CASE OF SAYDULKHANOVA v. RUSSIA

FIRST SECTION

CASE OF SAYDULKHANOVA v. RUSSIA

(Application no. 25521/10)

JUDGMENT

STRASBOURG

25 June 2015

FINAL

14/12/2015

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

In the case of Saydulkhanova v. Russia,

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

Isabelle Berro, President,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 2 June 2015,

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

PROCEDURE

1. The case originated in an application (no. 25521/10) 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 a Russian national, Ms Kameta Saydulkhanova (“the applicant”), on 28 April 2010.

2. The applicant was represented before the Court by lawyers from the NGO Stichting Russian Justice Initiative (SRJI) (in partnership with the NGO Astreya). The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged that in January 2004 her son had been abducted by State servicemen in Chechnya and that no effective investigation into the matter had taken place.

4. On 9 September 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1958 and lives in Grozny. She is the mother of Mr Muslim Saydulkhanov, who was born in 1982.

A. Disappearance of Mr Muslim Saydulkhanov

1. Events surrounding the disappearance

6. At the material time the applicant and her family, including Mr Muslim Saydulkhanov, lived in Vedeno, Chechnya. Checkpoints were located on the roads leading to and from the settlement which was situated at high altitude. Since January 2002 Mr Muslim Saydulkhanov worked as a policeman at the Argun district department of the interior (“the Argun ROVD”) providing security in the building of the Vedeno district department of the State Pension Fund (the Pension Fund). The applicant’s husband was the head of the Pension Fund.

7. According to the applicant, on an unspecified date in September 2002 Mr Muslim Saydulkhanov was abducted by a group of servicemen from the ‘Vostok’ battalion of the Russian federal forces which was staffed by ethnic Chechens under the command of Mr Sulim Yamadayev. The applicant’s son was apprehended on the suspicion of membership in illegal armed groups and released on the following day upon payment of ransom.

8. On or around 7 or 8 January 2004 a group of men in camouflage uniforms had arrived at the Pension Fund’s building and asked the on-duty colleagues of Mr Muslim Saydulkhanov, Mr A.M. and Mr. D. Kh., to show them their identity documents saying that they were from the Yamadayev’s battalion and were checking the posts. The men were looking for Mr Muslim Saydulkhanov.

9. At about 7.30 a.m. on 13 January 2004 a grey UAZ vehicle with three Chechen armed men in camouflage uniforms arrived at the Pension Fund. The men asked the on-duty servicemen Mr A.M. and Mr. D. Kh. at what time employees of the fund came to work. When the on-duty officers asked them to show their identity documents, the men refused and said that they were checking the posts.

2. Disappearance of the applicant’s son and subsequent events

10. On 13 January 2004 Mr Muslim Saydulkhanov was at work at the Pension Fund. He was supposed to be on the overnight duty until the morning of 14 January 2004. At about 5 p.m. he went home to have dinner. At about 6 p.m. he left home with his service gun to return to work and disappeared on the way to the Pension Fund.

11. In the morning of 14 January 2004 the applicant’s husband went to work and found out that his son was missing. He immediately started searching for him. At about 1 p.m. the applicant was informed by the head of the Vedeno district administration Mr Pashayev that Mr Muslim Saydulkhanov had allegedly been detained at the Vedeno military commander’s office where he had been taken in the evening of 13 January 2004 for an identity check.

12. On or around 20 January 2004 the applicant and her husband went to Gudermes, Chechnya, to visit the head of the ‘Vostok’ battalion, Mr Sulim Yamadayev. The latter promised to assist them in the search for their son in exchange for 10,000 American dollars (USD). The applicant explained to him that they did not have the required amount.

13. In February 2004 unidentified officers from the Vedeno ROVD who were working there on mission from the Perm Region in Russia provided the applicant with information about her son’s abduction. According to the officers, on 13 January 2004 servicemen from ‘Vostok’ battalion in an UAZ minivan (‘tabletka’) had allegedly arrested Mr Muslim Saydulkhanov on the street and taken him to the military commander’s office where he had been detained between 13 and 16 January 2004. Two officers from the criminal search division of the Vedeno ROVD, Mr V.St. and Mr P.K., had allegedly participated in the arrest.

