-38, 10 April 2018; and Chernenko and Others v. Russia, no. 4246/14 and 5 other applications, § 37, 5 February 2019).
188. The Court has found on a number of occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 of the Convention and discloses a particularly grave violation of its provisions (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001; and Luluyev and Others v. Russia, no. 69480/01, § 122, ECHR 2006-XIII (extracts)). The Court furthermore confirms that since it has been established that the applicants’ relatives were detained by State agents, apparently in the absence of any legal grounds or acknowledgement of such detention, this constitutes a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention in respect of the applicants’ relatives in Khakimova and Others (no. 36875/11), Dzhankhotova and Dzhankhotov (no. 65054/11), Chapanovy (no. 76566/11) and Gerimovy (no. 8435/12).
189. The Court reiterates its findings regarding the general ineffectiveness of criminal investigations in cases such as those under examination. In the absence of the results of a criminal investigation, any other possible remedy becomes inaccessible in practice.
190. In the light of the above, and taking into account the scope of the applicants’ complaints, the Court finds that the applicants in Khakimova and Others (no. 36875/11), Dzhankhotova and Dzhankhotov (no. 65054/11), Chapanovy (no. 76566/11) and Gerimovy (no. 8435/12) did not have at their disposal an effective domestic remedy for their grievances under Article 2, in breach of Article 13 of the Convention.
191. In addition, the applicants in Khakimova and Others (no. 36875/11) and Chapanovy (no. 76566/11) did not have at their disposal an effective domestic remedy for their grievances under Article 3, in breach of Article 13 of the Convention.
192. As regards the alleged breach of Article 13, read in conjunction with Article 5 of the Convention, as submitted by the applicants in the two cases mentioned above, the Court has already stated in similar cases that no separate issue arises in respect of Article 13, read in conjunction with Article 5 of the Convention (see Zhebrailova and Others v. Russia, no. 40166/07, § 84, 26 March 2015; and Aliyev and Gadzhiyeva v. Russia, no. 11059/12, § 110, 12 July 2016).
VIII. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
193. The applicants in Chapanovy (no. 76566/11) and Gerimovy (no. 3435/12) claimed that during the abduction of their relatives the State agents had unlawfully seized two cars, thereby violating the property rights guaranteed under Article 1 of the Protocol No. 1 of the Convention, which provides, in particular:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...”
A. The parties’ submissions
194. The Government stated that State agents had not been responsible for the alleged violation, that the scope of the criminal cases had not included robbery, and that the applicants had failed to exhaust domestic remedies.
195. The applicants reiterated their complaint.
B. The Court’s assessment
1. Admissibility
196. Having already found that no effective remedy existed which would have permitted the applicants to establish the identities of the individuals involved in the abductions (see paragraph 155 and 156 above), the Court dismisses the Government’s objection as regards the applicants’ failure to exhaust domestic remedies (for the same approach, see Orlov and Others v. Russia, no. 5632/10, § 117, 14 March 2017).
197. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
198. The Court further notes that the Government neither disputed the estimated value of the cars taken by the abductors nor who owned the vehicles. In view of the fact that the Court has already found that the men who abducted the applicants’ relatives were State servicemen, it finds that the loss of property was imputable to the respondent State.
199. Accordingly, there was an interference with the right to the protection of property. In the absence of any reference on the part of the Government to the lawfulness and proportionality of that action, the Court finds that there has been a violation of the right to protection of property guaranteed by Article 1 of Protocol No. 1 to the Convention (see Gakayeva and Others v. Russia, nos. 51534/08 and 9 others, §§ 383-84, 10 October 2013).
IX. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO.1 TO THE CONVENTION
200. The applicants in Chapanovy (no. 76566/11) complained that they had been deprived of effective remedies in respect of their complaint under Article 1 of Protocol No. 1 to the Convention, contrary to Article 13 of the Convention (the relevant provisions are cited in paragraphs 181 and 193 above).
201. The Government did not comment on the issue.
A. Admissibility
97. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
202. The Court considers that given that the authorities denied involvement in the seizure of the vehicle, and that the domestic investigators failed to effectively investigate the matter, the applicants did not have access to any effective domestic remedies in respect of the alleged violation of their rights under Article 1 of Protocol No. 1 to the Convention. Accordingly, there has been a violation on that account (see Abdulkhadzhiyeva and Abdulkhadzhiyev, cited above, §§ 98-100).
X. APPLICATION OF ARTICLE 41 OF THE CONVENTION
203. 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
204. All of the applicants except the applicant in Dedishev (no. 46624/11) and the second applicant in Dzhankhotova and Dzhankhotov (no. 65054/11) claimed compensation for loss of financial support from the breadwinners in their families.
