CASE OF ISLAMOVA v. RUSSIA

FIRST SECTION

CASE OF ISLAMOVA v RUSSIA

(Application no. 5713/11)

JUDGMENT

STRASBOURG

30 April 2015

FINAL

14/09/2015

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

In the case of Islamova v. Russia,

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

Isabelle Berro, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 7 April 2015,

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

PROCEDURE

1. The case originated in an application (no. 5713/11) lodged against the Russian Federation with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national (“the applicant”) Ms Zulay Islamova, on 30 December 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 October 2000 her two sons had been abducted by State servicemen in Chechnya and that no effective investigation into the matter had taken place.

4. On 8 June 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant, who was born in 1943, lives in Urus-Martan, Chechnya. She is the mother of Mr Apti Islamov, who was born in 1977 (in the documents submitted also stated as 1976) and Mr Said-Emi (also spelled as Said-Emin) Islamov, who was born in 1981.

A. Abduction of Mr Apti Islamov and Mr Said-Emi Islamov

6. At the material time the brothers Mr Apti Islamov and Mr Said-Emi Islamov worked as policemen at the Zavodskoy district department of the interior (the ROVD) in Grozny.

7. On 14 October 2000 the two brothers were driving from Grozny to Urus-Martan in “Volga” car with their colleagues Mr Sh. Gadayev and Mr A. Shovkhalov. Their vehicle was stopped by servicemen at checkpoint number 160 (in the documents submitted also referred to as checkpoint no. 160-44, checkpoint no. 104, checkpoint no. 152 and checkpoint no. 140) situated next to the Chernorechye village on the south-west outskirts of Grozny. At the material time the checkpoint was staffed by police officers from the Special Task Unit (the OMON) of the Ryazan region of Russia.

8. The four men were arrested in the presence of a number of their colleagues from the Zavodskoy ROVD who were crossing the checkpoint at the same time. One of the servicemen introduced himself as “Alexei” and informed the colleagues of the detained men that their arrest had been ordered by a commander with call-name “Chelsea”.

9. At about 6 p.m. two APCs and two UAZ vehicles with a group of armed servicemen arrived at the checkpoint. The servicemen in the APCs, who were wearing black masks, threatened to shoot the ROVD colleagues of the detained and forced them to leave while the four arrested men, including Mr Apti Islamov and Said-Emi Islamov, remained at the checkpoint. The four men have gone missing since.

10. The Zavodskoy ROVD in Grozny was immediately informed about the arrest of its four employees at the checkpoint.

B. Official investigation of the abduction of the applicant’s sons

11. The Government submitted copies of the documents from the criminal case file no. 13004 opened into the abduction of Mr Apti Islamov and Mr Said-Emi Islamov, Mr Gadayev and Mr Shovkhalov. The relevant information may be summarised as follows.

12. On 17 October 2000 the head of the Grozny town administration complained on behalf of the applicant to the Grozny prosecutor’s office about the abduction of her sons by State servicemen.

13. On 24 October 2000 the Grozny prosecutor’s office took statements from seven on-duty officers who had manned the checkpoint no. 160 on the day of the abduction: Mr M.A., Mr A.P., Mr A.S., Mr A.Ma., Mr S.S., Mr A.Sh. and Mr M.K. All of the officers stated that on 14 October 2000 in the early afternoon they had been ordered by the commander to stop the black “Volga” car and arrest its passengers and wait for the arrival of the assault team. They had stopped the car with four men in it. The four men had identified themselves as police officers from the Zavodskoy ROVD and showed their service identity cards. The on-duty checkpoint servicemen had searched the car and asked the four men to wait. Afterwards, officers from the Main Intelligence Service (the GRU) and the Oktyabrskiy temporary district department of the interior (the VOVD) in two APCs and two UAZ vehicles had arrived at the checkpoint. They had put the four men in one of the APCs and driven away to an unknown destination.

14. On 27 October 2000 the head of the Zavodskoy ROVD complained about the abduction of their four employees to the military prosecutor’s office of military unit no. 20102 and requested assistance in establishing the whereabouts of the missing men.

