CASE OF KHATUYEVA AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF KHATUYEVA AND OTHERS v. RUSSIA

(Applications nos. 4310/10 and 2 others –

see appended list)

JUDGMENT

STRASBOURG

27 August 2019

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

In the case of Khatuyeva and Others v. Russia,

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

Georgios A. Serghides, President,
Branko Lubarda,
Erik Wennerström, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 9 July 2019,

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

PROCEDURE

1.  The case originated in three applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The application numbers and the dates on which they were lodged with the Court, as well as the applicants’ personal details, are listed in the appended table.

2.  The applicants were represented by lawyers from NGO Materi Chechni. The Russian Government (“the Government” ) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  Notice of the complaints was given to the Government.

4.  The Government did not object to the examination of the applications by a Committee.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants are Russian nationals who at the material time lived in the Chechen Republic. They are close relatives of individuals who disappeared in that region between 2000 and 2004 after allegedly being unlawfully detained by State agents. The applicants received no reliable news of their missing relatives thereafter.

6.  In each of the cases, the applicants complained of the respective disappearance to law-enforcement bodies, and an official investigation was instituted. The proceedings in respect of each case, after being suspended and resumed on several occasions, are still pending, without any tangible results having been attained.

7.  Summaries of the facts in respect of each application are set out below. Each account of events is based on statements provided to the Court and the domestic investigating authorities by the applicants, their relatives and/or neighbours, and other witnesses. The Government did not dispute the principal facts of the cases, as presented by the applicants, but contested the involvement of State agents in the incidents in question.

A.  Khatuyeva v. Russia (no. 4310/10)

1.  Disappearance of Mr Khamzat Beldurov

8.  The applicant is the wife of Mr Khamzat Beldurov, who was born in 1963. At the material time they resided in Sernovodskaya (also known as Sernovodsk), Chechnya.

9.  On 8 January 2002 Mr Beldurov left his home in Sernovodskaya to look for a job in Nazran, in the neighbouring region of Ingushetia, and never returned. The whereabouts of Mr Beldurov remain unknown.

10.  According to the applicant, at some point after Mr Beldugov’s disappearance, an anonymous man informed her that around the time of her husband’s disappearance he had allegedly seen him getting into a car at a military checkpoint located at the border of Chechnya and Ingushetia.

2.  Official investigation into the disappearance

11.  On 11 November 2002 the sister of Mr Khamzat Beldurov, Ms Z.B., complained to the authorities that “in January 2002 Khamzat Beldurov had left home in search of work and has not returned since” and requested that criminal proceedings be opened.

12.  On 14 November 2002 the criminal search unit of the Sunzhenskiy district police department opened operational search file no. 23005.

13.  On 15 November 2002 the police interviewed the applicant, who stated that the complaint had been lodged with a delay as her husband would leave home for months at a time, taking on seasonal construction work in Ingushetia. About three to four months after Mr Beldurov had left in search of work, in April or May 2002, his identity documents had been found in a market in Ordzhenikidzevskaya, Ingushetia, and brought to her by an anonymous man. According to some rumours, in the summer of 2002 Khamzat Beldurov had been detained in the Republic of Abkhazia on suspicion of participation in illegal armed groups, but had then been released.

14.  On various dates in November and December 2002 the police interviewed a number of Mr Beldurov’s relatives, none of whom had any information concerning either the circumstances of his disappearance or his whereabouts.

15.  On 7 January 2003 Mr Beldurov’s name was put on the list of missing persons.

16.  On 26 December 2005 the Achkhoy-Martan inter-district prosecutor’s office opened criminal case no. 59023 under Article 105 of the Criminal Code (murder). It appears that the decision had been preceded by another complaint from the applicant or her relatives.

17.  On 3 January 2006 the investigators examined the crime scene at the applicant’s house.

18.  On 3 January 2006 the applicant was granted victim status and on 9 January 2006 she was questioned. She confirmed her previous statement, adding that the man who had brought her husband’s identity documents to her in 2002 had been called Ruslan.

19.  On various dates between January and March 2006 the investigators questioned a number of Mr Beldurov’s relatives and neighbours. No new information was received.