205. The applicants in Dzhankhotova and Dzhankhotov (no. 65054/11) made their calculations on the basis of the UK Ogden Actuary Tables, using domestic subsistence levels and inflation rates.
206. The applicants in Khakimova and Others (no. 36875/11) and Gerimovy v. Russia (no. 8435/12) based their calculations on the amount of minimum salary in Russia and its expected growth in the future.
207. The applicants in Chapanovy (no. 76566/11) referred to the minimum subsistence level and the Court’s case-law on the issue.
208. The applicants in Chapanovy (no. 76566/11) and Gerimovy (no. 8435/12) also claimed compensation for the seizure of the two vehicles in an amount equivalent to their estimated value.
209. The Government left the issue to the Court’s discretion.
2. Non-pecuniary damage
210. The amounts claimed by the applicants under that head are indicated in the appended table.
211. The Government left the issue to the Court’s discretion.
B. Costs and expenses
212. All of the applicants claimed compensation for costs and expenses. The amounts are indicated in the appended table. All of them except the applicant in Dedishev (no. 46624/11) asked the awards to be transferred into the bank accounts of their representatives.
213. In Khakimova and Others (no. 36875/11) the Government stated that the amounts claimed were excessive.
214. In the remainder of the cases the Government left the issue to the Court’s discretion.
C. The Court’s assessment
215. The Court reiterates that there must be a clear causal connection between the damages 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 the disappeared persons, including spouses, elderly parents and minor children (see, among other authorities, Imakayeva v. Russia, no. 7615/02, § 213, ECHR 2006‑XIII (extracts)).
216. 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 a violation, and make a financial award.
217. As to costs and expenses, the Court has to establish whether they were actually incurred and 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).
218. Having regard to the conclusions and principles set out above, the parties’ submissions and the principle of ne ultra petitum (“not beyond the request” or “not beyond the scope of the dispute”), the Court awards the applicants the amounts detailed in the appended table, plus any tax that may be chargeable to them on those amounts. The awards in respect of costs and expenses in respect of all of the cases except Dedishev (no. 46624/11) are to be paid into the representatives’ bank accounts, as indicated by the applicants. In Dedishev (no. 46624/11) the award is to be paid into the bank account indicated by the applicant.
D. Default interest
219. 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. Decides that in Chapanovy (no. 76566/11) Mr Ramzan Chapanov has locus standi in the proceedings before the Court;
3. Declares the applications admissible;
4. Holds that there has been a substantive violation of Article 2 of the Convention in respect of the applicants’ relatives – Mr Saitaksi Umarov, Mr Pasha Dedishev, Mr Uvays Shaipov, Mr Alvi Dzhankhotov, Mr Lema Chapanov, Mr Aslan Chapanov and Mr Akhyad Gerimov;
5. Holds that there has been a procedural violation of Article 2 of the Convention on account of the failure to effectively investigate the disappearance of the applicants’ relatives;
6. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants in Khakimova and Others (no. 36875/11), Chapanovy (no. 76566/11), Gerimovy (no. 8435/12) and Dzhankhotova and Dzhankhotov (no. 65054/11) as far as the latter’s complaint relates to the abduction of Mr Alvi Dzhankhotov, on account of their mental suffering caused by their relatives’ disappearance and the authorities’ response to their suffering;
7. Holds that in Khakimova and Others (no. 36875/11), Dzhankhotova and Dzhankhotov (no. 65054/11), Chapanovy (no. 76566/11) and Gerimovy (no. 8435/12) there has been a violation of Article 5 of the Convention in respect of the applicants’ relatives, 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 Khakimova and Others (no. 36875/11), Dzhankhotova and Dzhankhotov (no. 65054/11), Chapanovy (no. 76566/11) and Gerimovy (no. 8435/12);
9. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 3 of the Convention in Khakimova and Others (no. 36875/11) and Chapanovy (no. 76566/11);
10. Holds that no separate issue arises under Article 13 of the Convention in conjunction with Article 5 of the Convention in Khakimova and Others (no. 36875/11) and Chapanovy (no. 76566/11);
11. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in Chapanovy (no. 76566/11) and Gerimovy (no. 8435/12);
12. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention in Chapanovy (no. 76566/11);
13. 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 in all of the cases except Dedishev (no. 46624/11) are to be paid into the representatives’ bank accounts, as indicated by the applicants. In Dedishev (no. 46624/11) the award is to be paid into the bank account indicated by the applicant;
(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;
14. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 8 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsGeorgios A. Serghides
RegistrarPresident
Appendix
No.
