CASE OF MAKHLOYEV v. RUSSIA

THIRD SECTION

CASE OF MAKHLOYEV v. RUSSIA

(Application no. 66320/09)

JUDGMENT

STRASBOURG

16 October 2018

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

In the case of Makhloyev v. Russia,

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

Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 25 September 2018,

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

PROCEDURE

1. The case originated in an application (no. 66320/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Khamutkhan Makailovich Makhloyev (“the applicant”), on 17 December 2009.

2. The applicant was represented by lawyers of the EHRAC/Memorial Human Rights Centre, NGOs with offices in Moscow and London. 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. The applicant alleged, in particular, that in October 2009 his son had disappeared in Ingushetia after his abduction by State agents and that the authorities had failed to investigate the matter effectively.

4. On 26 February 2010 it was decided to grant this case priority under Rule 41 of the Rules of Court. On 30 April 2010 the Government were given notice of the application under Articles 2, 3, 5 and 13 of the Convention.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1947 and lives in Sunzha, Ingushetia. The applicant is the father of Mr Maskhud Makhloyev, born in 1982.

6. At the time of the events in question the applicant, his wife and their children, including Mr Maskhud Makhloyev, resided at 55 Pavlov Street (a family house comprising two buildings and a shared courtyard), in the village of Ordzhonikidzevskaya, Ingushetia. At the relevant time, two police checkpoints were located in the vicinity of the village.

A. Abduction of Mr Maskhud Makhloyev and surrounding events

1. Background information

7. On 26 December 2006 Mr Maskhud Makhloyev was arrested and detained on suspicion of involvement in an attack on local policemen. On the same date the Sunzhenskiy District prosecutor’s office ordered a search of the applicant’s family house. During the search Mr Maskhud Makhloyev’s passport was seized, together with several other items.

8. The applicant submitted that he had had no news about his son following the arrest. It was only after four days that he had found out that his son had been kept in the Sunzhenskiy District’s temporary detention facility.

9. On 27 December 2006 the Sunzhenskiy District Court declared that the search of 26 December 2006 had been lawful (see paragraph 7 above).

10. On 26 April 2007 the criminal proceedings against Mr Maskhud Makhloyev were terminated for lack of evidence of his guilt and he was released from custody.

11. The applicant submitted that law-enforcement agents had searched his house again on 31 October 2008 and 5 January 2009. On the first occasion they had looked for weapons but had not found anything. On the second occasion, the search had been conducted at 3 a.m. and the applicant and his family had been requested to present their passports. Mr Maskhud Makhloyev had not been at home at the time.

12. On 14 August 2009 Mr Maskhud Makhloyev was wounded by an unidentified person on the street. The applicant submitted that police officers had visited his son in hospital and had threatened to kill him and his family members.

2. Abduction of Mr Maskhud Makhloyev

(a) The applicant’s account

13. On the night of 29 October 2009 the applicant and his wife were sleeping in their family home with their children, including Mr Maskhud Makhloyev. They were awoken at about 3.30 a.m. when seven to eight armed men in camouflage uniforms, wearing masks and carrying machine guns (Kalashnikov) and bullet-proof shields, broke into the applicant’s courtyard.

14. Having heard the noise, the applicant and his wife ran out of their house to the courtyard. The armed men pointed the guns at them and ordered them to stand up against a wall. They did not identify themselves; according to the applicant, they spoke Russian with no accent. The applicant asked what they wanted from them, but the men did not reply. They used portable radios to communicate with each other.

15. The armed men then broke into the house in which the applicant’s daughters were sleeping. They took his two daughters into the courtyard and put them next to their parents. They then forced them all into one room of their house and ordered them to stay there.

16. In the meantime the men went upstairs to the room shared by the applicant’s sons, Ibragim and Maskhud. During all that time his third son, A.M., remained in his room. After approximately ten minutes the men left. The applicant, his wife and daughters went up the stairs and found their son Ibragim on the floor, tied up with adhesive tape, his shirt pulled over his head and his mouth covered with adhesive tape. He told them that around seven to eight men had broken into the room, beaten up him and Maskhud, and then taken Maskhud away.

