CASE OF MUTAYEVA AND ISMAILOVA v. RUSSIA

THIRD SECTION

CASE OF MUTAYEVA AND ISMAILOVA v. RUSSIA

(Application no. 33539/12)

JUDGMENT

STRASBOURG

21 June 2016

FINAL

17/10/2016

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

In the case of Mutayeva and Ismailova v. Russia,

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

Luis López Guerra, President,
Helena Jäderblom,
Helen Keller,
Johannes Silvis,
Dmitry Dedov,
Branko Lubarda,
Pere Pastor Vilanova, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 31 May 2016,

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

PROCEDURE

1. The case originated in an application (no. 33539/12) 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 two Russian nationals, Ms Zukhra Mutayeva and Ms Ayshat Ismailova, (“the applicants”), on 2 June 2012.

2. The applicants were represented by Mr Dokka Itslayev, a lawyer practising in Grozny. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicants alleged that their relative had been abducted by State agents in Dagestan, Russia and had subsequently disappeared, and that the authorities had failed to investigate the matter effectively.

4. On 1 October 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1980 and 1971 respectively and live in Zubutli-Miatli, Kizilyurt district, Dagestan, Russia. They are the wife and the sister of Mr Kamil Mutayev who was born in 1976.

A. Abduction of Mr Kamil Mutayev

1. The applicants’ submission

(a)  Background information

6. Between 2010 and 2012 the applicants’ relative Mr Kamil Mutayev had been detained on at least three occasions by representatives of law‑enforcement agencies on suspicion of illegal activities and subsequently released. In particular, in 2010 he had been detained pending trial for about six months on suspicion of illegal possession of firearms and assault of a representative of the State and had then been subsequently sentenced to two years’ imprisonment. The sentence was suspended.

(b) The abduction of the applicants’ relative

7. At about 1 p.m. on 2 May 2012 Mr Kamil Mutayev and his twelve‑year old son Muradis were driving in their VAZ-21099 car in Shamil Street in the centre of the town of Kizilyurt, Dagestan, when they were blocked by two silver-coloured VAZ Priora cars with heavily tinted windows, one of which had an official registration number containing the digits “78”. Eight masked men in black uniforms and armed with pistols and machine guns got out of the Priora cars, knocked Mr Kamil Mutayev off his feet and forced him into one of their vehicles. They threatened his son with firearms and ordered him to stay in the car. The abduction took place approximately two hundred metres from the district police station (the department of the interior) and the public prosecutor’s office. After the abduction the perpetrators drove away through the local traffic police checkpoint.

8. The applicants submitted to the Court the witness statements of Ms Ya.R. dated 7 February 2013 and of Ms As.I. dated 25 February 2013. According to both women, they did not see the abduction but both saw two Priora cars speeding away from the vicinity of where the incident took place around the time of the abduction. It does not appear that either of the witnesses provided a statement to the investigation.

2. The Government’s submission

9. The Government did not dispute the facts as presented by the applicants. At the same time they denied any involvement of State agents in the abduction.

B. Official investigation into the incident

10. In reply to the Court’s first request for a copy of the contents of the investigation file, the Government provided documents from the file, amounting to 43 pages, which showed the steps taken by the investigators from 14 May to 27 June 2012.

11. In reply to the Court’s second and third requests for a copy of the contents of the investigation file, the Government submitted copies of its contents, some 688 pages long, which showed the steps taken by the investigators from the beginning of the proceedings to 15 August 2015. From the documents submitted, the investigation can be summarised as follows.

12. Immediately after the abduction, on 2 May 2012 the applicants complained to the Kizilyurt police station (Отдел внутренних дел по г .Кизилюрт) (hereinafter “the OVD”).

13. On 2 May 2012 the police questioned the second applicant who provided a detailed account of the events similar to the one submitted to the Court and stated that she had learnt of Mr Kamil Mutayev’s abduction from her nephew Muradis.

14. On 2 May 2012 the police examined the crime scene. No evidence was collected.

15. On 2 and then on 10 May 2012 the police questioned Mr Kamil Mutayev’s son Muradis, whose account of the events was similar to that submitted by the applicants to the Court. In addition, the witness stated that the abductors had scared him by threatening to shoot him if he disobeyed their orders not to move.

16. On 2 or 3 May 2012 the police examined Mr Kamil Mutayev’s VAZ‑21099 car. Fingerprints taken from the vehicle on that date were submitted for expert examination on 18 May 2012.

17. On 14 May 2012 the applicants lodged an abduction complaint with the Kizilyurt town prosecutor’s office.

18. On 14 May 2012 the investigations department of the Kizilyurt town prosecutor’s office opened criminal case no. 207127. The applicants were informed thereof on 24 May 2012.