14. At some point in the spring of 2004 an unidentified serviceman from ‘Vostok’ battalion visited the applicant’s fellow villager Ms R.V. and told her that he had been detained in a basement in Gudermes together with Mr Muslim Saydulkhanov who had been arrested on 13 January 2004 on the way to work by servicemen of the ‘Vostok’ battalion.

15. There has been no news of Mr Muslim Saydulkhanov ever since.

B. Official investigation into the disappearance

16. The Government submitted a copy of “the entire contents of criminal case-file no. 43018” into the abduction Mr Muslim Saydulkhanov on 114 pages. The information submitted may be summarised as follows.

1. Main investigative steps taken by the authorities

17. On 15 January 2004 the applicant complained about her son’s disappearance to the Vedeno department of the interior (the Vedeno ROVD) stating that her son “left for work but never arrived there”.

18. On 15 February 2004 the Vedeno ROVD refused to initiate a criminal investigation into the alleged abduction.

19. On 27 April 2004 the supervising prosecutor from the Vedeno district prosecutor’s office overruled the decision of 15 February 2004 as unlawful and ordered that the district prosecutor’s office initiate an investigation into the events under Article 126 of the Criminal Code (abduction). The criminal case file was given the number 43018. On the same day the applicant was informed thereof.

20. On 28 May 2004 the applicant was granted victim status in the criminal case and questioned (see paragraph 33 below).

21. On 27 June 2004 the investigation of the criminal case was suspended for failure to identify the perpetrators.

22. On 22 August 2005 the supervising prosecutor overruled the decision to suspend the investigation as unlawful and premature and ordered that it be resumed and a number of investigative steps taken. In particular, he pointed out that the investigators had not taken such basic steps as questioning of a number of witnesses including relatives and neighbours of the disappeared, crime scene examination, and forwarding information requests to various law enforcement agencies concerning Mr Muslim Saydulkhanov’s possible arrest by their agents.

23. On 22 September 2005 the investigation of the criminal case was again suspended for failure to identify the perpetrators.

24. On 27 November 2006 the supervising prosecutor again overruled the decision to suspend the investigation as unlawful and ordered that it be resumed and a number of investigative steps taken.

25. On 6 December 2006 the investigators forwarded information requests to various law enforcement agencies asking for information on possible whereabouts of Mr Muslim Saydulkhanov and that of his service gun. No replies in the positive were received.

26. On 27 December 2006 the investigation of the criminal case was again suspended for failure to identify the perpetrators. The applicant was informed thereof.

27. On 14 January 2010 the applicant requested that the investigators provided her with an update on the progress of the proceedings, allowed to access the case file and resumed the investigation.

28. On 16 January 2010 the investigators replied that it was impossible to resume the suspended investigation as all possible investigative steps had been already taken.

29. On 1 December 2011 the investigation was again resumed. The criminal proceedings are still pending.

2. Main witness statements taken by the investigators

30. On 15 January 2004 the police questioned the applicant who stated that in the evening of 13 January 2004 her son had gone to work and disappeared.

31. On 5 February 2004 the police investigators questioned the applicant’s neighbour Ms Z.G. who stated that she had learnt of Mr Muslim Saydulkhanov’s disappearance from her neighbours.

32. On 27 February 2004 the investigators questioned Mr Muslim Saydulkhanov’s supervisor, Mr R.N., who stated, among other things, that about a week prior to Mr Saydulkhanov’s disappearance five or six men in camouflage uniforms had arrived at the Pension Fund in a light UAZ minivan. They had checked officer V.D.’s identity documents introducing themselves as belonging to “Djamaat “and acting under the command of Yamadayev. According to the witness, they could have been from the first military regiment stationed in the village of Oktyabrskaya. Then, the witness and his colleagues had understood that the men had been looking for Mr Muslim Saydulkhanov. In the afternoon of 13 January 2004 these men had arrived again and asked for water. Mr Muslim Saydulkhanov who had been standing at the entrance had gone to fetch it, but when he had returned those men had already left. In the witness’ opinion, it was possible that Mr Muslim Saydulkhanov had been kidnapped for ransom since his father was the head of the Pension Fund and dealt with large sums of money. The witness further stated that he had conducted his own investigation and found out that the military servicemen who had manned the checkpoint next to the exit from Shali, a settlement situated in about thirty kilometres from Vedeno, had stopped UAZ minivan ‘tabletka’ on the night of the abduction; inside the vehicle a man had been lying on the floor. To the question as for the man’s identity, the men in the vehicle had replied that it was a bandit caught in Vedeno. One of the servicemen at the checkpoint, being from Vedeno, wanted to check who this person was, but the men had told him that the bandit was not originally from Vedeno, that he had only been caught there and that his surname had been Dzhabrailov.

