CASE OF MUKHTAROVA AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF MUKHTAROVA AND OTHERS v. RUSSIA

(Application no. 13916/12)

JUDGMENT

STRASBOURG

4 June 2019

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

In the case of Mukhtarova and Others v. Russia,

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

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

Having deliberated in private on 14 May 2019,

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

PROCEDURE

1.  The case originated in an application (no. 13916/12) 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 five Russian nationals (“the applicants”), on 27 February 2012.

2.  The applicants were represented before the Court by lawyers from the NGO Stichting Russian Justice Initiative (SRJI) (in partnership with the NGO Astreya). 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 applicants alleged, in particular, that in November 2003 their relatives had been abducted by State agents in Ingushetia and subsequently killed and that the authorities had failed to effectively investigate the matter.

4.  On 2 March 2016 notice of the complaints under Articles 2, 3, 5 and Article 13 in conjunction with Articles 2 and 3 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The Government did not object to the examination of the application by a Committee.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants are:

(1) Ms Umidat Mukhtarova, who was born in 1942,

(2) Ms Manash Mukhtarova, who was born in 1965,

(3) Ms Mariya Umarova, who was born in 1950,

(4) Mr Lechi Umarov, who was born in 1942,

(5) Ms Zara Umarova, who was born in 1977.

The second applicant lives in Grozny. The other four applicants live in the village of Kharsenoy, Chechnya.

6.  The first and second applicants are the mother and the sister of Mr Sharpudi (also spelled as Sharpuddi and Sharpudin) Mukhtarov, who was born in 1975. The third and fourth applicants are the parents of Mr Zaurbek (also spelled as Zovrbek) Umarov, who was born in 1975 (in the documents submitted the year was also stated as 1981). The fifth applicant is his sister.

7.  The circumstances of the case can be summarised as follows.

A.  Abduction of Mr Sharpudi Mukhtarov and Mr Zaurbek Umarov and subsequent events

8.  At the relevant time Mr Sharpudi Mukhtarov lived with his family in the camp for refugees from Chechnya in the village of Nesterovskaya, Ingushetia. At about 3.30 p.m. on 1 November 2003 he and his friend Mr Zaurbek Umarov were on the outskirts of the village when a group of armed servicemen in camouflage uniforms arrived in a military UAZ and VAZ‑2106 vehicles without registration numbers. The servicemen were of Slavic appearance and spoke unaccented Russian; some of them were wearing balaclavas. They put Mr Mukhtarov and Mr Umarov on the ground threatening them with weapons, then forced them into the vehicles and drove off in the direction of Ordzhonikidzevskaya village. The abduction took place in the presence of several witnesses.

9.  On 16 May 2008 an interview with Mr Umarov appeared in a television programme broadcast by the Russian television news channel NTV (НТВ). The second applicant provided this information to the investigators (see below).

10.  The whereabouts of Mr Sharpudi Mukhtarov and Mr Zaurbek Umarov have been unknown since the date of their abduction.

B.  Official investigation into the abduction of the applicants’ relatives

1.  Main investigative steps as regards the abduction of Mr Sharpudi Mukhtarov and Mr Zaurbek Umarov

11.  Immediately after the abduction the first applicant informed the authorities thereof and requested that criminal proceedings be opened.

12.  On 18 November 2003 the Sunzhenskiy district prosecutor’s office in Ingushetia opened criminal case no. 23600076 under Article 126 of the Criminal Code concerning the abduction of Mr Mukhtarov. The decision stated that it was taken following the first applicant’s complaint.

13.  On 8 December 2003 Mr M.M., the father of Mr Sharpudi Mukhtarov, was granted victim status and questioned.

14.  On 6 January 2004 the Sunzhenskiy district prosecutor gave instructions to the investigators. He indicated, in particular, that Mr Zaurbek Umarov, who had been abducted together with Mr Mukhtarov, was wanted by law-enforcement authorities on account of his participation as a member of an illegal armed group in a shootout with the authorities in October 2003 in Troitskaya village.

15.  On 13 January 2004 the investigators requested an extension of the investigation’s time frame, stating, amongst other reasons, that there were grounds to suspect that the abduction of Mr Sharpudi Mukhtarov was linked to his friendship with Mr Zaurbek Umarov.

16.  On 18 March 2004 the investigation was suspended for failure to identify the perpetrators. The investigators’ decision stated that Mr Mukhtarov and Mr Umarov had been abducted together. Mr M.M. was informed about this decision by a letter of 20 March 2004.

