CASE OF SAGAYEV AND OTHERS v. RUSSIA

FIRST SECTION

CASE OF SAGAYEV AND OTHERS v. RUSSIA

(Application no. 4573/04)

JUDGMENT

STRASBOURG 

26 February 2009

FINAL

14/09/2009

This judgment may be subject to editorial revision.

In the case of Sagayev and Others v. Russia,

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

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

Having deliberated in private on 5 February 2009,

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

PROCEDURE

1. The case originated in an application (no. 4573/04) 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 ten Russian nationals listed below (“the applicants”), on 21 January 2004.

2. The applicants were represented by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights.

3. On 26 March 2007 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

4. On 5 February 2009 the Court dismissed the Government’s objection concerning the application of Article 29 § 3 of the Convention.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants are:

1. Mr Imran Sagayev, born in 1933,

2. Ms Deshi Abukhadzhievna Sagayeva, born in 1940,

3. Mr Isa Imranovich Sagayev, born in 1958,

4. Ms Raia Zaindievna Sagayeva, born in 1966,

5. Ms Diana Isayevna Sagayeva, born in 1989,

6. Ms Elza Isayevna Sagayeva, born in 1995,

7. Ms Selita Vozukayeva, born in 1980,

8. Mr Khusein Imranovich Sagayev, born in 1971,

9. Ms Petimat Abdulvakhabovna Sagayeva, born in 1971.

10. Ms Aizan Imranovna Sagayeva, born in 1968.

6. The applicants are Russian nationals who live in Urus-Martan, Chechen Republic.

7. The first and second applicants are married and are the parents of the third applicant and his brother, Mr Ilias Imranovich Sagayev, who was born in 1972. The seventh applicant is the wife of Mr Ilias Imranovich Sagayev. The third applicant is married to the fourth applicant and they have three children: the fifth and sixth applicants and Mr Yunadi Isayevich Sagayev, who was born in 1986. The eighth and ninth applicants are a brother and sister-in-law of Mr Ilias Imranovich Sagayev. The eighth applicant is also an uncle of Mr Yunadi Isayevich Sagayev. The tenth applicant is a sister of Mr Ilias Imranovich Sagayev and an aunt of Mr Yunadi Isayevich Sagayev.

A. Apprehension and subsequent disappearance of Mr Ilias Sagayev

1. The applicants’ account

8. Eight members of the Sagayev family lived in a family compound at 72A Sheripova Street, Urus-Martan. The compound consisted of three houses in one courtyard. The first, second and tenth applicants lived in the first building. Mr Ilias Sagayev and the seventh applicant lived in the second building. The eighth and ninth applicants lived in the third building. Ms S. Sagayeva, a sister of Mr Ilias Sagayev and an aunt of Mr Yunadi Sagayev, whose permanent residence was in Grozny, temporarily resided at 72A Sheripova street as well.

9. At 5 a.m. on 30 August 2002 a group of between ten and twenty armed men in camouflage uniforms wearing masks came to the family compound. They first broke down the doors to the houses of the first and eighth applicants. Then they went to the house of Mr Ilias Sagayev, broke down the door and apprehended him. They took him into the street and walked towards their vehicles, which they had apparently parked up the road, a short distance from the house. The applicants heard the sound of armoured personnel carriers (APC) while they were standing in the yard outside their houses. They were convinced that the armed men were Russian servicemen as they spoke Russian without an accent, and a curfew prevented civilians from being out on the streets at night.

10. The account of the events was given in written statements by the first, second, seventh, eighth, ninth and tenth applicants. Mr K., their neighbour, stated in writing that at around 5 a.m. on 30 August 2002 he had seen military vehicles drive past his house along Sheripova Street. He had then heard them stop not far from his house before the engines were turned off. He had heard the vehicles again some ten to fifteen minutes later as they were driving away. Ms D., another neighbour, confirmed in writing that at around 5 a.m. on 30 August 2002 she had heard an APC park not far from her house and had then heard people talking in Russian.

2. The Government’s account

11. The Government submitted that in the course of the investigation in case no. 61121 it was established that at approximately 5 a.m. on 30 August 2002 unidentified persons in camouflage uniforms and masks had abducted Mr Ilias Sagayev from a house at 72A Sheripova Street, Urus-Martan.

B. The search for Mr Ilias Sagayev and the investigation

12. In the morning of 30 August 2002 the first applicant went to the Urus-Martan Military Commander’s Office, the Prosecutor’s Office, the local police department, and the Urus-Martan District Administration to submit written complaints concerning the events of the previous night. He was questioned by an investigator, R. Yu., who later also questioned the second, seventh, eighth and tenth applicants at the Prosecutor’s Office. When the first applicant met the head of the Administration, the latter told him that he had no influence over the fate of persons held at the Military Commander’s Office.

13. Three days later the first applicant was received by the Urus-Martan District Military Commander. According to the first applicant, the Commander listened to his story, accepted the written complaint, and left the room without saying a word or promising to conduct an investigation.

14. In subsequent weeks the applicants visited several prisons in the Chechen Republic, including Chernokozovo, Khankala and the organised crime unit in Grozny, but received no information about their missing relative. They also made unsuccessful attempts to find intermediaries to track him down.

15. On 10 September 2002 the Urus-Martan District Prosecutor’s Office opened criminal investigation no. 61121 into the abduction of Mr Ilias Sagayev.

16. The applicants sent numerous applications to various State authorities, copies of which have been submitted to the Court. In particular, on 18 October 2002 the first applicant applied in writing to the Military Commander, the Urus-Martan District Prosecutor’s Office, the Federal Security Service (FSB) and the Urus-Martan police, requesting assistance in locating Mr Ilias Sagayev and securing his release. The applications filed with the Prosecutor’s General Office and the Prosecutor’s Office of the Chechen Republic were forwarded to the Urus-Martan District Prosecutor’s Office. The applications filed with the Military Prosecutor of the United Group Alignment (UGA) were forwarded to the Military Prosecutor of military unit no. 20102. Those filed with the Ministry of the Interior were forwarded to the Urus-Martan police.

17. On 2 November 2002 the Urus-Martan District Prosecutor’s Office granted the first applicant victim status in the criminal proceedings. According to the Government, he was questioned on the same date. The first applicant was informed of the decision to grant him victim status on 21 November 2002.

18. On 10 November 2002 the Urus-Martan District Prosecutor’s Office decided to suspend the investigation. In the decision it was stated that “all possible investigative measures were taken, [however,] the persons to be charged were not identified, and the term of the preliminary investigation has expired.” The decision did not specify what investigative measures had actually been taken. The first applicant was informed of the decision on 15 November 2002.

