CASE OF S.A. AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF S.A. AND OTHERS v. RUSSIA

(Applications nos. 2297/15 and 21260/16)

JUDGMENT
 

This version was rectified on 28 April 2020

under Rule 81 of the Rules of the Court

STRASBOURG

14 January 2020

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

In the case of S.A. and Others v. Russia,

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

Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 3 December 2019,

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

PROCEDURE

1.  The case originated in two applications (nos. 2297/15 and 21260/16) 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 the eight Russian nationals listed below (“the applicants”), on 13 January 2015 and 12 April 2016 respectively.

2.  The applicants were represented by lawyers from the Stichting Russian Justice Initiative and Legal Assistance Organisation Astreya, NGOs operating in Moscow. 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.  On 16 May 2018 notice of the applications was given to the Government. On 7 January 2020 Court decided to grant the applicants and their relatives referred to in this judgment anonymity and the case-files confidentiality under Rules 33 § 1 and 47 § 4 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicants in both applications live in the settlement of Rubezhnoye in the Naurskiy district of Chechnya. At the material time, the population of that settlement, situated about 90 km from Grozny, the Chechen capital, was about 2,500.

5.  On the night of 3 to 4 December 2014 members of illegal armed groups attacked a police station in Grozny, killing several police officers. As a result, the authorities carried out a large-scale counterterrorist operation and killed a number of the attackers (see https://en.wikipedia.org/wiki/2014_Grozny_clashes, https://www.bbc.com/news/world-europe-30323751 and https://www.france24.com/en/20141204-islamist-rebels-deadly-attack-chechnya-grozny).

6.  In the aftermath of the attack, on 4 December 2014, Mr Ramzan Kadyrov, the President of the Chechen Republic, gave a statement saying that the families of the members of illegal armed groups would be expelled from Chechnya and their houses demolished.

Abduction of the applicants’ relatives and subsequent eventsS.A. and Others v. Russia (no. 2297/15)

7.  The applicants are:

1.  Ms S.A., who was born in 1953,

2.  Ms M.K., who was born in 1962,

3.  Ms L.I., who was born in 1990, and

4.  Ms I.L., who was born in 1992.

The first applicant is the mother of Mr B.A., who was born in 1989, and the fourth applicant is his wife. The second applicant is the mother of Mr K.K. who was born in 1988, and the third applicant is his wife.

Events of 4 to 6 December 2014 and the disappearance of the applicants’ relatives

8.  On 4 December 2014, shortly after the terrorist attack in Grozny, Mr B.A. and Mr K.K. were taken to the Naurskiy police station (ROVD) for an identity check and released.

9.  At about 7 p.m. on 5 December 2014 a local police officer arrived at one of the applicants’ houses and told Messrs B.A. and K.K. that they needed to accompany him to the police station in order to clarify some information.

10.  At about midnight Mr A.Az. (the first applicant’s husband and the father of Mr B.A.) telephoned the same police officer on the latter’s mobile telephone. The officer told him that his son and Mr K.K. would be released soon, on the order of a commanding officer who was due to arrive at the police station shortly. However, the applicants’ relatives did not return home.

11.  On 5 January 2015 officers from the ROVD arrived at the applicants’ houses and took the applicants to the police station. They informed them that on 6 December 2014 Messrs B.A. and K.K. had been released from the ROVD and had not been seen since. Their whereabouts remain unknown.Z.I. and Others v. Russia (no. 21260/16)

12.  The applicants are:

1.  Ms Z.I., who was born in 1958,

2.  Ms Y.S., who was born in 1961,

3.  Ms Z.S., who was born in 1967, and

4.  Ms T.Y., who was born in 1962.

The first applicant is the mother of Mr L.U., who was born in 1991. The second applicant is the mother of Mr S.S., who was born in 1987. The third applicant is the mother of Mr R.A. and Mr A.A., who were born in 1986 and 1989 respectively. The fourth applicant is the mother of Mr Z.Y., who was born in 1983.