15. On 22 December 2000 the Chechnya prosecutor’s office initiated a criminal investigation into the abduction under Article 127 of the Criminal Code (unlawful deprivation of liberty). The case file was given the number 13004.

16. On 20 January 2001 the investigators questioned several officers from the Zavodskoy ROVD who witnessed the abduction of their four colleagues at the checkpoint. Their statements corroborated the applicant’s account of the events submitted to the Court.

17. On an unspecified date in 2001 the Zavodskoy ROVD informed the investigators that the four men had been detained on 14 October 2000 for their failure to comply with the order to stop at the checkpoint and then taken to the Oktyabrskiy ROVD.

18. On 22 May 2003 the applicant was granted victim status in the criminal case and questioned. Her statement was similar to the account submitted before the Court.

19. On the same date, 22 May 2003, the investigator examined the crime scene. No evidence was collected.

20. On various dates in May and June 2003 the investigators questioned a number of relatives of the four abducted men and their colleagues all whom gave statements corroborating the applicant’s account submitted to the Court.

21. On 23 December 2003 the investigation was suspended and then resumed on 19 January 2004.

22. On 23 November 2004 the investigators, in the resumed investigation, again questioned several relatives of the abducted men. No new information was obtained.

23. On 23 December 2004 the investigation was suspended again. The applicant was informed thereof.

24. On 16 February 2005 the investigation was resumed by the deputy Zavodskoy district prosecutor. He stated that the proceedings had been suspended prematurely and instructed the investigators to take a number of steps, including establishing more witnesses to the abduction from the officers who had manned the checkpoint.

25. On 17 February 2005 the applicant complained to the Chechen President of her sons’ abduction by the GRU servicemen from the checkpoint. She provided a detailed description of the incident and stated that shortly after the abduction her sons had been allegedly seen detained in a pit on the premises of the military base in Khankala, Chechnya. She further stated that the investigation had been suspended prematurely and requested that it be resumed. On 26 February 2005 this complaint was forwarded to the Zavodskoy district prosecutor’s office for examination.

26. On various dates in February 2005 the investigators questioned five police officers from the Ryazan region, Mr A.S., Mr A.Ma., Mr M.K. Mr M.A. and Mr S.S., who had manned the checkpoint on the date of the abduction. All of the witnesses stated that the four detained men had been placed in APCs and taken away by unidentified servicemen from the FSS (the Federal Security Service) and the GRU.

27. On 16 March 2005 the investigation was suspended again. The applicant was informed thereof on 30 August 2005.

28. On 25 September 2005, upon the applicant’s request to this end, the Zavodskoy district prosecutor examined the investigation file in criminal case no. 13004 and concluded that the decision to suspend the proceedings had been substantiated and lawful.

29. On various dates between 2005 and 2006 the applicant along with relatives of Mr Gadayev and Mr Shovkhalov forwarded numerous requests to various prosecutors’ offices and other authorities asking for information on the progress in the investigation and requesting assistance in their search for the abducted men.

30. On 23 July 2009 the deputy Zavodskoy district prosecutor criticized the progress of the investigation in criminal case no. 13004 and ordered that a number of steps be taken. In particular, he ordered that the investigators questioned a number of witnesses to the arrest, verified information concerning the alleged detention of the applicant’s sons in Khankala and identified the officer who had ordered to stop the abducted men’s vehicle at the checkpoint.

31. On 31 July 2009 the investigation was resumed; then on 3 September 2009 the proceedings were again suspended and then resumed on 4 August 2011. It’s unclear whether the applicant was informed thereof.

32. From the documents submitted it follows that the investigation is still pending.

33. The Government did not dispute the circumstances of the abduction as presented by the applicant but denied any involvement of State agents into the incident. At the same time, in their observations of 7 February 2012 the Government stated, amongst other things, the following:

“58. [...] the investigation obtained evidence demonstrating that ... Mr Said-Emin Islamov, Mr Apti Islamov... could have been detained by State representatives [...]” ...