17.  On 14 August 2008 the investigation was resumed.

18.  On 15 August 2008 the first applicant was granted victim status upon her request (see paragraph 34 below).

19.  On 19 August 2008 the investigation was suspended again.

20.  On 24 November 2008 the investigation was resumed following the second applicant’s submissions to the investigators about the TV interview with Mr Umarov (see paragraph 35 below).

21.  On 29 November 2008 Ms. E.E., Mr Zaurbek Umarov’s wife, was granted victim status. The investigators’ decision stated that her husband Mr Zaurbek Umarov had been abducted together with Mr Mukhtarov.

22.  On 24 December 2008 the investigation was suspended and then resumed on 30 March 2009.

23.  On 1 April 2009 the Sunzhenskiy District Court of Ingushetia granted the investigators’ request and allowed the seizure of the video containing the interview with Mr Umarov from the NTV channel.

24.  On 30 April 2009 the investigators sent a request to the NTV channel. In reply NTV informed them that the video recording of the programme had already been destroyed owing to the expiry of the conservation period.

25.  On the same date the investigation was suspended. The whereabouts of both Mr Sharpudi Mukhtarov and Mr Zaurbek Umarov remain unknown.

26.  It appears that the investigation is still pending.

2.  Main witness statements taken by the investigators

27.  On 15 January 2004 the investigators questioned the first applicant, who denied that Mr Mukhtarov had been involved in illegal armed groups.

28.  On 22 January 2004 the investigators questioned Ms Z.I., the Mukhtarov family’s neighbour, who had witnessed the abduction. She confirmed the circumstances of the abduction as described above and stated that the abductors had been wearing military uniforms and had looked a lot like law-enforcement officers.

29.  On 4 February 2004 the investigators questioned a police officer from the Sunzhenskiy district department of the interior (police station), Mr M.R. He confirmed that Mr Zaurbek Umarov was among those who had offered armed resistance to law-enforcement officers in October 2003 in Troitskaya village.

30.  Between 5 and 20 February 2004 the investigators questioned Mr A.I., Ms D.M. and Ms Z.Kh., who had also witnessed the abduction. They confirmed the circumstances of the abduction as described above.

31.  On 15 August 2008 the first applicant was questioned again. Her statements were similar to the account of events submitted to the Court.

32.  On 19 November 2008 the investigators questioned Ms E.E. She stated that she had learnt about the circumstances of Mr Umarov’s abduction from her mother-in-law (the third applicant) and that she had not lodged any complaints in that connection. On 16 May 2008 around 8.30 p.m. she had seen an interview with her husband, whom she had identified with certainty in a television programme, lasting about five minutes. She had not informed the investigators of this fact.

33.  On an unknown date the investigators questioned Ms Z.E., who was the mother of Ms E.E. She confirmed that she had also seen the interview with Mr Umarov in the TV programme. She had identified Mr Umarov by facial features and a scar on his face. Ms Z.E. learnt from the programme that he had been sentenced to twenty-five years’ imprisonment.

3.  The first and second applicants’ contact with the authorities

34.  On 4 August 2008 the first applicant informed the investigators about the death of her husband, Mr M.M., and asked to be granted victim status in the criminal case.

35.  On 12 November 2008 the second applicant informed the investigators of the television programme in which Mr Zaurbek Umarov had appeared (see paragraph 9 above). She stated that she had learnt about it from some acquaintances and asked the investigators to obtain a copy of the programme.

36.  On 3 March 2009 the second applicant’s lawyer asked the investigators to be allowed to read the investigation file and make copies of the documents. It is unclear whether any reply was given to this request.

37.  On 29 April 2009 the first applicant asked the investigators to provide her with copies of documents from the investigation file. It is unclear whether any reply was given to this request.

38.  On several occasions between 2003 and 2009 the first applicant complained to various law-enforcement authorities about the abduction and requested assistance in the search for her son. Her complaints were forwarded to the investigators. In reply she received letters stating that the law-enforcement agencies were taking measures to establish her son’s whereabouts.

39.  On 27 August 2011 the second applicant requested information about any progress in the proceedings. She also asked to be granted victim status in the criminal case. The outcome of this request is unknown.