Events of 3 to 6 December 2014 and the disappearance of the applicants’ relatives

13.  On the night of 3 to 4 December 2014, shortly after the terrorist attack in Grozny, police officers from the ROVD took the applicants’ relatives Messrs L.U., S.S., R.A., A.A. and Z.Y. to their police station for an identity check. After a short interview, they were released.

14.  On 5 December 2014 police officers from the Second Road Patrol Regiment (also known as the Kadyrov Regiment) arrived at the arrived at the third applicant’ s family home, searched it, and took R.A. and A.A. with them to the ROVD.

15.  On the morning of 5 December 2014 a police officer from the ROVD, Umar Ezh., arrived at the fourth applicant’s house and asked questions about Z.Y. Later that day, at about 6 p.m., Mr Z.Y. was taken to the ROVD for questioning.

16.  At about 6 a.m. on 6 December 2014 police officers from the ROVD arrived at the first applicant’s house and took L.U. to the police station for questioning. Later that day, Mr S.S. was also taken to the station for questioning.

17.  On 5 January 2015 the police summoned the applicants to the ROVD. They told them that their sons had been released immediately after their interviews on 5 and 6 December 2014 and had left the police station.

18.  The whereabouts of the applicants’ sons remain unknown.The applicants’ attempts to have an investigation opened into the disappearance of their relatives

19.  The applicants in both applications made joint efforts to persuade the authorities to investigate the disappearance of their relatives.

(a)   The applicants’ complaints

20.  On 12 January 2015 the fourth applicant in Z.I. and Others (no. 21260/16) complained to the Naurskiy district prosecutor that her son had been abducted by police officers on 5 December 2014, stating that he had gone missing along with other men after being taken to the police station. The wording in her complaint was similar to the applicants’ submissions to the Court.

21.  On 13 or 14 January 2015 the first two applicants in S.A. and Others (no. 2297/15) complained to the Chechnya Prosecutor about their sons’ disappearance after they had been taken to the police station. On 29 January 2015 that complaint was transferred to the Chechnya Investigative Committee.

22.  On 28 January 2015 the applicants complained to the Naurskiy district investigative committee and the Chechnya Investigative Committee about their relatives’ disappearance after they had been taken to the police station. The description in their complaint of the factual circumstances and events was similar to their submissions to the Court.

23.  On 29 January 2015 N.B., an investigator from the Naurskiy department of the Chechnya Investigative Committee, issued a “decision on transferring the crime report to the investigating body with jurisdiction” (постановление о передаче сообщения о преступлении по подследственности), which stated as follows:

“... having examined the crime report [filed] under Article 105 of the Criminal Code [murder], which was received by the Naurskiy investigative department ... on 19 January 2015, it has been established that:

On 19 January 2015 the Naurskiy investigative department received the inquiry file concerning the disappearance of Z.Y.

The inquiry material shows that between 3 and 6 p.m. on 5 December 2014 Mr Z.Y. was taken away from his official place of residence by unidentified police officers from the Naurskiy ROVD ... and his whereabouts have not been established since.

Also, in the same manner, on 5 December 2014 the following residents of Rubezhnoye were taken to the police station: Messrs B.A., K.K., R.A., A.A., L.U. and S.S., and their whereabouts remain unknown ...

In connection with the above, the crime report should be transferred to the appropriate investigative [body with] jurisdiction  OVD no. 3 of the Chechnya Investigative Committee [ОВД-3 СУ СК РФ по Чеченской Республике]”.

24.  On 3 February 2015 the Chechnya Investigative Committee replied to the applicants’ complaint of 28 January 2015 by letter (see paragraph 22 above), confirming that confirming that Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y. had been taken to the police station between 4 and 6 December 2014, but had all been released “after their involvement in illegal armed groups had been checked”.

25.  On 2 March 2015 the Chechnya Investigative Committee forwarded the applicants’ complaint of 28 January 2015 to the Chechnya Prosecutor’s Office for transfer to the Naurskiy ROVD for investigation, as the same police station was already investigating criminal case no. 74507 opened against the applicants’ missing relatives (see paragraph 35 below).

