CASE OF VATSAYEVA AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF VATSAYEVA AND OTHERS v. RUSSIA

(Application no. 44658/12)

JUDGMENT
 

STRASBOURG

21 January 2020

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

In the case of Vatsayeva and Others v. Russia,

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

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

Having deliberated in private on 10 December 2019,

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

PROCEDURE

1.  The case originated in an application (no. 44658/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Russian nationals, Ms Ezira (also spelled Yezira) Vatsayeva (“the first applicant”), Mr Usman Dushayev (“the second applicant”) and Mr Sayfulla Vatsayev (“the third applicant”) on 6 July 2012.

2.  The applicants were represented by the Stichting Russian Justice Initiative, in partnership with another non-governmental organisation, Astreya (“SRJI/Astreya”). The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  On 26 August 2015 the Government were given notice of the application. The Government did not object to the examination of the application by a Committee.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

4.  The first applicant is the widow of Mr Khalid Dushayev, who was born in 1951. She is also the sister of Mr Said-Magomed Vatsayev, who was abducted and killed by State agents (see Esambayeva and Others v. Russia [CTE], no. 2660/12 and 4 others, 4 June 2019). The second and third applicants are Mr Khalid Dushayev’s children.Abduction of Mr Khalid Dushayev and subsequent events

5.  The account below is based on the statements provided by the applicants and witnesses to the events in question to the domestic investigating authorities and the Court.Background

6.  In 2009 Mr Khalid Dushayev was convicted of running an illegal armed group. In prison, he met Mr A.A. and Mr I.A. (both of whom had been convicted of participating in an illegal armed group and/or illegal possession of firearms and ammunition). By 2011 all three men had been released.Abduction of Mr Khalid Dushayev

7.  At around 9 p.m. on 24 June 2011 Mr Khalid Dushayev, Mr A.A. and Mr I.A. were walking through the town of Gudermes in Chechnya. According to the applicants, two officers from the Chechen President’s security service approached them and asked them to show their identity documents. As none of the men had their identity papers on them, they could not comply with the officers’ instructions. The officers then took their mobile telephones and examined their contents, before returning them and leaving. Mr Khalid Dushayev, Mr A.A. and Mr I.A. continued walking.

8.  Several minutes later a group of ten to fifteen armed men stopped the three men in the vicinity of the “Leader” petrol station and apprehended them. The attendant, Mr Ab.Ats., saw the incident and asked the armed men to leave the premises. According to his initial statement (see paragraph 20 below), the armed men did not allow him to approach them and said that they had arrested a “shaitan” (member of an illegal armed group). During the incident, Mr I.A. asked the armed men to telephone officer A. from the Chechen President’s security service. One of the armed men happened to know that officer and made the call himself. After a short conversation with officer A. Mr I.A. was released, whereas Mr Khalid Dushayev and Mr A.A. were taken to the Tsentaroy district police station in Chechnya (“the Tsentaroy ROVD”).Subsequent events

(a)   Arrest of Mr I.A.

9.  The following day, 25 June 2011, Mr I.A. contacted the first applicant and told her that Mr Khalid Dushayev and Mr A.A. had been arrested by a group of men in camouflage uniforms armed with automatic weapons. Later that day two men in camouflage uniforms armed with automatic weapons arrested Mr I.A. as he was leaving the Benoy settlement with his brother and one of his cousins. The armed men forced Mr I.A. into a Lada car with a registration number containing the characters 130 TT 95 and took him away to an unknown destination.

(b)   Discovery of Mr Khalid Dushayev’s body

10.  In early January 2012 the investigators informed the first applicant and the relatives of the two other men’s families that on 8 January 2012 several members of an illegal armed group, allegedly including their relatives, had been killed by State agents in an exchange of fire.

11.  On 10 January 2012 the investigators showed the bodies to the first applicant, Mr A.A.’s father and Mr A.I.’s uncle for identification.

12.  According to the applicants, all three men’s bodies were abnormally pale and skinny. Their hair and beards were unusually long. They had been in summer uniforms, which were placed next to the bodies. Mr Khalid Dushayev’s body had missing upper front teeth and electric and cigarette burns. His right leg was broken. The applicants submitted photographs to the Court of Mr Khalid Dushayev’s face taken prior to his abduction and after his death.

