CASE OF KHARAYEVA AND OTHERS v. RUSSIA

FIRST SECTION

CASE OF KHARAYEVA AND OTHERS v. RUSSIA

(Application no. 2721/11)

JUDGMENT

STRASBOURG

27 November 2014

FINAL

20/04/2015

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

In the case of Kharayeva and Others v. Russia,

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

Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 4 November 2014,

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

PROCEDURE

1. The case originated in an application (no. 2721/11) 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”) on 8 December 2010 by the Russian nationals listed below (“the applicants”).

2. The applicants were represented before the Court by lawyers from Materi Chechni, an NGO based in Russia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicants alleged that in 2004 their relative had been abducted by State servicemen in Chechnya and that no effective investigation into the matter had taken place.

4. On 21 October 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants are:

(1) Ms Roza Kharayeva (also known as Bugayeva), who was born in 1968,

(2) Mr Ayndi Bugayev, who was born in 1972, and

(3) Ms Zayna (also spelt as Zaynap) Maluyeva (also known as Bugayeva), who was born in 1961.

The first applicant lives in Goyty and the second and third applicants live in Grozny, Chechnya.

6. The applicants are the siblings of Mr Andarbek Bugayev, who was born in 1977.

A. Abduction of the applicants’ brother

1. The applicants’ account

7. At the material time Mr Andarbek Bugayev and his family resided in Khankala, in the Grozny District. As the main military base of the Russian federal forces was located nearby, Khankala residents used special passes to enter and leave the town.

8. On the night of the incident, 27 July 2004, Mr Andarbek Bugayev was at home alone as his family was visiting their relatives who lived in the same settlement. At around 3 a.m. or 4 a.m., a group of masked men in camouflage uniforms armed with machine guns arrived at Mr Andarbek Bugayev’s house and searched the premises. Then they put Mr Bugayev in one of their two UAZ vehicles and drove away. No witnesses were present during the abduction. On the following morning Mr Andarbek Bugayev’s relatives found his passport on the floor in the house.

9. According to the applicants’ neighbour Ms R.M., on that night, at about 4 a.m. the same group of men broke into her house. They introduced themselves as military officers conducting an identity check. After having searched the house, the men left. Sometime later the witness heard noise from the house of Mr Andarbek Bugayev and someone asking in Russian “Are there any drugs or guns here?” On the following morning she asked the men who worked on the rail road contruction site and who were walking by her house to work, to have a look inside of Mr Andarbek Bugayev’s house. The men returned shortly and told her that the house was empty, that everything there was upside down and that Mr Andarbek Bugayev’s passport was on floor at the door.

10. The applicants have had no news of Mr Andarbek Bugayev since 27 July 2004. Their submission to the Court was based on the accounts of their neighbour Ms R.M. and Mr Andarbek Bugayev’s wife Ms Z.I.S. none of whom were present during the abduction.

2. Information submitted by the Government

11. In their submission concerning the facts of the case the Government did not dispute the circumstances of the abduction as presented by the applicants. At the same time they stated that Mr Andarbek Bugayev “...had been abducted by unidentified armed men in camouflage uniforms who had driven in UAZ vehicles”.

B. Official investigation into the abduction

1. Main investigative steps taken by the authorities

12. On 30 July 2004 the third applicant complained about her brother’s abduction to the Grozny district department of the interior (the Grozny ROVD). She stated that Mr Andarbek Bugayev had been abducted from home “between 3 and 4 a.m. on 27 July 2004 by unidentified armed men”.

13. On the same date, 30 July 2004, the investigators examined the crime scene. No evidence was collected. They also questioned the applicants’ relatives Ms L.Ar. and Ms M.E. and the wife of Mr Andarbek Bugayev, Ms Z.I.S. All of them stated that they did not witness the abduction and had no information as to who could have been involved in the incident.

14. On 5 August 2004 the Chechnya Federal Security Service (the Chechnya FSB) informed the police that Mr Andarbek Bugayev was an active member of illegal armed groups.

