CASE OF MALSAGOVA AND OTHERS v. RUSSIA

FIRST SECTION

CASE OF MALSAGOVA AND OTHERS v. RUSSIA

(Application no. 27244/03)

JUDGMENT

STRASBOURG 

9 April 2009

FINAL

06/11/2009

This judgment may be subject to editorial revision.

In the case of Malsagova and Others v. Russia,

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

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 19 March 2009,

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

PROCEDURE

1. The case originated in an application (no. 27244/03) 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 seven Russian nationals listed below (“the applicants”), on 9 July 2003.

2. The applicants, who had been granted legal aid, were represented by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.

3. The applicants alleged, in particular, that their relative, Saydi Malsagov, had disappeared after having been unlawfully detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter; that the disappearance had caused their profound mental suffering; and that they had been deprived of effective remedies in respect of the aforementioned violations.

4. On 29 August 2004 the Court decided to apply Rule 41 of the Rules of Court.

5. By a decision of 6 March 2008, the Court declared the application partly admissible.

6. The applicants and the Government each submitted further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicants are:

1) Ms Tabarik Malsagova, born in 1952;

2) Ms Zulikhan Mayrsoltovna Malsagova, born in 1978;

3) Ms Shovda Mayrsoltovna Malsagova, born in 1987;

4) Ms Tamila Mayrsoltovna Malsagova, born in 1983;

5) Ms Yakha Mayrsoltovna Malsagova, born in 1974;

6) Mrs Kometa Mayrsoltovna Malsagova, born in 1973; and

7) Mr Tamerlan Mayrsoltovich Malsagov, born in 1983.

They live in the town of Urus-Martan, in the Chechen Republic.

8. The first applicant is the mother of Mr Saydi Mayrsoltovich Malsagov, born in 1980. The other applicants are the first applicant’s children and siblings of Saydi Malsagov. The applicants live in their family house at 22 Shvernika Street, Urus-Martan.

A. Disappearance of Saydi Malsagov

1. The applicants’ account

9. At about 2 a.m. on 7 November 2002 a group of about twenty-five or thirty masked men in camouflage uniforms forcibly entered the Malsagovs’ house. They were armed with machine guns and sniper rifles with optical sights; they spoke Russian without accent. The armed men did not identify themselves but the applicants inferred that they belonged to the Russian military. The servicemen did not produce any documents to justify their actions and gave no explanations.

10. The first applicant was sleeping in one room with her two granddaughters aged seven and nine and the fourth applicant. In another room Saydi Malsagov was sleeping with his wife, Ms S. The seventh applicant and his father Mayrsolt Malsagov (who died in October 2003) were sleeping in the third room.

11. The first and the fourth applicants were awakened by a group of servicemen who walked into their room, turned on the lights and ordered them to remain in bed and not to move. Two men searched the wardrobes in the room while the third stood at the doors on guard. The servicemen did not talk to the women. Once they had finished searching, two servicemen left and went to the adjacent room where Saydi Malsagov and Ms S. were. In about ten minutes five or six servicemen again entered the room and walked up to the first applicant’s bed. The two granddaughters of the first applicant were frightened and started to cry, and the first applicant asked the soldiers not to hurt the children. The soldiers told her that they were there just to check. Then they left the room and closed the door from the outside.

12. Five minutes later the seventh applicant and his father entered the women’s room. Together they went into Saydi Malsagov’s room. There they saw his wife who was sitting on the floor by her bed and crying. Belongings and beds had been thrown around. Ms S. said that the military had taken her husband away. They also took audio and videotapes, some papers and Saydi Malsagov’s medical record.

13. The seventh applicant stated that on 7 November 2002 at about 2.30 a.m. five men in camouflage or black uniforms armed with machine guns had entered the room where he and his father were sleeping and asked for his passport. The seventh applicant was ordered to lie on the floor. One of the servicemen read out his full name and the seventh applicant confirmed that it was him. Then the servicemen searched the rooms without saying what they were looking for and left in about ten minutes. They told the seventh applicant to remain on the floor and not to move. The seventh applicant heard them break down the door to the next room. About five minutes later three men entered the room and again asked the applicant for an identity document. The seventh applicant replied that his passport had already been checked and the men left without saying anything. After about fifteen minutes he heard the servicemen leaving. Once it was quiet, he went into the main house and saw his mother and sister. Together they went into his brother’s room and his wife told them that Saydi Malsagov had been taken away. The seventh applicant went into the courtyard and then into the street, but did not see anyone; there was not even any noise of vehicles.

14. Ms S. stated that the servicemen had entered their room and ordered them to lie still. Then they told Saydi Malsagov to stand up and get dressed. He was permitted to put on his shoes and a jacket, and then the servicemen escorted him out of the room, taking along his documents and some items from the room. They did not explain anything and did not answer any questions.

15. The applicants submitted a statement by their neighbour Ms Sh. On 7 November 2002 at about 3 a.m. she heard the dogs barking and looked out of the window at the street. She saw a line of armed people walking in the street from the Malsagovs’ house towards Magomed-Merzoyeva Street. There were about ten of them, wearing camouflage uniforms and masks. Then everything went quiet. In the morning the witness learnt that the military had taken Saydi Malsagov away.

16. The applicants have had no news of their son and brother Saydi Malsagov since that day.

2. The Government’s account

The Government submitted that the Prosecutor General’s Office had established that on the night of 6 to 7 November 2002 unidentified persons armed with machine guns had entered the applicants’ house at 22 Shvernika Street, Urus-Martan, and kidnapped Saydi Malsagov.