13.  The body of Mr Khalid Dushayev was released to the applicants a week later in exchange for RUB 5,000 (about EUR 123). They were told not to take it to his home village for burial, but to bury it as soon as possible. According to the applicants, the individuals who prepared the body for burial noted gunshot wounds that had been inflicted after death.Official investigation into the abduction

14.  On 24 or 25 June 2011 Mr Khalid Dushayev’s relatives tried to go to the Tsentaroy ROVD, but law-enforcement officers stopped them at the checkpoint at the entrance to the village and told them that for Mr Khalid Dushayev’s safety they should not lodge complaints of abduction.

15.  On 25 June and 5 July 2011 respectively Mr I. A.’s brother and Mr Khalid Dushayev’s uncle lodged abduction complaints with the Chechen investigative authorities.

16.  On 6 and 19 July 2011 respectively the Gudermes inter-district investigative committee opened criminal investigations into the abduction of Mr I.A. and Mr Khalid Dushayev (case nos. 53041 and 53050) under Article 126 of the Russian Criminal Code (abduction).

17.  On 18 August 2011 the investigations in the two criminal cases were joined (case no. 53047) on the assumption that the offences had been committed by the same perpetrators.

18.  In the meantime, on 26 June and 5 July 2011 respectively the investigators examined the crime scenes in Benoy and Gudermes. No evidence was collected. No photographs were added to the crime scene examination report of 5 July 2011.

19.  On 8 July 2011 Mr I.A.’s brother was granted victim status in the criminal proceedings and questioned. He submitted that on 24 June 2011 Mr I.A. had told him that Mr A.A. and Mr Dushayev had been arrested. The following day Mr I.A. had been arrested by armed men in a Lada car with a registration plate containing the characters 130 TT 95.

20.  On 20 July 2011 the investigators questioned Mr Ab.Ats. He stated that at about 9 p.m. on 24 June 2011 he had seen a group of ten to fifteen men in camouflage uniforms, who had told him that they had arrested “a shaitan” (member of an illegal armed group). About ten minutes later they had driven off the forecourt.

21.  On 21 July 2011 the investigators granted victim status to Mr. A.A.’s father and the first applicant and questioned them. Mr. A.A.’s father submitted that he had learned of his son’s abduction from his wife (Mr A.A.’s mother) on 25 June 2011. She had spoken to Mr A.A. on the telephone at around 9 p.m. on 24 June 2011. He had been with Mr I.A. and Mr Khalid Dushayev in Gudermes at the time. Mr A.A. had not returned home or answered any telephone calls since. The first applicant submitted that she had learned of Mr Khalid Dushayev’s arrest from Mr I.A., who had telephoned her on 25 June 2011.

22.  On various dates between 21 July and 1 August 2011 the investigators questioned several other relatives of the abducted men, who confirmed the statements given by the other family members.

23.  On 1 August 2011 the investigators took the shirts worn by Mr Khalid Dushayev and Mr A.A. for forensic examination.

24.  On 5 August 2011 the investigators questioned Mr I.A.’s cousin, whose submissions were similar to those made by Mr I.A.’s brother.

25.  On 5 and 30 August 2011 the Gudermes Town Court allowed the investigators to intercept and record for a period of two months the telephone calls made from the mobile telephone numbers belonging to the abducted men and their relatives (the first applicant, Mr A.A.’s mother, Mr Khalid Dushayev’s uncle, and Mr I.A.’s brother and cousin).

26.  On 6 September 2011 the investigation was suspended for failure to identify the perpetrators.

27.  On 7 November 2011 that decision was overruled by the Gudermes district deputy prosecutor as premature and unlawful. The deputy prosecutor noted that the investigators had questioned Mr Ab.Ats. superficially, had not added photographs to the crime scene examination report of 5 July 2011, had not analysed the telephone data obtained with the court’s authorisation, and had not followed up the information concerning the registration plate seen on the abductors’ vehicle by Mr I.A.’s brother.

28.  On 14 November 2011 Mr A.A.’s father wrote to the Chechen prosecutor, seeking his assistance in solving the crime committed against his son. In his letter he described the events of 24 June 2011, stating that armed men in camouflage uniforms had not arrested Mr I.A. because one of them had been his neighbour. That letter was forwarded to the investigators and joined to the case file.