26.  On 2 April 2015 Major E.G. issued a “conclusion concerning the internal inquiry into the policemen of the Naurskiy ROVD”. The document stated that the applicants’ complaint regarding their relatives’ detention at the police station between 4 and 6 December 2014 had been verified and confirmed by the inquiry. The applicants had given their statements concerning the events, which were similar and concordant and described the taking of their relatives to the police station on 4 December and again on 5 December 2014, the date they had all failed to return and had gone missing. According to three police officers questioned during the inquiry, Mr As.A., Mr A.M. and Mr A.D., on 5 December 2014 the applicants’ relatives had been taken to the police station “for a preventive talk” before being released. The inquiry concluded that the applicants’ complaints of abduction were not “substantiated by objective evidence”. No documents substantiating the contents of the report, such as the statements referred to, were enclosed.

27.  On 10 April 2015 the Deputy Chechnya Prosecutor issued a decision on “determination of the jurisdiction” of the applicants’ complaints of abduction. The decision stated that the complaints should be joined to the case file in criminal case no. 74507 opened against the applicants’ missing relatives (see paragraph 34 below).

28.  On 20 August 2018 the police interviewed the applicants, all of whom gave statements similar to their submissions to the Court and confirmed that their relatives had been missing since they had been taken to the police station in December 2014.

(b)   The applicants’ appeals

29.  On 27 April 2015 the applicants appealed to the Staropromyslovskiy District Court in Chechnya against the decision of 2 March 2015 on transferring the case to the Naurskiy ROVD (see paragraph 25 above) and requested that a criminal case be opened into their relatives’ disappearance. They stated, in particular, that their relatives had gone missing after they had been taken to the police station and stressed that their complaints of abduction had not been examined. They requested that the decision of 2 March 2015 be overruled as unlawful, that tangible steps be taken to investigate the disappearance, and that a criminal case be opened into the incident.

30.  On 27 April 2015 the Staropromyslovskiy District Court dismissed the complaint on procedural grounds.

31.  The applicants appealed against the above decision and on 9 June 2015 the Chechnya Supreme Court quashed it on appeal, remitting their complaint to the Staropromyslovskiy District Court for fresh examination.

32.  On 3 July 2015 the Staropromyslovskiy District Court again dismissed the applicants’ complaint, this time on jurisdictional grounds.

33.  The documents submitted show that neither an independent preliminary inquiry nor a criminal case into the alleged abduction of the applicants’ relatives has been opened to date.Criminal case opened against the disappeared men

34.  On 1 February 2015, almost two months after the applicants’ relatives were taken to the police station and went missing, the Naurskiy district investigative committee opened criminal case no. 74507 against them and other individuals (including Mr A.Kh.) for suspected membership of an illegal armed group (Articles 33 and 208 of the Criminal Code).

35.  On 31 March 2015 Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y. were charged in absentia with membership of an illegal armed group and their names were put on a wanted list.

36.  On an unspecified date in April 2015 the investigation of the criminal case was suspended as “the suspects had absconded”. From the documents submitted it appears that no tangible steps, other than putting the names of Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y. on a wanted list, were taken to establish their whereabouts.

37.  On 27 or 28 April 2015 the applicants requested that the investigators allow them access to the criminal case file. On 29 April 2015 their request was rejected.

38.  On 3 August 2015 the applicants appealed against that refusal to the Naurskiy District Court.

39.  On 21 August 2015 the court allowed the applicants’ request in part, ordering that the applicants be provided with copies of three documents from the investigation file: the decision to open the criminal case, the decision to put their relatives’ names on a wanted list and the decision to suspend the investigation.

40.  On an unspecified date prior to July 2015 it was decided that the part of criminal case no. 74507 concerning Mr A.Kh. would be dealt with in separate proceedings. On 30 July 2015 he was convicted of membership of an illegal armed group. At the trial, he gave evidence to the effect that the applicants’ disappeared relatives had been involved in an illegal armed group.

41.  On 6 September 2015 the investigation in the criminal case was suspended on the same grounds, as “the suspects had absconded”.

Proceedings against the investigators

42.  On 28 April 2015 the applicants complained to the Naurskiy District Court that the opening of criminal case no. 74507 against their relatives was unjustified.