19. On 19 May 2012 the investigators questioned Mr Kamil Mutayev’s son Muradis who reiterated his previous statements and added that he would not be able to identify any of the abductors as he had been scared.

20. On 19 May 2012 the investigators questioned the first applicant whose statement was similar to the applicants’ account submitted to the Court. In particular, the applicant pointed out that when driving away the abductors’ vehicle had gone through the traffic police checkpoint.

21. On 21 May 2012 the first applicant was granted victim status in the criminal case and questioned again. She reiterated her previous statements.

22. On 23 May 2012 the Dagestan Forensic Expert Examinations Bureau informed the investigators that they did not have matches in their database for the fingerprints found on Mr Kamil Mutayev’s car.

23. On 24 May 2012 the investigators again questioned the second applicant whose statement was similar to the applicants’ account submitted to the Court.

24. On 6 June 2012 the investigators again examined the crime scene.

25. On 7 June 2012 the investigators again questioned the first applicant who stated that her husband Mr Kamil Mutayev did not have financial debts or enemies. At the same time she stated that on several occasions he had received threats from unidentified persons on account of his religious beliefs. Those persons had visited their house and had thrown hand-written threats inside. The applicant did not specify whether she had had any suspisions or theories concerning the identities of those persons.

26. On 15 June 2012 the local police informed the investigators that Mr Kamil Mutayev was a member of an illegal armed group, belonged to an extremist religious movement and had, therefore, most probably, staged his own abduction.

27. On 29 June 2012 the investigators questioned five local residents, all of whom stated that they had not witnessed the abduction and found out about it from others.

28. On 6 August 2012 the investigators examined the registration log of detainees of the OVD. No records concerning Mr Kamil Mutayev were found therein.

29. On 6, 7 and 12 August 2012 the investigators questioned police officers from the OVD: Mr M.M., Mr Z.S., Mr R.A., Mr A.M. and Mr D.D. All of them stated that on the date of the abduction they had been on duty at the police station and neither Mr Kamil Mutayev nor his car had been brought in.

30. On various dates between June and November 2012 the investigators received the list of calls made from and to Mr Kamil Mutayev’s mobile telephone as well as replies to their numerous information requests concerning Mr Kamil Mutayev from hospitals, morgues, retirement homes, mosques and detention centres in various regions of Russia. No information pertatining to his whereabouts or the perpetrators’ identities was obtained.

31. On 14 September 2012 the investigation was suspended. It is unclear whether the applicants were informed thereof.

32. On 9 November 2012 the investigation was resumed in order to take further steps.

33. On 30 November 2012 the investigators questioned the head of the OVD officer R.S. who stated that according to their information Mr Kamil Mutayev was an avid follower of the extremist religious movement Wahhabi and that he had staged his abduction to join an illegal armed group.

34. On an unspecified date in 2013 the investigation was resumed.

35. Between March 2013 and February 2014 the investigators questioned a number of Mr Kamil Mutayev’s relatives and neighbours, whose statements did not provide new information. They also questioned again his son Muradis and the first applicant who reiterated their earlier statements.

36. From the documents submitted it follows that between November 2012 and August 2015 the investigation was suspended and resumed on several occasions. The last resumption of the investigation took place on 10 September 2015. The proceedings are still pending.

II. RELEVANT DOMESTIC LAW

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

THE LAW

38. The Court will deal with the procedural matters in the case before considering the applicants’ complaints concerning the abduction of their relative and the allegedly ineffective investigation.

I. THE GOVERNMENT’S PRELIMINARY OBJECTION

A. The parties’ submissions

39. The Government contended that the complaint should be declared inadmissible as the investigation of the disappearance of Mr Kamil Mutayev had not yet been completed. They further argued, in relation to the complaint under Article 13 of the Convention, that it had been open to the applicants to lodge complaints with the courts about any acts or omissions on the part of the investigating authorities. They could also have claimed civil damages.

40. The applicants contested the Government’s submission, stating that the only supposedly effective remedy – the criminal investigation – had proved to be ineffective.

B. The Court’s assessment

41. The Court will 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).

42. The Court notes 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.

43. As regards a civil action to obtain redress for damage sustained as a result of illegal acts or unlawful conduct on the part of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005). In the light of the above, the Court finds that the applicants were not obliged to pursue civil remedies. The Government’s objection in this regard is thus dismissed.

44. As regards criminal remedies provided for by the Russian legal system, the Court observes that the investigation into the abduction has been pending since 14 May 2012. The applicants and the Government dispute its effectiveness.