29.  On 30 November 2011 the investigation was resumed.

30.  On 23 and 24 December 2011 respectively the investigators questioned the owners of the cars with the registration numbers T 130 TT 95 and B 130 TT 95. Both of them had sold their vehicles to third parties, who had not registered the cars in their own names in a timely fashion.

31.  On 26 December 2011 the investigators questioned Mr Ab.Ats. again. He changed his initial statement, saying that the men in camouflage uniforms had not said anything about arresting a member of an illegal armed group (see paragraph 20 above). After he had asked them to leave, they had promised to go in ten or fifteen minutes. When asked about the discrepancies in his statements, Mr Ab.Ats. stated that he had been misunderstood by the investigator during the first interview. He also added that he had been unable to see the faces of the men and would therefore be unable to identify them.

32.  On 30 December 2011 the investigation was suspended again.

33.  On 10 January 2012 the investigators were informed that there had been an exchange of gunfire between members of an illegal armed group and law-enforcement officers in the Vedeno district of Chechnya on 8 January 2012 as a result of which several members of the illegal armed group had been killed.

34.  On the same day the investigators showed the bodies of the men killed on 8 January 2012 to the first applicant, Mr A.A.’s father and Mr A.I.’s uncle for identification. The relatives of the missing men confirmed that the bodies belonged to Mr Khalid Dushayev, Mr A.A. and Mr I.A.

35.  On 18 January 2012 the investigation was resumed.

36.  On 21 January, 25 January and 1 February 2012 respectively the investigators questioned Mr A.A.’s father, Mr I.A.’s uncle and the first applicant. They were all asked whether it was possible that their relatives had left home to join an illegal armed group and had therefore staged their alleged arrest. All of the men interviewed dismissed that possibility. They each stated that, on the contrary, the circumstances in which their relatives had been killed had been staged. They stressed that the men had been abnormally skinny, pale and had had summer uniforms, even though the exchange of fire had taken place in winter. The abducted men had not joined an illegal armed group, but had been kept in detention in dark cells before being killed and their bodies planted at the supposed location of the exchange of fire.

37.  On 20 February 2012 the investigation was suspended again.

38.  On 23 March 2012 the first applicant asked the NGO Stichting Russian Justice Initiative to assist in the investigation. She described the circumstances of the abduction and stated that her husband’s body had shown visible signs of torture and that his right leg had been broken. She also submitted that the people who had seen his gunshot wounds while preparing the body for burial concluded that they had been inflicted after death.

39.  On 11 September 2012 the Gudermes acting district prosecutor overruled the suspension decision as premature and unlawful. He pointed out that the investigators had failed to analyse the abducted men’s telephone data and follow up the information alleging that one of the perpetrators had been Mr I.A.’s neighbour.

40.  On 6 November 2012 the investigation was resumed and on 6 December 2012 suspended again. It appears that the investigation is still ongoing.RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL

41.  For a summary of the relevant domestic law and international and domestic reports, see Makayeva v. Russia (no. 37287/09, §§ 67-77, 18 September 2014); Aslakhanova and Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 80-84, 18 December 2012); and Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).

THE LAWALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

42.  The applicants complained under Article 2 of the Convention that the law-enforcement authorities had arrested Mr Khalid Dushayev and then killed him. They also stated that no effective investigation had been carried out into those events. The relevant part of that provision 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...”The parties’ submissions

43.  The Government claimed that the applicants had not exhausted domestic remedies, because they had not challenged the investigators’ actions or alleged inactivity in court. As regards the merits of the case, the Government stated that the investigation into the incident had been effective and had complied with the requirements of Article 2 of the Convention even though the perpetrators had not been identified. They made no comments regarding the alleged violation of the substantive aspect of Article 2.

44.  The applicants maintained their complaints. They submitted that they had made out a prima facie case that Mr Khalid Dushayev had been abducted by State agents and claimed that the investigation into his abduction had been ineffective. In particular, they submitted that it had been prematurely suspended and resumed on many occasions, and that the circumstances surrounding Mr Khalid Dushayev’s death had not been established.The Court’s assessmentAdmissibility

45.  The Court considers that the Government’s non-exhaustion plea raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints. It therefore decides to join this objection to the merits of the case. It further notes that the complaint under examination does not appear to be manifestly ill‑founded or inadmissible on other grounds and must therefore be declared admissible.Merits

46.  Having regard to the above finding, the Court considers it appropriate to begin by examining the applicants’ submissions in so far as they concern the alleged defects in the domestic investigation, and then to turn to their allegations concerning the State’s alleged involvement in the death of their relative.