B. The search for Saydi Malsagov and the investigation

1. The applicants’ account

17. Following Saydi Malsagov’s disappearance the applicants repeatedly applied, both in person and in writing, to various official bodies, trying to find out the whereabouts and fate of their relative. They also personally visited places of detention in the Chechen Republic and elsewhere in the North Caucasus. The applications were primarily lodged by the first applicant.

18. In the morning of 7 November 2002 the first applicant visited the local military commander’s office, the department of the interior of the Urus-Martan District (“the ROVD”), the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) and the district administration. Everywhere she was told that they did not know who had detained her son or where he was.

19. On 7 November 2002 the first applicant submitted a written application to the district prosecutor’s office, to the prosecutor’s office of the Chechen Republic, to the military prosecutors, to the local military commander and to the Office of the Special Envoy of the Russian President for Rights and Freedoms in Chechnya. She also wrote to the NGO Memorial Human Rights Centre. In the letters she stated the details of Saydi Malsagov’s detention and asked for his whereabouts to be established and his release ensured, as well as for a criminal investigation to be opened into his abduction.

20. On 7 November 2002 the chief executive official of the municipal enterprise APP Energetic where Saydi Malsagov had worked wrote to the head of the district administration and to the military commander asking for assistance in finding and releasing their employee. On 15 November 2002 the district administration forwarded this letter to the ROVD.

21. On 9 December 2002 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s letter addressed initially to the Special Envoy to the district prosecutor’s office with a request to verify the complaint and to inform the applicant accordingly.

22. On 17 January 2003 the first applicant wrote to the military commander of Urus-Martan District and asked him to help her find her son.

23. On 5 April 2003 the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”) forwarded the first applicant’s complaint to the military prosecutor of military unit no. 20102 (“the unit prosecutor’s office”).

24. On 7 April 2003 the first applicant requested the district prosecutor’s office to update her on progress in the investigation in case no. 61147.

25. On 9 April 2003 the Ministry of the Interior of the Chechen Republic forwarded the first applicant’s complaint to the ROVD.

26. On 17 April 2003 the district prosecutor’s office informed the first applicant that on 13 November 2002 they had opened a criminal investigation into the abduction of her son by unidentified armed men under Article 126 § 2 of the Russian Criminal Code (“aggravated kidnapping”). On 13 January 2003 the investigation was suspended for failure to identify those responsible. The letter further informed the applicant that the ROVD had been instructed to search for Saydi Malsagov more actively.

27. On 25 April 2003 the district prosecutor’s office again informed the first applicant that the investigation had been suspended on 13 January 2003.

28. On 23 May 2003 the unit prosecutor’s office forwarded the first applicant’s complaint to the district prosecutor’s office and stated that there were no reasons to suspect the involvement of servicemen in the crime.

29. On 9 June 2003 the UGA prosecutor’s office again forwarded the first applicant’s complaint to the unit prosecutor’s office.

30. On 18 June 2003 the first applicant requested the district prosecutor’s office to allow her access to the investigation file in case no. 61147. On 20 June 2003 this permission was granted and the applicant was invited to study the file at the prosecutor’s office during working hours. According to the first applicant, when she inspected the investigation file, she found in it only requests for information sent to different district departments of the interior and replies to these requests denying that they had ever detained Saydi Malsagov. The first applicant was not permitted to take copies of these documents.

31. On 3 July 2003 the unit prosecutor’s office informed the applicants that they had no jurisdiction to deal with the matter.

32. On 23 July 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the district prosecutor’s office and instructed him to conduct a careful examination of the first applicant’s complaints.

33. On 1 August 2003 the district prosecutor’s office informed the first applicant that the investigation in case no. 61147 had been resumed on that date.

34. On 6 August 2003 the first applicant complained to the prosecutor’s office of the Chechen Republic about the decision to suspend the investigation. She referred to the circumstances of her son’s abduction and argued that he must have been detained by some representatives of official bodies, because they had arrived in a large group during curfew hours and wore uniforms similar to those used by Russian servicemen. She requested the prosecutor to oblige the district prosecutor’s office to carry out a number of investigative actions, namely to question servicemen of law enforcement agencies. She also requested that other witnesses to the night raid who could have seen the vehicles in which the abductors had arrived be identified and questioned.

35. On 6 August 2003 the district prosecutor’s office again informed the first applicant that the investigation had taken all possible steps to establish the whereabouts of her son, but that it had now been suspended for failure to identify those responsible.

36. On 20 August 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that, in response to her complaints, the decision to suspend the investigation into her son’s abduction had been quashed on 1 August 2003 and the district prosecutor had been instructed to take a number of necessary investigative steps.

37. On 1 September 2003 the district prosecutor’s office informed the first applicant that the investigation had been again suspended on 1 September 2003. The applicant was informed of the possibility of appeal against the said decision.

38. On 5 September 2003 the district prosecutor’s office notified the applicant of the latest suspension of the investigation.

39. On 29 September 2003 the first applicant’s complaint was forwarded from the prosecutor’s office of the Chechen Republic to the district prosecutor’s office with an instruction to verify the complaints.

40. On 13 November 2003 the SRJI, acting on the applicants’ behalf, requested the district prosecutor’s office to inform them of the current status of the criminal investigation into Saydi Malsagov’s abduction and to inform the applicants of the results of the investigative steps taken.

41. On 23 June 2005 the SRJI requested the district prosecutor’s office to inform them of the progress in the investigation into Saydi Malsagov’s kidnapping and to inform the applicants of the results of the investigative steps taken.