17. The applicant’s neighbour, L.S.M., later told the applicant that she had seen four vehicles driving away from his home: a Gazel minivan, a UAZ minivan and a UAZ car. She had been unable to see the model of the fourth vehicle.

18. On 29 October 2009 Mr Ibragim Makhloyev underwent a medical examination which confirmed that he had sustained bodily injuries.

19. The applicant has had no news of Mr Maskhud Makhloyev since his abduction.

B. Official investigation into the abduction

20. The Government were invited to provide an entire copy of the case file opened into the abduction of Mr Maskhud Makhloyev. The relevant information from the criminal case file and that provided by the applicant can be summarised as follows.

21. On 29 October 2009 the applicant complained of his son’s abduction by unidentified persons to the Ingushetia prosecutor’s office.

22. An on-site investigation was conducted on the same day. Photographs were taken of the applicant’s house and various objects therein, including the adhesive tape which had been used on Mr Ibragim Makhloyev.

23. On 2 November 2009 an investigator of the Sunzhenskiy District investigations department of the Prosecutor’s Office of the Russian Federation in the Republic of Ingushetia (“the prosecutor’s office”) sent numerous requests concerning the disappearance of the applicant’s son to various State bodies, such as local police departments of different districts of Ingushetia and the Department of the Federal Security Service in Ingushetia (“the FSS”).

24. On 10 November 2009 the prosecutor’s office instituted criminal proceedings into the disappearance of the applicant’s son under Articles 126 § 2 (aggravated kidnapping) and 222 § 2 (illegal possession of firearms) of the Russian Criminal Code. The case file was assigned number 09600131.

25. The investigation established that at around 3.30 a.m. on 29 October 2009 about ten to twelve unidentified armed men in masks and camouflage uniforms had broken into the applicant’s house, inflicted bodily injuries on Mr Ibragim Makhloyev and kidnapped Mr Maskhud Makhloyev. The latter’s whereabouts were unknown.

26. On 11 November 2009 the applicant’s neighbour, L.S.M., was questioned as a witness. She said that at around 3.30 a.m. on 29 October 2009 she had heard the noise of vehicle engines. Looking from her window she had seen four cars – a Gazel minivan, a UAZ minivan and a UAZ car (she had been unable to discern the model of the fourth vehicle) – driving in the direction of Rabochaya street in the village. She had been unable to see the colour of the vehicles or their registration plates.

27. On 12 November 2009 the applicant’s wife was questioned as a witness. Her account of the events of 29 October 2009 was the same as the applicant’s (see paragraphs 13-16 above).

28. On 13 November 2009 the applicant was granted victim status and questioned. His account of the events of the night in question was the same as the one presented to the Court (see paragraphs 13-16 above). He further stated that their family had not been in a blood feud with anyone and that to his knowledge his son had not had any enemies. In response to the investigator’s question whether he had suspected why his son had been abducted, the applicant answered in the negative.

29. On the same date Mr Ibragim Maskhudov was questioned as a witness. His account of the events of 29 October 2009 was the same as the one presented to the Court by the applicant (see paragraphs 13-16 above).

30. On 13 and 14 November 2009 the registration logs of the police checkpoints “Angara – 120” and “Kerch-Kavkaz 1”, located in the vicinity of the applicant’s village, were examined.

31. On 14 November 2009 the prosecutor’s office asked the Ministries of the Interior of the Chechen Republic, Karachayevo-Cherkessiya, Dagestan, Kabardino-Balkaria and Alania to check whether Mr Maskhud Makhloyev had been detained on their respective territories or whether his dead body had been found there. They also asked for information concerning any compromising material about the applicant’s son which might have been found. It transpires that those requests yielded no relevant information.