20.  On various dates in the spring of 2006, a number of law-enforcement agencies in Chechnya and Ingushetia replied to the investigators’ requests for information on Mr Beldurov, stating that they had neither arrested nor detained him.

21.  On 26 April 2006 the investigation was suspended for failure to identify the perpetrators. It is unclear whether the applicant was informed thereof.

22.  On an unspecified date in 2007 the applicant spoke with the investigators and they assured her that the proceedings were in progress and a number of steps were being taken to establish her husband’s whereabouts.

23.  On 27 May 2009 the applicant wrote to the Chechnya Ombudsman asking for information on the progress in the investigation. Her request was forwarded to the investigators, who on 11 August 2009 informed her that the proceedings in the criminal case had been suspended on 26 April 2006.

24.  On an unspecified date in June 2016 the investigation was resumed and the applicant and several of her relatives were questioned again. No new information was obtained.

25.  It appears that the investigation is still pending.

3.  Proceedings against the investigators

26.  On an unspecified date in 2009 the applicant challenged the decision of 26 April 2006 to suspend the investigation before the Achkhoy-Martan District Court (“the court”). On 24 August 2009 the court dismissed the complaint, finding that the suspension had been lawful. On 7 October 2009 the Chechnya Supreme Court quashed that decision and remitted the case for a fresh examination. On 19 November 2009 the court dismissed the case in view of the applicant’s decision to discontinue the proceedings.

B.  Nurkayevy v. Russia (no. 75318/11)

27.  The first applicant is the mother of Mr Ibragim Nurkayev, who was born in 1978, the second applicant is his father and the third applicant is his brother.

1.  Disappearance of Mr Ibragim Nurkayev

28.  In the evening of 14 July 2000 (in the documents submitted the date was also referred to as 15 July 2000) Mr Nurkayev left his home in Zenitnaya Street in Grozny and never returned. Shortly after he had left the house, the first applicant heard gunfire and went outside to check what was going on. She saw an armoured personnel carrier and a UAZ minivan (tabletka) driving away from their house.

29.  The whereabouts of Mr Nurkayev have remained unknown ever since.

2.  Official investigation into the disappearance

30.  According to the applicants, they did not have the opportunity to report the disappearance to the authorities for several months, as the law‑enforcement agencies had stopped functioning owing to intensive military operations in Grozny. It was only on 2 January 2001, when temporary departments of the police started operating, that they managed to make a request that criminal proceedings be instituted.

31.  On 17 January 2001 the applicants were informed by a letter that on 8 January 2001 the Staropromyslovskiy district police department in Grozny (hereinafter “the police”) had refused to open a criminal case into Mr Nurkayev’s disappearance for lack of evidence of a crime. The letter further stated that that their complaint had been forwarded to the police criminal search unit “for organisation of the search”. The applicants were not provided with a copy of the refusal.

32.  According to the applicants, between 2001 and April 2006 they complained to various other authorities of the disappearance of Ibragim Nurkayev, but to no avail. They did not furnish copies of those complaints.

33.  On 19 April 2006 the applicants again complained to the police of Ibragim Nurkayev’s disappearance, requesting that a criminal case be opened.

34.  On 4 April 2006 the police again refused to open an investigation for lack of evidence of a crime, stating that Mr Nurkayev had left home “of his own free will”. It is unclear whether the applicants were informed of that decision.

35.  On 24 April 2006 the police inspected the crime scene at the applicants’ house.

36.  On 24 April 2006 the police interviewed several of the applicants’ neighbours and relatives, all of whom stated that they had learnt of Ibragim Nurkayev’s disappearance from others.

37.  On 4 September 2006 the Staropromyslovskiy district prosecutor’s office in Grozny overruled the refusal of 4 April 2006 and opened criminal case no. 53121 under Article 105 of the Criminal Code (murder).

38.  On 11 September 2006 the first applicant was granted victim status in the criminal case and questioned. She stated that her son Ibragim had left home on the evening of 14 July 2000 to fetch cigarettes from a friend and had not returned. Due to the curfew, they had started searching for him the following day. She had no idea as to what could have happened to her son.