42. On 12 July 2005 the district prosecutor’s office informed the SRJI that the investigative measures were being taken to solve the crime and that the first applicant could study the case file in their premises.

2. Information submitted by the Government

43. On 13 November 2002 the district prosecutor’s office opened criminal investigation file no. 61147 into the kidnapping of Saydi Malsagov under Article 126 § 2 of the Russian Criminal Code.

44. On 19 November 2002 the district prosecutor’s office asked the Department of the Federal Security Service of the Chechen Republic (“the Chechen FSB”) and all district and town departments of the interior in the Chechen Republic whether they had any information concerning Saydi Malsagov’s kidnappers. They received negative replies.

45. On 19 November 2002 the district prosecutor’s office questioned the first applicant as a witness. She submitted that at 3 a.m. on 7 November 2002 ten or twelve men had entered her house and had locked her in a room with her daughter. When she had got out of the room, she had discovered that the armed men had taken her son away. She had not heard any armoured vehicles. Nothing had been stolen from her house. None of her family members had been assaulted.

46. On 13 January 2003 the district prosecutor’s office granted the first applicant victim status.

47. On 13 January 2003 the district prosecutor’s office suspended the investigation in case no. 61147 for failure to identify those responsible and ordered the ROVD to take more active investigative measures to solve the crime.

48. On 12 February 2003 the first applicant was notified of the decision to suspend the investigation and was advised of her right to appeal against it.

49. On 16 April 2003 the district prosecutor’s office received the first applicant’s request to take measures to establish her son’s whereabouts and to inform her of the progress in the investigation.

50. On 25 April 2003 the first applicant was notified of the suspension of the investigation.

51. On 19 June 2003 the district prosecutor’s office received the first applicant’s request for access to the case file. On 20 June 2003 they replied that she could study the documents at any time.

52. On 1 August 2003 the district prosecutor’s office quashed the decision of 13 January 2003, resumed the investigation and informed the first applicant accordingly.

53. On 1 August 2003 the district prosecutor’s office questioned Ms S. as a witness. She submitted that on the night of 6 to 7 November 2002 unidentified masked men with machine guns had entered their home, ordered her to lie on the floor, searched the house and taken her husband away. On the same date the district prosecutor’s office questioned the seventh applicant as a witness. He submitted that at about 2 a.m. on the night of 6 to 7 November 2002 around twenty-five or thirty armed men had burst into their house and ordered him to produce his identity papers. He had replied that the papers were on a table. The men had forced him to the floor and searched the room. When they had left, the seventh applicant had learned that they had taken his brother away.

54. On 8 August 2003 the district prosecutor’s office sent requests for information on Saydi Malsagov’s kidnapping to all law enforcement agencies of the Chechen Republic. The military commander’s office of Urus-Martan District, the head of remand prison IZ-20/1, the ROVD and other agencies replied that they had no information on Saydi Malsagov’s whereabouts.

55. On 1 September 2003 the district prosecutor’s office suspended the investigation in case no. 61147 for failure to identify those responsible and ordered the ROVD to take investigative measures more actively in order to solve the crime.

56. On 5 September 2003 the district prosecutor’s office informed the first applicant of the decision of 1 September 2003.

57. On 1 October 2004 the prosecutor’s office of the Chechen Republic quashed the decision of 1 September 2003 and resumed the investigation.

58. On 15 October 2004 the district prosecutor’s office informed the first applicant that the investigation had been resumed.

59. On 15 November 2004 the district prosecutor’s office suspended the investigation for failure to identify those responsible and informed the first applicant of the decision.

60. On 6 December 2004 the district prosecutor’s office quashed the decision of 15 November 2004 and resumed the investigation. On 7 December 2004 the first applicant was notified accordingly.

61. On 13 December 2004 the district prosecutor’s office again questioned the first applicant. She submitted that all perpetrators had been dressed in camouflage uniforms with no insignia. They had walked to their house from the neighbours’ garden. No one had seen their vehicles. The men had entered the room in which the first applicant had been together with her daughter and granddaughters and ordered them not to move. The women had been frightened and had not known whether the door was locked or not. A few minutes later the first applicant had left the room and found out that the men had taken her son away.

62. On 25 December 2004 the district prosecutor’s office requested information on the case from the Chechen FSB.

63. On 26 December 2004 the district prosecutor’s office sent requests for information concerning Saydi Malsagov to a number of remand prisons in different regions of Russia, including remand prison IZ-20/2 in Chernokozovo. On the same date they requested information on Saydi Malsagov from hospitals in different districts of Chechnya.

64. On 27 December 2004 an investigator of the district prosecutor’s office studied a detainees’ register of the temporary detention facility of the ROVD. The register contained no record of Saydi Malsagov.

65. On 28 December 2004 the district prosecutor’s office questioned Mr A., the applicants’ neighbour, as a witness. Mr A. submitted that he had learned of Saydi Malsagov’s kidnapping on the morning of 7 January 2002. On that day he had seen prints of boots on a fresh layer of snow in his back yard. The wirenetting separating his back yard from that of the Malsagovs had been cut. He had not heard any noise on the night of 6 to 7 January 2002. Three other neighbours made similar statements.

66. On 29 December 2004 the district prosecutor’s office questioned the fourth and seventh applicants as witnesses. They made statements similar to that of Mr A. On the same date the district prosecutor’s office granted the fourth applicant victim status.

67. On 7 January 2005 the district prosecutor’s office suspended the investigation in case no. 61147 for failure to identify those responsible and informed the first and fourth applicants of the decision.