“[75.] ... the investigaiton established that Mr Gadayev, Mr Shovkhalov, Mr Apti Islamov and Mr Said-Emin Islamov had been detained by persons who had introduced themselves as representatives of power structures. However, it is impossible to establish whether the detention was indeed carried out by representatives of law‑enforcement agencies, whether it was in violation of the relevant procedure or whether physical force was applied against the disappeared men ...”.

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS

34. 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 §§ 80-83, 18 December 2012).

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS

A. The parties’ submissions

1. The Government

35. The Government submitted that the criminal investigation into the disappearance was still in progress and 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 appealed against the investigators’ decisions to the domestic courts or could have claimed civil damages.

2. The applicant

36. The applicant submitted that she had complied with the six‑month rule. In particular, she noted that during the armed conflict in Chechnya thousands of people had been killed or had disappeared and, therefore, some delays in the investigation were objectively justified. She argued that there had not been any excessive or unexplained delays in submitting her application to the Court.

37. The applicant further stated that after the investigation had been opened she had had no reason to doubt its effectiveness because of her age and lack of legal knowledge. She had thought that the fact that her sons had been police officers would expedite the proceedings. The applicant maintained regular contact with the authorities by lodging requests for information and assistance. She did not have the means to hire a lawyer, and the Russian legislation did not provide for the right to free legal assistance in her case. In addition, she had no access to information concerning the Court’s judgments in cases on enforced disappearances perpetrated in the Chechen Republic. Finally, referring to Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, the applicant argued that the six-month rule did not apply to “continuing situations” such the enforced disappearance of her sons.

38. The applicant, referring to the Court’s case law, further submitted that she was not obliged to pursue civil remedies and that lodging complaints against the investigators under Article 125 of the Criminal Procedure Code would not have remedied the investigation’s shortcomings. She submitted that the only effective remedy in her case – the criminal investigation – had proved to be ineffective.

B. The Court’s assessment

1. Compliance with the six month rule

39. 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).

(a) General principles

40. The Court reiterates that the purpose of the six-month rule is to promote legal certainty, to ensure that cases are dealt with within a reasonable time and to protect the parties from uncertainty for a prolonged period of time. The rule also provides the opportunity to ascertain the facts of the case before memory of them fades away with time (see Abuyeva and Others v. Russia, no. 27065/05, § 175, 2 December 2010).

41. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. In the absence of any such decision, the period runs from the date of the acts or measures complained of. Where an applicant avails himself of an existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the six-month time‑limit is calculated from the date when the applicant first became, or ought to have become, aware of those circumstances (see, among others, Zenin v. Russia (dec.), no. 15413/03, 24 September 2009).

42. In cases concerning disappearances, unlike in cases concerning ongoing investigations into the deaths of applicants’ relatives (see, for example, Elsanova v. Russia (dec.), no. 57952/00, 15 November 2005, Narin v. Turkey, no. 18907/02, § 50, 15 December 2009, and Bogdanovic v. Croatia (dec.), no. 72254/11, 18 March 2014 with further references), the Court has held that taking into account the uncertainty and confusion typical of such situations, the nature of the ensuing investigations implies that the relatives of a disappeared person may be justified in waiting lengthy periods of time for the national authorities to conclude their proceedings, even if those proceedings are sporadic and plagued by problems. As long as there is some meaningful contact between families and the authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a time when the relatives must realise that no effective investigation has been, or will be, provided. When this stage is reached will depend, unavoidably, on the circumstances of the particular case. Where more than ten years have elapsed since the incident, the applicants have to justify such a delay in lodging their application with the Court (see Varnava and Others, cited above, §§ 162‑63).