33. On 28 May 2004 the investigators questioned the applicant who stated that on 13 January 2004 her son, Mr Muslim Saydulkhanov, had gone to work. However, the next day her husband had found out that Mr Muslim Saydulkhanov had not been at work that night. She had learnt from unspecified local residents that her son had been abducted by servicemen from ‘Vostok’ battalion. She pointed out that in January 2004 she had been told by an unidentified serviceman from the rifle regiment (стрелковая рота) that her son had been detained by a group of servicemen under the command of Yamadayev and some FSB officers and that the abductors would release Mr Muslim Saydulkhanov in exchange for USD 10,000 and that if she were to complain of the abduction, they would kill her and her family members. In March 2004 an unidentified serviceman of Chechen ethnic origin had told her on the street that when the ransom would be ready she would need to pass it on through him. The applicant further stated that when she had been interviewed by the police investigator in January 2004 about the circumstances of the disappearance, she had not mentioned the ransom and even requested that officer that the police would not open a criminal case into the matter as she had been afraid of her safety.

34. On 3 June 2004 the investigators questioned Mr Muslim Saydulkhanov’s colleague, Mr V.D., who stated that on 13 January 2004 he had been on duty with Mr Muslim Saydulkhanov. At about 5 p.m. in the afternoon Mr Muslim Saydulkhanov had gone home for dinner but had not returned. The next morning Mr Muslim Saydulkhanov’s father had come to search for his son and he had learnt from him that Mr Muslim Saydulkhanov had eaten at home and had then left for work. Two days later the witness had learnt that Mr Muslim Saydulkhanov had allegedly been abducted.

35. On 29, 30 and 31 August 2005 the investigators questioned Mr Muslim Saydulkhanov’s colleagues Mr M.S., Mr M.Kh. and Ms Kh.D. all of whom stated that they had learnt of his abduction from their colleagues.

36. On the same dates, 29, 30 and 31 August 2005, the investigators also questioned other colleagues of Mr Muslim Saydulkhanov, Mr D. Kh., Mr A.M. and again Mr R.N. All of them stated that they had learnt of his abduction from their colleagues. The witnesses further added that prior to the events, in the morning of 13 January 2004, at about 7.30 a.m. right before they were to pass on the duty to Mr Muslim Saydulkhanov and Mr V.D., a grey UAZ minivan with blackened windows and without official registration numbers had pulled over at the Pension Fund’s building. Three armed men without masks, in camouflage uniforms of ‘NATO’ type, had gotten out and asked them in Chechen at what time the employees of the Pension Fund arrived at work. In reply the witnesses asked for the men’s identity documents. The latter had refused to show the documents, said that they were just “checking the posts” and then they had driven away. In addition, Mr D.Kh. stated that a few days prior to the abduction, he had learnt from a fellow villager, that armed men in camouflage uniforms had arrived at the building of the Vedeno military commissioner’s office and asked who guarded the Pension Fund’s building and what had been the regular security routes of that building’s security guards.

37. On 5 December 2006 the investigators again questioned the applicant who reiterated her previous statement (see paragraph 33 above).

38. On 6 December 2006 the investigators again questioned Mr Muslim Saydulkhanov’s supervisor Mr R.N. who stated that he had no new information to add to his previous statements (see paragraphs 32 and 36 above) other than that one of the men he had mentioned in his previous statements concerning the events surrounding Mr Muslim Saydulkhanov’s disappearance had been called Alikhan and that this person had subsequently moved from Chechnya to the Astrakhan Region in Russia.

II. RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL MATERIALS

39. For a summary of the relevant domestic law and practice and for international and domestic reports on disappearances in Chechnya, see Aslakhanova and Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 43-59 and §§ 69-84, 18 December 2012).