68. On 18 January 2005 the district prosecutor’s office were informed that Saydi Malsagov had not been kept in IZ-20/2. At some point they became aware that other remand prisons to which they had sent requests had no information on Saydi Malsagov’s whereabouts.

69. On 27 January 2005 the Chechen FSB informed the district prosecutor’s office that in 2002 Saydi Malsagov had been an active member of an illegal armed group.

70. On 15 December 2005 the district prosecutor’s office quashed the decision of 7 January 2005 and resumed the investigation.

71. On 15 January 2006 the investigation in case no. 61147 was suspended.

72. On 16 March 2006 the district prosecutor’s office resumed the proceedings.

73. On 27 March 2006 the district prosecutor’s office ordered the ROVD, Operational and Search Bureau no. 2, the temporary group of forces of the Ministry of the Interior in the Chechen Republic and the FSB department of the Urus-Martan District to carry out investigative measures to identify the perpetrators. It follows from the replies received that none of these bodies obtained any information.

74. On 26 March 2006 Ms Z.T., Saydi Malsagov’s niece, was questioned and stated that on the night of her uncle’s kidnapping she had been awakened by a loud knocking on the door and seen several armed masked men in camouflage uniforms standing in the room. They had been speaking Russian. Then the men had left the room and closed the door. Some ten minutes later Ms Z.T. had gone to the courtyard and learned that the men had taken her uncle away.

75. Between 27 and 29 March 2006 three neighbours of the applicants were questioned as witnesses and stated that they had not seen Saydi Malsagov being taken away but knew him as a decent man.

76. On 27 March 2006 the district prosecutor’s office sent requests for information on Saydi Malsagov’s arrest or detention to various prosecutors’ offices of towns and districts of the Chechen Republic. The replies received were negative.

77. On 5 April 2006 the first applicant was again questioned and stated that she had nothing to add to her previous declarations.

78. On 16 April 2006 the investigation in case no. 61147 was suspended for failure to identify those responsible. On the same day the district prosecutor’s office ordered the ROVD to search for perpetrators more actively.

79. On 30 June 2006 the district prosecutor’s office resumed the investigation.

80. On 30 June 2006 the district prosecutor’s office ordered the ROVD, Operational and Search Bureau no. 2, the temporary group of forces of the Ministry of the Interior in the Chechen Republic and the FSB department of the Urus-Martan District to carry out investigative measures to identify the perpetrators. It follows from the replies received that none of these bodies provided any information.

81. On 10 July 2006 the district prosecutor’s office sent requests concerning Saydi Malsagov to the Achknoy-Martan interdistrict prosecutor’s office, remand prison no. IZ-4/1, the commander of the United Group Alignment and the military commander of the Chechen Republic. These bodies did not have any relevant information.

82. Between 6 and 21 July 2006 the district prosecutor’s office questioned six of the applicants’ neighbours. All of them stated that on the night of Saydi Malsagov’s disappearance they had stayed at home and seen nothing.

83. On 30 July 2006 the investigation was again suspended.

84. On 10 April 2008 the Investigative Committee of the prosecutor’s office of the Chechen Republic resumed the investigation and gave a number of instructions to law-enforcement agencies.

85. Despite a specific request by the Court the Government did not submit a copy of the file in criminal case no. 61147, providing only copies of several decisions to suspend and resume the investigation and to grant victim status. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.

II. RELEVANT DOMESTIC LAW

86. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, (no. 40464/02, §§ 67-69, 10 May 2007).

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTION

A. Arguments of the parties

87. The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies, since the investigation into the abduction of Saydi Malsagov had not yet been completed. They also argued that it had been open to the applicants to challenge in court any actions or omissions by the investigating or other law-enforcement authorities during the investigation. They further pointed out that the present application had been lodged only seven months after Saydi Malsagov’s kidnapping, which proved that the applicants unscrupulously ignored domestic remedies.

88. In their additional observations on the merits of the application of 13 May 2008 the Government asserted for the first time in the context of the alleged non-exhaustion of effective domestic remedies that the applicants had not brought an action for damages before civil courts.

89. The applicants disputed that objection. In their view, the fact that the investigation had been pending for more than six years with no tangible results proved that it was an ineffective remedy in this case. They further argued that in the Chechen Republic a court appeal against a decision of an investigator would be futile and the remedy referred to was illusory and ineffective.

B. The Court’s assessment

90. The Court notes at the outset that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 118, 24 February 2005).

91. As regards the civil domestic remedies allegedly available to the applicants, the Court points out that the Government raised an objection of non-exhaustion of such remedies in their additional observations on the merits of the case. The Court reiterates that objections of this kind should be raised before the admissibility of the application is considered (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 44, ECHR 1999-II, and Alexov v. Bulgaria, no. 54578/00, § 152, 22 May 2008). However, the Government’s objection was first raised on 13 May 2008, which is after the Court’s decision declaring the application admissible (see paragraph 5 above). Therefore, there is estoppel.

92. As to the criminal domestic remedies, the Court took no decision about their exhaustion at the admissibility stage, having found that this question was too closely linked to the merits. It will now proceed to examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73-74, 12 October 2006).

93. The Court reiterates that Article 35 § 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII).

94. The Court further observes that an investigation into the disappearance of Saydi Malsagov had been pending since 13 November 2002. The applicants and the Government dispute the effectiveness of this investigation.

95. The Court considers that this limb of the Government’s preliminary objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicants’ complaints. Thus, it considers that these matters fall to be examined below under the substantive provisions of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

96. The applicants complained that their family member had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. They relied on Article 2 of the Convention, which 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. Alleged violation of Saydi Malsagov’s right to life

1. Arguments of the parties

97. The applicants maintained their complaint and argued that it was beyond reasonable doubt that Saydi Malsagov had been abducted and then killed by federal servicemen.