19. On 31 March 2003 the Urus-Martan District Prosecutor’s Office informed the first applicant that his letter had been included in the criminal case file and that steps were being taken to establish the identity of the perpetrators of the crime.

20. On 3 April 2003 the Ministry of the Interior informed the applicants that the investigation had been reopened on an unspecified date and that the department was taking investigative measures in liaison with the Prosecutor’s Office of the Chechen Republic.

21. On 18 April 2003 the applicants’ representatives, the SRJI, requested the Urus-Martan District Prosecutor’s Office to provide information on the status of the criminal investigation and the name of the investigator, as well as copies of the decisions to open the criminal investigation, to suspend it, and to grant victim status.

22. On 30 April 2003 the Urus-Martan District Prosecutor’s Office informed the SRJI that criminal case no. 61121 had been suspended since, although all investigative measures had been taken, the perpetrators of the crime had not been identified and Mr Ilias Sagayev’s whereabouts had not been established. The letter further stated that R. Yu. was the investigator in the case and that copies of the decisions to open and suspend the case and to grant victim status to the first applicant had been sent to the latter.

23. On 16 May 2003 the Military Prosecutor of military unit no. 20102 informed the first applicant that his letter had been examined and found not to contain any evidence of the involvement of military servicemen in the abduction of Mr Ilias Sagayev.

24. On 11 June 2003 the SRJI requested the Urus-Martan District Prosecutor’s Office to provide the first applicant with information on the status of the criminal investigation and copies of the relevant decisions.

25. On 9 July 2003 the Prosecutor’s Office of the Chechen Republic instructed the Urus-Martan District Prosecutor’s Office to provide it with detailed information on the results of the investigation and on the grounds of the decision to suspend the investigation if such a decision had been taken. No further information was received by the applicants on this subject.

26. On 1 August 2003 the Urus-Martan District Prosecutor’s Office quashed the decision of 10 November 2002 to suspend the investigation and resumed the proceedings. The first applicant was informed accordingly.

27. On 1 September 2003 the investigation was again suspended on account of the failure to identify the perpetrators. The first applicant was notified of the decision.

28. On 12 October 2003 the National Public Commission for the Investigation of Offences and the Protection of Human Rights in the North Caucasus informed the first applicant that his application had been forwarded to the Military Prosecutor’s Office of the UGA. According to the letter, the Military Prosecutor’s Office of military unit no. 20102 had opened a criminal investigation and referred it to the Urus-Martan District Prosecutor’s Office.

29. On 20 October 2003 the FSB informed the first applicant that Mr Ilias Sagayev had not been detained by the FSB as there had been no lawful grounds for his detention, and that he was not suspected of any offences. It was also stated that the FSB was taking the necessary measures to identify those involved in Mr Ilias Sagayev’s apprehension and to establish his whereabouts.

30. On 14 January 2004 the SRJI asked the Urus-Martan District Prosecutor’s Office to grant the applicants access to the case file so as to enable them to appeal against the decision to suspend the investigation. Although the prosecutor received the letter on 30 January 2004, neither the applicants nor the SRJI received a response.

31. On 1 February 2004 the Urus-Martan District Prosecutor’s Office quashed the decision of 1 September 2003 and resumed the investigation. The first applicant was informed accordingly.

32. On 1 March 2004 the investigation was again suspended on account of the failure to identify the perpetrators. The first applicant was notified of the decision.

33. On 7 April 2004 S., an official from the Urus-Martan Department of the Ministry of the Interior of the Chechen Republic, sent the first applicant a letter informing him that inquiries concerning the whereabouts of his son had been sent to the Departments responsible for the Execution of Sentences of the Chechen Republic and of other regions of the Northern Caucasus and to the Main Information Centre of the Ministry of the Interior in Moscow. A profile of Mr Ilias Sagayev had been sent to all District Departments of the Interior in the Chechen Republic, as well as to law-enforcement agencies in the Urus-Martan district. However, S. had not received any positive replies to any of the inquiries.

34. On 1 September 2004 the Urus-Martan District Prosecutor’s Office informed the first applicant that requests for certain investigative measures had been sent to district prosecuting authorities of the Chechen Republic. Requests to activate search measures had also been sent to the Urus-Martan district department of the interior. However, despite the measures taken it was proving impossible to identify the perpetrators or establish Mr Ilias Sagayev’s whereabouts.

35. On 21 March 2005 the Prosecutor’s Office of the Chechen Republic quashed the decision to suspend the investigation of 1 March 2004 and resumed the proceedings. The decision stated, inter alia, that in the course of the resumed investigation it would be necessary to verify the first applicant’s allegations that his son had been apprehended by officers of the Urus-Martan district military commander’s office and the Urus-Martan district department of the FSB. It ordered the Urus-Martan District Prosecutor’s Office to take the investigative steps required. The first applicant was notified of the decision.

36. On 23 April 2005 the Urus-Martan District Prosecutor’s Office suspended the investigation on the ground that although all necessary investigative measures had been taken the perpetrators could not be identified. The decision did not specify any measures actually taken.

37. On 6 June 2005 the Urus-Martan District Prosecutor’s Office resumed the investigation on account of the necessity to take additional investigative measures. The first applicant was informed accordingly.

38. After that the investigation was again suspended on 6 July 2005, resumed on 18 August 2005, suspended on 10 September 2005 and again resumed on 24 May 2007. According to the Government, it has been pending since that date.

39. According to the applicants, the investigative authorities have never inspected the scene of the abduction or questioned their neighbours, who had witnessed the events. Despite their numerous requests, they had not received any information concerning any other investigative measures taken. According to the Government, an inspection of the Sagayevs’ house in Sheripova Street was carried out on an unspecified date. No evidence was found or seized.

C. Apprehension and subsequent disappearance of Mr Yunadi Sagayev

1. The applicants’ account

40. The third applicant lived together with his family at 37 Aviatsionnaia Street, Urus-Martan. His son, Mr Yunadi Sagayev, who born in 1986, also lived at that address. At around 2 a.m. on 13 September 2002 about six armed men in masks approached the third applicant’s house on foot after apparently leaving their vehicles around the corner. The whole family was asleep when the armed men climbed over the fence around their courtyard and broke down the door. Six of the men entered the house, without introducing themselves. Even when specifically asked by the applicants, they refused to show their identity papers. Five of them went into the room where the third applicant and Mr Yunadi Sagayev were sleeping, and the sixth man went into the room where the fourth, fifth and sixth applicants were sleeping. They told the fourth applicant that they were conducting identity checks. The men put the third applicant and Mr Yunadi Sagayev against the wall, while the fourth applicant went into another room to look for their identity papers to show them to the armed men. The men took Mr Yunadi Sagayev’s passport and then took him outside. He was dressed in a black tracksuit with red and white details, a red T-shirt with a white stripe and slippers. Before leaving, the men contacted their vehicles by radio and told the fourth applicant that her son would be released later. As they were leaving, they broke the lights outside the Sagayevs’ house. The applicants believed that the men were Russian servicemen as they spoke Russian without an accent.