39.  On 11 September 2006 the investigators questioned the second and third applicants, whose statements were similar to that of the first applicant.

40.  Between 17 September and 3 October 2006 the investigators questioned several of the applicants’ neighbours, all of whom stated that they had learnt of Ibragim Nurkayev’s disappearance from others and that they had no information on either possible reasons for his disappearance or his whereabouts.

41.  On various dates in September and October 2006 the investigators sent information requests to law-enforcement agencies in Chechnya and other regions of Russia asking whether Ibragim Nurkayev had been detained or arrested by them. The replies received were in the negative.

42.  On 4 November 2006 the investigation was suspended for failure to identify the perpetrators. The applicants were informed thereof.

43.  On 19 February 2007 the investigation was resumed upon the orders of the supervising prosecutor who had criticised the suspension as premature and unlawful. The applicants were informed of that decision.

44.  On 21 February 2007 the investigators questioned several of the applicants’ relatives and neighbours, all of whom stated that they had no information on either his whereabouts or the reasons for his disappearance.

45.  On 19 March 2007 the investigation was suspended again. The applicants were not informed thereof.

46.  On 18 November 2007 the investigators’ superior overruled the refusal of 8 January 2001 to open a criminal investigation as unlawful (see paragraph 34 above).

47.  On 23 May 2008 the investigators’ superior again criticised the investigators and issued orders to remedy the procedural violations that had occurred during the proceedings. Following his orders, on 16 June 2008 the investigation was resumed.

48.  Between 22 June and 3 July 2008 the investigators questioned several of the applicants’ neighbours, none of whom had any new information.

49.  On 16 July 2008 the investigation was suspended again.

50.  On 22 September 2008 the investigators’ superior yet again criticised the investigators for the shortcomings in the investigation and issued orders to remedy the procedural violations that had occurred during the proceedings. Following his orders, on 8 October 2008 the investigation was resumed.

51.  On 14 October 2008 the investigators questioned the first applicant again. Her statement was similar to the ones she had given previously. In addition, she stated that in her opinion, her son Ibragim could have been abducted by representatives of law-enforcement agencies.

52.  On 14 and 15 October 2008 the investigators questioned the third applicant and several of the applicants’ relatives; their statements did not yield any new information.

53.  On 8 November 2008 the investigation was suspended again. The applicants were informed thereof.

54.  On 5 April 2011 the first applicant requested that the investigators grant her access to the investigation file and resume the proceedings. Her access to the criminal case file was granted but the remainder of the request was rejected.

55.  On 26 May 2011 the investigation was resumed and then suspended again on 26 June 2011.

56.  On 30 November 2011 the supervising prosecutor again overruled the suspension of the investigation as premature and unlawful, and ordered that it be resumed.

57.  On 20 December 2011 the investigation was resumed.

58.  Between 26 December and 5 January 2012 the investigators again questioned the first and second applicants and several of their neighbours. Their statements did not yield any new information.

59.  On 20 January 2012 the investigation was suspended again and then again resumed on 20 February 2012 following criticism from the supervising prosecutor. The applicants were informed thereof.

60.  It appears that the investigation is still pending.

3.  Proceedings against the investigators.

61.  On 17 May 2011 the first applicant challenged the suspension of the investigation and the investigators’ failure to take basic steps before the Staropromyslovskiy District Court in Grozny. On 5 August 2011 the court dismissed the complaint, finding that on 26 May 2011 the investigators had already resumed the investigation.

C.  Khalimat Nazirova v. Russia (no. 71377/13)

62.  The applicant is the wife of Mr Ibragim Altyyev, who was born in 1974.

1.  Abduction of Mr Ibragim Altyyev

63.  Mr Ibragim Altyyev, who was a taxi driver in Grozny at the material time, went to work on 29 December 2004 and did not return home.

64.  The following day, two unidentified men contacted the applicant and gave her Mr Altyyev’s passport and some documents from his car. On the same date, the car was found abandoned in the Zavodskoy district in Grozny.