(b) Application of the principles to the present case

43. The Court notes that the applicant lodged her application with the Court some ten years and two months after her sons’ disappearance and that the investigation into the incident is still pending. She informed the authorities of her sons’ detention at the checkpoint shortly after the incident (see paragraph 12 above). From the documents submitted it follows that the applicant maintained regular contact with the authorities by providing her statements to the official investigation, inquiring of the progress in the proceedings and trying to spur their pace (see paragraphs 18, 25, 28 and 29 above). Following her request to resume the investigation, the supervising prosecutor issued orders to obtain evidence, but it does not transpire that these orders have been complied with (see paragraphs 25, 30 and 31 above).

44. The Court considers that in the circumstances of the case the applicant did all that could be expected of her to assist the authorities with the investigation into her sons’ disappearance. Her active stance in the proceedings and her efforts to obtain information and further evidence do not enable the Court to find that she failed to show the requisite diligence by unreasonably waiting for the pending investigation to yield results. The Court notes the regrettable lull in the proceedings of four years and four months between March 2005 and July 2009 but it considers that in the present case it cannot be held against the applicant and interpreted as her failure to comply with the six month requirement (for comparable situations, see for example, Kaykharova and Others v. Russia, nos. 11554/07, 7862/08, 56745/08 and 61274/09, §§ 128-29, 1 August 2013, Saidova v. Russia, no. 51432/09, §§ 52 and 53, 1 August 2013; 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, §§ 312 and 315, 10 October 2013.

45. The Court thus considers that an investigation, albeit a sporadic one, was being conducted during the period in question, and that the applicant explained the delay in her application to Strasbourg (see Varnava and Others, cited above, § 166, and Er and Others v. Turkey, no. 23016/04, § 60, 31 July 2012). In the light of the foregoing, the Court accepts her explanations and finds that the she 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). 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). Taking into account the similarity of the circumstances of the present case to those examined by the Court in the Aslakhanova and Others case, and bearing in mind that the fate of the abducted men has not been elucidated by the official investigation, the Court finds that the conclusions concerning the systemic problem are applicable in the present application.

48. In such circumstances, and noting the absence over the years of tangible progress in the criminal investigation into the abduction of the applicant’s sons, 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’ submissions

49. The applicant maintained that it had been established beyond reasonable doubt that the men who had taken away and then killed her sons Mr Apti Islamov and Mr Said-Emi Islamov had been State agents. In support of that assertion she referred to the ample evidence contained in her submission and the criminal investigation file. She submitted that she had made a prima facie case that her sons had been abducted and killed by State agents and that the essential facts underlying her complaint had not been challenged by the Government.

50. The Government did not contest the essential facts of the case as presented by the applicant. At the same time, they claimed that the investigation had not obtained information proving that the applicant’s sons had been detained or killed by State agents. There was no evidence proving beyond reasonable doubt that State agents were involved in their abduction or death.

B. The Court’s assessment

51. The Court shall examine the application at hand in the light of the general principles applicable in cases where the factual circumstances are in dispute between the parties (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR‑2012).

52. The Court has addressed a whole series of cases concerning allegations of disappearances in Chechnya. Applying the above‑mentioned principles, it has concluded that if applicants make a prima facie case of abduction by servicemen, this is sufficient for them to show that their relatives fell 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, § 99). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Tovsultanova v. Russia, no. 26974/06, §§ 77-81, 17 June 2010; Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011; and Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012).

53. The Court has also found in many cases concerning disappearances that a missing person may be presumed dead. Having regard to the numerous cases of disappearances in Chechnya which have come before it, the Court has found that in the particular context of the conflict in the region, when a person has been detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as life‑threatening (see, among many others, Yandiyev and Others v. Russia, nos. 34541/06, 43811/06 and 1578/07, § 115, 10 October 2013, and Dovletukayev and Others v. Russia, nos. 7821/07, 10937/10, 14046/10 and 32782/10, § 195, 24 October 2013).

54. The Court has made findings of presumptions of deaths in the absence of any reliable news about the disappeared persons for periods ranging from four years (see Askhabova v. Russia, no. 54765/09, § 137, 18 April 2013) to more than ten years.