(a)   Alleged failure to carry out an effective investigation

(i)  General principles

47.  For a summary of the general principles, see Khava Aziyeva and Others v. Russia, no. 30237/10, §§ 77-81, 23 April 2015, with further references.

(ii)  Application of those principles to the present case

48.  The Court notes that, as submitted by the applicants and not disputed by the Government, shortly after the incident law-enforcement officers at the checkpoint prevented the applicants from entering Tsentaroy village and lodging an abduction complaint (see paragraph 14 above).

49.  The Court observes that the criminal case into the incident of 24 June 2011 was opened by the Gudermes inter-district investigative committee on 19 July 2011, that is to say twenty-five days after the abduction of the applicants’ relative and fourteen days after their formal complaint had been lodged (see paragraphs 7, 15 and 16 above). Regard being had to the seriousness of the alleged offence and the importance of taking prompt investigative steps, such a delay seems to be unacceptable (see, for a similar situation, Luluyev and Others v. Russia, no. 69480/01, § 96, ECHR 2006‑XIII (extracts), and Alikhanovy v. Russia, no. 17054/06, § 81, 28 August 2018).

50.  The Court acknowledges that the investigators did not remain idle. They examined the crime scene, identified and questioned several witnesses and carried out some other investigative measures. However, in the Court’s opinion, the thoroughness of their activity fell short of the requirements of Article 2 of the Convention for the following reasons.

51.  At the outset, it transpires that the investigators questioned the key witness to the abduction (Mr Ab.Ats.) superficially and failed to properly examine the crime scene (see paragraph 27 above).

52.  Furthermore, the investigators made no genuine attempts to establish the actual owner of the abductors’ car, even though Mr I.A.’s relative had seen the registration number. Instead, the investigators satisfied themselves with establishing the nominative owners of the two vehicles with similar registration plates (see paragraph 30 above).

53.  Furthermore, the documents submitted show the consistent reluctance of the investigators to analyse and follow up the information from the mobile telephones of the abducted men. The investigators failed to do so despite the supervising authorities’ repeated orders to that effect (see paragraphs 27 and 39 above).

54.  The Court cannot overlook the fact that investigators failed to arrange a post-mortem examination of the bodies of Khalid Dushayev and the other two men to record their injuries and establish the cause of their deaths. That measure had been particularly important, given the physical condition of the bodies (skinny, pale, with missing teeth) and allegations that the circumstances of their killing on 8 January 2012 had been staged (see paragraphs 12 and 36 above). As a result, the circumstances surrounding their deaths remained unclear.

55.  Lastly, the Court notes that the investigation was suspended and resumed on many occasions (see paragraphs 26, 27, 29, 32, 35, 37 and 40 above). Such premature suspensions in a situation in which the vital steps indicated by the superior authority had not been taken undermined the investigators’ ability to identify and prosecute the perpetrators (see Ögur v. Turkey [GC], no. 21594/93, § 88, ECHR 1999‑III, and Khava Aziyeva and Others, cited above, § 85).

56.  In the light of the seriousness of the above-mentioned shortcomings, which prevented the investigation from being carried out with the required thoroughness, and taking into account the absence of any tangible results, the Court considers that it is highly doubtful that any complaints by the applicants against the investigators’ decisions would have had any prospects of accelerating the progress of the investigation or effectively influencing the conduct of the investigators, particularly given their reluctance to actively pursue the investigation. Accordingly, the Court finds that the remedy suggested by the Government would have been ineffective in the circumstances of the present case and dismisses their objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation.

57.  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 abduction and death of Mr Mr Khalid Dushayev, in breach of Article 2 of the Convention in its procedural aspect.

(b)   Alleged breach of Mr Khalid Dushayev’s right to life

58.  The Court observes that it is not in dispute between the parties that Mr Khalid Dushayev was killed by State agents. The burden of proof is therefore on the Government to provide a satisfactory and convincing explanation as to how the events in question occurred (see Khayrullina v. Russia, no. 29729/09, §§ 69-72, 19 December 2017). If the Government fail to rebut this presumption, this will entail a violation of Article 2 of the Convention in its substantive part (see Gaysanova v. Russia, no. 62235/09, § 112, 12 May 2016).