15. On 27 August 2004 the senior operational search officer Mr M.A. reported to the head of the Grozny ROVD of the following:

“... upon the orders given by the investigator Mr M.T. from the Grozny town prosecutor’s office in connection with the investigation of the abduction of Mr A.Bugyaev in Khankala, I took operational search measures as a result of which it was established that Mr A. Bugayev had been released and currently is outside of the Chechen Republic. ... I have spoken to a number of his neighbours ...who had confirmed that Mr Bugayev had been released and left [the area]. It was impossible to question the relatives of Mr Andarbek Bugayev due to their absence ...”

16. On 28 August 2004 the Grozny district prosecutor’s office refused to initiate a criminal investigation for the lack of corpus delicti. The applicants were informed of the decision on the same date.

17. On 10 August 2005 the Chechnya prosecutor’s office overruled that decision and ordered the Grozny district prosecutor’s office to open criminal case no. 44206.

18. On 6 September 2005 Mr Andarbek Bugayev’s wife, Ms Z.I.S., was granted victim status in the criminal case and questioned (see paragraph 27 below).

19. On various dates between August 2005 and October 2005 the investigators forwarded a number of requests to various law enforcement agencies and detention centres asking whether they arrested or detained Mr Andarbek Bugayev. No replies in the positive were received.

20. On 18 November 2005 the investigation was suspended for failure to identify the perpetrators and the applicants were informed thereof.

21. On 25 May 2009 the investigation was resumed and the first applicant was also granted victim status in the criminal case.

22. On 30 May 2009 the investigation was again suspended and the applicants were informed thereof.

23. On 16 July 2010 the first applicant lodged a court complaint alleging that the investigation was ineffective; as a result, on 4 August 2010 the proceedings were resumed.

24. On 8 September 2010 the Chechnya Supreme Court dismissed the applicant’s complaint on the grounds that the investigation had been resumed.

25. On 3 September 2010 the investigation was again suspended and the applicants were informed thereof.

26. The criminal investigation is still pending.

2. Main witness statements taken in the course of the investigation

27. On 17 September 2004 the investigators questioned the third applicant who stated that she had not witnessed the abduction, that she and her relatives had tried to find witnesses to the incident but to no avail. She had learnt from “the rumours and the neighbours” that the abduction had been perpetrated by armed servicemen in masks and camouflage uniforms.

28. On 22 September 2004 the investigators questioned Mr Andarbek Bugayev’s brother Mr K.B. who stated that he had not witnessed the events but learnt of them from his relatives and neighbours.

29. On 6 September 2005 the investigators questioned Mr Andarbek Bugayev’s wife, Ms Z.I.S, who stated that she had not been at home during the abduction, but had learnt about it from her neighbours.

30. On 16 September 2005 the investigators questioned Mr Andarbek Bugayev’s neighbour, Ms R.M., who stated that on the night of Mr Andarbek Bugayev’s abduction two men in camouflage uniforms had arrived at her house and quickly checked it. They had introduced themselves as servicemen from the military commander’s office. The men, who had spoken Russian, had been masked and had no distinguishing features on their uniforms. The witness further stated that she had no information as to who could have abducted Mr Andarbek Bugayev. The witness did not state that she had heard the same men visiting the Bugayevs’ house that night.

31. On 16 September 2005 the investigators also questioned the second applicant who stated that he had leant of the incident from the third applicant and that he had no information concerning the reasons for the abduction.

32. On 23 October 2005 the investigators questioned again the applicants’ wife Ms Z.I.S. who stated that she had not witnessed the abduction but learnt of them from her relatives and neighbours. She also stated that she and her relatives had tried to find witnesses to the incident but to no avail.

33. On 25 October 2005 the investigators questioned the applicants’ relative Ms Z.Kh. who stated she had found out of the abduction from her relatives. According to the witness, the abduction had been perpetrated by a group of eight or nine armed men.

34. On 25 May 2009 the investigators questioned the first applicant, who stated she had learnt of the abduction from her relatives and that that night her brother Andarbek Bugayev had been at home alone.

II. RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL MATERIALS

35. 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 §§ 69-84, 18 December 2012).

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS

A. The parties’ submissions

1. Government

36. The Government submitted that the criminal investigation into the disappearances was still in progress and therefore the application was premature. In the absence of the final domestic decision the six-month rule did not apply. They further noted that the applicants could have filed civil claim but failed to do so.

2. The applicants

37. The applicants submitted that they had complied with the six-month rule as there had been no excessive delays in the submission of their application to the Court. As for the alleged failure to exhaust domestic remedies, they submitted that the only effective remedy in their case - the criminal investigation into the abduction of their brother - had proved to be ineffective.

B. The Court’s assessment

1. Compliance with the six-month rule

(a) General principles

38. Although the respondent Government did not raise any objection under this head, this issue calls for the Court’s consideration proprio motu (see Palić v. Bosnia and Herzegovina, no. 4704/04, § 48, 15 February 2011). The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (see Estamirov and Others v. Russia, no. 60272/00, §§ 73-74, 12 October 2006).

39. The Court reiterates that the purpose of the six-month rule is to promote security of law, to ensure that cases are dealt with within a reasonable time and to protect the parties from uncertainty for a prolonged period of time. The rule also ensures that it is possible to ascertain the facts of the case before that possibility fades away with time (see Abuyeva and Others v. Russia, no. 27065/05, § 175, 2 December 2010).

40. Normally, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. In the absence of any such decision, the period runs from the date of the acts or measures complained of. Where an applicant avails himself of an existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the six-month time-limit is calculated from the date when the applicant first became, or ought to have become, aware of those circumstances (see, among others, Zenin v. Russia (dec.), no. 15413/03, 24 September 2009).

41. In cases concerning disappearances, unlike in cases concerning ongoing investigations into the deaths of applicants’ relatives (see, for example, Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005, and Narin v. Turkey, no. 18907/02, § 50, 15 December 2009), the Court has held that taking into account the uncertainty and confusion typical of such situations, the nature of the ensuing investigations implies that the relatives of a disappeared person may be justified in waiting lengthy periods of time for the national authorities to conclude their proceedings, even if the latter are sporadic and plagued by problems. However, where more than ten years have elapsed since the incident, the applicants have to justify the delay in lodging their application with the Court (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §§ 162-63, ECHR 2009).

42. Applying the Varnava principles, the Court found in the case of Er and Others v. Turkey (no. 23016/04, §§ 55-58, 31 July 2012) that the applicants, who had waited for a period of almost ten years after the disappearance of their relative before lodging their application, had complied with the six-month rule because an investigation was being conducted at the national level. The Court reached similar conclusions in another case where the domestic investigation into the events had been pending for over eight years and where the applicants were doing all that could be expected of them to assist the authorities (see Bozkır and Others v. Turkey, no. 24589/04, § 49, 26 February 2013).

43. On the contrary, the Court has declared inadmissible applications where the applicants waited for more than ten years to lodge their applications with the Court, and where there had been, for a long time, no elements allowing them to believe that the investigation would be effective. For instance, in the case of Yetişen and Others v. Turkey (dec.), no. 21099/06, 10 July 2012, the applicants waited for four years after the disappearance before lodging an official complaint with the competent investigating authorities and for eleven and a half years before bringing their application to Strasbourg; in the case of Findik and Omer v. Turkey (decs.), nos. 33898/11 and 35798/11, 9 October 2012, the applicants brought their applications to Strasbourg more than fifteen years after the events and in the case of Taşçi and Duman v. Turkey (dec.), no. 40787/10, 9 October 2012, the applicants applied to Strasbourg twenty-three years after the disapperance. In these cases, like in the case of Açış v. Turkey (no. 7050/05, §§ 41-42, 1 February 2011), where the applicants complained to Strasbourg more than twelve years after the disapperance, the Court rejected the applicants’ complaints concerning the procedural aspect of Article 2 of the Convention as out of time for their failure to demonstrate that there had been any real progress in the domestic investigation which would justify their having waited more than ten years.