41. The third, fourth and fifth applicants witnessed Mr Yunadi Sagayev’s apprehension and gave their account of the events in writing.

2. The Government’s account

42. The Government submitted that in the course of the investigation in case no. 61126 it was established that at approximately 2.30 a.m. on 13 September 2002 unidentified armed persons in camouflage uniforms and masks had abducted Mr Yunadi Sagayev from a house at 37 Aviatsionnaia Street, Urus-Martan.

D. The search for Mr Yunadi Sagayev and the investigation

43. In the morning of 13 September 2002 the fourth applicant applied in person to the Military Commander’s Office, the Town Administration, the Prosecutor’s Office, and police for information about her son. Officials of each of these agencies told her that they had not detained her son the previous night. They promised to help establish who had been on duty during the night but ultimately provided no assistance.

44. The applicants sent numerous applications to various State officials, copies of which have been submitted to the Court. The applications filed with the Prosecutor’s General Office and the Prosecutor’s Office of the Chechen Republic were forwarded to the Urus-Martan District Prosecutor’s Office. The applications filed with the Military Prosecutor of the UGA were forwarded to the Military Prosecutor of military unit no. 20102. The applications filed with the Ministry of the Interior were forwarded to the Urus-Martan police.

45. On 21 September 2002 the Urus-Martan District Prosecutor’s Office opened a criminal investigation into the abduction of Mr Yunadi Sagayev in case no. 61126.

46. On 3 October 2002 the Urus-Martan District Prosecutor’s Office granted the fourth applicant victim status in the criminal proceedings.

47. On an unspecified date the investigators questioned the third and fourth applicants and their neighbours.

48. On 21 November 2002 the Urus-Martan District Prosecutor’s Office suspended the investigation into the abduction of Mr Yunadi Sagayev. In the decision to suspend the investigation it was stated that “all possible investigative measures have been taken, [however,] the persons to be charged have not been identified, and the term of the preliminary investigation has expired.” The decision did not specify what investigative measures had been actually taken. The applicants were informed of the decision in a letter of 14 December 2002.

49. On 18 April 2003 the SRJI applied in writing to the Urus-Martan District Prosecutor’s Office requesting information on the status of the criminal investigation and the name of the investigator, as well as copies of the decisions to open and suspend the criminal investigation and to grant victim status.

50. On 30 April 2003 the Urus-Martan District Prosecutor’s Office informed the SRJI that investigation in criminal case no. 61126 was, at that date, suspended as all investigative measures had been taken but the perpetrators of the crime had not been identified and Mr Yunadi Sagayev’s whereabouts had not been established. It was further stated that investigator R. Yu. was responsible for the case and that copies of the decisions concerning the criminal proceedings had been sent to the fourth applicant.

51. On 11 June 2003 the SRJI wrote to the Urus-Martan District Prosecutor’s Office to ask for the first and third applicants to be granted victim status in criminal case no. 61126.

52. On 24 June 2003 the Military Prosecutor’s Office of military unit no. 20102 informed the third applicant that his letter had been examined but had been found not to disclose any evidence of servicemen’s involvement in Mr Yunadi Sagayev’s abduction.

53. On 9 July 2003 the Public Prosecutor’s Office of the Chechen Republic instructed the Urus-Martan District Prosecutor’s Office to provide it with detailed information on the results of the investigation and, if a decision to suspend the investigation had been taken, to provide a report on the grounds of the decision. No further information was received by the applicants on that subject.

54. On 1 August 2003 the Urus-Martan District Prosecutor’s Office quashed the decision of 21 November 2002 to suspend the investigation and resumed the proceedings.

55. On 1 September 2003 the investigation was again suspended on account of the failure to identify the perpetrators. The fourth applicant was informed accordingly.

56. On 11 October 2003 the National Public Commission for the Investigation of Offences and the Protection of Human Rights in the North Caucasus informed the third applicant that his application had been forwarded to the Military Prosecutor’s Office of UGA. The letter stated, incorrectly, that the Military Prosecutor’s Office of military unit no. 20102 had opened a criminal investigation into Mr Yunadi Sagayev’s abduction and had referred it to the Urus-Martan District Prosecutor’s Office.

57. On 20 October 2003 the FSB informed the third applicant that the FSB had not detained Mr Yunadi Sagayev as there had been no lawful grounds for his detention. He had not been suspected of any criminal offences.

58. On 14 January 2004 the SRJI asked the Urus-Martan District Prosecutor’s Office to grant the applicants access to the case file so as to enable them to appeal against the decision to suspend the investigation. Although the Prosecutor received the letter on 30 January 2004, neither the applicants nor the SRJI received a response.

59. On 1 February 2004 the Urus-Martan District Prosecutor’s Office quashed the decision of 1 September 2003 on the ground that the investigation was incomplete and resumed the proceedings. The fourth applicant was notified of the decision.

60. On 1 March 2004 the Urus-Martan District Prosecutor’s Office again suspended the investigation on account of the failure to identify the perpetrators. The fourth applicant was informed accordingly.

61. On 1 September 2004 the Urus-Martan District Prosecutor’s Office informed the fourth applicant that requests for certain investigative measures had been sent to district prosecuting authorities of the Chechen Republic. Requests to activate search measures had also been sent to the Urus-Martan district department of the interior. However, despite the measures taken it was proving impossible to identify the perpetrators or establish Mr Yunadi Sagayev’s whereabouts.

62. On 21 March 2005 the Prosecutor’s Office of the Chechen Republic quashed the decision of 1 March 2004 to suspend the investigation and resumed the proceedings. The decision stated, inter alia, that in the course of the resumed investigation it would be necessary to verify the first applicant’s allegations that his grandson had been apprehended by officers from the Urus-Martan district military commander’s office and the Urus-Martan district department of the FSB. It ordered the Urus-Martan District Prosecutor’s Office to take the investigative steps required. The fourth applicant was notified of the decision.

63. On 23 April 2005 the Urus-Martan District Prosecutor’s Office suspended the investigation once again on account of the failure to identify the perpetrators. The fourth applicant was informed accordingly.