43.  On 5 May 2015 the Naurskiy District Court rejected their complaint.

44.  On 14 May 2015 the fourth applicant in S.A. and Others (no. 2297/15) appealed against that decision to the Chechnya Supreme Court, stating that Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y. had not been involved in illegal activities and had not absconded from the authorities.

45.  On an unspecified date in June 2015 the Chechnya Supreme Court upheld the decision of 5 May 2015.RELEVANT DOMESTIC LAW

46.  For a summary of the relevant domestic law and international materials, see Dalakov v. Russia (no. 35152/09, §§ 51-53, 16 February 2016), and Turluyeva v. Russia (no. 63638/09, §§ 56-74, 20 June 2013).

THE LAWJOINDER OF THE APPLICATIONS

47.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

48.  The applicants complained that their relatives had disappeared after being detained by State agents and that the authorities had failed to effectively investigate the matter, in violation of Article 2 of the Convention, which 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.”The parties’ submissionsThe Government

49.  The Government did not submit any comments on the admissibility of S.A. and Others (no. 2297/15). As to the merits, they submitted that the applicants’ allegations concerning the alleged abduction and subsequent disappearance of Mr B.A, Mr K.K. and the other five men were groundless, which was why no criminal investigation into the alleged disappearances had been initiated.

50.  With respect to Z.I. and Others (no. 21260/16), the Government submitted that the application was inadmissible for failure to comply with the six-month time-limit. They did not comment on the merits of the application.The applicants

51.  The applicants submitted that they had established a prima facie case that their relatives had been detained by State agents and subsequently deprived of their lives. They stressed that their relatives had last been seen alive at the hands of the police and that the Government had neither provided an explanation for the events in question, nor contested the facts. The domestic authorities had provided no documents or any other evidence to substantiate their assertion that Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y. had been released after they had been taken by the police to the ROVD in December 2014.

52.  Relying on the case of Aslakhanova and Others v. Russia (nos. 2944/06 and 4 others, 18 December 2012), the applicants stressed that the failure to investigate enforced disappearances in Chechnya represented a continuing systemic problem. They pointed out that the authorities had neither carried out an independent and impartial inquiry into the allegations nor opened a fully‑fledged criminal investigation. Despite the applicants consistently providing information, the ROVD officers had not been questioned, the premises of the station had not been inspected and the mobile telephone connections from their missing relatives’ mobile telephones had not been tracked. Moreover, the authorities had consistently failed to provide them with information on the outcome of their requests or any steps taken to examine their allegations.The Court’s assessmentAdmissibility

53.  Turning to the Government’s objection on the admissibility of Z.I. and Others (no. 21260/16), the Court notes that the applicants lodged their application with the Court within one year and four months of the incident. Considering the time frame in which the application was lodged (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 165, ECHR 2009), along with the applicants’ active attempts to have the disappearance of their sons investigated, the Court does not find that the lack of a criminal investigation into the incidents should be held against them or interpreted as either a failure on their part to demonstrate due diligence or comply with the six-month requirement (contrast Doshuyeva and Yusupov v. Russia, no. 58055/10, 31 May 2016).

54.  In the light of the foregoing, the Court finds that the applicants complied with the six-month time limit.

55.  The Court further notes that the applications are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible.Merits

(a)   Alleged violation of the substantive limb of Article 2 of the Convention

56.  The Court observes that in its extensive case-law it has developed a number of general principles relating to the establishment of matters in dispute, in particular when faced with allegations of violations of fundamental rights (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012).

57.  The Court has concluded that it was sufficient for the applicants to make a prima facie case of abduction by State agents, and that it was then for the Government to discharge their burden of proof, either by disclosing documents in their exclusive possession or providing a satisfactory and convincing explanation of how the events in question occurred (see Toğcu v. Turkey, no., 27601/95 § 95, 31 May 2005; Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II (extracts); and Turluyeva, cited above, § 85). If the Government failed to rebut this presumption, it would entail a violation of Article 2 of the Convention in its substantive part. Conversely, where the applicants failed to make a prima facie case, the burden of proof would not be reversed (see, for example, Kagirov v. Russia, no. 36367/09, § 92, 23 April 2015).