32. On the same date an analogous request was sent to the Ministry of the Interior of Ingushetia. It was also asked to identify the police officers who had been on duty at the “Angara – 120” and “Kerch-Kavkaz 1” checkpoints on the night of 28 to 29 October 2009 and to request that they report to the prosecutor’s office for questioning. The same request was sent again on 5 April 2010.

33. On 15 November 2009 the applicant’s third son, A.M., and a daughter, R.M., were questioned as witnesses. They both said that they did not know why their brother had been kidnapped; they were not aware of any conflict he might have had with anyone. A.M. stated that during the events in question he had stayed in his room (see paragraph 16 above).

34. On 16 November 2009 the applicant was questioned again. He said that after the abduction his family had noticed that his son’s mobile phone was missing. Other than that, the applicant confirmed his previous statement.

35. On the same day the prosecutor’s office ordered the military prosecutor’s office of military unit no. 68799 to examine the vehicle registration logs kept at the FSS’s checkpoints in order to check whether UAZ vehicles and a Gazel vehicle had left or entered the FSS on the night of 28 to 29 October 2009. If so, the military prosecutor’s office was to ask the FSS servicemen who had been on duty at the checkpoints at the relevant time and the servicemen who had travelled in those vehicles where they had been driving to and whether they had detained Mr Maskhud Makhloyev.

36. On 17 November 2009 a medical examination of Mr Ibragim Makhloyev was ordered. A forensic expert’s opinion produced on an unspecified date concluded that he had sustained moderate damage to his health.

37. On the same day the investigator in charge of the case applied for judicial authorisation of access to all call logs for the night of 28 to 29 October 2009 kept by mobile-phone providers operating in the area. On 18 November 2009 he also applied for access to the logs of all incoming and outgoing calls to and from Mr Maskhud Makhloyev’s mobile phone as from 29 October 2009.

38. On 18 and 19 November 2009 the investigator in charge of the case requested Mr Maskhud Makhloyev’s medical information and his criminal record from the Ministry of the Interior of Ingushetia.

39. On 19 November 2009 the FSS informed the prosecutor’s office that they had not arrested Mr Maskhud Makhloyev and had not carried out any special operations at the applicant’s family house (see paragraph 23 above).

40. On the same day the Ministry of the Interior of Ingushetia informed the prosecutor’s office that Mr Maskhud Makhloyev was known to the police as a follower of Wahhabism, an extremist religious movement. He had not been known for alcohol or substance abuse.

41. On 20 November 2009 the Sunzhenskiy District Court granted the investigators’ requests and ordered the mobile-phone providers to submit the information sought (see paragraph 37 above). It would appear that no relevant information was gathered from the inspection of the call logs.

42. On 23 November 2009 two FSS officers, Y.I.G. and P.Y.I., were questioned as witnesses. On the night in question they had been on duty at the single checkpoint controlling vehicular access to the FSS. They both stated that from 11 p.m. on 28 October to 4 a.m. on 29 October 2009 no vehicles had passed through the checkpoint. Their statements were confirmed by copies of the entries in the car registration logs.

43. On the same day two other FSS officers who served in the Sunzhenskiy Unit, T.R.E. and L.Y.Dz., were questioned. They testified that at the material time no special operation had been carried out in respect of Mr Maskhud Makhloyev.

44. On 24 November 2009 the prosecutor’s office informed the applicant that the investigation was ongoing and that the measures taken thus far had not been able to establish the whereabouts of his son or the identity of the alleged perpetrators.

45. On 8 December 2009 the Ministry of the Interior of the Republic of Chechnya informed the prosecutor’s office that according to their information, Mr Maskhud Makhloyev was a member of an illegal armed group led by a certain A.M.B.Y., which was operating in Sunzhenskiy District in Ingushetia.

46. On the same day the Ministry of the Interior of Ingushetia informed the prosecutor’s office that they had not carried out any special operation at the material time at the applicant’s family house.