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS

A. The parties’ submissions

1. Government

40. The Government submitted that the criminal investigation into the disappearance was still in progress and that therefore the application was premature. In the absence of the final domestic decision the six-month rule did not apply. They further noted that the applicant could have a filed civil claim but failed to do so.

2. The applicant

41. The applicant submitted that she had complied with the six-month rule as there had been no excessive delays in the submission of her application to the Court. As for the alleged failure to exhaust domestic remedies, she submitted that the only effective remedy in her case - the criminal investigation into the disappearance of her son - had proved to be ineffective.

B. The Court’s assessment

1. Compliance with the six-month rule

(a) General principles

42. Although the respondent Government did not raise any objection under this head, this issue calls for the Court’s consideration proprio motu (see Palić v. Bosnia and Herzegovina, no. 4704/04, § 48, 15 February 2011).

43. A summary of the principles concerning the compliance with the six month rule in disappearance cases may be found in Sultygov and Others v. Russia, nos. 42575/07, 53679/07, 311/08, 424/08, 3375/08, 4560/08, 35569/08, 62220/10, 3222/11, 22257/11, 24744/11 and 36897/11, §§ 369‑74, 9 October 2014).

(b) Application of the principles to the present case

44. Turning to the circumstances of the case at hand, the Court notes that the criminal investigation was pending when the applicant lodged her application with the Court and is still pending. Furthermore, the Court notes that the applicant complained to the authorities shortly after the disappearance and lodged her application with the Court within six years and four months of the incident. A delay of six years and four months does not appear excessive or unjustified as the applicant maintained contact with the authorities by providing statements and requesting information on the progress of the investigation.

45. The Court thus considers that an investigation, albeit a sporadic one, was being conducted during the period in question, and that the applicant did all that could be expected of her to assist the authorities (see Varnava and Others, § 166, and Er and Others, § 60, both cited above). In the light of the foregoing, the Court finds that the applicant complied with the six-month time-limit.

2. Exhaustion of domestic remedies

46. As regards a civil action to obtain redress for damage sustained as a result of the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others v. Russia, no. 60272/00, § 77, 12 October 2006). Accordingly, the Court confirms that the applicant was not obliged to pursue civil remedies. The objection in this regard is thus dismissed.

47. As regards criminal-law remedies, the Court observes that in a recent judgment it concluded that the ineffective investigation of disappearances that occurred in Chechnya between 2000 and 2006 constitutes a systemic problem and that criminal investigations are not an effective remedy in this respect (see Aslakhanova and Others, cited above, § 217).

48. In such circumstances, and noting the absence over the years of tangible progress in the criminal investigation into the disappearance of the applicant’s son, the Court concludes that this objection must be dismissed since the remedy relied on by the Government was not effective in the circumstances.

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

A. The parties’ arguments

49. The applicant argued that it was beyond reasonable doubt that her son had been unlawfully detained and then killed by State agents. In support of her allegations she referred to the following: the area where Mr Muslim Saydulkhanov had disappeared was under the authorities’ exclusive control as the roads leading to and from the settlement were blocked by checkpoints (see paragraph 6 above), that Mr Muslim Saydulkhanov’s supervisor had found out that the servicemen who had been on-duty at the checkpoint in Shali in the morning following the disappearance had stopped a UAZ minivan the drivers of which had refused to show them the person detained in their vehicle (see paragraph 32 above) and that the Government failed to provide information concerning the identity of that person allegedly apprehended in Vedeno and taken to Shali.

50. The applicant further stated that the witnesses Mr R.N., Mr A.M. and Mr D.Kh. had stated that prior to the disappearance of Mr Muslim Saydulkhanov military servicemen from the ‘Vostok’ battalion had taken interest in security officers working at the Pension Fund in Vedeno and that they had previously searched for her son (see paragraph 36 above).

51. The applicant pointed out that the Government did not refute her assertions that the head of Vedeno administration confirmed her son’s detention at the Vedeno military commander’s office, that the officers from the Vedeno ROVD had participated in his abduction and that he had subsequently been detained in Gudermes (see paragraphs 11, 13, 14 and 33 above).