45. The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below.

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

A. The parties’ arguments

46. The applicants alleged that State agents were responsible for Mr Kamil Mutayev’s disappearance. They stressed that the authorities had suspected him of membership of illegal armed groups and, therefore, had motives for his abduction. The abductors had used Priora cars with heavily tinted windows; only law-enforcement agencies could use such vehicles. Moreover, after the abduction the perperators had passed through a permanent road traffic police checkpoint. The applicants referred to statements of local residents who had not witnessed the abduction but had seen vehicles similar to those of the abductors driving to that police station. Lastly, the applicants referred to a number of cases of abduction perpetrated in Dagestan in which some of the abducted persons had been later found in State custody.

47. The Government submitted that the applicants’ relative Mr Kamil Mutayev had been abducted by unidentified men or could have staged his own abduction. The only witness to the events was Mr Kamil Mutayev’s son Muradis, who was a minor, and the other persons, including the applicants, learnt of the events from him. In such circumstances the applicants’ allegations concerning involvement of State agents in the incident were groundless.

B. The Court’s evaluation of the facts

48. A summary of the principles concerning the assessment of evidence and establishment of facts in disappearance cases and the life-threatening nature of such incidents may be found in Sultygov and Others v. Russia, nos. 42575/07, 53679/07, 311/08, 424/08, 3375/08, 4560/08, 35569/08, 62220/10, 3222/11, 22257/11, 24744/11 and 36897/11, §§ 393-96, 9 October 2014).

49. The Court notes that in reply to its request for a copy of the investigation file into the abduction the Government produced the relevant documents from the file (see paragraphs 10 and 11 above).

50. The Court has already found the Russian authorities responsible for disappearances of civilians perpetrated in Dagestan (see, for example, Umarovy v. Russia, no. 2546/08, 12 June 2012, and Alpatu Israilova v. Russia, no. 15438/05, 14 March 2013). In doing so, it has taken into account the length of time during which the applicants had not had any news of their missing relatives and witness statements and other documents attesting to the presence of security or law-enforcement personnel in the area concerned at the relevant time. It has relied on witness accounts and other information on security operations.

51. However, in the present case the circumstances in which the events occurred cannot warrant an unequivocal conclusion that State agents were responsible for the abduction of the applicants’ relative for the following reasons. As regards the general background, the events complained of took place in May 2012 and there was neither a curfew in place nor any restrictions on driving in civilian vehicles. Furthermore, from the documents submitted it appears that the applicants’ version of the events was based on the statements of the only witness, Mr Kamil Mutayev’s son, who according to his own statement had been scared during the incident (see paragraph 19 above), and of persons who had not witnessed the actual abduction and whose statements were not included in the investigation file (see paragraph 8 above). In addition, the Court notes that the first applicant stated to the investigation that Mr Kamil Mutayev had received threats but did not specify whom she had suspected or the nature of the threats received (see paragraph 25 above). In such a situation the Court has little evidence on which to draw such conclusions as the factual circumstances of the incident as presented by the applicants do not include any evidence corroborating their account to a decisive extent.

52. Accordingly, the information in the Court’s possession does not suffice to establish that the perpetrators belonged to the security forces or that a security operation was carried out in respect of Mr Kamil Mutayev.

53. To sum up, it has not been established to the required standard of proof that State agents were implicated in the disappearance of Mr Kamil Mutayev; nor does the Court consider that the burden of proof can be entirely shifted to the Government, having regard, in particular, to the fact that they submitted a copy of the relevant documents from the investigation file as requested by the Court.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

54. The applicants complained under Article 2 of the Convention that their relative Mr Kamil Mutayev had been abducted and subsequently deprived of his life by State agents and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 of the Convention reads:

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

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

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

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

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

A. The parties’ submissions

55. The Government contended that the domestic investigation had obtained no evidence to the effect that Mr Kamil Mutayev was dead or that any State agents had been involved in his abduction. They further claimed that the investigation of the incident had met the Convention requirement of effectiveness, as all possible measures available under national law were being taken to have the crime solved.

56. The applicants argued that Mr Kamil Mutayev had been abducted by State agents and subsequently killed and that the investigation of the matter had been ineffective. In particular, they alleged that the investigators had either failed to take a number of crucial investigative steps or they had taken important steps with major deficiencies: they had not initiated the criminal investigation into the abduction until twelve days after receipt of the applicants’ complaint about it; the examination of the crime scene had been carried out superficially and had had to be repeated; the investigators had failed to seize and examine the CCTV camera footage from the traffic police checkpoint through which the abductors had driven; the officers on duty at the checkpoint had not been identified and questioned about the incident; the investigators had failed to establish whether any of the local law-enforcement agencies had been conducting a special operation on the date of the abduction; the investigators had failed to establish whether any of the law-enforcement agencies had been using service Priora vehicles and to question their drivers; and lastly, the investigators had failed to interview all of the witnesses to the abduction, such as the two witnesses whose statements the applicants had submitted to the Court.