4.  Contacts of Mr Zaurbek Umarov’s relatives with the authorities

40.  According to the fifth applicant’s submissions to the Court, Mr Umarov’s relatives had learnt about his abduction from Mr Mukhtarov’s relatives on 1 November 2003. They complained about the incident to the local police and Sunzhenskiy district police station. Despite their complaints, the criminal case was opened only on 18 December 2003. The third, fourth and fifth applicants had received no news about the whereabouts of Mr Umarov since then. The fifth applicant also stated that she had seen the interview with her brother on television in May 2008.

41.  On 7 September 2005 the NGO Memorial, acting on behalf of Ms Z.U., Mr Umarov’s sister, asked the public prosecutor of Ingushetia whether any criminal case had been instituted into Mr Umarov’s disappearance.

42.  On 3 October 2005 the prosecutor’s office of Ingushetia informed Ms Z.U. and the NGO Memorial that the criminal case into the abduction of Mr Mukhtarov and Mr Umarov had been opened on 18 November 2003, and that the investigation had been suspended.

II.  RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL MATERIALS

43.  For a summary of the relevant domestic law and practice and for international and domestic reports on disappearances in Chechnya and Ingushetia between 1999 and 2006, see Aslakhanova and Others v. Russia (nos. 2944/06 and 4 others, §§ 43-59 and §§ 69-84, 18 December 2012).

THE LAW

I.  THE APPLICANTS’ COMPLIANCE WITH THE SIX-MONTH RULE

A.  The parties’ submission

44.  The Government submitted that the applicants had lodged their applications with the Court nine years after the abduction of their relatives and more than six months after the date when they ought to have become aware of the ineffectiveness of the pending investigations. They pointed out that the applicants had remained passive and had not been interested in finding their missing relatives. The applicants had therefore failed to comply with the six-month time-limit for lodging their respective complaints to the Court.

45.  The applicants submitted that they had complied with the six-month rule. They had taken all possible steps within a reasonable time to initiate the search for their missing relatives and assist the authorities in the proceedings. They emphasised that they had complained to the authorities shortly after the abduction and maintained contact with them throughout the investigation. Between 2003 and 2012 the applicants informed the investigators about new developments, for example, when the fifth applicant saw her brother in a television programme, she informed the authorities thereof shortly after. The applicants further maintained that the armed conflict in the area had led them to believe that investigative delays were inevitable and it was only with the passage of time and the lack of information from the domestic authorities that they had begun to doubt the effectiveness of the investigation. Overall, the applicants considered that there had been no excessive delay in lodging their application with the Court within nine years after the incident.

B.  The Court’s assessment

1.  General principles

46.  A summary of the principles concerning compliance with the six‑month rule in cases involving violations of Article 2 of the Convention allegedly perpetrated by military servicemen may be found in Sultygov and Others v. Russia, nos. 42575/07 and 11 others, §§ 369-74, 9 October 2014, and Dudayeva v. Russia, no. 67437/09, § 71, 8 December 2015.

2.  Application of the principles to the present case

47.  The Court notes that the applicants lodged their complaints with the Court within eight years and four months after the abduction of their relatives. The investigation was formally pending at the time when their application was lodged. The criminal proceedings were suspended and resumed on several occasions throughout the period concerned. The Court observes, however, that the stance of each applicant in the domestic proceedings was different and should be assessed separately.

(a)  The first and second applicants’ compliance with the six-month rule

48.  The Court observes that the first and second applicants took an active role from the outset and informed the authorities immediately after the abduction of their relative Mr Sharpudi Mukhtarov. The criminal case was opened following their complaints to the authorities (see paragraphs 11‑12 above). For several years thereafter, both applicants and their relatives cooperated with the investigators by giving statements and providing information about important developments in the case (see paragraphs 13, 27, 31, 34-35 above). The Court notes in particular that the second applicant (and not the fifth applicant, as alleged) informed the investigators about the television interview with Mr Zaurbek Umarov, which led to the resumption of proceedings after the four-year suspension (see paragraph 20 above). Even when the investigation was dormant between March 2004 and August 2008, the applicants consistently complained to various law-enforcement authorities and requested assistance in the search for their relative (see paragraph 38 above). They also maintained contact with the investigators between 2009 and 2011 by asking to be provided with copies of the investigation file documents and requesting information about progress in the proceedings (see paragraphs 36, 37 and 39 above).

49.  Given the overall time frame which has passed since the abduction and the launch of the criminal investigation, as well as the first and second applicants’ active stance in those proceedings and the lack of any significant periods of inactivity on their part, the Court is satisfied that the applicants lodged their complaints within a reasonable time (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 166, ECHR 2009).