59.  In the present case the Government, however, did not contest the applicants’ allegation that Mr Khalid Dushayev had been arrested by State agents on 24 June 2011 and killed on 8 January 2012. Regard being had to the seriousness of that allegation, the Court will nevertheless look to the findings of the domestic investigation for an explanation of the events.

60.  It observes that the domestic investigation in the case has not come to a conclusion and is still ongoing (see paragraph 40 above). From the investigation file it appears that the main theory being pursued by the investigators is that Mr Khalid Dushayev joined an illegal criminal group and was then killed by law-enforcement officers in an exchange of gunfire with members of the group.

61.  In the absence of any post-mortem examination of Mr Khalid Dushayev’s body, which would have explained his injuries and established the cause of his death, the Court finds that theory unconvincing. Its plausibility is further undermined by other factors such as the discovery of the summer uniform (even though the gunfire had taken place in winter) and the body showing visible signs of ill-treatment (see paragraph 12 above).

62.  In these circumstances, given the lack of plausible explanation put forward by the Government, the Court concludes that they have failed to discharge their burden of proof. There has accordingly been a violation of Article 2 of the Convention under its substantive limb in respect of Mr Khalid Dushayev.ALLEGED VIOLATION OF ARTICLEs 3, 5 and 13 OF THE CONVENTION

63.  The applicants complained of a violation of Article 3 of the Convention on account of the mental suffering caused by the disappearance of Mr Khalid Dushayev. They also complained of his ill-treatment by State agents after his arrest on 24 June 2011. They also alleged a violation of Article 5 of the Convention on account of the unlawfulness of Mr Khalid Dushayev’s detention. Lastly they argued that, contrary to Article 13 of the Convention, they had had no available domestic remedies in respect of their complaints under Article 2 of the Convention. The relevant parts of those provisions read as follows:

Article 3

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

Article 5

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

...

(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.”The parties’ submissions

64.  The Government contested the applicants’ claims. They alleged, in particular, that the applicants’ mental suffering had not reached the minimum level of severity required to fall within the scope of Article 3 of the Convention, and that the relevant domestic legislation, including Articles 124 and 125 of the Russian Code of Criminal Procedure, had provided them with effective remedies for their complaints.

65.  The Government did not provide any comments regarding the applicants’ complaint under Article 5 of the Convention or dispute the underlying facts as submitted by them.

66.  The applicants maintained their complaints.The Court’s assessmentAdmissibility

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

(a)   The complaints under Article 3 of the Convention

68.  The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention in respect of the close relatives of the victim. The essence of such a violation 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 news of the missing person’s death has been preceded by a sufficiently long period in which he or she may be deemed to have disappeared, there exists a distinct period during which applicants suffer the uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances (see Luluyev and Others, cited above, § 115).

69.  The Court reiterates its findings regarding the State’s responsibility for the abduction and death of the applicants’ relative and the failure to carry out a meaningful investigation into the incident. It finds that the applicants, who are close relatives of the deceased, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish that they suffered from 24 June 2011 until 10 January 2012  the six months and seventeen days that they were unable to ascertain the fate of their missing family member – and of the manner in which their complaints have been dealt with (compare Kukayev v. Russia, no. 29361/02, §§ 107-10, 15 November 2007, and Alikhanovy, cited above, § 95), where the Court found a violation of Article 3 of the Convention in respect of a shorter period of disappearance of about four months).

70.  As to the applicants’ complaint concerning the alleged ill-treatment of Mr Khalid Dushayev, the Court does not find it necessary to examine it separately in view of its findings under Article 2 of the Convention (see paragraphs 57 and 62 above) (see Sultygov and Others v. Russia, nos. 42575/07 and 11 others, § 456, 9 October 2014, and Alikhanovy, cited above, § 93).

(b)   Complaint under Article 5 of the Convention

71.  The Court notes that the Government did not expressly dispute the facts of the case as submitted by the applicants, including their allegation that Mr Khalid Dushayev had been taken into custody by State agents. Regard being had to the above, the circumstances of the case and its conclusion under the substantive limb of Article 2 of the Convention (see paragraph 62 above), the Court finds it established that Mr Khalid Dushayev’s death followed his detention in custody – apparently without any legal grounds or acknowledgment of such detention.