B. The Court’s assessment

1. Admissibility

57. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the issue concerning the exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 45 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

2. Merits

58. In the light of the importance of the protection afforded by Article 2 of the Convention, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, Series A no. 324, and Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001‑VII (extracts)).

59. As noted above, the domestic investigation failed to produce any tangible results as to the identities of the persons responsible for the alleged abduction of Mr Kamil Mutayev. The applicants have not submitted persuasive evidence to support their allegations that State agents were the perpetrators of the abduction. The Court has already found above that, in the absence of unequivocal evidence, it is unable to find that security forces were implicated in his disappearance (see paragraph 53 above). Neither has it established that Mr Kamil Mutayev was deprived of his life by State agents.

60. In such circumstances the Court finds no violation of the substantive limb of Article 2 of the Convention.

3. Alleged inadequacy of the investigation into the abduction

(a) General principles

61. The obligation to protect the right to life under Article 2 of the Convention requires that there should be some form of effective official investigation (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 169-82, 14 April 2015). It is necessary for the persons responsible for and those carrying out the investigation to be independent from those implicated in the events (see, for example, Ögur v. Turkey [GC], no. 21954/93, §§ 91-92).

62. The authorities must act on their own initiative once the matter has come to their attention; they cannot leave it to the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedures (see, for example, mutatis mutandis, İlhan v. Turkey [GC] no. 22277/93, § 63).

63. In this context, there must also be an implicit requirement of promptness and reasonable expedition (see Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87, 106). It must be accepted that there may be obstacles or difficulties which prevent progress of an investigation of a particular situation. However, a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.

64. The investigation must also be effective in the sense that it is potentially capable of leading to the identification and punishment, as appropriate, of those responsible (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 257, 30 March 2016). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure any evidence concerning the incident (see, for example, Tanrikulu v. Turkey [GC], no. 23763/94, § 109). Any deficiency in the investigation which undermines its ability to establish the identity of the person responsible will risk falling below this standard.

65. In addition, there must be a sufficient element of public scrutiny of the investigation or its results to ensure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see McKerr v. the United Kingdom, no. 28883/95, § 115, ECHR 2001‑III).

(b) Application of the principles to the present case

66. In the present case, the abduction of Mr Kamil Mutayev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

67. The Court notes that the applicants immediately reported the abduction to the authorities (see 12 above) and that the eyewitness to the abduction along with the second applicant were interviewed on the same date (see paragraphs 13 and 15 above). However, in spite of the seriousness of the allegations, the official investigation was not initiated until 14 May 2012, that is to say twelve days after the receipt of the applicants’ official complaint (see paragraph 18 above). The examination of the crime scene was carried out twice; the second time more than a month after the events (see paragraphs 14 and 24 above). Furthermore, the examination of the registration log of detainees at the police station as well as the questioning of the police officers was carried out some three months after the incident (see paragraph 28 above). In spite of the fact that they had been informed that the abductors’ car had driven through it, the investigators did not seize and examine the video footage from the CCTV cameras at the traffic police checkpoint (see paragraphs 7, 15, 20 and 23 above).

68. As regards the overall conduct of the proceedings, the Court notes that having been opened on 14 May 2012 the investigation was already suspended by 14 September 2012 without the necessary steps having been taken. Such premature suspension in a situation in which vital steps had not been taken undermined the investigators’ ability to identify and prosecute the perpetrators (see Armani Da Silva, cited above, § 257).

69. As for public scrutiny, the Court notes that the first applicant was granted victim status a week after the opening of the criminal case (see paragraph 21 above). From the documents submitted it is unclear whether the applicants asked for access to the case file. Keeping the above factors in mind, it remains to be decided whether they were able to effectively pursue their legitimate interests in the proceedings.

70. The Government argued that the applicants could have sought judicial review of the decisions of the investigating authorities as part of the exhaustion of domestic remedies. The Court accepts that, in principle, that remedy may offer a substantial safeguard against the arbitrary exercise of power by an investigating authority, given a court’s power to set aside the impugned decision and indicate the defects to be addressed.