47. On 10 December 2009 the Ministry of the Interior of Ingushetia informed the prosecutor’s office that according to their information, Mr Maskhud Makhloyev was a member of a criminal group called “Caliphate” led by A.M.B.Y.

48. Between 3 March and 15 June 2010 several of the applicant’s neighbours were questioned as witnesses. They all stated that they had heard about the abduction of Mr Maskhud Makhloyev from his family, but had no direct knowledge of the event themselves.

49. On 5 April 2010 the prosecutor’s office requested a copy of the case file and medical documentation concerning the incident of 14 August 2009 (see paragraph 12 above) from the Ministry of the Interior of Ingushetia. On 6 April 2010 they were informed that the case file had been destroyed in a terrorist attack on 17 August 2009.

50. On 6 April 2010 the police officers who had been on duty at checkpoint “Angara 120” at the material time, M.A.L., Z.M.M. and M.I.M., were questioned as witnesses (see paragraph 32 above). They all stated that on the night of 28 to 29 October 2009 a convoy consisting of a Gazel minivan, a UAZ minivan and a UAZ car had not passed their post.

51. On 7 April 2010 the same statements were given by the police officers who had been on duty at checkpoint “Kerch-Kavkaz 1” at the material time, A.R.O. and Kh.A.Kh.

52. On 19 April 2010 the head of the prosecutor’s office instructed a special investigator, M.A.K., to establish the whereabouts of the adhesive tape which had been shown in the photograph included in the minutes of the inspection of the crime scene (see paragraph 22 above), to remove it and, if necessary, to order its expert analysis. It would appear that those instructions were not carried out.

53. On 5 June 2010 the applicant was questioned again by the prosecutor’s office. The questions concerned the charges brought against Mr Maskhud Makhloyev in 2006 and the incident of 14 August 2009 (see paragraphs 7 and 12 above). The applicant reiterated his previous statements and added that he did not know who had shot at his son on 14 August 2009 and for what reason.

54. On 2 July 2010 the prosecutor’s office requested all regional ministries of the interior to perform operational search activities to establish the whereabouts of Mr Maskhud Makhloyev. It would appear that no response was received to those requests.

55. On 27 July 2010 the applicant submitted a request to the prosecutor’s office to inform him about the results of the preliminary investigation. On 9 August 2010 he was informed that he could consult the case file on any day except at weekends.

56. On 10 August 2010 the investigator in charge of the case suspended the preliminary investigation for failure to establish the identity of the alleged perpetrators. It was stressed that the investigation had followed two possible versions of the incident in question: that the reason for abduction could had been a blood feud or hostility towards Maskhud Makhloyev; or that he had been detained by the law-enforcement agencies and kept in a military or other detention facility. Despite the investigative measures taken, the investigation had been unable to establish the identity of the alleged perpetrators.

57. On 8 October 2010 the applicant submitted another request to the prosecutor’s office, asking for permission to make photocopies of the documents in the case file. The applicant claimed that it was on this occasion that he had found out that the investigation had been suspended.

58. On 13 October 2010 the applicant lodged an appeal with the Magasskiy District Court of Ingushetia (“the District Court”) under Article 125 of the Code of Criminal Procedure against the decision of 10 August 2010 to suspend the investigation.

59. On 26 October 2010 the District Court rejected his appeal.

60. On 3 November 2010 the applicant appealed against that decision to the Supreme Court of Ingushetia (“the Supreme Court”). On 28 December 2010 the Supreme Court rejected his appeal and upheld the decision of 26 October 2010.

61. According to the latest information available to the Court (dated 28 June 2018), there have been no new developments in the case and Mr Maskhud Makhloyev’s whereabouts remain unknown.

C. Other relevant information

62. On 25 February 2010 the prosecutor’s office instituted criminal proceedings concerning the bodily injuries caused to Mr Ibragim Makhloyev. On the same day those proceedings were joined to the proceedings concerning the abduction of Mr Maskhud Makhloyev.