98. The Government referred to the fact that the investigation had obtained no evidence to the effect that Saydi Malsagov was dead, or that representatives of the federal forces had been involved in his kidnapping or alleged killing.

2. The Court’s assessment

(a) General principles

99. The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see Orhan v. Turkey, no. 25656/94, § 326, 18 June 2002). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999‑IV).

(b) Establishment of the facts

100. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-09, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).

101. The applicants maintained that it was beyond reasonable doubt that the armed men who had taken Saydi Malsagov away were State agents, since they had spoken unaccented Russian and had been able to move freely about Urus-Martan at night during the curfew hours. The applicants who had been eyewitnesses to the abduction submitted their account of the events. The applicants invited the Court to draw inferences as to the well-foundedness of their allegations from the Government’s failure to provide the documents requested from them.

102. The Government submitted that on 7 November 2002 unidentified armed men in camouflage uniforms and armed with machine guns had taken Saydi Malsagov to an unknown destination. His whereabouts had not been established.

103. The Government emphasised that none of the eyewitnesses to Saydi Malsagov’s abduction could identify the perpetrators, as the latter had worn masks. Ms Sh.’s deposition submitted by the applicants could not be considered valid evidence as it had not been obtained in accordance with the procedure prescribed by Russian laws; moreover, first she had said that she had seen ten armed men and later had claimed to have seen some fifteen or twenty men. The Government also suggested that Saydi Malsagov, a former insurgent, could have staged his kidnapping in order to return to an illegal armed group. Camouflage uniforms and machine guns could have been illegally purchased by insurgents; they could also have forged identity documents of the military or other State agencies to move freely through checkpoints.

104. The Court notes that despite its repeated requests for a copy of the entire investigation file concerning the abduction of Saydi Malsagov, the Government have failed to produce it. They referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006‑... ).

105. In view of the foregoing and bearing in mind the principles cited above, the Court finds that it can draw inferences from the Government’s conduct in this respect. It considers that the applicants have presented a coherent and convincing picture of their relative’s arrest on 7 November 2002. The applicants stated that the perpetrators had acted in a manner similar to that of a security operation – they had checked identity papers and searched the house. Moreover, the men had been armed with machine guns and sniper rifles used by the Russian military. In their applications to the authorities the applicants consistently maintained that their relative had been detained by unknown servicemen and requested the investigation to look into that possibility.

106. The applicants’ neighbour, Ms Sh., also confirmed the applicants’ account of the events as she had seen a group of armed men in camouflage uniforms walking down the street on the night of Saydi Malsagov’s abduction. The Court notes that it is not obliged to reject Ms Sh.’s deposition as invalid evidence as suggested by the Government merely for failure to comply with Russian domestic procedural laws. Nor does it consider the fact that the witness did not accurately calculate the number of the walking men she had spotted late at night as proof of her untrustworthiness.

107. The Court takes note of the Government’s assertion that prior to his disappearance the applicants’ relative had participated in illegal armed groups. However, it is not persuaded that Saydi Malsagov had staged his kidnapping by inviting a large number of insurgents at night to his home where they would have run risks of being arrested by the federal forces only to conceal his departure for a rebel fighters’ camp. On the contrary, the Court considers that Saydi Malsagov’s history of involvement in illegal armed groups makes the applicants’ hypothesis of his unacknowledged arrest by State servicemen even more plausible.

108. Moreover, the Court considers it rather dubious that insurgents could travel through federal checkpoints using forged documents of the military or other State agencies without being caught by servicemen on duty at those points. The Court thus finds that the fact that a large group of armed men in uniforms was able to move freely about the town controlled by the federal forces past curfew and abducted a man at his home in a town area strongly supports the applicants’ allegation that these were State servicemen. The Court further notes that after six years the domestic investigation had produced no tangible results.

109. The Court reiterates that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of documents withheld by the Government, it is for the latter to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government, and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005‑II).

110. Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that Saydi Malsagov was detained by State servicemen. The Government’s statement that the investigation did not find any evidence to support the involvement of the special forces in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court considers that Saydi Malsagov was apprehended on 7 November 2002 at his house in Urus-Martan by State servicemen during an unacknowledged security operation.

111. The Court has to decide further whether Saydi Malsagov is to be considered dead. It notes in this regard that there has been no reliable news of the applicants’ relative since 7 November 2002. His name has not been found in any official records of detention facilities. Lastly, the Government did not submit any explanation as to what had happened to him after his abduction.

112. Having regard to the previous cases concerning disappearances of people in Chechnya which have come before the Court (see, for example, Imakayeva, cited above, and Luluyev and Others v. Russia, no. 69480/01, ECHR 2006‑... ), the Court considers that, in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgement of the detention, this can be regarded as life-threatening. The absence of Saydi Malsagov or any news of him for six years corroborates this assumption. Furthermore, the Government have failed to provide any explanation of Saydi Malsagov’s disappearance and the official investigation into his abduction, dragging on for six years, has produced no tangible results.

113. Accordingly, the Court finds it established that on 7 November 2002 Saydi Malsagov was apprehended by State servicemen and that he must be presumed dead following his unacknowledged detention.

(c) The State’s compliance with Article 2

114. Article 2, which safeguards the right to life and sets out the circumstances in which deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, Series A no. 324, and Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001‑VII (extracts)).