55. Turning to the circumstances of the present case, the Court notes that the documents from the investigation file furnished by the Government (see, for example, paragraphs 13, 16, 17 and 26 above) demonstrate that the applicant’s sons, Mr Apti Islamov and Mr Said-Emi Islamov, were detained on 14 October 2000 at the checkpoint by State servicemen and gone missing since. In her submissions to the authorities the applicant consistently maintained that her sons had been abducted by State agents (see, for example, paragraphs 12, 18 and 25 above). The investigators accepted her version of events and took steps to verify this theory (see, for example, paragraphs 17, 24 and 30 above). In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her two sons had been detained by State agents and subsequently disappeared.

56. The Government did not provide a satisfactory and convincing explanation for the events in question (see, for example, paragraph 33 above). Their arguments are in contradiction to the evidence reviewed by the Court and insufficient to discharge them of the burden of proof which has been shifted to them in this case.

57. Bearing in mind the general principles enumerated above, the Court finds that Mr Apti Islamov and Mr Said-Emi Islamov were taken into custody by State agents on 14 October 2000. In view of the absence of any reliable news of them since that date and the life-threatening nature of such detention, the Court also finds that Mr Apti Islamov and Mr Said-Emi Islamov may be presumed dead following their unacknowledged detention.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

58. The applicant complained under Article 2 of the Convention that her sons Mr Apti Islamov and Mr Said-Emi Islamov had been abducted and killed by State agents and that the domestic authorities had failed to carry out effective investigations into the matters. Article 2 reads as follows:

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

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

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

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

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

A. The parties’ submissions

59. The Government contended that the domestic investigation had not obtained evidence proving that the applicant’s sons were dead or that they had been held or killed under State control. At the same time, in their observations on the admissibility and merits of the application the Government stated that the applicant’s sons could have been detained by State representatives (see paragraph 33 above). The Government further noted that the mere fact that the investigative measures had not produced any specific results, or had given only limited ones, did not mean that there were any omissions on the part of the investigative authorities. They claimed that all necessary steps were being taken to comply with the obligation to carry out an effective investigation.

60. The applicant reiterated her complaints.

B. The Court’s assessment

1. Admissibility

61. 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) Alleged violation of the right to life of Mr Apti Islamov and Mr Said-Emi Islamov

62. The Court has already found that the applicant’s sons should be presumed dead. In the absence of any justification put forward by the Government, the Court finds that their deaths be attributed to the State and that there has been a violation of the substantive aspect of Article 2 of the Convention in respect of Mr Apti Islamov and Mr Said-Emi Islamov.

(b) Alleged inadequacy of the investigations into the abduction

63. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of abductions 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, § 217). 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 sons.

64. In the light of the foregoing, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearance and death of Mr Apti Islamov and Mr Said-Emi Islamov. 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

65. The applicant complained of a violation of Articles 3 and 5 of the Convention on account of the mental suffering caused to her by the disappearance of her two sons and the unlawfulness of their detention. She also argued that, contrary to Article 13 of the Convention, she had no available domestic remedies against the alleged violations, in particular those under Articles 2 and 3. These 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.”

A. The parties’ submissions

66. The Government contested the applicant’s claims. In particular, they stated that the circumstances of the arrests and the subsequent events were not yet elucidated, and that, therefore, it was impossible to assess their lawfulness.

67. The applicant reiterated her complaints.

B. The Court’s assessment

1. Admissibility

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

2. Merits

69. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 in respect of the close relatives of the victim. The essence of such a violation does not lie mainly 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 (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva v. Russia, no. 7615/02, § 164, ECHR 2006‑XIII (extracts). Where the news about the missing person’s death was preceded by a sufficiently long period when he or she had been deemed disappeared, there exists a distinct period during which the applicants sustained uncertainty, anguish and distress characteristic to the specific phenomenon of disappearances (see Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006‑XIII (extracts).

70. Equally, the Court has found on many occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 and discloses a particularly grave violation of its provisions (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others, cited above, § 122).