65.  According to the applicant, she learned from an eyewitness, Mr R.B., that her husband had been abducted by a group of armed men in camouflage uniforms, who had driven around in a Gazel minivan and a VAZ-21099 car. The men had stopped Mr Altyyev’s car on a street in Grozny, grabbed him and his passenger, and driven off. Mr R.B. was subsequently questioned by the investigators (see below).

66.  The whereabouts of Mr Altyyev have remained unknown ever since.

2.  Official investigation into the abduction

67.  According to the applicant, she had hoped that the abductors would release her husband and out of fear for his life, she did not lodge an immediate abduction complaint with the authorities. Then on 18 May 2005 and on an unspecified date in August 2005 she officially complained of her husband’s disappearance to the Leninskiy district police department (“the police”) and requested that an investigation be opened.

68.  On 9 February 2006 the applicant again complained to the authorities of her husband’s disappearance and requested that a criminal case be opened. She stated, amongst other things, that according to the police, her complaint of August 2005 had been lost in their office.

69.  On 10 March 2006 a police officer interviewed the applicant’s mother, Ms Z.N. She submitted that during the evening of 29 December 2004 the applicant had told her that she (the applicant) had learned from two men of the circumstances of her husband’s abduction and that those two men had brought his documents to her. Later on, in 2006, the witness had found out that those men had been Mr R. and Mr Kh.

70.  On the same date, 10 March 2006, the applicant was interviewed. Her statement concerning the circumstances of the abduction was similar to the account of the incident submitted to the Court. She stated additionally that she had waited about eight months before complaining about the abduction for the first time, as she had been hoping that her husband would be released by the abductors. She also stated that in the autumn of 2004 her husband had been in a fight with a police officer, but that conflict had been resolved amicably.

71.  On 11 March 2006 the ROVD interviewed the eyewitness, Mr R.B. He stated that at the end of 2004 he had seen a group of armed men in camouflage uniforms, in a Gazel minivan and a VAZ 21099 car, stopping a taxi on a street in Grozny. The men had forced the taxi driver and his passenger out, put them in the minivan and driven off.

72.  On 12 March 2006 the police examined the crime scene.

73.  On 12 March 2006 a police officer reported the disappearance of Mr Altyyev to his superiors, noting, in particular, that the abduction complaint had already been lodged by the applicant on 18 May 2005.

74.  On 24 April 2006 the Zavodskoy district prosecutor’s office in Grozny opened criminal case no. 51065 under Article 105 of the Criminal Code (murder).

75.  On 15 June 2006 the applicant was granted victim status in the case and questioned. Her statement was similar to her submission before the Court. In addition, she stated that on 30 December 2004 her uncle had found her disappeared husband’s car in someone’s courtyard and that sometime later she had sold that car.

76.  On various dates in June 2006 the investigators sent information requests to various law-enforcement agencies and detention centres in Russia, asking whether Mr Altyyev had been detained there. The replies received were in the negative.

77.  On 24 June 2006 the investigation in the case was suspended for failure to identify the perpetrators and then resumed on 28 October 2006 for the need to take investigative steps. The applicant was not informed of either of the decisions.

78.  On 22 November 2006 the investigators again questioned Mr R.B., who confirmed his previous statement.

79.  On 28 November 2006 the investigators again suspended the investigation. It is unclear whether the applicant was informed thereof.

80.  On 1 November 2008 the supervising prosecutor criticised the investigators for shortcomings in the investigation and issued orders to remedy procedural violations that had occurred during the proceedings.  On 10 November 2008 the investigation was resumed following the orders, and then suspended again on 10 December 2008. The applicant was informed of the latter decision.

81.  From the documents submitted to the Court, it transpires that on an unspecified date between 2008 and May 2010 the applicant requested that the investigators grant her permission to access the investigation file. That request was refused.

82.  On 10 May 2010 the applicant complained to the Zavodskoy district prosecutor of the above-mentioned refusal and requested that the investigation be resumed. No reply was given to her request.

83.  On 8 April 2013 the applicant again requested that the investigators grant her permission to access the investigation file. No reply was given to her request.