71. The Court, however, has strong doubts as to whether that remedy would have been effective in the circumstances of the present case for the following reasons: in a number of other cases concerning allegations of abductions perpetrated in the northern Caucuses, the Court has stated that in the investigation of a crime as serious as abduction it would be reasonable to presume that the authorities took all possible measures on their own impetus to establish the whereabouts of the abducted man and to identify the culprits (see, for example, Shafiyeva v. Russia, no. 49379/09, § 95, 3 May 2012 concerning an abduction in Dagestan in 2009, and Askhabova v. Russia, no. 54765/09, § 159, 18 April 2013 concerning an abduction in Chechnya in 2009); assuming that access to the case file would have provided the applicants with the chance to challenge the suspension of the proceedings (see paragraph 31 above), the investigative steps taken by the authorities afterwards, provided the challenge was successful, would have only recommenced several months after the initiation of the investigation.

72. In such a situation, even if the applicants had challenged the investigators’ actions, taking into account that the proceedings had been ongoing for several months, it is highly questionable whether their appeal could have redressed the defects in the investigation by bringing them to the attention of a domestic court. In this connection, the Court reiterates that the authorities cannot leave it to the initiative of the next of kin to request particular lines of inquiry or investigative procedures (see, mutatis mutandis, İlhan, cited above, § 63): they must show their commitment by taking all steps on their own initiative and demonstrating that they have taken every reasonable step available to them to secure the evidence. Any deficiency in the investigation which undermines its ability to establish the identity of the person responsible will risk falling below this standard (see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000‑VII, and Tanrikulu, cited above, § 109).

73. However, the materials in the Court’s possession reveal that crucial investigative steps, which should have been taken as soon as the relevant information had been obtained, were never taken. This failure to act in a timely manner led to unnecessary protractions and a loss of time. It is highly doubtful that any appeals by the applicants against the investigators’ decisions would have had any prospects of spurring the progress of the investigation or effectively influencing its conduct. Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances of the present case and dismisses their objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation.

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

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

75. The applicants complained that their relative Mr Kamil Mutayev had been unlawfully detained by State agents in violation of guarantees of Article 5 of the Convention. They also argued that, contrary to Article 13 of the Convention, they had had no available domestic remedies against the violations claimed. Articles 5 and 13 of the Convention read, in so far as relevant:

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.”

76. The Government contested those arguments.

77. The Court has not found that the State bears responsibility for the disappearance of Mr Kamil Mutayev. Accordingly, it finds that the situation does not disclose a violation of Article 5 of the Convention, as alleged by the applicants (see Shafiyeva, cited above, § 110; Saidova v. Russia, no. 51432/09, § 84, 1 August 2013; and Dobriyeva and Others v. Russia, no. 18407/10, § 88, 19 December 2013). This complaint must, therefore, be rejected as inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

78. As regards the reference to Article 13 taken in conjunction with Article 2 of the Convention, the Court observes that the relevant complaint has already been examined in the context of Article 2. Having regard to the finding of a violation of Article 2 of the Convention in its procedural aspect, the Court considers that although this complaint is admissible, there is no need for a separate examination of it on its merits (see Saidova, cited above, § 85, and Dobriyeva and Others, cited above, § 89).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

79. Article 41 of the Convention provides:

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

A. Damages

80. The applicants did not claim compensation for pecuniary damage. As for non-pecuniary damage, the applicants claimed jointly 200,000 euros (EUR).

81. The Government submitted that the finding of a violation of the Convention would comprise the adequate just satisfaction for the applicants.

B. Costs and expenses

82. The applicants were represented by Mr D. Itslayev. The aggregate claim in respect of costs and expenses related to legal representation amounted to EUR 4,867 for the drafting of legal documents, translation services and administrative and postal costs.

83. The Government stated that the claim was unsubstantiated.

C. The Court’s assessment

1. Damages

84. Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations, and make a financial award.

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

2. Costs and expenses

86. In view of the information submitted by the applicants, the Court is satisfied that it reflects the necessary expenses actually incurred by the applicants’ representative.

87. However, in respect of most of the alleged violations, the Court has found no breach of the Convention. Thus, taking account of this, and to the details of the claims submitted by the them, the Court awards them the amount of EUR 1,000 together with any value-added tax that may be chargeable to the applicants, the net award to be paid into the representatives’ bank account, as identified by the applicants.

D. Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join to the merits the issue concerning exhaustion of criminal domestic remedies and rejects it;

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

3. Holds that there has been no violation of Article 2 of the Convention in its substantive limb in respect of Mr Kamil Mutayev;

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

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

6. 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, to be converted into the currency of the Respondent State at the date of settlement:

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

(ii) EUR 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 identified by the applicants;

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

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

Done in English, and notified in writing on 21 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsLuis López Guerra
RegistrarPresident

 

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