64. After that the investigation was resumed on 6 June 2005, suspended on 6 July 2005, resumed on 1 September 2005, suspended on 2 September 2005, resumed on 18 November 2005, suspended on 18 December 2005 and again resumed on 24 May 2007. According to the Government, it has been pending since that date.

65. According to the applicants, the investigative authorities have not inspected the scene of the abduction. According to the Government, an inspection of the Sagayevs’ house in Aviatsionnaya street was carried out on an unspecified date. No evidence was found or seized.

66. The applicants submitted that, despite their numerous requests, they have received no information about the investigative measures that have been taken.

E. Court proceedings concerning the inaction of the investigating authorities

1. The first applicant’s complaints

67. On 24 June 2005 the first applicant filed a complaint with the Urus-Martan Town Court concerning the investigating authorities’ inaction and their failure to provide him with access to case files nos. 61121 and 61126. In his complaint, he stated that Mr Ilias Sagayev and Mr Yunadi Sagayev had been apprehended by servicemen who had arrived on APCs.

68. On 1 August 2005 the Urus-Martan Town Court upheld the part of the complaint relating to the investigation in case no. 61121 but dismissed the part relating to the investigation in case no. 61126.

69. As regards case no. 61121, which concerned the abduction of Mr Ilias Sagayev, the court held, in particular:

“...[T]he decision of the Urus-Martan District Prosecutor’s Office to refuse [the first applicant] the right to study the materials in criminal case no. 61121 is in breach of the provisions of the Constitution and should be quashed.

The materials from criminal case no. 61121 ... show that at around 5 a.m. on 30 August 2002 unidentified men in camouflage uniforms and masks broke into the Sagayev’s house ... and took [Mr] Ilias Sagayev with them.

In the course of the investigation ... the following investigative measures were taken. [The second, seventh, eighth applicants and Mr K.] were questioned as witnesses. Requests for certain investigative measures were sent. According to the Urus-Martan district department of the FSB, they had not apprehended [Mr Ilias] Sagayev or taken him to their premises. Similar responses were received from the Urus-Martan district military commander’s office, the head of military unit no. 6779, the operational-search bureau of the Ministry of the Interior, district prosecutor’s offices and the Department of the Interior of the Chechen Republic.

On 2 November 2002 [the first applicant] ... was granted victim status.

In the course of the investigation [the perpetrators] were not identified and the whereabouts of [Mr Ilias] Sagayev [were not established], as a result of which the investigation was repeatedly suspended on account of [the failure to identify the person] to be charged with the offence. The investigation was suspended for the last time on 6 July 2005.

At the same time, the materials in the case file show that the investigator failed to take all the investigative measures necessary to establish the whereabouts of the abducted person and to identify the perpetrators. In particular:

- it has not established to which [authority] within the territory of the Urus-Martan district at the time of [Mr] Ilias Sagayev’s apprehension the APCs belonged, where each [APC] was located at the time of the abduction and on whose orders it was being used;

- neither the heads of the [authorities] which operated APCs nor the drivers of individual [APCs] were questioned;

- the [military] register concerning the use of military vehicles at the time of the abduction was not examined;

- the heads of the military commander’s office, of the district department of the FSB and of the district department of the interior were not questioned with a view to finding out who had been granted permission to pass through the town of Urus-Martan on the night of 30 August 2002 when freedom of movement was restricted;

- the register of persons detained in the period concerned was neither seized nor examined, and the persons in charge of detention facilities were not questioned with a view to establishing the circumstances relating to the [placement] of abducted person in such facilities;

- G., the military commander of the Urus-Martan district, was not questioned, whereas from the records of questioning of [the first applicant] it would appear that he had claimed to have been able to influence the fate of [his abducted relatives]. K., head of the FSB department, who had admitted his involvement in [Mr Ilias] Sagayev’s abduction, was not questioned either.

The above circumstances prove that [the first applicant’s] request for the [proceedings] to be resumed and for a more thorough and complete investigation is well-founded...”

70. As regards case no. 61126, the court dismissed the complaint on the ground that the first applicant had not been granted victim status in those proceedings and had failed to submit to the court documents corroborating his claim to be Mr Yunadi Sagayev’s grandfather.

71. Following the delivery of the judgment, on 9 September 2005 the first applicant requested the Urus-Martan District Prosecutor’s Office to give him access to materials in case file no. 61121 and to allow him to make copies of relevant documents. His request was refused. The first applicant complained to the Urus-Martan Town Court against the refusal.

72. On 23 December 2005 the Urus-Martan Town Court dismissed the complaint. The first applicant appealed.

73. On 8 February 2006 the Supreme Court of the Chechen Republic dismissed his appeal. It noted that Article 42 of the Code of Criminal Procedure provided that a victim could only inspect records pertaining to investigative actions in which he had participated. He could inspect the entire case file once the investigation had been completed. Since the investigation in case no. 61121 was still pending, the refusal of the Urus-Martan District Prosecutor’s Office to provide the applicant with access to the entire case file was lawful.

2. The fourth applicant’s complaints

74. On 27 September 2005 the fourth applicant filed a complaint with the Urus-Martan Town Court concerning the inaction of the investigating authorities and their failure to give her access to case file no. 61126. In her complaint she stated that Mr Yunadi Sagayev had been apprehended by servicemen who had arrived on APCs.

75. On 28 October 2005 the Urus-Martan Town Court upheld her complaint. It held, in particular, that the prosecuting authorities’ refusal to allow her access to the materials in the case file was in breach of the Constitution. It further noted that in the course of the investigation the first, second, third and fourth applicants, Ms L. S. and Ms R. B. had been questioned as witnesses. In reply to requests for information the Urus-Martan district department of the FSB had stated that they had not apprehended Mr Yunadi Sagayev or taken him to their premises. Similar responses had been received from the Urus-Martan district military commander’s office, the head of military unit no. 6779, the operational-search bureau of the Ministry of the Interior, district prosecutor’s offices and the Department of the Interior of the Chechen Republic.

76. The court further noted a number of flaws in the investigation no. 61126 similar to those noted in its decision of 1 August 2005 in respect of the investigation in case no. 61121 (see paragraph 69 above) and ordered the Urus-Martan District Prosecutor’s Office to conduct a more thorough and complete investigation.

77. Following the delivery of the judgment, on 14 November 2005 the fourth applicant requested the Urus-Martan District Prosecutor’s Office to give her access to the materials in case no. 61126 and to allow her to make copies of relevant documents.

78. On 18 November 2005 the Urus-Martan District Prosecutor’s Office refused the request on the ground that in accordance with Article 42 of the Code of Criminal Procedure a victim could only inspect records pertaining to investigative actions in which he had participated.