58.  The Court has found the Russian authorities responsible for a number of disappearances of civilians perpetrated in Chechnya even in the absence of final conclusions from the domestic investigation (see, among many examples, concerning abductions perpetrated between 2000 and 2006, Aslakhanova and Others, cited above, § 118, and abductions perpetrated in 2009 and later, Askhabova v. Russia, no. 54765/09, § 135, 18 April 2013; Turluyeva, cited above, § 82; Makayeva v. Russia, no. 37287/09, § 93, 18 September 2014; and Gaysanova v. Russia, no. 62235/09, § 118, 12 May 2016). In those cases, the Court bore in mind the difficulties associated with obtaining evidence, and the fact that, often, little evidence could be submitted by the applicants in support of their applications.

59.  The Court notes that in the case at hand no de facto investigation into the applicants’ allegations took place. Unlike in many other cases concerning enforced disappearances in the region, neither a criminal case has been opened into the abduction, nor was a preliminary inquiry carried out into the applicants’ allegations.

60.  The parties did not dispute the circumstances of the incident as presented by the applicants, or that Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y. were taken to the police on 5 and 6 December 2014 and have remained missing since. Therefore, the key issue remaining is whether the applicants’ relatives were released after their detention.

61.  The Court observes that the Government did not deny that the applicants’ relatives were taken to the Naurskiy ROVD. Moreover, the documents submitted show that the domestic authorities confirmed as much to the applicants and their law-enforcement counterparts (see 24 and 26 above). However, the Government submitted no evidence demonstrating that the applicants’ relatives left the police station. The documents submitted show that the domestic investigators had no such evidence either. The only document mentioning the alleged departure of the applicants’ relatives from the ROVD was the unsupported conclusion concerning the police internal inquiry mentioning statements purportedly made by the implicated police officers (see paragraph 26 above). In such circumstances, the Court is satisfied that the applicants have made a prima facie case that their relatives were taken to the police station, detained there, and have been missing since.

62.  Drawing inferences from the Government’s failure to provide a plausible explanation as to what happened to the applicants’ relatives after they were taken to the police station, the Court finds that it has been proven beyond reasonable doubt that they were abducted by police officers in the circumstances as alleged by the applicants.

63.  The Court finds that in a situation where a person is detained by State agents and then remains missing for a number of years, that situation can be regarded as life-threatening. The Court has made findings of the presumption of death in the absence of any reliable news about disappeared persons for periods ranging from four years (see, for example, Askhabova v. Russia, no. 54765/09, § 137, 18 April 2013). The lack of information concerning the fate of The lack of information concerning the fate of Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y. for more than five years after their abduction by police officers supports this assumption.

64.  Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y. must be presumed dead following their unacknowledged detention by State agents.

65.  This being so, and in the absence of any justification put forward by the Government, the Court finds that the death of Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y. can be attributed to the State and that there has been a violation of the substantive aspect of Article 2 of the Convention in respect thereof.

(b)   Alleged violation of the procedural limb of Article 2 of the Convention

66.  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. A summary of the principles relating to the requirements of such an investigation can be found in Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 169-82, 14 April 2015), and Armani Da Silva v. the United Kingdom ([GC], no. 5878/08, §§ 229-39, ECHR 2016).

67.  Turning to the case at hand, the Court notes the Government’s submission that no criminal investigation into the disappearance of the applicants’ relatives has been carried out (see paragraph 49 above).

68.  The documents submitted show that in reply to the concordant complaints about the disappearance of seven individuals within a short time frame, the domestic authorities took no steps to examine the matter. Moreover, even though the seven men had disappeared after they had been taken to the police station, no urgent steps were taken to verify the station logbooks, inspect the premises or question the on‑duty officers or any other individuals who could have been there on 5 and 6 December 2014. The only step taken  more than two weeks after the authorities were informed of the disappearance  was the decision to forward those complaints on and, eventually, to the very same police station for investigation (see paragraphs 20-25 and 27 above), and only after the criminal case had been opened against the disappeared men (see paragraph 34 above).