84.  On 5 August 2013 the investigation was resumed and then suspended on an unspecified date. Following orders issued by the supervising prosecutor on 28 April 2014, it was resumed again on 6 May 2014.

85.  On 28 May 2014 the investigators again questioned the applicant, whose statement was similar to her submission before the Court.

86.  It appears that the investigation is still pending.

3.  Proceedings against the investigators

87.  On 18 June 2010 the applicant lodged a complaint with the Zavodskoy District Court in Grozny, challenging the decision of 10 December 2008 to suspend the criminal investigation. The outcome of those proceedings is unknown.

88.  On 17 July 2013 the applicant lodged a similar complaint challenging the suspension of 10 December 2008. On 12 August 2013 the Zavodskoy District Court rejected the complaint, having found that on 5 August 2013 the investigators had already resumed the investigation. On 10 September 2003 the Chechnya Supreme Court upheld the above‑mentioned decision on appeal.

II.  RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL

89.  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

90.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. COMPLIANCE WITH THE SIX-MONTH RULE

A.  The parties’ submissions

1.  The Government

91.  In their observations, the Government argued that the applicants had lodged their applications with the Court several years after the abductions 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. They also pointed out that the applicants had remained passive and failed to maintain contact with the investigating authorities for a significant amount of time. According to the Government, all the applications should be declared inadmissible as lodged “out of time”.

92.  In particular, in Khatuyeva v. Russia (no. 4310/10), the applicant had lodged the disappearance complaint with the domestic authorities belatedly, which showed her lack of diligence.

93.  In Nurkayevy v. Russia (no. 75318/1), the applicants had not demonstrated due diligence and shown interest in pursuing the investigation into their relative’s disappearance between 2001 and April 2006.

94.  Furthermore, in Nazirova v. Russia (no. 71377/13) the applicant had failed to contact the investigating authorities between 2006 and 2010, which showed her lack of diligence in seeking to have the crime resolved.

2.  The applicants

95.  The applicants submitted that they had complied with the six‑month rule. They had taken all possible steps within a reasonable time to initiate the searches for their missing relatives and assist the authorities in the criminal proceedings. 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 which had been taking place in Chechnya at the material time had led them to believe that investigative delays were inevitable. It was only with the passage of time and the 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, subsequently, to lodge their applications with the Court without undue delay.

B.  The Court’s assessment

1.  General principles

96.  A summary of the principles concerning compliance with the six‑month rule in disappearance cases may be found in Sultygov and Others v. Russia (nos. 42575/07 and 11 others, §§ 369‑74, 9 October 2014).

2.  Application of the principles to the present cases

97.  Turning to the circumstances of the cases, the Court notes that the applicants lodged their application with the Court within several 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). The period in question comprised about eight years in Khatuyeva v. Russia (no. 4310/10), about eleven years in Nurkayevy v. Russia (no. 75318/1) and about nine years in Nazirova v. Russia (no. 71377/13).

98.  The Court further observes that in each of the applications the authorities opened a criminal investigation into the applicants’ complaints of disappearance, which was repeatedly suspended and then resumed following criticism from the investigators’ superiors. In each case, the investigation was still ongoing when the application was lodged with the Court.

99.  The Court further notes that in Khatuyeva v. Russia (no. 4310/10) the authorities became aware of the disappearance within eleven months of the incident and that the applicant had explained to the police the delay in lodging the complaint (see paragraph 13 above). Given the surrounding circumstances at the material time and the fact that it took the authorities three years after that complaint to open a criminal investigation into Mr Beldurov’s disappearance, such delay does not appear unreasonable.

100.  In Nurkayevy v. Russia (no. 75318/1), prior to the opening of the criminal case, the authorities refused to investigate the disappearance of Mr Nurkayev following the applicants’ initial complaint (see paragraph 31 above). They then refused again on the same grounds, following their second complaint (see paragraph 34 above). According to the applicants, between those refusals they had lodged complaints of disappearance with other authorities but to no avail (see paragraph 32 above). Even taking into account that neither party furnished any evidence to substantiate or refute that assertion, and considering that the second complaint led to another refusal to open a criminal case, the Government’s statement amounting to mere denial of the applicants’ efforts to establish their missing relative’s fate does not appear convincing enough to cast doubt on the applicants’ due diligence.