F. The Court’s request for the investigation file

79. Despite a specific request by the Court, the Government did not submit copies of the investigation files in cases nos. 61121 and 61126 concerning the abduction of Mr Ilias Sagayev and Mr Yunadi Sagayev. They submitted ninety pages of case-file materials containing decisions to institute, suspend and resume the investigation and to grant victim status. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the “materials of the criminal cases containing no state or military secrets ... without making copies thereof” at the location of the preliminary investigation in Russia.

II. RELEVANT DOMESTIC LAW

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

THE LAW

I. The government’s objection regarding non-exhaustion of domestic remedies

81. The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies since the investigation into the disappearance of the applicants’ relatives had not yet been completed.

82. The applicants contested that objection. They argued that the criminal investigation had proved to be ineffective having produced no meaningful results after six years.

83. 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).

84. The Court observes that the applicants complained to the law-enforcement authorities shortly after the abduction of their relatives and that criminal proceedings have been pending since September 2002. The applicants and the Government dispute the effectiveness of the investigation into the complaints.

85. The Court considers that the Government’s objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicants’ complaints. Thus, it considers that the objection should be joined to the merits and falls to be examined below under the substantive provisions of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

86. The applicants complained under Article 2 of the Convention that their relatives had disappeared after being detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into their disappearance. Article 2 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

87. The Government submitted that unidentified armed men had abducted Mr Ilias Sagayev and Mr Yunadi Sagayev. They further stated that the investigation into the incidents was pending and that there was no evidence that the men had been State agents. They noted, in particular, that during his questioning on 2 November 2002 the first applicant had not mentioned hearing the APCs at the time of Mr Ilias Sagayev’s apprehension. It was only a considerable time later that he and other applicants had begun to contend that they had heard the noise. As regards the abduction of Mr Yunadi Sagayev, the fourth applicant had stated during questioning in the domestic investigation that the abductors had worn camouflage uniform and trainers. Trainers were not part of military uniform and servicemen could not, therefore, have been wearing them. The fourth applicant’s allegation that the abductors contacted their vehicles by radio and had told her that her son would be released had not been corroborated by the findings of the domestic investigation. Furthermore, in the course of questioning the first and fourth applicants and other witnesses had stated that the abductors had left on foot and had not mentioned any vehicles. Camouflage uniform and arms could have been accessible to members of illegal armed groups, many of whom spoke Russian. Accordingly, none of the applicants’ arguments could be considered to corroborate their allegations that servicemen had been involved in the abduction. There were therefore no grounds for holding the State liable for the alleged violations of the applicants’ rights. The Government further argued that there was no convincing evidence that the applicants’ relatives were dead.

88. The Government contended that the domestic investigation into the abduction of the applicants’ relatives met the Convention requirement of effectiveness, as all measures available in national law were being taken to identify the perpetrators. The institution of the investigation had complied with domestic time-limits.

89. The applicants maintained that it was beyond reasonable doubt that the men who had taken away Mr Ilias Sagayev and Mr Yunadi Sagayev were State agents. In support of their complaint they referred to the following facts. The abductors spoke Russian without an accent, which proved that they were not of Chechen origin. The men had arrived in military vehicles late at night, which indicated that they had been able to circulate freely during the curfew. They had acted in a manner similar to that of special forces carrying out identity checks. As regards the Government’s arguments, the applicants submitted that, although in their initial complaints in writing they had not mentioned the sound of the APCs, the first applicant had made a statement to that effect during questioning, and the Government had presented no evidence to refute it. Likewise, the Government had failed to produce the record of questioning where the fourth applicant was alleged to have stated that Mr Yunadi Sagayev’s abductors had been wearing trainers.

90. The applicants argued that Mr Ilias Sagayev and Mr Yunadi Sagayev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of them for several years. They also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court’s case-law on Article 2. They pointed out that the prosecuting authorities had failed to take crucial investigative steps such as questioning all witnesses indicated by the applicants. Furthermore, the investigations had not been opened until several days after the abductions and had subsequently been suspended and resumed a number of times – thus delaying the taking of the most basic steps – and the applicants had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for six years without producing any known results was further proof of its ineffectiveness. The applicants invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to them or to the Court.

B. The Court’s assessment

1. Admissibility

91. 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 Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 85 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

2. Merits

(a) The alleged violation of the right to life of Mr Ilias Sagayev and Mr Yunadi Sagayev

i. General principles

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

ii. Establishment of the facts

93. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).

94. The applicants alleged that on 30 August and 13 September 2002 their family members, Mr Ilias Sagayev and Mr Yunadi Sagayev, were apprehended by Russian servicemen and then disappeared. They invited the Court to draw inferences as to the well-foundedness of their allegations from the Government’s failure to provide the documents requested from them. They said that several applicants had been eye-witnesses to their relatives’ apprehension and provided a coherent account of the sequence of events. The applicants enclosed two witness statements by their neighbours in relation to the abduction of Mr Ilias Sagayev.

95. The Government conceded that Mr Ilias Sagayev and Mr Yunadi Sagayev had been abducted by unknown armed men on 30 August and 13 September 2002. However, they denied that the abductors were State servicemen. They referred to the absence of conclusions from the ongoing investigation and denied that the State was responsible for the disappearance of the applicants’ family members.

96. The Court notes that despite its repeated requests for copies of the investigation files into the abduction of Mr Ilias Sagayev and Mr Yunadi Sagayev, the Government, relying on Article 161 of the Code of Criminal Procedure, have produced no documents from the case files apart from copies of procedural decisions. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006‑... (extracts)).

97. In view of this and bearing in mind the principles cited above, the Court finds that it can draw inferences from the Government’s conduct in this respect. It considers that the applicants have presented a coherent and convincing picture of their family members’ apprehension on 30 August and 13 September 2002. It observes that the Government did not deny that Mr Ilias Sagayev and Mr Yunadi Sagayev had been abducted by armed men, although they did deny that the men were State agents. They noted, in particular, that camouflage uniforms and arms could have been accessible to members of illegal armed groups.

98. As regards the abduction of Mr Ilias Sagayev, the Court notes that the Government contested the applicants’ contention that they had heard APCs not far from their house. However, Mr K., the applicants’ neighbour, stated that he had actually seen APCs driving along Sheripova Street. The Court finds no reasons to doubt the veracity of his statement. At the same time it notes that, as the Urus-Martan Town Court stated in its decision of 1 August 2005, the investigating authorities failed to investigate the use of the APCs in the course of the abduction. Accordingly, the Court accepts the applicants’ submissions in this respect and finds that the fact that a large group of armed men in uniform, equipped with armoured vehicles which could not have been available to paramilitary groups, was able to move freely during curfew hours strongly supports the applicants’ allegation that they were State servicemen.