69.  From the documents submitted it is apparent that the only decision relevant to the investigation of the applicants’ complaints was the decision concerning the internal inquiry into the police officers of the ROVD (see paragraph 26 above). However, that decision concerned an internal police inquiry and not a preliminary inquiry into a crime report, which would have necessitated a range of steps to be taken, such as interviewing the applicants and other witnesses to the abductions. In addition, the results of a preliminary inquiry would have been amenable to appeal before the courts and irrespective of the outcome, would have provided the applicants with information on the reasons for their relatives’ detention and their subsequent disappearance.

70.  The present case stands out from similar cases of enforced disappearance in the region owing to the complete and utter lack of any kind of investigation into the most serious violations.

71.  In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the abduction and death of Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y., in breach of Article 2 in its procedural aspect.ALLEGED VIOLATION OF ARTICLES 3, 5 AND 13 OF THE CONVENTION

72.  The applicants complained of a violation of Article 3 of the Convention on account of the mental suffering caused to them by the disappearance of their relatives.

73.  The applicants further complained of a violation of Article 5 of the Convention on account of the unlawfulness of their relatives’ detention.

74.  The applicants also alleged that they had had no domestic remedies in respect of their complaints under Articles 2 and 3 of the Convention. The relevant provisions 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: ...”

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.”

75.  The Government did not comment.

76.  The applicants reiterated their submissions.

77.  The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention in respect of the close relatives of the victim. The essence of such a violation 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)).

78.  The Court reiterates its findings regarding the State’s responsibility for the abduction of Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y., as well as the authorities’ failure to carry out meaningful investigations into the incidents. It finds that the applicants, who are close relatives of the abducted men, 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 members 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 account.

79.  The Court further confirms that since it has been established that Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y. were detained by State agents, seemingly without any legal grounds or acknowledgment of such detention, this constitutes a particularly serious violation of the right to liberty and security of person 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). The Court accordingly finds a violation of this provision in respect of the applicants’ relatives on account of their unlawful detention.

80.  The Court finds that in the absence of a criminal investigation into the applicants’ allegations of their relatives’ abduction by police officers, any other possible remedy becomes inaccessible in practice. The Court thus finds that the applicants did not have at their disposal an effective domestic remedy for their grievances under Article 2 of the Convention, in breach of Article 13. In addition, the applicants did not have an effective domestic remedy for their grievance under Article 3, in breach of Article 13 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

81.  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.”DamagePecuniary damage

82.  The applicants claimed pecuniary damage. They based their calculations on the provisions of the Russian Civil Code on pecuniary damages for loss of support resulting from the death of the family breadwinner, the subsistence level and the Ogden Actuarial Tables.

83.  The applicants in S.A. and Others (no. 2297/15) claimed as follows:

- the first applicant, the mother of B.A., claimed 1,001,768 roubles (RUB  about 13,700 euros (EUR));

- the second applicant, the mother of K.K., claimed RUB 1,195,775 (about EUR 16,300);

-the third applicant, the wife of K.K., claimed RUB 1,195,775 (about EUR 16,300);

- the fourth applicant, the wife of B.A., claimed RUB 1,224,635 (about EUR 16,700).

84.  The applicants in Z.I. and Others (no. 21260/16) claimed as follows:

- the first applicant, the mother of L.U., claimed RUB 1,176,559 (about EUR 16,000);

- the second applicant, the mother of S.S., claimed RUB 1,159,560 (about EUR 15,800);

- the third applicant, the mother of R.A. and A.A., claimed RUB 2,838,861 (about EUR 38,700);

- the fourth applicant, the mother of Z.Y., claimed RUB 1,007,717 (about EUR 13,700).

85.  The Government argued that the applicants’ calculations were unsubstantiated and that they could have applied for a pension for the loss of the breadwinner in their families, but had failed to do so.

86.  The Court reiterates that there must be a clear causal connection between the damages claimed by the applicants and the violation of the Convention, and that this may, where appropriate, include compensation for loss of earnings. Loss of earnings applies to close relatives of the disappeared persons, including spouses, elderly parents and minor children (see, among other authorities, Imakayeva v. Russia, no. 7615/02, § 213, ECHR 2006‑XIII (extracts)).