63. On 1 March 2010 Mr Ibragim Makhloyev was granted victim status.

64. On 3 March 2010 Mr Ibragim Makhloyev was questioned again. He reiterated his previous statements.

II. RELEVANT DOMESTIC LAW

65. For a summary of the relevant domestic law see Turluyeva v. Russia (no. 63638/09, §§ 56-64, 20 June 2013).

III. INTERNATIONAL AND DOMESTIC REPORTS ON DISAPPEARANCES IN CHECHNYA AND INGUSHETIA

66. For a summary of the relevant international and domestic reports on disappearances in Chechnya and Ingushetia, see Aslakhanova and Others v. Russia (nos. 2944/06 and 4 others, §§ 69-84, 18 December 2012) and Makayeva v. Russia (no. 37287/09, §§ 67-77, 18 September 2014).

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 13 OF THE CONVENTION

67. The applicant complained under Article 2 of the Convention that his son, Mr Maskhud Makhloyev, had disappeared after being detained by State agents and that the domestic authorities had failed to carry out an effective investigation into the matter. The applicant further claimed that he had no effective domestic remedies for those complaints. Articles 2 and 13 of the Convention read as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

68. The Government contested those arguments.

A. Admissibility

69. 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.

B. Merits

1. The parties’ submissions

70. The applicant stated that State agents had abducted and killed his son Mr Maskhud Makhloyev. He referred, in particular, to the life-threatening nature of the incident in the light of the overall situation in the region at the material time. The applicant further maintained that the investigation into his son’s disappearance had been ineffective. It had not been instituted until 10 November 2009, that is, twelve days after the applicant had immediately informed the authorities of the crime. Furthermore, the examination of the crime scene had been carried out superficially and a number of essential witnesses had not been questioned until several months after the incident. The applicant further submitted that he had not learned of the decision to suspend the investigation of 10 August 2010 (see paragraph 56 above) until October 2010 when he had examined the case file (see paragraph 57 above).

71. The Government did not contest the applicant’s version of the events, but stated that the investigation had not obtained any evidence proving either the alleged involvement of State agents in the disappearance of Mr Maskhud Makhloyev or his death. The investigation of his abduction had been effective as the domestic authorities had taken all possible measures to solve the crime.

2. The Court’s assessment

(a) Establishment of the facts

72. The Court will examine the application at hand in the light of the general principles applicable in cases where the factual circumstances are in dispute between the parties (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 151-53, ECHR 2012).

73. The Court has addressed a series of cases concerning allegations of disappearances in the North Caucasus. Applying the above‑mentioned principles, it has concluded that if applicants make a prima facie case of abduction by servicemen, then that is sufficient for them to show that their relatives fell within the control of the authorities, and it is then for the Government to discharge their burden of proof, either by disclosing documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 99). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012, and Buzurtanova and Zarkhmatova v. Russia, no. 78633/12, § 96, 5 November 2015).

74. The Court has also found in many cases concerning disappearances that a missing person may be presumed dead. Having regard to the numerous cases of disappearance in Chechnya and Ingushetia which have come before it, the Court has found that in the particular context of the conflict in the region, when a person has been detained by unidentified State agents without any subsequent acknowledgment of the detention, that could be regarded as life‑threatening (see, among many others, Mutsolgova and Others v. Russia, no. 2952/06, § 104, 1 April 2010; Khatuyeva v. Russia, no. 12463/05, § 59, 22 April 2010; and Aslakhanova and Others, cited above, § 101).

75. The Court has made findings of the presumption of death in the absence of any reliable news about disappeared persons for periods ranging from four years (see Askhabova v. Russia, no. 54765/09, § 137, 18 April 2013) to more than ten years.