115. The Court has already found it established that Saydi Malsagov must be dead following his unacknowledged detention by State servicemen. Noting that the authorities do not rely on any ground of justification in respect of the use of lethal force by their agents, or otherwise accounting for his death, it follows that liability for his death is attributable to the respondent Government.

116. Accordingly, the Court finds that there has been a violation of Article 2 of the Convention in respect of Saydi Malsagov.

B. The alleged inadequacy of the investigation into the abduction

1. Arguments of the parties

117. The applicants claimed that the authorities had failed in their obligation to carry out an effective investigation into the circumstances of Saydi Malsagov’s disappearance. They argued that the investigation had fallen short of the requirements of domestic law and the Convention standards. In particular, it had been pending for six years without any tangible results, having been repeatedly suspended and resumed. The main investigative steps had been taken after the communication of the present application to the Government, which, according to the applicants, once again proved the overall ineffectiveness of the investigation. The first applicant had not been granted victim status until two months after the opening of the investigation; she had not been promptly informed of all developments in the case.

118. The Government claimed that the investigation into the disappearance of the applicants’ relative met the Convention requirement of effectiveness. The investigators had taken numerous steps to find Saydi Malsagov, but in vain. In sum, the investigation into the kidnapping was time-consuming but effective.

2. The Court’s assessment

119. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, § 161, and Kaya v. Turkey, 19 February 1998, § 86, Reports of Judgments and Decisions 1998‑I). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-09, ECHR 2001‑III (extracts), and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).

120. The Court notes at the outset that the majority of the documents from the investigation were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the sparse information on its progress presented by the Government.

121. Turning to the facts of the case, the Court notes that, according to the applicants, they applied to the authorities asking for assistance in establishing the whereabouts of Saydi Malsagov immediately after his abduction, that is, on 7 November 2002. The Government did not contest this. However, the investigation was opened on 13 November 2002, that is six days later. This delay, for which no explanation was provided, was in itself liable to affect the investigation of a crime such as abduction in life-threatening circumstances, where crucial action must be taken promptly.

122. The Court further observes that the investigators failed to take such basic investigative measures as conducting witnesses’ interviews in a timely fashion. For instance, the first applicant was questioned for the first time on 19 November 2002. Ms S., Saydi Malsagov’s wife and an eyewitness to his abduction and the seventh applicant were questioned for the first time on 1 August 2003, which is almost nine months after the events. Mr A. and three other neighbours of the applicants were questioned on 28 December 2004. The fourth applicant was questioned for the first time on 29 December 2004, that is, over two years after Saydi Malsagov’s disappearance. Ms Z.T., an eyewitness to the crime, was questioned for the first time as late as 26 March 2006, that is three and a half years after her uncle’s abduction.

123. The Court observes that in the present case the investigating authorities not only did not comply with the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II), but failed to take the most elementary investigative steps. Most notably, there is no information that the crime scene had ever been inspected. It also appears that Mayrsolt Malsagov, the father of the missing man and an eyewitness to the abduction, was never questioned. His death in itself could not justify such an omission, as it occurred almost a year after the commencement of the investigation. Lastly, nothing in the materials at the Court’s disposal allows the conclusion that the investigators ever tried to question military servicemen who had been stationed in Urus-Martan or manned the checkpoints in its vicinity on the night of the abduction.

124. The Court also notes that even though the first applicant was granted victim status two months after the commencement of the investigation, she was not informed of any significant developments in the investigation apart from several decisions on its suspension and resumption. Furthermore, the fourth applicant was granted victim status more than two years after the crime. Accordingly, the Court finds that the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings(see Oÿur v. Turkey [GC], no. 21594/93, § 92, ECHR 1999‑III).

125. Finally, the Court notes that the investigation was suspended and resumed several times. Such handling of the investigation could not but have had a negative impact on the prospects of identifying the perpetrators and establishing the fate of Saydi Malsagov.

126. Having regard to the limb of the Government’s preliminary objection that was joined to the merits of the complaint, inasmuch as it concerns the fact that the domestic investigation is still pending, the Court observes that the investigation, having been repeatedly suspended and resumed and plagued by inexplicable delays, has been ongoing for over six years having produced no tangible results. For the purposes of evaluation of the effectiveness of the remedy relied on by the Government it considers irrelevant the fact that the present application was lodged seven months after the commencement of the investigation. Therefore, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their preliminary objection in this part.

127. The Government also mentioned the possibility for the applicants to apply for judicial review of the decisions of the investigating authorities in the context of exhaustion of domestic remedies. The Court observes that the applicants, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged actions or omissions of investigating authorities before a court. Furthermore, the investigation has been resumed by the prosecuting authorities themselves a number of times due to the need to take additional investigative measures. However, they still failed to investigate the applicants’ allegations properly. Moreover, owing to the time that had elapsed since the events complained of, certain investigative steps that ought to have been carried out much earlier could no longer usefully be conducted. Therefore, it is highly doubtful that the remedy relied on would have had any prospects of success. Therefore, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their preliminary objection in this part also.

128. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Saydi Malsagov, in breach of Article 2 of the Convention in its procedural aspect.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

129. The applicants claimed that as a result of their family member’s disappearance and the State’s failure to investigate those events properly they had endured mental suffering in breach of Article 3 of the Convention, which reads:

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

130. The applicants maintained the complaint.

131. The Government argued that the investigation had not established that the applicants had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.

132. The Court observes that the question whether a member of the family of a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the applicants a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not mainly lie 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. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see Orhan, cited above, no. 25656/94, § 358, and Imakayeva, cited above, § 164).