99. As regards the abduction of Mr Yunadi Sagayev, the Court notes the Government’s argument that the abductors could not have been servicemen as the fourth applicant had allegedly informed the domestic investigators that the abductors had been wearing trainers. The Government also contested the applicants’ contention that they had heard the APCs not far from their house. The Court considers that it can disregard the first argument since the Government failed to produce a copy of the record of questioning to which they referred. As for the second argument, it finds that it is not called upon to decide this issue since, in its view, the fact that a large group of armed men in uniform was able to move freely during curfew hours, proceeded to check identity documents in a manner similar to that of State agents and spoke unaccented Russian suffices to corroborate the applicants’ allegation that they were State servicemen.

100. The Court also notes that in their applications to the authorities the applicants consistently maintained that Mr Ilias Sagayev and Mr Yunadi Sagayev had been detained by unknown servicemen and requested the investigating authorities to look into that possibility. It further notes that after six years the domestic investigation has produced no tangible results.

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

102. Taking into account the above elements, the Court is satisfied that the applicants have made out a prima facie case that their family members were detained by State servicemen. The Government’s statement that the investigation did not find any evidence to support the involvement of the special forces in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide a plausible explanation of the events in question, the Court finds it established that Mr Ilias Sagayev and Mr Yunadi Sagayev were apprehended on 30 August and 13 September 2002 respectively at their homes in Urus Martan by State servicemen during unacknowledged security operations.

103. The Court further notes that there has been no reliable news of Mr Ilias Sagayev and Mr Yunadi Sagayev since August and September 2002 respectively. Their names have not been found in the official records of any detention facilities. Finally, the Government have not submitted any explanation as to what has happened to them after their apprehension.

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

105. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Mr Ilias Sagayev and Mr Yunadi Sagayev were apprehended 30 August and 13 September 2002 respectively by State servicemen and that they must be presumed dead following their unacknowledged detention.

iii. The State’s compliance with Article 2

106. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-147, and Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001‑VII (extracts)).

107. The Court has already found it established that the applicants’ family members must be presumed dead following unacknowledged detention by State servicemen. Noting that the authorities do not rely on any ground of justification in respect of any use of lethal force by their agents, it follows that liability for their presumed death is attributable to the respondent Government.

108. Accordingly, the Court finds that there has been a violation of Article 2 in respect of Mr Ilias Sagayev and Mr Yunadi Sagayev.

(b). The alleged inadequacy of the investigation of the kidnapping

109. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, § 161, and Kaya v. Turkey, judgment of 19 February 1998, § 86, Reports 1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family and carried out with reasonable promptness and expedition. It should also be effective in the sense that it is capable of leading to a determination of whether or not the force used in such cases was lawful and justified in the circumstances, and should afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-109, 4 May 2001, and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).

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

111. Turning to the facts of the present case, the Court notes that, according to the applicants, on both occasions they notified the authorities in person about the abductions immediately after they occurred. According to the Government, the application concerning the abduction of Mr Ilias Sagayev was registered on 2 September 2002, that is three days after the incident, and the investigation was instituted on 10 September 2002. The application concerning the abduction of Mr Yunadi Sagayev was registered on 13 September 2002, the date it occurred, and the investigation was instituted on 21 September 2002. The Government pointed out that the investigation was instituted within the time-limits provided in domestic law. The Court notes that a copy of the first applicant’s application to the Prosecutor’s Office concerning the abduction of Mr Ilias Sagayev contains a signature acknowledging its receipt on 30 August 2002. Accordingly, the Court finds that the two investigations were instituted with delays of eleven and eight days respectively in a situation where prompt action was vital. A mere reference to domestic time-limits cannot be considered a sufficient explanation for the delays in these circumstances.

112. The Court further has to assess the scope of the investigative measures taken on the basis of the very scarce information submitted by the Government and the decisions of the Urus-Martan Town Court of 1 August and 28 October 2005 in respect of the first and fourth applicants’ complaints concerning the inaction of the investigating authorities. Thus, it appears that in the course of the investigation into the abduction of Mr Ilias Sagayev the investigating authorities questioned the first, second, seventh, eighth and tenth applicants and Mr K., their neighbour. They also sent requests for information to the Departments responsible for the Execution of Sentences in the Northern Caucasus. In the course of the investigation into the abduction of Mr Yunadi Sagayev the first, second, third and fourth applicants, and Ms L.S. and Ms R.B., their neighbours, were questioned. In both investigations requests were sent to district prosecutor’s offices and district departments of the interior in the Chechen Republic, the operational-search bureau of the Ministry of the Interior and military unit no. 6779.

113. However, it appears that a number of important investigative actions were either delayed or not taken at all. In particular, according to the applicants, the scenes of the abductions were not inspected. According to the Government, they were in fact inspected, but no evidence was found or seized. The Court notes, however, that the Government have produced no documents, such as inspection reports, to corroborate their submissions. Furthermore, although in both investigations requests were sent and responses obtained from the Urus-Martan District Department of the FSB and the military commander’s office, this was not done until 21 March 2005, that is two years and a half after the institution of the investigations, that the higher prosecutor’s office issued orders for the verification of the applicants’ allegations that their relatives had been abducted by officers of those bodies. Moreover, prior to 2005 the investigating authorities had failed to take the following steps which were ordered by the Urus-Martan Town Court in its decisions of 1 August and 28 October 2005: (i) inspect the registers of persons detained in the period concerned; (ii) question persons in charge of detention facilities; (iii) question G., the military commander of the Urus-Martan District, and K., head of the FSB department, who could have had relevant information; (iv) establish which authorities might have been using APCs at the time of the abduction and take measures to find out for what purposes and where the APCs were used on the nights in question. The Court has no information as to whether any of these measures were eventually taken.

114. It is obvious that, if they were to produce any meaningful results, these investigative measures should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. Such delays and omissions, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II).

115. The Court also notes that even though the first and fourth applicants were granted victim status in the proceedings, they were only informed of the suspensions and resumptions of the investigation. It appears that they were not informed of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, and to safeguard the interests of the next of kin in the proceedings.

116. Finally, the Court notes that both investigations were adjourned and resumed six and seven times respectively and that there were lengthy periods of inactivity on the part of the district prosecutor’s office when no proceedings were pending. Although the higher prosecuting authorities and courts criticised deficiencies in the proceedings and ordered remedial measures, it appears that their instructions were not fully complied with.