(b)  Compliance with the six-month requirement by the third, fourth and fifth applicants

50.  The Court notes that from the documents submitted it is not apparent that the third, fourth and fifth applicants or their relatives had lodged an abduction complaint with the authorities. The criminal case was initially opened into the abduction of Mr Sharpudi Mukhtarov, and the alleged abduction of Mr Zaurbek Umarov was reflected in the investigation file only because they had been abducted together (see paragraphs 12, 16 and 21 above). Even assuming that the applicants were indeed informed at the relevant time of the launch of a criminal investigation into the abduction of Mr Sharpudi Mukhtarov, the documents submitted show that, contrary to their allegation, they did not officially complain of Mr Umarov’s abduction in 2003. Furthermore, it transpires that they took no steps in order to provide the investigation with information pertaining to the circumstances of their relative’s disappearance. As can be seen from the fifth applicant’s submissions to the Court, the third, fourth and fifth applicants were aware of Mr Umarov’s abduction (see paragraph 40 above). However, the documents submitted show that none of them had contacted the authorities or asked for assistance in establishing his whereabouts after 2003 either.

51.  The Court further notes that almost two years after the abduction, Mr Umarov’s sister, Ms Z.U., contacted the investigators via NGO Memorial and was informed that a criminal case had been opened and the proceedings had been suspended (see paragraphs 41-42 above). Even assuming that Ms Z.U. had shared this information with the third, fourth and fifth applicants, none of those applicants took the requisite initiative in order to keep informed about the pending investigation. Moreover, they remained passive even after the broadcast of the interview with Mr Umarov on television in 2008, although they could have asked the investigators to establish whether he had indeed been convicted and sentenced to twenty‑five years’ imprisonment. For some reason, they did not even inform the investigators about the interview, unlike the second applicant, who drew the authorities’ attention to that broadcast (see paragraph 40 above).

52.  Furthermore, the Court observes that, unlike the first and second applicants, the third, fourth and fifth applicants neither gave their statements concerning their relative’s abduction nor asked the investigators to grant them victim status in the criminal case. The applicants had direct access to the authorities and could have communicated with the investigators regarding the abduction of their family member. In the circumstances of the case, such inactivity on the part of the third, fourth and fifth applicants seems to indicate that they were not expecting any important developments which could have resulted in establishing Mr Umarov’s whereabouts, identifying the perpetrators of his abduction, or making significant progress towards the elucidation of the crime.

53.  The Court considers that, even assuming that the third, fourth and fifth applicants perceived the investigation of Mr Zaurbek Umarov’s abduction as ineffective, they could have lodged their complaints with the Court, like applicants in many other similar disappearance cases, without unreasonably waiting for several years. Accordingly, the Court finds that the third, fourth and fifth applicants failed to demonstrate due diligence and to comply with the six-month time-limit set out in Article 35 § 1 of the Convention (see, for similar reasoning, Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, §§ 41-47, 31 May 2016). Their complaints under Articles 2, 3, 5, and Article 13 in conjunction with these provisions, must therefore be rejected.

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

A.  The parties’ submissions

54.  The Government did not contest the essential facts underlying the application, but submitted that there was no evidence proving beyond reasonable doubt that State agents had been involved in the alleged abduction of Mr Sharpudi Mukhtarov.

55.  The applicants submitted that it had been established “beyond reasonable doubt” that the men who had taken their relative had been State agents. In support of that assertion, they referred to evidence contained in their submissions and to documents from the criminal investigation file. They submitted that they had made a prima facie case that their relative had been abducted by military servicemen and detained in life-threatening circumstances.

B.  The Court’s assessment

1.  General principles

56.  A summary of the principles concerning assessment of evidence and establishment of facts in disappearance cases and the life-threatening nature of such incidents can be found in Sultygov and Others (cited above, §§ 393‑96).

2.  Application of the above principles to the present case

57.  Turning to the circumstances of the present case, the Court notes that the documents from the investigation file provided by the Government demonstrate that Mr Sharpudi Mukhtarov was abducted together with Mr Zaurbek Umarov, who had been wanted by law-enforcement authorities on account of his participation in illegal armed groups (see paragraphs 14 and 29 above). Furthermore, the investigators also believed that the abduction of Mr Sharpudi Mukhtarov had been linked to Mr Zaurbek Umarov (see paragraph 15 above).