52. Finally, the applicant submitted that her son must be presumed dead as more than eight years elapsed since his disappearance.

53. The Government stated that from the documents submitted that there was no evidence confirming either that State agents had not been involved in the abduction of Mr Muslim Saydulkhanov or that he was dead.

B. The Court’s assessment

54. A number of principles have been developed by the Court when it has been faced with the task of establishing the facts of events on which the parties disagree (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012): the factual findings should be based on the standard of proof “beyond reasonable doubt”; such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII, and Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005‑VIII).

55. Applying the above principles to cases concerning allegations of disappearances in Chechnya, the Court has concluded that it is sufficient for applicants to make a prima facie case that their missing relatives have been abducted by servicemen, such abduction thus falling within the control of the authorities, and it is then for the Government to discharge their burden of proof either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 98, and Gakayeva and Others v. Russia, nos. 51534/08, 4401/10, 25518/10, 28779/10, 33175/10, 47393/10, 54753/10, 58131/10, 62207/10 and 73784/10, § 360, 10 October 2013).

56. When adjudicating on disappearance cases in Chechnya, the Court has borne in mind the difficulties associated with obtaining evidence and the fact that, often, little evidence can be submitted by the applicants in support of their applications. The prima facie threshold has been reached primarily on the basis of witness statements, including the applicants’ submissions to the Court and to the domestic authorities, and other evidence attesting to the presence of military or security personnel in the area concerned at the relevant time. The Court has relied on references to military vehicles and equipment; the unhindered passage of the abductors through military roadblocks, in particular during curfew hours; conduct typical of security operations, such as the cordoning off of areas, checking of identity documents, searches of premises, questioning of residents and communication within a chain of command; and other relevant information about special operations, such as media and NGO reports. Given the presence of those elements, it has concluded that the areas in question had been within the exclusive control of the State authorities in view of military or security operations being conducted there and the presence of servicemen (see, for example, Ibragimov and Others v. Russia, no. 34561/03, § 82, 29 May 2008; Abdulkadyrova and Others v. Russia, no. 27180/03, § 120, 8 January 2009; and Kosumova and Others v. Russia, no. 27441/07, § 67, 7 June 2011). If the Government failed to rebut that presumption, this would entail a violation of Article 2 in its substantive part. However, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shaipova and Others v. Russia, no. 10796/04, § 87, 6 November 2008; Tovsultanova v. Russia, no. 26974/06, §§ 77-81, 17 June 2010; and Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011).

57. Thus, the Court’s case-law cited above attests that since 1999 anti‑terrorist operations have been carried out routinely in the Northern Caucasus region, which in the past few decades has been plagued by serious disturbances of law and order. As the Court has found, these operations can entail the detention of individuals in the context of non-acknowledged security operations, and such detention can be considered life-threatening (see Aslakhanova, cited above, § 101).

58. However, in the present case the Court notes that the incident took place in the absence of any witnesses. Unlike in many other cases concerning alleged abductions perpetrated by State agents in the Chechen Republic, the documents submitted by the parties in the present case contain neither any first-hand accounts describing the events nor any other information pertaining to the actual circumstances of the disappearance (see, by contrast, among many other cases, Dzhabrailov and Others v. Russia, nos. 8620/09, 11674/09, 16488/09, 21133/09, 36354/09, 47770/09, 54728/09, 25511/10 and 32791/10, § 309, 27 February 2014 and Akhmatov and Others v. Russia, nos. 38828/10, 2543/11, 2650/11, 2685/11, 7409/11, 14321/11 and 26277/11, § 226, 16 January 2014). As for the applicant’s information concerning the events surrounding the disappearance, the Court notes that in her statements given to the domestic authorities she had not mentioned that she had received information concerning her son’s detention either from the head of the local administration or unidentified police officers (see paragraphs 11, 13 and 14 above). Further, as for the information concerning the alleged passage of the abductors through the checkpoint in Shali (see paragraph 32 above), the Court does not consider that it provides enough grounds for a firm presumption that these had been the abductors of the applicant’s son and that they had belonged to State authorities. In such a situation the Court has insufficient evidence on which to draw the conclusion that State agents had been involved in the disappearance of Mr Muslim Saydulkhanov as the factual circumstances of the incident as presented by the applicant do not include any evidence corroborating her account to a decisive extent (see, for a similar situation, Şeker v. Turkey, no. 52390/99, §§ 9 and 64, 21 February 2006).