133. In the present case the Court notes that the first applicant is the mother of the missing person and the other applicants are his siblings. The materials in its possession show that it was only the first applicant who made various requests and enquiries to the domestic authorities in connection with Saydi Malsagov’s disappearance. At the same time the Court points out that the fourth applicant, who was an eyewitness to her brother’s abduction, was granted victim status in the course of the domestic proceedings and assumes therefore that she was directly implicated in communication with the authorities. However, no evidence has been submitted to the Court that the other five applicants were involved in the search for Saydi Malsagov in any manner (see, by contrast, Luluyev and Others, cited above, § 112). Still, the Court remarks that the seventh applicant himself encountered the servicemen on the night of his brother’s abduction and thus endured considerable suffering. In such circumstances, the Court, while accepting that the events of 7 November 2002 might have been a source of considerable distress to the second, third, fifth and sixth applicants, is nevertheless unable to conclude that their mental suffering was distinct from the inevitable emotional distress in a situation such as in the present case and that it was so serious that it fell within the ambit of Article 3 of the Convention.

134. As regards the first, fourth and seventh applicants, the Court notes that for more than six years they have not had any news of Saydi Malsagov. During this period the first applicant has applied to various official bodies with enquiries about her son, both in writing and in person. Despite all their efforts, the applicants have never received any plausible explanation or information as to what became of their family member following his arrest. The responses received by the applicants mostly denied that the State was responsible or simply informed them that an investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.

135. In view of the above, the Court finds that the first, fourth and seventh applicants suffered, and continue to suffer, distress and anguish as a result of the disappearance of their family member and their inability to find out what happened to him. The manner in which their complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3.

136. The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the first, fourth and seventh applicants and no violation of this provision in respect of the other applicants.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

137. The applicants further stated that Saydi Malsagov had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant:

“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.”

138. The applicants contended that their relative’s detention did not fall into any of the exceptions provided for by Article 5 § 1 of the Convention.

139. In the Government’s opinion, no evidence was obtained by the investigators to confirm that Saydi Malsagov was detained by State agents.

140. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others, cited above, § 122).

141. The Court has found it established that Saydi Malsagov was detained by State servicemen on 7 November 2002 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).

142. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants’ complaints that their relative had been detained and taken away in life-threatening circumstances. However, the Court’s findings above in relation to Article 2 and, in particular, the conduct of the investigation leave no doubt that the authorities failed to take prompt and effective measures to safeguard him against the risk of disappearance.

143. Consequently, the Court finds that Saydi Malsagov was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

144. The applicants complained that they had been deprived of effective remedies in respect of the alleged violations of Articles 2, 3 and 5, contrary to Article 13 of the Convention, which provides:

“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.”

145. The applicants contended that they had had recourse to the only potentially effective remedy, the criminal investigation. However, in their case it had proved to be ineffective, and the flaws of the investigation undermined the effectiveness of other remedies that might have existed.

146. The Government contended that the applicants had had effective domestic remedies, as required by Article 13 of the Convention, and that the Russian authorities had not prevented them from using those remedies. The investigation into their relative’s disappearance was still pending. At the same time the applicants had not applied to the domestic courts with either civil claims or complaints concerning actions of the agents of the law-enforcement bodies. The Government referred to the domestic courts’ decisions over claims for pecuniary and non-pecuniary damage caused by offences committed by Russian servicemen in the North Caucasus Region.

147. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-62, ECHR 2002-IV, and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Khashiyev and Akayeva, cited above, § 183).

148. It follows that in circumstances where, as here, the criminal investigation into the violent death and ill-treatment was ineffective and the effectiveness of any other remedy that may have existed, including civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention.

149. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.

150. As regards the violation of Article 3 of the Convention found on account of the first, fourth and seventh applicants’ mental suffering as a result of the disappearance of their family member, their inability to find out what had happened to him and the way the authorities had handled their complaints, the Court notes that it has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention on account of the authorities’ conduct that led to the suffering endured by the applicants. The Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in connection with Article 3 of the Convention.

151. As regards the applicants’ reference to Article 5 of the Convention, the Court notes that according to its established case-law the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and in view of its above findings of a violation of Article 5 of the Convention by unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case.

VI. OBSERVANCE OF Article 38 § 1 (a) of the convention

152. The applicants argued that the Government’s failure to submit the documents requested by the Court at the communication stage disclosed a failure to comply with their obligations under Article 38 § 1 (a) of the Convention, which provides, in so far as relevant:

“1. If the Court declares the application admissible, it shall

(a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities;

...”

153. The applicants invited the Court to conclude that the Government’s refusal to submit a copy of the entire investigation file in response to the Court’s requests was incompatible with their obligations under Article 38 of the Convention.

154. The Government reiterated that the submission of the case file would be contrary to Article 161 of the Code of Criminal Procedure.

155. The Court reiterates that proceedings in certain types of applications do not in all cases lend themselves to a rigorous application of the principle whereby a person who alleges something must prove that allegation and that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications.

156. This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. It is inherent in the proceedings relating to cases of this nature, where individual applicants accuse State agents of violating their rights under the Convention, that in certain instances it is only the respondent State that has access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information as is in their possession without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention. In a case where the application raises issues as to the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of the facts and their absence may prejudice the Court’s proper examination of the complaint both at the admissibility and at the merits stage (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 71, ECHR 1999-IV).

157. The Court notes that despite its repeated requests for a copy of the investigation file opened into the disappearance of the applicants’ relative, the Government refused to produce such a copy, relying on Article 161 of the Code of Criminal Procedure, having provided only copies of decisions to suspend and resume the investigation and to grant victim status, and of the transcripts of the interviews with the first and fifth applicants. The Court observes that in previous cases it has already found this reference insufficient to justify refusal (see, among other authorities, Imakayeva, cited above, § 123).