58.  The Court further notes that both men were abducted by a group of armed men in military uniforms; these men were of Slavic appearance and spoke unaccented Russian. Moreover, they arrived in military vehicles. The circumstances of the abduction were confirmed by a number of eyewitnesses (see paragraphs 28 and 30 above). Accordingly, the Court considers that the first and second applicants have presented a prima facie case that Mr Sharpudi Mukhtarov was abducted by State agents in the circumstances as set out by them.

59.  The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof (see, among many authorities, Avşar v. Turkey, no. 25657/94, § 392, ECHR 2001‑VII (extracts)).

60.  In sum, the facts of the present case provide sufficient evidence to enable the Court to find that Mr Sharpudi Mukhtarov was taken into custody by State agents during a security operation and remained under the State’s exclusive control. Given the lack of any reliable news about him since his detention and its life-threatening nature, the Court finds that Mr Sharpudi Mukhtarov may be presumed dead following his unacknowledged detention.

III.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

61.  The first and second applicants complained under Article 2 of the Convention that Mr Sharpudi Mukhtarov had disappeared after being detained by State agents and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads as follows:

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

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

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

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

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

A.  The parties’ submissions

62.  The Government submitted that no evidence had been obtained in the domestic investigation to suggest that the applicants’ relative had been held under State control or that he had been killed.

63.  The applicants maintained their complaints, alleging that their relative had been abducted and deprived of his life in violation of Article 2 of the Convention. They further argued that the investigation into the incident had fallen short of the standards set out in the Convention.

B.  The Court’s assessment

1.  Admissibility

64.  The Court notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2.  Merits

(a)  Alleged violation of the right to life of the applicants’ relative

65.  The Court has already found that Mr Sharpudi Mukhtarov may be presumed dead following his unacknowledged detention by State agents (see paragraph 60 above). In the absence of any form of justification put forward by the Government, the Court finds that the death of the applicants’ relative can be attributed to the State. It concludes that there has been a violation of the substantive aspect of Article 2 of the Convention in respect of Mr Sharpudi Mukhtarov.

(b)  Alleged inadequacy of the investigation into the abduction

66.  The Court has previously found that the ineffective investigation of disappearances that occurred in Chechnya and Ingushetia between 1999 and 2006 constituted a systemic problem and that criminal investigations were not an effective remedy in this respect (see Aslakhanova and Others, cited above, § 217). In the case at hand, as in many previous similar cases examined by the Court, the investigation has been pending for many years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicants’ missing relative.

67.  The Court observes 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). They have been subjected to several decisions to suspend the investigation, followed by periods of inactivity, which have further diminished the prospects of elucidating the crime. No meaningful steps have been taken to identify and question the servicemen who could have witnessed, made a record of, or participated in, the operation at issue.

68.  In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances of the disappearance and death of Mr Sharpudi Mukhtarov. There has accordingly been a violation of Article 2 of the Convention under its procedural limb.

IV.  ALLEGED VIOLATION OF ARTICLES 3, 5 AND 13 OF THE CONVENTION

69.  The first and second applicants complained of a violation of Article 3 of the Convention on account of the mental distress caused to them by the disappearance of their relative Mr Sharpudi Mukhtarov and of a violation of Article 5 of the Convention on account of the unlawfulness of his detention. They also argued that, contrary to Article 13 of the Convention, there had been no domestic remedies available in respect of their complaints under Articles 2 and 3 of the Convention. The relevant parts of these Articles read as follows:

Article 3

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

Article 5

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

(c)  ... the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Article 13

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

A.  The parties’ submissions

70.  The Government contested the applicants’ claims, arguing in particular that domestic legislation provided the applicants with effective remedies in respect of their complaints.

71.  The applicants reiterated their complaints.

B.  The Court’s assessment

1.  Admissibility

72.  The Court notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2.  Merits

73.  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 missing person. The essence of such a violation lies not so much in the fact of the “disappearance” of the family member, but rather in 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)).

74.  The Court reiterates its findings regarding the State’s responsibility for the abduction of Mr Sharpudi Mukhtarov, as well as the authorities’ failure to carry out a meaningful investigation into the incident. It finds that the first and second applicants, who are the mother and sister of Mr Sharpudi Mukhtarov, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish they have suffered, and continue to suffer, as a result of their inability to ascertain the fate of their missing family member and of the manner in which their complaints have been dealt with. The Court therefore finds a violation of Article 3 of the Convention on this count in respect of the first and second applicants.