101.  In Nazirova v. Russia (no. 71377/13), the criminal case into the disappearance of Mr Altyyev was opened in April 2006 and the applicant gave her statement to the investigators in June 2006. Then, on several occasions between 2008 and 2013 she tried to gain access to the investigation file (see paragraphs 81-83 and 87-88 above), but to no avail. Considering the overall time-frame of the criminal proceedings and the applicant’s stance therein, the Court does not find that she failed to show diligence in the criminal proceedings concerning her husband’s disappearance.

102.  Furthermore, the Court does not discern significant lulls in the criminal proceedings or in the applicants’ communication with the authorities (see, by contrast, Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, 31 May 2016). From the documents submitted, it transpires that in each of these cases the applicants and other relatives of the abducted persons clearly demonstrated their interest in the searches for their missing relatives and took steps to maintain contact with the authorities.

103.  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, and some gaps in communication with the authorities, 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, by contrast, Doshuyeva and Yusupov, cited above, §§ 41-47, where the applicants did not contact the investigating authorities for about eight years and three months, while the investigation was seemingly dormant).

104.  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, the applicants complied with the six-month rule.

III.  COMPLIANCE WITH THE EXHAUSTION RULE

A.  The parties’ submissions

1.  Government

105.  The Government argued that the applicants had failed to exhaust domestic remedies in respect of their complaints related to the disappearance of their relatives by challenging in court the actions or omissions of the investigating authorities, and, in particular, each of the decisions to suspend the criminal investigation.

2.  The applicants

106.  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

107.  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).

108.  In such circumstances, and noting the absence of tangible progress in any of the criminal investigations into the abductions of the applicants’ relatives, the Court concludes that this objection must be dismissed, since the remedy relied on by the Government is not effective in the circumstances (for similar reasoning, see Ortsuyeva and Others v. Russia, nos. 3340/08 and 24689/10, §§ 79-80, 22 November 2016).

IV.  ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS

A.  The parties’ submissions

1.  The Government

109.  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 disappearances, or that the applicants’ relatives were dead. The Government also stated that the applicants had not expressly raised the allegation of abduction by State agents before the domestic authorities.

110.  The Government further stated that the applicant in Nazirova v. Russia (no. 71377/13) had not witnessed the abduction. The eyewitness, Mr R.B., had only stated that the abductors had been armed and in civilian cars, which in the absence of any other information concerning their appearance, uniforms and the equipment used, could not have unequivocally proved that State agents had been involved in the incident. Furthermore, unlike in other cases concerning abductions perpetrated in the same region at the material time, the investigators had not collected any evidence showing that military vehicles or special equipment had been used, or that the vehicles had passed unhindered through checkpoints or roadblocks during curfew hours in the area.

2.  The applicants

111.  The applicants submitted that it had been established “beyond reasonable doubt” that their relatives had disappeared as a result of abductions perpetrated by State agents, and that they had each made out a prima facie case thereof. 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

112.  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

113.  Turning to the circumstances of the cases presently before it, and in view of all the material, including the copies of the documents from the relevant criminal case files as submitted by the parties, the Court observes that in Khatuyeva v. Russia (no. 4310/10) and Nurkayevy v. Russia (no. 75318/1), the applicants’ relatives disappeared in the absence of witnesses and there was no other evidence furnished by the parties. On the basis of the material in its possession, the Court considers that the actual circumstances in which Mr Khamzat Beldurov and Mr Ibragim Nurkayev disappeared remain a matter of assumption. In such circumstances, the Court has little evidence on which to draw conclusions. Furthermore, from the documents submitted it transpires that the applicants had either not alleged the involvement of State agents in their relatives’ disappearance before the domestic authorities or did so years after the incident: the applicant in Khatuyeva v. Russia (no. 4310/10) has never made that allegation before the investigating authorities, and the first applicant in Nurkayevy v. Russia (no. 75318/1) waited eight years after her son’s disappearance before mentioning that theory to the investigators for the first time (see paragraph 51 above).