(b) Application of the principles to the present case

44. Turning to the circumstances of the case at hand, the Court notes that the criminal investigation was pending when the applicants lodged their application with the Court. Furthermore, the Court notes that the applicants complained to the authorities shortly after the abduction and lodged their application with the Court within six years and four months of the incident. A delay of six years and four months does not appear excessive or unjustified as the applicants maintained contact with the authorities by providing statements and requesting information on the progress of the investigation.

45. The Court thus considers that an investigation, albeit a sporadic one, was being conducted during the period in question, and that the applicants did all that could be expected of them to assist the authorities (see Varnava and Others, cited above, § 166, and Er and Others, cited above, § 60). In the light of the foregoing, the Court finds that the applicants complied with the six-month time-limit.

2. Exhaustion of domestic remedies

46. 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 alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others, cited above, § 77). Accordingly, the Court confirms that the applicants were not obliged to pursue civil remedies. The objection in this regard is thus dismissed.

47. As regards criminal-law remedies, the Court observes that in a recent judgment it 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 respect (see Aslakhanova and Others, cited above, § 217).

48. In such circumstances, and noting the absence over the years of tangible progress in the criminal investigation into the abduction of the applicants’ relative, the Court concludes that this objection must be dismissed since the remedy relied on by the Government was not effective in the circumstances.

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

A. The parties’ arguments

49. The applicants claimed that it was beyond reasonable doubt that the men who had taken their brother Mr Andarbek Bugayev away on 27 July 2004 had been State agents. In support of their allegation they referred to the following: the abduction had taken place in an area which had been under the full control of the State authorities, where heightened security measures had been imposed owing to the proximity of the main military base of federal forces in Khankala.

50. The Government submitted that unidentified armed men had abducted Mr Andarbek Bugayev. They further pointed out that the investigation into the matter was still pending, and that there was no evidence to prove either that the perpetrators had been State agents or that the applicants’ brother was dead.

B. The Court’s assessment

51. 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, 13 December 2012): the factual findings should be based on the standard of proof “beyond reasonable doubt”; 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).

52. Applying the above principles to cases concerning allegations of disappearances in Chechnya, the Court has concluded that it is sufficient for applicants to make a prima facie case that their missing relatives have been abducted by servicemen, such abduction thus falling within the control of the authorities, and it is then for the Government to discharge their burden of proof either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others v. Russia, cited above, § 98, and Gakayeva and Others v. Russia, nos. 51534/08, 4401/10, 25518/10, 28779/10, 33175/10, 47393/10, 54753/10, 58131/10, 62207/10 and 73784/10, § 360, 10 October 2013).

53. When adjudicating on disappearance cases in Chechnya, the Court has borne in mind the difficulties associated with obtaining evidence and the fact that, often, little evidence can be submitted by the applicants in support of their applications. The prima facie threshold has been reached primarily on the basis of witness statements, including the applicants’ submissions to the Court and to the domestic authorities, and other evidence attesting to the presence of military or security personnel in the area concerned at the relevant time. The Court has relied on references to military vehicles and equipment; the unhindered passage of the abductors through military roadblocks, in particular during curfew hours; conduct typical of security operations, such as the cordoning off of areas, checking of identity documents, searches of premises, questioning of residents and communication within a chain of command; and other relevant information about special operations, such as media and NGO reports. Given the presence of those elements, it has concluded that the areas in question had been within the exclusive control of the State authorities in view of military or security operations being conducted there and the presence of servicemen (see, for example, Ibragimov and Others v. Russia, no. 34561/03, § 82, 29 May 2008; Abdulkadyrova and Others v. Russia, no. 27180/03, § 120, 8 January 2009; and Kosumova and Others v. Russia, no. 27441/07, § 67, 7 June 2011). If the Government failed to rebut that presumption, this would entail a violation of Article 2 in its substantive part. However, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shaipova and Others v. Russia, no. 10796/04, § 87, 6 November 2008; Tovsultanova v. Russia, no. 26974/06, §§ 77-81, 17 June 2010; and Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011).