72.  The Court has found on many occasions that unacknowledged detention constitutes a complete negation of the guarantees contained in Article 5 of the Convention 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). It sees no reason to reach a different conclusion in the present case. Accordingly, there has been a violation of Article 5 of the Convention in respect of the applicants’ missing relative.

(c)   Complaint under Article 13 of the Convention

73.  The Court observes that the applicants’ complaint under Article 13 of the Convention in conjunction with Article 2 of the Convention concerns the same issues as those examined above under the procedural limb of Article 2 of the Convention. Having regard to its conclusion above under Article 2 of the Convention (see paragraph 57 above), the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention (see Gaysanova v. Russia, no. 62235/09, § 142, 12 May 2016, Fanziyeva v. Russia, no. 41675/08, § 85, 18 June 2015; Perevedentsevy v. Russia, no. 39583/05, § 126, 24 April 2014; and Shumkova v. Russia, no. 9296/06, § 123, 14 February 2012).APPLICATION OF ARTICLE 41 OF THE CONVENTION

74.  Article 41 of the Convention provides:

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

75.  The first, second and third applicants claimed 1,377,296 Russian roubles (RUB) (approximately 18,740 euros (EUR)), RUB 586,758 (EUR 7,985) and RUB 486,858 (EUR 6,625) respectively in compensation for pecuniary damage caused by the loss of financial support from their husband and father Mr Khalid Dushayev, who had been the breadwinner in the family. Their calculation was based on the Ogden Actuarial Tables and the monthly subsistence level in Russia.

76.  The Government left the issue to the Court’s discretion.

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

78.  Having regard to its conclusions in the present case, the principle set out above, as well as the parties’ submissions, the Court awards EUR 9,000 to the first applicant, EUR 4,000 to the second applicant and EUR 3,000 to the third applicant in respect of pecuniary damage, plus any tax that may be chargeable to them on that amount.Non-pecuniary damage

79.  The applicants also claimed compensation in respect of non-pecuniary damage in an amount to be determined by the Court.

80.  The Government left the issue to the Court’s discretion.

81.  The Court accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and makes a financial award.

82.  In the light of the above principle, and bearing in mind the sums awarded in similar cases (see, for a recent example, Abubakarova and Others v. Russia [CTE], no. 867/12 and 9 others, 4 June 2019), the Court awards the applicants EUR 80,000 jointly in respect of non-pecuniary damage, plus any tax that may be chargeable to them on that amount.Costs and expenses

83.  The applicants claimed EUR 4,197 for the costs and expenses incurred before the Court, which they asked to be transferred into the bank account of their representative before the Court.

84.  The Government left the issue to the Court’s discretion.

85.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 covering all costs and expenses under that head, plus any tax that may be chargeable to the applicants. The award is to be paid into the bank account of the applicants’ representative, as indicated by the applicants.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,Decides to join to the merits the Government’s objection as to the non‑exhaustion of domestic remedies and rejects it; Declares the application admissible;Holds that there has been a procedural violation of Article 2 of the Convention on account of the failure to conduct an effective investigation into the circumstances of Mr Khalid Dushayev’s disappearance and death;Holds that there has been a substantive violation of Article 2 of the Convention in respect of Mr Khalid Dushayev;Holds that there has been a violation of Article 3 of the Convention in respect of the applicants on account of their mental suffering;Holds that it is not necessary to examine separately the complaint under Article 3 of the Convention concerning the alleged ill-treatment of Mr Khalid Dushayev;Holds that there has been a violation of Article 5 of the Convention in respect of Mr Khalid Dushayev;Holds that it is not necessary to examine separately the complaint under Article 13 of the Convention in conjunction with Article 2 of the Convention;Holds

(a)  that the respondent State is to pay the applicants, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)        EUR 9,000 (nine thousand euros) to the first applicant, EUR 4,000 (four thousand euros) to the second applicant and EUR 3,000 (three thousand euros) to the third applicant, plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)      EUR 80,000 (eighty thousand euros) to the applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)     EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses. The award is to be paid into the bank account of the applicants’ representative, as indicated by the applicants;

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

Done in English, and notified in writing on 21 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen Phillips Alena Poláčková
RegistrarPresident

 

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