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

77. In view of the parties’ submissions concerning the circumstances of the abduction, the Court concludes that the materials in its possession demonstrate the validity of the applicant’s allegation, for the following reasons. The applicant was a direct witness to the incident when armed men broke into his house, although he did not witness the abduction itself. The abductors arrived in several military-type vehicles and acted as an organised group; they were armed with automatic weapons, used portable radios and spoke unaccented Russian (compare Suleymanov v. Russia, no. 32501/11, § 133, 22 January 2013). The incident took place at night. Furthermore, there were no discrepancies between the statements concerning the incident given by the applicant, his wife and by his son, Mr Ibragim Makhloyev. From the material in the criminal case file submitted by the Government, it is evident that two police checkpoints were in place in the vicinity of the applicant’s village. The Court therefore considers that there was a certain limitation on the free movement of vehicles in the area at the time.

78. In a number of cases the Court has relied on references to military vehicles and equipment, on witness accounts, on other information about the execution of security operations and on the undisputed effective control of the areas in question by the Russian military, for example, through the existence of checkpoints on the roads used by the perpetrators of the attacks and their ability to travel unhindered during curfew hours. On that basis, it has concluded that the areas in question were “within the exclusive control of the authorities of the State” in view of military or security operations being held there and the presence of servicemen (see Zubayrayev v. Russia, no. 67797/01, § 82, 10 January 2008).

79. The Court notes that the applicant’s suspicions of the possible involvement of State agents in the incident were not communicated to the authorities either in his abduction complaint or in the statements to the investigation at the initial stage of the proceedings (see, by contrast, Kushtova and Others v. Russia (no. 2), no. 60806/08, § 79, 21 February 2017). Nevertheless, the official investigation considered the possibility that the perpetrators of the abduction could be State agents. The investigators also considered that that the reason for the abduction could have been a blood feud or hostility towards Mr Maskhud Makhloyev. However, other than questioning a few witnesses, the investigators took no serious steps to check whether the abduction could have been perpetrated for other reasons. No serious steps were taken to verify those hypotheses and no information was obtained that the abductors could have been other than State agents (see, by contrast, Zubayrayev, cited above, § 81).

80. Furthermore, the applicant submitted that his house had been searched on two occasions before the abduction and that police officers had threatened his son while he had been in hospital (see paragraphs 11 and 12 above), several months before the abduction. The Government did not make any comments on those submissions. Moreover, it is evident from the case file that Mr Maskhud Makhloyev had been arrested in 2006 and that the authorities considered him a member of an illegal armed group.

81. All of the above elements provide the Court with grounds for concluding that the applicant has made a prima facie case that his son Mr Maskhud Makhloyev was abducted by State agents. The Government’s statement that the investigators had found no evidence that members of law‑enforcement authorities had been involved in the disappearance is insufficient to discharge them of the above-mentioned burden of proof. Having examined the documents submitted by the parties, and drawing inferences from the Government’s failure to provide another plausible explanation for the events in question, the Court finds that Mr Maskhud Makhloyev was detained on 29 October 2009 by State agents (see, mutatis mutandis, Askhabova, cited above, § 135, and Kushtova and Others, cited above, § 79).

82. Given the absence of any reliable news of Mr Maskhud Makhloyev since October 2009 and the life-threatening nature of his arrest, the Court also finds that he may be presumed dead following his unacknowledged detention by State agents.

(b) Alleged violation of Mr Maskhud Makhloyev’s right to life

83. The Court notes that the Government denied that Mr Maskhud Makhloyev had either been detained by State agents or had been under the control of the authorities after his abduction. However, the Court has already found that he was under the control of State agents after the abduction. The period of time which has elapsed since the person was detained, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time that goes by without any news of the detained person, the greater the likelihood that he or she is dead. The passage of time may, along with other elements of circumstantial evidence before the Court, provide grounds to conclude that the person concerned is to be presumed dead. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2 of the Convention, which ranks as one of the most fundamental provisions in the Convention (see, among other authorities, Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999‑IV, and Timurtaş v. Turkey, no. 23531/94, § 83, ECHR 2000‑VI).