158. Referring to the importance of a respondent Government’s cooperation in Convention proceedings, and mindful of the difficulties associated with the establishment of facts in cases of such a nature, the Court finds that the Government fell short of their obligations under Article 38 § 1 of the Convention because of their failure to submit copies of the documents requested in respect of the disappearance of Saydi Malsagov.

VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

159. Article 41 of the Convention provides:

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

A. Pecuniary damage

160. The first applicant claimed pecuniary damages in respect of Saydi Malsagov’s lost wages. She submitted that, even though her son was unemployed at the time of his arrest, it was reasonable to assume that he would have found a job and earned at least the official minimum wage. In total the first applicant claimed 545,895.91 Russian roubles (approximately 12,500 euros (EUR)).

161. The Government argued that no compensation for pecuniary damage should be awarded to the first applicant since it was not established that her son was dead. Furthermore, she should have applied to domestic courts with a claim for compensation of damage caused by the death of the breadwinner. They also noted that Saydi Malsagov had been employed by APP Energetic from August 2002.

162. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention. Furthermore, under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”.

163. The Court finds that there is a direct causal link between the violation of Article 2 in respect of the first applicant’s son and the loss by her of the financial support which he could have provided. It further assumes that, regardless of whether Saydi Malsagov had been employed on the day of his abduction or not, either his salary or unemployment benefits could not be less than the minimum wage. Having regard to the first applicant’s submissions, the Court finds it appropriate to award her EUR 2,000 in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

B. Non-pecuniary damage

164. The applicants claimed non-pecuniary damage for the suffering they had endured as a result of the loss of their family member, the indifference shown by the authorities towards him and the failure to provide any information about the fate of their close relative. The first applicant claimed EUR 50,000, while the other six applicants claimed EUR 5,000 each.

165. The Government found the amounts claimed exaggerated.

166. The Court has found a violation of Articles 2, 3, 5 and 13 of the Convention on account of the unacknowledged detention, ill-treatment and disappearance of the applicants’ relative. The first, fourth and seventh applicants themselves have been found to have been victims of a violation of Article 3 of the Convention. Taking into consideration the applicants’ family ties with Saydi Malsagov, the Court accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It finds it appropriate to award EUR 27,000 to the first applicant, EUR 3,000 each to the fourth and seventh applicants and EUR 750 to the second, third, fifth and sixth applicants each, plus any tax that may be chargeable thereon.

C. Costs and expenses

167. The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff, as well as administrative expenses, translation and courier mail fees. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 8,529.62.

168. The Government disputed the reasonableness and the justification of the amounts claimed under this head. They also submitted that the applicants’ claims for just satisfaction had been signed by five lawyers, whereas two of them had not been mentioned in the powers of attorney issued by the applicants. They also doubted that it had been necessary to send the correspondence to the Registry via courier mail.

169. The Court points out that the applicants had given authority to act to the SRJI and its three lawyers. The applicants’ claims for just satisfaction were signed by five persons in total. The names of three of them appeared in the powers of attorney, while two other lawyers worked with the SRJI. In such circumstances the Court sees no reason to doubt that the five lawyers mentioned in the applicants’ claims for costs and expenses took part in the preparation of the applicants’ observations on the merits of the case. Moreover, there are no grounds to conclude that the applicants were not entitled to send their submissions to the Court via courier mail.

170. The Court has to establish first whether the costs and expenses indicated by the applicants were actually incurred and, second, whether they were necessary and reasonable (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).

171. Having regard to the details of the information available, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives.

172. Further, it has to be established whether the costs and expenses incurred for legal representation were necessary. The Court notes that this case was rather complex and required a certain amount of research and preparation. It notes, however, that the case involved little documentary evidence, in view of the Government’s refusal to submit the case file. The Court thus doubts that research was necessary to the extent claimed by the applicants’ representatives.

173. Having regard to the details of the claims submitted by the applicants and acting on an equitable basis, the Court awards them the amount of EUR 7,500, less EUR 850 received by way of legal aid from the Council of Europe, plus any tax that may be chargeable to the applicants, the award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicants.

D. Default interest

174. The Court considers it appropriate that the default interest 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. Dismisses the Government’s preliminary objection;

2. Holds that there has been a violation of Article 2 of the Convention in respect of Saydi Malsagov;

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

4. Holds that there has been a violation of Article 3 of the Convention in respect of the first, fourth and seventh applicants on account of their mental suffering;

5. Holds that there has been no violation of Article 3 of the Convention in respect of the second, third, fifth and sixth applicants;

6. Holds that there has been a violation of Article 5 of the Convention in respect of Saydi Malsagov;

7. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;

8. Holds that no separate issues arise under Article 13 of the Convention as regards the alleged violation of Articles 3 and 5;

9. Holds that there has been a failure to comply with Article 38 § 1 (a) of the Convention in that the Government have refused to submit documents requested by the Court;

10. Holds

(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 2,000 (two thousand euros) in respect of pecuniary damage to the first applicant, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement;

(ii) EUR 27,000 (twenty-seven thousand euros) to the first applicant, EUR 3,000 (three thousand euros) to the fourth and seventh applicants each and EUR 750 (seven hundred and fifty euros) to the second, third, fifth and sixth applicants each in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement;

(iii) EUR 6,650 (six thousand six hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands;

(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;

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

Done in English, and notified in writing on 9 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenChristos Rozakis
RegistrarPresident

 

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