59. On the basis of the material in its possession, the Court considers that the actual circumstances in which Mr Muslim Saydulkhanov disappeared remain a matter of assumption and that, accordingly, there is an insufficient evidentiary basis for a finding that the perpetrators belonged to the security forces or that a security operation was carried out in respect of him.

60. Accordingly, it has not been established to the required standard of proof – “beyond reasonable doubt” – that State agents were implicated in the disappearance of Mr Muslim Saydulkhanov; nor does the Court consider that the burden of proof can be shifted to the Government, having regard, in particular, to the fact that they submitted a copy of the relevant documents from the investigation file as requested by the Court.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

61. The applicant complained under Article 2 of the Convention that her son had disappeared after having been detained by State agents and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads as follows:

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

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

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

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

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

A. The parties’ submissions

62. The Government contended that the domestic investigations had obtained no evidence that the applicant’s son had been held under State control or that he was dead. They further noted that all the necessary measures were being taken to comply with the obligation to conduct an effective investigation.

63. The applicant reiterated her complaints.

B. The Court’s assessment

1. Admissibility

64. The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The complaint under Article 2 of the Convention must therefore be declared admissible.

2. Merits

(a) The alleged violation of the right to life

65. The Court reiterates that 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, from 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, 27 September 1995, §§ 146-47, Series A no. 324, and Avşar, cited above, § 391).

66. As noted above, the domestic investigation failed to produce any tangible results as to the identities of the persons responsible for the alleged abduction of Mr Muslim Saydulkhanov. The applicant has not submitted persuasive evidence to support her allegation that State agents were the perpetrators of such a crime. The Court has found that, in the absence of relevant information, it is unable to find that State agents were implicated in the disappearance of Mr Muslim Saydulkhanov. Neither has it established “beyond reasonable doubt” that he was deprived of his life by State agents.

67. In such circumstances the Court finds no violation of the substantive limb of Article 2 of the Convention in respect of Mr Muslim Saydulkhanov.

(b) The alleged inadequacy of the investigation into the disappearance

68. First, the Court notes that it has not found that the State was responsible for the abduction of Mr Muslim Saydulkhanov, or that he has been killed. However, it reiterates that the obligation to investigate under Article 2 of the Convention also applies to cases where a person has disappeared in circumstances which may be regarded as life-threatening. Accordingly, having received information about a disappearance in life‑threatening circumstances, the State authorities were under a positive obligation to investigate the alleged crime in question (see Shaipova and Others, cited above § 96).

69. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances which have occurred, in particular, in Chechnya between 1999 and 2006 and that such a situation constitutes a systemic problem under the Convention (see Aslakhanova and Others, cited above, § 219). In the case at hand, as in many previous similar cases reviewed by the Court, the investigation has been pending for many years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicant’s missing son. While the obligation to investigate effectively is one of means and not of results, the Court notes that the criminal proceedings have been plagued by a combination of defects similar to those enumerated in the Aslakhanova and Others, cited above, §§ 123‑25. The criminal case at hand was the subject of several decisions to suspend the investigation, followed by periods of inactivity, which further diminished the prospects of solving the crime. For instance, no steps have been taken by the domestic authorities to verify the information concerning possible involvement of the ‘Vostok’ battalion servicemen in the disappearance (see paragraphs 32 and 33 above) or to examine the registration log of the passage through the checkpoint in Shali (see paragraph 32 above).

70. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances of the disappearance Mr Muslim Saydulkhanov. Accordingly, there has been a violation of Article 2 of the Convention in its procedural aspect.

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

71. The applicant complained of a violation of Articles 3 and 5 of the Convention, as a result of the mental suffering caused to her by the disappearance of her son and the unlawfulness of his detention. She also argued that, contrary to Article 13 of the Convention, she had no available domestic remedies against the violations claimed, in particular those under Articles 2 and 3. Those Articles read, in so far as relevant:

Article 3

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

Article 5

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

...

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

...