84. Based on the above, and noting that it has already found that Mr Maskhud Makhloyev may be presumed dead following his unacknowledged detention by State agents, the Court finds, in the absence of any justification put forward by the Government, that his death can be attributed to the State and that there has been a violation of the substantive aspect of Article 2 of the Convention.

(c) Alleged inadequacy of the investigation

85. A summary of the principles concerning the effectiveness of an investigation into an alleged violation of Article 2 of the Convention may be found in McCann and Others v. the United Kingdom (27 September 1995, § 161, Series A no. 324), and Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 169-82, 14 April 2015).

86. A disappearance is a distinct phenomenon, characterised by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred. This situation is very often drawn out over time, prolonging the torment of the victim’s relatives. Thus, the procedural obligation will, potentially, persist as long as the fate of the person is unaccounted for; the ongoing failure to provide the requisite investigation will be regarded as a continuing violation. This is so, even where death may, eventually, be presumed (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 148, ECHR 2009).

87. The Court has already found that a criminal investigation did not constitute an effective remedy in respect of the disappearances in Ingushetia between 1999 and 2006, and that such a situation constituted a systemic problem in Convention terms (see Aslakhanova and Others, cited above, § 217, and Kushtova and Others, cited above, § 84). Although the present case concerns events that took place in 2009, the Court notes that the investigation was suspended without having brought about any significant developments as to identifying the perpetrators or discovering the fate of the applicant’s son. While the obligation to investigate effectively is one of means and not results, the Court notes that the criminal proceedings in the present case have been plagued by a combination of defects similar to those enumerated in the Aslakhanova and Others judgment (cited above, §§ 123‑25).

88. The Court notes that the applicant immediately reported the abduction to the authorities (see paragraph 21 above). Although the inspection of the crime scene was conducted the same day, the criminal investigation was not opened until twelve days later, on 10 November 2009 (see paragraph 24 above). The Court further notes that some important investigative steps were taken early on in the investigation, such as the questioning of eyewitnesses and FSS officers (see paragraphs 26-29 and 42‑43 above, and examining the checkpoint’s registration logs (see paragraph 30 above). However, the traffic police officers who were on duty at two checkpoints were not questioned until almost five months later, even though the request to identify them had been sent first on 14 November 2009 and again on 5 April 2010 (see paragraph 32 above). Furthermore, the applicant’s neighbours were questioned after almost four and seven months (see paragraph 48 above). Moreover, it would appear from the criminal case file that the adhesive tape allegedly used on Mr Ibragim Makhloyev was photographed, but not taken for expert analysis. The instruction given to the head of the prosecutor’s office on 19 April 2010 to find the tape and send it for analysis appears not to have been carried out (see paragraph 52 above). No further information concerning that issue was provided by the Government.

89. Furthermore, although enquiries were sent to the regional ministries of internal affairs concerning the possible involvement of their agents in the abduction and requesting them to perform operational search activities to establish the whereabouts of Mr Maskhud Makhloyev, no relevant information was received (see paragraphs 30 and 54 above). Therefore, despite certain steps taken by the investigating authorities, the case discloses an apparent lack of cooperation between the different State agencies.

90. As regards the overall conduct of the proceedings, the Court notes that despite having been initiated on 10 November 2009, they were suspended on 10 August 2010 without some of the necessary investigative steps having been taken. Such a premature suspension when vital steps had not been taken undermined the investigator’s ability to identify and prosecute the perpetrators.

91. As for public scrutiny, the Court notes that three days after the initiation of the proceedings the applicant was granted victim status (see paragraph 28 above). However, he alleged that he had not been informed about the decision to suspend the investigation and that he had not found out about it until October 2010 when he had examined the case file (see paragraph 57 above). Subsequently, he sought a judicial review of the decision of the investigating authorities, but both his appeals were rejected (see paragraphs 59 and 59 above).

92. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Mr Maskhud Makhloyev, in breach of Article 2 of the Convention in its procedural aspect.