114.  The Court further observes that in Nazirova v. Russia (no. 71377/13) the statement of the eyewitness Mr R.B. contains no mention of State agents and refers to the abductors as armed and in civilian cars. In the absence of any other information concerning the culprits’ appearance, uniforms, and equipment used, it could not serve as unequivocal proof of involvement of State agents in the incident. In addition, it follows from the submitted materials that the applicant had not raised the issue of the possible involvement of State agents in her husband’s abduction with the investigating authorities.

115.  Accordingly, it has not been established to the required standard of proof – “beyond reasonable doubt” – that State agents were involved in the disappearance of Mr Khamzat Beldurov, Mr Ibragim Nurkayev and Mr Ibragim Altyyev; nor does the Court consider that the burden of proof can be shifted to the Government. Accordingly, the Court cannot establish to the requisite standard of proof that Mr Khamzat Beldurov, Mr Ibragim Nurkayev and Mr Ibragim Altyyev were detained by State agents or that their presumed death is attributable to the respondent State.

V.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

116.  The applicants complained that their relatives 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:

“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

117.  The Government contended that the investigating authorities had obtained no evidence that State agents had been involved in the disappearance of the applicants’ relatives or that the missing men were dead. They maintained that the investigation in each case had been effective and in compliance with the domestic legislation.

118.  The applicants reiterated their complaint.

B.  Admissibility

119.  The Court notes that the 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.

C.  Merits

1.  Alleged violation of the right to life

120.  The Court has found above (see paragraph 115 above) that it is unable to establish to the required standard of proof that State agents were involved in the disappearance of the applicants’ relatives. Nor has it established that they were deprived of their lives by State agents. In such circumstances, the Court is unable to find a violation of the substantive limb of Article 2 of the Convention in respect of Mr Khamzat Beldurov, Mr Ibragim Nurkayev and Mr Ibragim Altyyev.

2.  Alleged inadequacy of the investigation

121.  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 107 above). In the cases 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.

122.  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), as well as to those indicated in judgments where the State’s responsibility for the disappearance had not been established (see, for example, Khumaydov and Khumaydov v. Russia, no. 13862/05, § 108, 28 May 2009; Tovsultanova v. Russia, no. 26974/06, § 89, 17 June 2010; Movsayevy v. Russia, no. 20303/07, § 85, 14 June 2011; Saydulkhanova v. Russia, no. 25521/10, § 67, 25 June 2015; and Bimuradova v. Russia, no. 3769/11, § 53, 12 November 2015).

123.  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 of Mr Khamzat Beldurov, Mr Ibragim Nurkayev and Mr Ibragim Altyyev.

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

124.  The applicants in Nurkayevy v. Russia (no. 75318/11) and Nazirova v. Russia (no. 71377/13) complained of a violation of Article 3 of the Convention, on account of the mental suffering caused to them by the disappearance of their relatives. All of the applicants complained of a violation of Article 5 of the Convention, on account of the unlawfulness of their relatives’ detention, and argued that in contravention of Article 13 of the Convention, they had no available domestic remedies against the violations alleged, in particular those under Article 2 of the Convention. These 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.”

125.  The Government contested those arguments.

Admissibility

126.  In the absence of a finding of State responsibility for the disappearance of Mr Khamzat Beldurov, Mr Ibragim Nurkayev and Mr Ibragim Altyyev, the Court is not persuaded that the investigating authorities’ conduct, albeit negligent to the extent that it has breached Article 2 in its procedural aspect, could have in itself caused the applicants mental distress in excess of the minimum level of severity which is necessary in order to consider treatment as falling within the scope of Article 3 (see, among other authorities, Khumaydov and Khumaydov, cited above, § 130, 28 May 2009, and Zakriyeva and Others v. Russia, no. 20583/04, § 97, 8 January 2009).

127.  It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

128.  Furthermore, the Court has not found it established “beyond reasonable doubt” that the applicants’ relatives were detained by State agents (see paragraph 115 above). Nor is there any basis to presume that the applicants’ missing relatives were ever placed in unacknowledged detention under the control of State agents. In such circumstances, the respondent State cannot be held liable for the alleged violation of the rights of Mr Khamzat Beldurov, Mr Ibragim Nurkayev and Mr Ibragim Altyyev guaranteed by Article 5 of the Convention.