117. Having regard to the Government’s objection that was joined to the merits of the complaint, the Court notes that the investigation, having being repeatedly suspended and resumed and plagued by inexplicable delays, has been ongoing for many years and produced no tangible results. Accordingly, it finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their objection.

118. 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 Ilias Sagayev and Mr Yunadi Sagayev, in breach of Article 2 in its procedural aspect.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

119. Relying on Article 3 of the Convention, the applicants complained that, as a result of their relatives’ disappearance and the State’s failure to investigate it properly, they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:

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

A. The parties’ submissions

120. The Government disagreed with these allegations and argued that the investigation had not established that the applicants had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.

121. The applicants maintained their submissions.

B. The Court’s assessment

1. Admissibility

122. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

123. The Court observes that the question whether a member of the family of a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the applicants a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see Orhan, cited above, § 358, and Imakayeva, cited above, § 164).

124. In the present case, the Court observes that Mr Ilias Sagayev was a son of the first two applicants, the husband of the seventh applicant, the brother of the eighth and tenth applicants and a brother-in-law of the ninth applicant. Mr Yunadi Sagayev was a grandson of the first two applicants, a son of the third and fourth applicants, a brother of the fifth and sixth applicants and a nephew of the eighth and tenth applicants. The Court observes that all the applicants witnessed the apprehension of either Mr Ilias Sagayev or Mr Yunadi Sagayev. At the same time, it appears that it was only the first, third and fourth applicants who made various petitions and enquiries to the domestic authorities in connection with their relatives’ disappearance. No evidence has been submitted to the Court that any other family members were involved in the search for them (see, by contrast, Luluyev and Others, cited above, § 112). In such circumstances, the Court, while accepting that the events of 30 August and 13 September 2002 might have been a source of considerable distress to the second and the fifth to tenth applicants, is nevertheless unable to conclude that their mental suffering was distinct from the inevitable emotional distress in a situation such as in the present case and that it was so serious that it fell within the ambit of Article 3 of the Convention.

125. As regards the first, third and fourth applicants, the Court observes that during the six years that Mr Ilias Sagayev and Mr Yunadi Sagayev have remained missing they have insistently applied to various official bodies with enquiries about them, both in writing and in person. Despite their attempts, they have never received any plausible explanation or information as to what became of their family members following their abduction. The responses received by the applicants mostly denied that the State was responsible for their detention or simply informed them that an investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.

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

127. The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the first, third and fourth applicants. It further finds that there has been no violation of Article 3 of the Convention in respect of the second and the fifth to tenth applicants.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

128. The applicants further stated that Mr Ilias Sagayev and Mr Yunadi Sagayev had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant:

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

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

...

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

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

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

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

A. The parties’ submissions

129. In the Government’s opinion, no evidence was obtained by the investigators to confirm that Mr Ilias Sagayev and Mr Yunadi Sagayev had been deprived of their liberty in breach of the guarantees set out in Article 5 of the Convention.

130. The applicants reiterated their complaint.

B. The Court’s assessment

1. Admissibility

131. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible.

2. Merits

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

133. The Court has found it established that Mr Ilias Sagayev and Mr Yunadi Sagayev were apprehended by State servicemen on 30 August and 13 September 2002 respectively and have not been seen since. Their detention was not acknowledged, was not logged in any custody records and there exists no official trace of their subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).

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

135. In view of the foregoing, the Court finds that Mr Ilias Sagayev and Mr Yunadi Sagayev were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

136. The applicants complained that under national law they were barred from filing a civil claim to obtain compensation for their relatives’ unlawful detention or death pending the outcome of the criminal investigation. They relied on Article 6 § 1 of the Convention, the relevant parts of which provide:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

A. The parties’ submissions

137. The Government disputed this allegation.

138. The applicants made no further submissions.

B. The Court’s assessment

1. Admissibility

139. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible.

2. Merits

140. The Court finds that the applicants’ complaint under Article 6 concerns essentially the same issues as those discussed under the procedural aspect of Article 2 and under Article 13. In these circumstances, it finds that no separate issues arise under Article 6 of the Convention.

VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

141. The applicants alleged that the intrusion into their houses on 30 August and 13 September 2002 was illegal and constituted a violation of their right to respect for their homes. It thus disclosed a violation of Article 8 of the Convention, which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

“2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ”

A. The parties’ submissions

142. The Government objected that the fact of interference with the right to respect for the applicants’ home by State agents was not corroborated by the findings of the domestic investigation.

143. The applicants reiterated their complaint.

B. The Court’s assessment

144. The Court reiterates that while, in accordance with Article 35 § 1 of the Convention, those seeking to bring their case against the State before the Court are required to use first the remedies provided by the national legal system, there is no obligation under the said provision to have recourse to remedies which are inadequate or ineffective. If no remedies are available or if they are judged to be ineffective, the six-month period in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/000 et seq., 10 January 2002). There is no evidence that the applicants properly raised before the domestic authorities their complaints alleging a breach of their right to respect for their homes. But even assuming that in the circumstances of the present case no remedies were available to the applicants, the events complained of took place on 30 August and 13 September 2002, whereas their application was lodged on 21 January 2004. The Court thus concludes that this part of the application was lodged outside the six-month limit (see Musayeva and Others v. Russia (dec.), no. 74239/01, 1 June 2006, and Ruslan Umarov v. Russia (dec.), no. 12712/02, 8 February 2007).

145. It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

146. The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:

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

A. The parties’ submissions

147. The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention. In their submission, this was corroborated by the fact that the first and fourth applicants’ complaints concerning the alleged inaction of the investigating authorities were upheld by the Urus-Martan Town Court. The applicants had not filed any other complaints, but it remained open to them to file a civil claim for damages.

148. The applicants argued that in their case the State had failed to conduct an adequate investigation into the abduction and killing of their relatives, and that that omission had undermined the effectiveness of other possible remedies.

B. The Court’s assessment

1. Admissibility

149. The Court reiterates that, according to its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right. In view of the Court’s findings above with regard to Articles 2, 3 and 5, the applicants clearly had an arguable claim for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). The Court therefore notes that the applicants’ complaints under Article 13 in conjunction with Articles 2, 3 and 5 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

150. In so far as the applicants relied on Article 13 in conjunction with Article 8 of the Convention, the Court has noted above that the applicants did not attempt to lodge any complaints regarding the alleged interference with the domestic authorities. Assuming that they considered that there were no effective domestic remedies to exhaust, the Court finds that they should have lodged this complaint within six months from the date of the events underlying their complaint under Article 8 of the Convention. In view of its above finding that the applicants’ complaint under Article 8 was lodged out of time (see paragraph 145 above), the Court further finds that the applicants’ complaint under Article 13 in conjunction with Article 8 is also time-barred. It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. Merits

151. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. According to the Court’s settled case-law, the effect of Article 13 of the Convention is to require the provision of a remedy at the national level allowing the competent domestic authority both to deal with the substance of a relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, among many other authorities, Halford v. the United Kingdom, judgment of 25 June 1997, § 64, Reports 1997‑III).