93. As to the applicant’s complaint under Article 13 taken in conjunction with Article 2 of the Convention, having regard to the finding of a violation of Article 2 of the Convention in its procedural aspect, the Court considers that there is no need for a separate examination of it on its merits (see Saidova v. Russia, no. 51432/09, § 85, 1 August 2013; Dobriyeva and Others v. Russia, no. 18407/10, § 89, 19 December 2013; and Ibragim Tsechoyev v. Russia, no. 18011/12, § 71, 21 June 2016).

II. ALLEGED VIOLATION OF ARTICLES 3 AND 5 OF THE CONVENTION

94. The applicant complained of a violation of Articles 3 and 5 of the Convention on account of the mental suffering caused to him by the disappearance of his son and the unlawfulness of his detention. 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.”

95. The Government contested those arguments.

A. Admissibility

96. 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

1. The parties’ submissions

97. The applicant reiterated his complaints.

98. The Government contested the applicant’s claim. They submitted, in particular, that he had been given victim status in the criminal proceedings concerning his son’s abduction and that the authorities had swiftly responded to his request for an investigation and had taken all necessary measures prescribed by law.

2. The Court’s assessment

99. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention in respect of the close relatives of the victim. The essence of such a violation does not lie mainly in the fact of the “disappearance” of the family member, but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva v. Russia, no. 7615/02, § 164, ECHR 2006‑XIII (extracts)). Where news of the missing person’s death is preceded by a sufficiently long period in which he or she may be deemed disappeared, there exists a distinct period during which an applicant sustains uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances (see Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006‑XIII (extracts)).

100. In addition, the Court has found on many 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; Luluyev and Others, cited above, § 122; and Aslakhanova and Others, cited above, § 132).

101. The Court reiterates its findings regarding the State’s responsibility for the abduction of Mr Maskhud Makhloyev and the failure to carry out a meaningful investigation into his fate. It finds that the applicant, who is the father of the disappeared man, must be considered a victim of a violation of Article 3 of the Convention on account of the distress and anguish which he has suffered, and continues to suffer, as a result of his inability to discover the fate of his son who has disappeared and because of the manner in which his complaints have been dealt with.

102. Furthermore, the Court finds that since it has been established that Mr Maskhud Makhloyev was detained by State agents, apparently without any legal grounds or acknowledgement of such detention, there has been a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention.

103. There has, therefore, been a violation of Articles 3 and 5 of the Convention in the present case.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

104. 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

105. The applicant asked to be awarded compensation for non-pecuniary damage in an amount deemed appropriate by the Court.

106. The Government submitted that Article 41 should be applied in accordance with the Court’s established case-law.

107. Considering its findings in the present case and acting on an equitable basis, the Court finds it appropriate to award the applicant 60,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

108. The applicant was represented by lawyers from the NGO EHRAC/Memorial Human Rights Centre. The aggregate claim in respect of costs and expenses related to legal representation amounted to 3,219.75 pounds sterling (GBP; approximately EUR 3,652). He submitted a breakdown of the costs and supporting documents, including fee notes, translator’s invoices and a claim for administrative and postal costs. He requested that the payment be transferred directly to the representative’s bank account in the United Kingdom.

109. The Government submitted that Article 41 should be applied in accordance with the Court’s established case-law.

110. The Court has to establish first whether the costs and expenses indicated by the applicant’s representatives were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005‑IV). Bearing the above principles in mind, the Court awards the applicant EUR 3,000 together with any tax that may be chargeable to him, the net award to be paid into the representative’s bank account, as indicated by the applicant.

C. Default interest

111. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

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

3. Holds that there has been a procedural violation of Article 2 of the Convention on account of the failure to investigate effectively the abduction and death of Mr Maskhud Makhloyev;

4. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant on account of his mental suffering;

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

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

7. Holds

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

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

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, 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;

8. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıBranko Lubarda
Deputy RegistrarPresident

Full & Egal Universal Law Academy