129.  The Court therefore considers that this part of the applications should be dismissed as being incompatible ratione personae and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

130.  The Court observes that the complaint made by the applicants under Article 13 has already been examined in the context of Article 2 of the Convention. Having regard to the findings of a violation of Article 2 in its procedural aspect (see paragraph 123 above), 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, for example, Zakriyeva and Others, cited above § 108; Khumaydov and Khumaydov, cited above, § 141; and Tovsultanova, cited above, § 115).

VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

131.  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

132.  The applicant in Khatuyeva v. Russia (no. 4310/10) claimed 35,658 euros (EUR) in respect of pecuniary damage and EUR 80,000 in respect of non-pecuniary damage.

133.  The applicants in Nurkayevy v. Russia (no. 75318/11) claimed EUR 33,970 in respect of pecuniary damage and EUR 80,000 in respect of non‑pecuniary damage.

134.  The applicant in Nazirova v. Russia (no. 71377/13) claimed EUR 63,014 in respect of pecuniary damage and EUR 80,000 in respect of non-pecuniary damage.

135.  The Government left the matter to the Court’s discretion.

136.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicants compensation for non-pecuniary damage in amounts as specified in the appended table, plus any tax that may be chargeable to them on those amounts.

B.  Costs and expenses

137.  The applicant in Khatuyeva v. Russia (no. 4310/10) claimed EUR 4,140 in respect of costs and expenses incurred before the Court and requested that the award be paid directly to her representatives’ bank account.

138.  The applicants in Nurkayevy v. Russia (no. 75318/11) claimed EUR 10,322 in respect of costs and expenses incurred before the Court and requested that the award be paid directly to their representatives’ bank account.

139.  The applicant in Nazirova v. Russia (no. 71377/13) claimed EUR 6,450 in respect of costs and expenses incurred before the Court and requested that the award be paid directly to her representatives’ bank account.

140.  The Government stated that the amounts claimed were excessive.

141.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicants the amounts in respect of costs and expenses as specified in the appended table, plus any tax that may be chargeable to them on those amounts. The awards are to be paid into the representatives’ bank accounts, as indicated by the applicants.

C.  Default interest

142.  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.  Declares the complaints under Articles 2 and 13 of the Convention admissible and the remainder of the applications inadmissible;

3.  Holds that there has been no substantive violation of Article 2 of the Convention in respect of the disappearance of the applicants’ relatives Mr Khamzat Beldurov, Mr Ibragim Nurkayev and Mr Ibragim Altyyev;

4.  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 Mr Khamzat Beldurov, Mr Ibragim Nurkayev and Mr Ibragim Altyyev;

5.  Holds that there is no need to examine separately the complaint under Article 13 of the Convention in conjunction with Article 2 of the Convention;

6.  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 cases are to be paid into the representatives’ bank accounts as indicated by the applicants;

(b)  that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

7.  Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 27 August 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Georgios A. Serghides
Deputy RegistrarPresident

Appendix

No.

Application number and the date of lodging

Applicant’s

date of birth and

place of residence

Award for non-pecuniary

damage

Award for

costs and expenses

1

4310/10,

lodged on

28/12/2009

Manzha KHATUYEVA

26/09/1963

Bischheim

EUR 26,000

(twenty six thousand euros)

EUR 1,000

(one thousand euros)

2

75318/11,

lodged on 15/11/2011

Kulsun (also spelled as Kulsum) NURKAYEVA

07/03/1960

Grozny

Isa NURKAYEV

07/02/1955

Grozny

Islam NURKAYEV

16/03/1981

Grozny

EUR 26,000

(twenty six thousand euros) to the applicants jointly

EUR 1,000

(one thousand euros)

3

71377/13, lodged on 25/10/2013

Khalimat NAZIROVA

25/03/1980

Grozny

EUR 26,000

(twenty six thousand euros)

EUR 1,000

(one thousand euros)

 

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