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

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

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

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

Article 13

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

72. The Government contested those arguments.

73. The Court has not found it established that the State was responsible for the abduction of Mr Muslim Saydulkhanov. Accordingly, in such circumstances, it does not find that the situation gives rise to a violation of Article 3 or Article 5, as alleged by the applicant (see Shaipova and Others, cited above, §§ 111 and 117; Movsayevy, cited above, § 103; Tovsultanova, cited above, §§ 105 and 111; and Shafiyeva v. Russia, no. 49379/09, §§ 104 and 110, 3 May 2012). These complaints must, therefore, be rejected as inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

74. As to the applicant’s complaint under Article 13, the Court observes that this aspect has already been examined in the context of Article 2 of the Convention. Having regard to the finding of a violation of Article 2 in its procedural aspect, the Court considers that, whilst the complaint under Article 13 taken in conjunction with Article 2 is admissible, there is no need for a separate examination of this complaint (see Khumaydov and Khumaydov v. Russia, no. 13862/05, § 141, 28 May 2009; Zakriyeva and Others, no. 20583/04, § 108, 8 January 2009; and Shaipova and Others, cited above, § 124).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

75. 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

76. The applicant claimed damages in respect of loss of earnings by her son after his disappearance. She submitted that as his mother she would have been entitled to at least 30% of his earnings. The applicant claimed a total of 1,147,335 Russian roubles (RUB) under this heading (approximately 23,000 euros (EUR)).

77. She claimed that even if her son had been employed at the time of the disappearance, she was unable to obtain financial documents certifying the amount of his salary and that, in accordance with established practice in such cases, the calculation should be made on the basis of the subsistence level established by national law. She calculated his earnings for the period, taking into account an average inflation rate of 12,2%. Her calculations were also based on 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”).

78. The Government regarded these claims as unsubstantiated.

79. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its above conclusions that there has been no violation of Article 2 in its substantive aspect, the Court finds that there is no direct causal link between the alleged violation of Mr Muslim Saydulkhanov’s right to life and the loss by the applicant of the financial support which he could have provided. Accordingly, it makes no award under this head.

B. Non-pecuniary damage

80. The applicant claimed a total of EUR 100,000 in respect of non‑pecuniary damage. The applicant submitted that she had lost her son and endured stress, frustration and helplessness in relation to his abduction and subsequent killing, aggravated by the authorities’ inactivity in the investigation of those events for several years.

81. The Government regarded the claim as excessive and that in any event finding a violation of the Convention would in itself be adequate just satisfaction in the applicant’s case.

82. The Court has found a violation of Article 2 in its procedural aspect. It thus accepts that the applicant has suffered non-pecuniary damage which cannot be compensated solely by finding of a violation. It finds it appropriate to award the applicant EUR 20,000 plus any tax that may be chargeable to her on that amount.

C. Costs and expenses

83. The applicant was represented by SRJI/Astreya. She submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia and Moscow. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 4,948.

84. The Government submitted that the applicant’s claim under this head was ungrounded.

85. The Court has to establish whether the costs and expenses indicated by the applicant’s representatives were actually incurred and whether they were necessary (see McCann and Others, cited above, § 220).

86. Having regard to the details of the information submitted, the Court is satisfied that the rates are reasonable and reflect the expenses actually incurred by the applicant’s representatives.

87. As to whether the costs and expenses were necessary, the Court notes that this case required a certain amount of research and preparation. It notes at the same time that it has rejected part of the application and found no violation in respect of the substantive element of Article 2 of the Convention.

88. Having regard to this and the details of the claim submitted by the applicant, the Court finds it appropriate to award the applicant’s representatives EUR 2,000, plus any tax that may be chargeable to the applicant, the award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicant.

D. Default interest

89. 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. Declares the complaints concerning Articles 2 and 13 of the Convention (taken in conjunction with Article 2) admissible and the remainder of the application inadmissible;

2. Holds that there has been no substantive violation of Article 2 of the Convention in respect of Mr Muslim Saydulkhanov;

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

4. Holds that no separate issue arises under Article 13 of the Convention in conjunction with Article 2 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State, at the rate applicable at the date of settlement, save for the payment in respect of costs and expenses:

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

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro
RegistrarPresident

Full & Egal Universal Law Academy