Application no. and date of introduction
Applicant
Date of birth Place of residence
Relationship to the abducted person(s)
Abducted person(s)
Represented by
Pecuniary damage
Non-pecuniary damage
Costs and expenses
1.
36875/11
25/05/2011
(1) Ms Ayna KHAKIMOVA
05/01/1953
Duba-Yurt
wife
(2) Mr Sayd-Akhmed UMAROV
02/09/1982
Duba-Yurt
son
(3) Ms Zarema UMAROVA
09/10/1976
Duba-Yurt
daughter (passed away)
Mr Saitaksi UMAROV
MATERI CHECHNI
Sought by the applicants:
EUR 19,825 to the applicants jointly
EUR 80,000 to the applicants jointly
EUR 10,664
Awarded by the Court:
EUR 10,000 (ten thousand euros) to the first and second applicants jointly
EUR 80,000 (eighty thousand euros) to the first and second applicants jointly
EUR 1,000 (one thousand euros)
2.
46624/11
13/07/2011
Mr Musait DEDISHEV
08/04/1952
Grozny
brother
Mr Pasha DEDISHEV
Mr A. Magomadov
Sought by the applicant:
-
EUR 80,000
RUB 180,000 (EUR 2,435)
Awarded by the Court:
-
EUR 80,000 (eighty thousand euros)
EUR 2,000 (two thousand euros)
3.
65054/11
(1) 03/10/2011 (in respect of the abduction of Mr Uvays Shaipov);
(2) 05/12/2012 (in respect of the abduction of Mr Alvi Dzhankhotov)
(1) Ms Marina DZHANKHOTOVA
02/04/1971
Grozny
Mr Uvays Shaipov’s wife and Mr Alvi Dzhankhotov’s sister
(2) Mr Gilani DZHANKHOTOV
16/12/1969
Chiri-Yurt
Mr Alvi Dzhankhotov’s brother
(1) Mr Uvays SHAIPOV
(2) Mr Alvi DZHANKHOTOV
SRJI/
ASTREYA
Sought by the applicants:
RUB 1,143,906 (EUR 14,870) to the first applicant
In an amount to be determined by the Court
EUR 2,616
Awarded by the Court:
EUR 7,500 (seven thousand five hundred euros) to the first applicant
EUR 80,000 (eighty thousand euros) to each of the applicants
EUR 2,000 (two thousand euros)
4.
76566/11
19/11/2011
(1) Ms Zaluba CHAPANOVA
23/04/1950
Alkhazurovo
Lema and Aslan Chapanov’s mother
(passed away)
(2) Mr Sykesh CHAPANOV
1930
Alkhazurovo
Lema and Aslan Chapanov’s father
(passed away, his son, Mr Ramzan CHAPANOV
05/01/1982
pursued the application in his stead)
(3) Mr Vakha CHAPANOV
10/05/1969 Alkhazurovo
Lema and Aslan Chapanov’s brother
(4) Mr Beslan (also spelled Bislan) CHAPANOV
01/01/1977
Khildikharoiy
Lema and Aslan Chapanov’s brother
1) Mr Lema CHAPANOV
2) Mr Aslan CHAPANOV
Mr T. Shamsudinov
Sought by the applicants:
EUR 15,000 of which RUB 70,000 (EUR 930) compensation for the car seizure, to the applicants jointly
EUR 140,000 to the applicants jointly
EUR 2,340
Awarded by the Court:
EUR 8,000 (eight thousand euros) to Mr Ramzan Chapanov (who pursued the application in the second applicant’s stead), third and fourth applicants jointly
EUR 140,000 (one hundred and forty thousand euros) to Mr Ramzan Chapanov (who pursued the application in the second applicant’s stead), third and fourth applicants jointly
EUR 1,000 (one thousand euros)
5.
8435/12
19/01/2012
(1) Ms Khazhar GERIMOVA
26/09/1956
Grozny
wife
(2) Mr Ikhvan GERIMOV
02/03/1986
Grozny
son
(4) Ms Marina GERIMOVA
25/09/1993
Grozny
daughter
Mr Akhyad GERIMOV
MATERI CHECHNI
Sought by the applicants:
EUR 47,027 of which EUR 5,347 compensation for the car seizure, to the applicants jointly
EUR 80,000
EUR 2,991
Awarded by the Court:
EUR 17,000 (seventeen thousand euros) to the applicants jointly
EUR 80,000 (eighty thousand euros) to the applicants jointly
EUR 1,000 (one thousand euros)
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