152. As regards the complaint of a lack of effective remedies in respect of the applicants’ complaint under Article 2, the Court emphasises that, given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002-IV, and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 183, 24 February 2005).

153. It follows that in circumstances where, as here, the criminal investigation into the disappearance has been ineffective and the effectiveness of any other remedy that may have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention.

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

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

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

VIII. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1

157. The applicants submitted that Mr Yunadi Sagayev had been a student of a secondary school in Urus-Martan. Since his abduction he had not been able to continue his education in violation of Article 2 of Protocol No. 1, which provides:

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

158. The Court observes that the materials of the case disclose no indication of an interference with Mr Yunadi Sagayev’s right to education. Nor are there any documents to show that the complaint was properly raised before the domestic authorities. Accordingly, this complaint must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION

159. Article 41 of the Convention provides:

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

A. Pecuniary damage

160. The first, second and seventh applicants claimed that they had sustained damage in respect of the loss of Mr Ilias Sagayev’s earnings following his apprehension and subsequent disappearance. They claimed the following amounts under this head: the first applicant claimed 76,147.95 roubles (RUR) (approximately 2,212 euros (EUR)); the second applicant claimed RUR 118,630.74 (approximately EUR 3,446) and the seventh applicant claimed RUR 411,105.56 (approximately EUR 11,942).

161. The applicants claimed that Mr Ilias Sagayev had not been officially employed because of the situation in Chechnya, but had provided private services as a construction worker. They did not provide any documents to support the alleged amount of his wages. Having regard to the provisions of the Civil Code on the calculation of lost earnings, they claimed that the amount of his earnings should be equal to the average remuneration of a person with similar qualifications and could not be based on an amount lower than the subsistence level determined by federal laws. The first and second applicants submitted that each of them, as parents of Mr Ilias Sagayev, would have benefited from his financial support in an amount equal to 10% of his earnings. The seventh applicant submitted that, as his wife, she would have benefited from his financial support in an amount equal to 30% of his earnings. The applicants’ calculations were based on provisions of the Civil Code and the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary’s Department in 2007 (“the Ogden tables”).

162. The Government argued that no compensation for pecuniary damage should be awarded to the first, second and seventh applicants since it had not been established in the domestic proceedings that Mr Ilias Sagayev was dead. They also objected to the applicants’ having based their claims on the Ogden tables.

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

164. The Court finds that there is indeed a direct causal link between the violation of Article 2 in respect of Mr Ilias Sagayev and the loss by the first, second and seventh applicants of the financial support which he could have provided for them. However, it notes that the applicants have not furnished any documents to corroborate the amount of his alleged earnings. Nevertheless, the Court finds it reasonable to assume that Mr Ilias Sagayev would eventually have had some earnings and that the applicants would have benefited from them. It notes, at the same time, that the first and second applicants have other children from whose financial support they must be able to benefit. Having regard to the applicants’ submissions, the Court awards the first, second and seventh applicants jointly EUR 5,000 in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

B. Non-pecuniary damage

165. The first to seventh applicants claimed EUR 80,000 each, the eighth and tenth applicants EUR 50,000 each and the ninth applicant EUR 30,000 in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family members, the indifference shown by the authorities towards them and the failure to provide any information about the fate of their close relatives.

166. The Government found the amounts claimed unsubstantiated and exaggerated.

167. The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants’ relatives. The first, third and fourth applicants themselves have been found to have been victims of a violation of Article 3 of the Convention. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicants jointly EUR 70,000, plus any tax that may be chargeable thereon.

C. Costs and expenses

168. The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff. They also claimed postal expenses in the amount of EUR 26.22, translation expenses in the amount of EUR 619.15, as certified by invoices, and administrative expenses in the amount of EUR 438.23. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 7,344.10.

169. The Government did not dispute the details of the calculations submitted by the applicants, but pointed out that they should be entitled to the reimbursement of their costs and expenses only in so far as it had been shown that they had been actually incurred and were reasonable as to quantum (see Skorobogatova v. Russia, no. 33914/02, § 61, 1 December 2005). They also objected to the applicants representatives’ claim in the part related to the work of lawyers other than those specified in the authority form.

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

171. Having regard to the details of the information available, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives. As regards the necessity of the costs and expenses incurred for legal representation, the Court notes that this case was rather complex and required a certain amount of research and preparation.

172. As regards the Government’s objection, the Court notes that the applicants were represented by the SRJI. It is satisfied that the lawyers indicated in the applicants’ claim formed part of the SRJI staff. Accordingly, the objection must be dismissed.

173. Having regard to the details of the claims submitted by the applicants and acting on an equitable basis, the Court awards them the amount claimed, together with any value-added tax that may be chargeable to the applicants, the award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicants.

D. Default interest

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Decides to join to the merits the Government’s objection as to the non-exhaustion of criminal domestic remedies and rejects it;

2. Declares the complaints under Articles 2, 3, 5 and 6 of the Convention and under Article 13 in conjunction with Articles 2, 3 and 5 of the Convention admissible and the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 2 of the Convention in respect of Mr Ilias Sagayev and Mr Yunadi Sagayev;

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 Ilias Sagayev and Mr Yunadi Sagayev disappeared;

5. Holds that there has been a violation of Article 3 of the Convention in respect of the mental suffering endured by the first, third and fourth applicants;

6. Holds that there has been no violation of Article 3 of the Convention in respect of the second, fifth, sixth, seventh, eighth, ninth and tenth applicants;

7. Holds that there has been a violation of Article 5 of the Convention in respect of Mr Ilias Sagayev and Mr Yunadi Sagayev;

8. Holds that no separate issues arise under Article 6 of the Convention;

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

10. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5;

11. Holds

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

(i) EUR 5,000 (five thousand euros) to the first, second and seventh applicants jointly, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of pecuniary damage;

(ii) EUR 70,000 (seventy thousand euros) to the applicants jointly, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage;

(iii) EUR 7,344.10 (seven thousand three hundred forty-four euros and ten cents), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands;

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

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

Done in English, and notified in writing on 26 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
RegistrarPresident

Full & Egal Universal Law Academy