54. Thus, the Court’s case-law cited above attests that since 1999 anti‑terrorist operations have been carried out routinely in the Northern Caucasus region, which in the past few decades has been plagued by serious disturbances of law and order. As the Court has found, these operations can entail the detention of individuals in the context of non-acknowledged security operations, and such detention can be considered life-threatening (see Aslakhanova, cited above, § 101).

55. However, in the present case the Court notes that the incident took place in the absence of witnesses. The documents submitted by the parties contain neither any first-hand accounts describing the events nor any first-hand descriptions of features, such as the descriptions of insignias, special vehicles or other peculiarities such as a chain of command, or the use of technical equipment or specialised weapons allowing for a firm presumption that the perpetrators belonged to State authorities. The Court notes that the only witness capable of shedding light on the circumstance of the incident, Ms R.M., had not eye-witnessed the events, but had allegedly heard some noise coming from Mr Andarbek Bugayev’s house and that she did not provide this information to the domestic authorities (see paragraphs 9 and 30 above). In such a situation the Court has little evidence on which to draw such conclusions as the factual circumstances of the incident as presented by the applicants do not include any evidence corroborating their account to a decisive extent.

56. On the basis of the material in its possession, the Court considers that the actual circumstances in which Mr Andarbek Bugayev disappeared remain a matter of assumption and that, accordingly, there is an insufficient evidentiary basis for a finding that the perpetrators belonged to the security forces or that a security operation was carried out in respect of him.

57. Accordingly, it has not been established to the required standard of proof – “beyond reasonable doubt” – that State agents were implicated in the disappearance of Mr Andarbek Bugayev; nor does the Court consider that the burden of proof can be shifted to the Government, having regard, in particular, to the fact that they submitted a copy of the relevant documents from the investigation file as requested by the Court.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

58. The applicants complained under Article 2 of the Convention that their brother had disappeared after having been 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

59. The Government contended that the domestic investigations had obtained no evidence that the applicants’ brother had been held under State control or that he was dead. They further noted that all the necessary measures were being taken to comply with the obligation to conduct an effective investigation.

60. The applicants reiterated their complaints.

B. The Court’s assessment

1. Admissibility

61. The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The complaint under Article 2 of the Convention must therefore be declared admissible.

2. Merits

(a) The alleged violation of the right to life

62. The Court reiterates that Article 2, 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, 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).

63. As noted above, the domestic investigation failed to produce any tangible results as to the identities of the persons responsible for the alleged abduction of Mr Andarbek Bugayev. The applicants have not submitted persuasive evidence to support their allegation that State agents were the perpetrators of such a crime. The Court has found that, in the absence of relevant information, it is unable to find that State agents were implicated in the disappearance of Mr Andarbek Bugayev. Neither has it established “beyond reasonable doubt” that he was deprived of his life by State agents.

64. In such circumstances the Court finds no violation of the substantive limb of Article 2 of the Convention in respect of Mr Andarbek Bugayev.

(b) The alleged inadequacy of the investigation into the disappearance

65. First, the Court notes that it has not found that the State was responsible for the abduction of Mr Andarbek Bugayev, or that he has been killed. However, it reiterates that the obligation to investigate under Article 2 of the Convention also applies to cases where a person has disappeared in circumstances which may be regarded as life-threatening. Accordingly, having received information about a disappearance in life‑threatening circumstances, the State authorities were under a positive obligation to investigate the alleged crime in question (see Shaipova and Others, cited above § 96).

66. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances which have occurred, in particular, in Chechnya between 1999 and 2006 and that such a situation constitutes a systemic problem under the Convention (see Aslakhanova and Others, cited above, § 219). In the case at hand, as in many previous similar cases reviewed by the Court, the investigation has been pending for many years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicants’ missing brother. While the obligation to investigate effectively is one of means and not of results, the Court notes that the criminal proceedings have been plagued by a combination of defects similar to those enumerated in the Aslakhanova and Others judgment (cited above, §§ 123‑25). The criminal case at hand was the subject of several decisions to suspend the investigation, followed by periods of inactivity, which further diminished the prospects of solving the crime. No meaningful steps have been taken to question local servicemen or law enforcement officers who could have had information on special operations conducted in the area on the night of the alleged abduction (see paragraphs 14, 15 and 27 above) and no registration logs of the passage through checkpoints have been examined (see paragraph 7 above).