87.  In the light of the principles enumerated above, and the parties’ submissions, the Court awards EUR 9,000 in respect of pecuniary damage to each of the applicants, save for the third applicant in Z.I. and Others (no. 21260/16), to whom the Court awards EUR 20,000, plus any tax that may be chargeable to each of the applicants on those amounts.Non-pecuniary damage

88.  The applicants claimed non-pecuniary damage, the amount of which was to be determined by the Court. They requested that an award be made for each family separately.

89.  The Government did not comment.

90.  In the light of the parties’ submissions, the Court awards in respect of non-pecuniary damage:

- to the applicants in S.A. and Others (no. 2297/15): EUR 80,000 jointly to the first and fourth applicants, and EUR 80,000 jointly to the second and third applicants, plus any tax that may be chargeable to them on those amounts.

- to the applicants in Z.I. and Others (no. 21260/16): EUR 80,000 to the first applicant, EUR 80,000 to the second applicant, EUR 160,000 to the third applicant and EUR 80,000 to the fourth applicant, plus any tax that may be chargeable to them on those amounts.Costs and expenses

91.  The applicants in both applications also claimed EUR 4,374 each for the costs and expenses incurred before the Court.

92.  The Government submitted that the claim was unsubstantiated and was neither necessary nor reasonable.

93.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicants in S.A. and Others (no. 2297/15) the sum of EUR 2,000 under this head. The amount awarded by the Court in respect of costs and expenses should be paid into the bank account of the applicants’ representatives.[1]

94.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicants in Z.I. and Others (no. 21260/16) the sum of EUR 2,000 under this head. The amount awarded by the Court in respect of costs and expenses should be paid into the bank account of the applicants’ representatives.[2]Default interest

95.  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, Decides to join the applications;Declares the applications admissible;Holds that there has been a substantive violation of Article 2 of the Convention in respect of the applicants’ relatives Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y.;Holds that there has been a procedural violation of Article 2 of the Convention on account of the failure to investigate effectively the disappearance of Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y.;Holds that there has been a violation of Article 3 of the Convention in respect of the applicants;Holds that there has been a violation of Article 5 of the Convention in respect of Messrs B.A., K.K., L.U., S.S., R.A., A.A. and Z.Y.;Holds that there has been a violation of Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention;Holds

(a)  that the respondent State is to pay the 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 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage, to each of the applicants, except for the third applicant in Z.I. and Others (no. 21260/16);

(ii)      EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage, to the third applicant in Z.I. and Others (no. 21260/16);

(iii)     EUR 80,000 (eighty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the first and fourth applicants jointly in S.A. and Others (no. 2297/15);

(iv)    EUR 80,000 (eighty thousand euros), plus any tax that may be chargeable, to the second and third applicants jointly in S.A. and Others (no. 2297/15);

(v)      EUR 80,000 (eighty thousand euros), plus any tax that may be chargeable, to the first, second and fourth applicants each in Z.I. and Others (no. 21260/16);

(vi)    EUR 160,000 (one hundred and sixty thousand euros), plus any tax that may be chargeable, to the third applicant in Z.I. and Others (no. 21260/16);

(vii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants in S.A. and Others (no. 2297/15), in respect of costs and expenses. The amount awarded should be paid into the bank account of the applicants’ representatives;[3]

(viii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, to the applicants in Z.I. and Others (no. 21260/16), in respect of costs and expenses. The amount awarded should be paid into the bank account of the applicants’ representatives;[4]

(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;Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsAlena Poláčková
RegistrarPresident

[1]1.  Rectified on 28 April 2020 : the phrase “The amount awarded by the Court in respect of costs and expenses should be paid into the bank account of the applicants’ representatives.” was added.

[2]2.  Rectified on 28 April 2020 : the phrase “The amount awarded by the Court in respect of costs and expenses should be paid into the bank account of the applicants’ representatives.” was added.

[3]3.  Rectified on 28 April 2020 : the phrase “The amount awarded should be paid into the bank account of the applicants’ representatives.” was added.

[4]4.  Rectified on 28 April 2020 : the phrase “The amount awarded should be paid into the bank account of the applicants’ representatives.” was added.

Full & Egal Universal Law Academy