75.  The Court further confirms that since it has been established that Mr Sharpudi Mukhtarov was detained by State agents, apparently without any legal grounds or acknowledgment of such detention (see paragraph 60 above), this constitutes a particularly serious violation of the right to liberty and security enshrined in Article 5 of the Convention (see, for example, Imakayeva, cited above, § 178; Aslakhanova and Others, cited above, § 134; and Ireziyevy v. Russia, no. 21135/09, § 80, 2 April 2015).

76.  The Court reiterates its findings regarding the general ineffectiveness of the criminal investigations in cases such as the present one. In the absence of results from a criminal investigation, any other possible remedy becomes inaccessible in practice.

77.  The Court accordingly finds that the first and second applicants did not have an effective domestic remedy at their disposal for their complaints under Articles 2 and 3 of the Convention, in breach of Article 13 of the Convention (see, for example, Khachukayevy v. Russia, no. 34576/08, § 77, 9 February 2016).

3.  Conclusion

78.  The Court concludes that there has been a violation of Article 3 of the Convention in respect of the first and second applicants, and a violation of Article 5 of the Convention in respect of Mr Sharpudi Mukhtarov. The Court also finds that there has been a violation of Article 13 of the Convention, in conjunction with Articles 2 and 3 of the Convention, in respect of the first and second applicants.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

79.  Article 41 of the Convention provides as follows:

“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

80.  The first applicant, as the mother of Mr Sharpudi Mukhtarov, claimed 531,405 Russian roubles (RUB) (about 7,570 euros (EUR)) in respect of pecuniary damage for the loss of financial support from the breadwinner. The second applicant, as his sister, claimed RUB 442,273 (about EUR 6,300) in that respect. The applicants based their calculations on the subsistence level provided for by domestic law and the Ogden Actuary Tables.

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

82.  The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention, and that this may, where appropriate, include compensation in respect of loss of earnings. Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article 2 of the Convention in respect of Mr Sharpudi Mukhtarov, and the loss by the applicants of the financial support which he could have provided as their son and brother. The Court accordingly awards EUR 4,000 to the first applicant and EUR 1,000 to the second applicant in respect of pecuniary damage, plus any tax that may be chargeable on these amounts.

B.  Non-pecuniary damage

83.  The first and second applicants claimed that they had suffered emotional distress, frustration and anxiety in connection with Mr Sharpudi Mukhtarov’s disappearance and the authorities’ reaction thereto and requested compensation for this in an amount to be determined by the Court.

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

85.  The Court has found a violation of Articles 2, 3, 5 and 13 of the Convention on account of the abduction of the first and second applicants’ relative. The Court thus accepts that they have suffered non-pecuniary damage. It awards the first and second applicants EUR 80,000 jointly, plus any tax that may be chargeable thereon.

C.  Costs and expenses

86.  The applicants were represented by the NGOs SRJI/Astreya. The aggregate claim in respect of costs and expenses related to their legal representation amounted to EUR 9,633. The claim included the drafting of legal documents submitted to the domestic authorities and the Court as well as administrative and postal expenses. The applicants submitted copies of legal representation contract and invoices showing a breakdown of the costs incurred.

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

88.  The Court must establish first whether the costs and expenses were actually incurred and, second, whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

89.  In view of its conclusions, the principles enumerated above and the parties’ submissions, the Court awards the applicants EUR 1,000 jointly, plus any tax that may be chargeable to them. The award in respect of costs and expenses is to be paid into the representative’s bank account, as indicated by the applicants.

D.  Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaints lodged by the first and second applicants under Articles 2, 3, 5, and Article 13 in conjunction with Articles 2 and 3, admissible and the remainder of the application inadmissible;

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

3.  Holds that there has been a procedural violation of Article 2 of the Convention on account of the failure to investigate the abduction of Mr Sharpudi Mukhtarov;

4.  Holds that there has been a violation of Article 3 of the Convention in respect of the mental distress caused to the first and second applicants;

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

6.  Holds that there has been a violation of Article 13 of the Convention, in conjunction with Articles 2 and 3 of the Convention, in respect of the first and second applicants;

7.  Holds

(a)  that the respondent State is to pay the first and second applicants, 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 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage, to the first applicant;

(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage, to the second applicant;

(iii)  EUR 80,000 (eighty thousand euros) to the first and second applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iv)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, the net award to be paid into the representative’s bank account, as indicated by the applicants;

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

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

Done in English, and notified in writing on 4 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıGeorgios A. Serghides
Deputy RegistrarPresident

 

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