67. 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 of Mr Andarbek Bugayev. 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

68. The applicants complained of a violation of Articles 3 and 5 of the Convention, as a result of the mental suffering caused to them by the disappearance of their brother and the unlawfulness of his detention. They also argued that, contrary to Article 13 of the Convention, they had no available domestic remedies against the violations claimed, in particular those under Articles 2 and 3. Those Articles read, in so far as relevant:

Article 3

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

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(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.”

69. The Government contested those arguments.

70. The Court has not established that Mr Andarbek Bugayev was deprived of his life by State agents. Accordingly, in such circumstances, it does not find that the situation gives rise to a violation of Article 3 or Article 5, as alleged by the applicants (see Shaipova and Others, cited above, §§ 111 and 117; Movsayevy, cited above, § 103; Tovsultanova, cited above, §§ 105 and 111; and Shafiyeva v. Russia, no. 49379/09, §§ 104 and 110, 3 May 2012). These complaints must, therefore, be rejected as inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

71. As to the applicants’ complaint under Article 13, the Court observes that this aspect has already been examined in the context of Article 2 of the Convention. Having regard to the finding of a violation of Article 2 in its procedural aspect, the Court considers that, whilst the complaint under Article 13 taken in conjunction with Article 2 is admissible, there is no need for a separate examination of this complaint on its merits (see Khumaydov and Khumaydov v. Russia, no. 13862/05, § 141, 28 May 2009; Zakriyeva and Others, no. 20583/04, § 108, 8 January 2009; and Shaipova and Others, cited above, § 124).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

72. 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. Damages

73. The applicants did not make a claim in respect of pecuniary damage. Their joint claim in respect of non-pecuniary damage totalled 70,000 euros (EUR).

74. The Government submitted that the amount claimed was excessive and that finding a violation of the Convention would suffice in the applicants’ case.

B. Costs and expenses

75. The applicants requested compensation for the costs and expenses incurred in connection with their application to the Court in the amount of EUR 7,650. To substantiate the claim they submitted a copy of the legal representation contract which, however, made no references to the fees agreement.

76. The Government submitted that the applicants’ claim should be rejected as unsubstantiated.

C. The Court’s assessment

77. 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 findings of violations, and make a financial award.

78. The Court has found a violation of the procedural aspect of Article 2 on account of the authorities’ failure to carry out an effective investigation into the abduction of the applicants’ brother. The Court thus accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of the violation. Acting on an equitable basis, it awards to the applicants EUR 20,000 jointly, plus any tax that may be chargeable thereon.

79. As to the costs and expenses, 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 (see McCann and Others v. the United Kingdom, cited above, § 220, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005‑IV).

80. Having regard to its above conclusions and the principles enumerated above, the Court notes that the case required certain amount of legal work and preparation. In the absence of documents other than the legal representation contract substantiating the applicants’ claim for costs and expenses, the Court awards the applicants EUR 850 under this head, plus any tax that may be chargeable to them on that amount. The award in respect of costs and expenses is to be paid into the representatives’ bank accounts, as specified by the applicants.

D. Default interest

81. 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 complaints concerning Articles 2 and 13 of the Convention (taken in conjunction with Article 2) admissible and the remainder of the application inadmissible;

2. Holds that there has been no substantive violation of Article 2 of the Convention in respect of Mr Andarbek Bugayev;

3. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Mr Andarbek Bugayev disappeared;

4. Holds that no separate issue arises under Article 13 of the Convention in conjunction with Article 2 of the Convention;

5. Holds, unanimously,

(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 at the date of settlement:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicants jointly;

(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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;

6. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 27 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

Full & Egal Universal Law Academy