71. The Court reiterates its findings regarding the State’s responsibility for the abduction and the failure to carry out a meaningful investigation into the fates of the disappeared persons. It finds that the applicant, who is the mother of the disappeared men, must be considered victim of a violation of Article 3 of the Convention on account of the distress and anguish which she suffered, and continues to suffer, as a result of her inability to ascertain the fate of her missing sons and of the manner in which her complaints have been dealt with.

72. The Court furthermore confirms that since it has been established that the applicant’s sons Mr Apti Islamov and Mr Said-Emi Islamov were detained by State agents, apparently without any legal grounds or acknowledgement of such detention, this constitutes a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention.

73. The Court reiterates its findings of the general ineffectiveness of the criminal investigation in the case under examination. In the absence of the results of the criminal investigation, any other possible remedy becomes inaccessible in practice.

74. The Court thus finds that the applicant did not dispose of an effective domestic remedy for her grievances under Articles 2 and 3, in breach of Article 13 of the Convention.

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. Damage

76. In respect of pecuniary damage, the applicant claimed 1,434,922 roubles (RUB) (32,000 euros (EUR)) for the loss of financial support by her sons as the breadwinners. The applicant based her calculations on the subsistence level provided for by domestic law and the Ogden Actuary Tables.

77. In respect of non-pecuniary damage, the applicant claimed EUR 200,000.

78. The Government submitted that the applicant’s claims were unsubstantiated and pointed out the existence of domestic statutory machinery for the compensation for the loss of the family breadwinner. They further submitted that finding a violation of the Convention would in itself comprise adequate compensation.

B. Costs and expenses

79. The applicant was represented by SRJI/Astreya. The aggregate claim in respect of costs and expenses related to the legal representation amounted to EUR 2,553. The amount claimed was due for the drafting of legal documents, translation services, and administrative and postal costs. The applicant submitted copies of the legal representation contract and invoices with a breakdown of the costs incurred.

80. The Government stated that the amounts claimed were unsubstantiated and that they were neither reasonable nor necessary.

C. The Court’s assessment

1. Damages

81. 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. The Court further finds that the loss of earnings also applies to elderly parents and that it is reasonable to assume that the applicant’s sons would have had some earnings from which the applicant would have benefited (see, among other authorities, Imakayeva, cited above, § 213). Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article 2 in respect of the applicant’s sons and the loss by her of the financial support which they could have provided.

82. Having regard to the above and the applicant’s submission, the Court awards EUR 20,000 to the applicant in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

83. The Court also notes that it has found violations of Articles 2, 5 and 13 of the Convention in respect of the applicant’s two sons and that the applicant herself has been found to be the victim of a violation of Articles 3 and 13 of the Convention. Having regard to this and the awards made in similar cases, the Court awards the applicant EUR 120,000 plus any tax that may be chargeable thereon in respect of non-pecuniary damage.

2. Costs and expenses

84. As to the costs and expenses, the Court has to establish first whether these costs and expenses were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV).

85. Having regard to its above conclusions, the principles enumerated above and the parties’ submissions, the Court awards the applicant EUR 2,553 under this head, as requested, plus any tax that may be chargeable to her on that amount. The award is to be paid into the representatives’ bank account, as identified by the applicant.

D. Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a substantive violation of Article 2 of the Convention in respect of the applicant’s sons Mr Apti Islamov and Mr Said-Emi Islamov;

3. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate effectively the disappearance of the applicant’s sons;

4. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant, on account of her sons’ disappearance and the authorities’ response to her suffering;

5. Holds that there has been a violation of Article 5 of the Convention in respect of the applicant’s sons on account of their unlawful detention;

6. Holds there has been a violation of Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention;

7. Holds

(a) that the respondent State is to pay the applicant, within three months of 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, save in the case of 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 pecuniary damage;

(ii) EUR 120,000 (one hundred and twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 2,553 (two thousand five hundred fifty three euros), plus any tax that may be chargeable to the applicant, 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;

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

Done in English, and notified in writing on 30 April 2015 pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro
RegistrarPresident

Full & Egal Universal Law Academy